Leahy Calls One-Day, One-Witness Hearing on OPR Report: Who is Gary Grindler?

“Do you know who the Rosenbergs are?” [the agent] asked.

“I heard of them, yeah, I heard them mention,” Dr. Lee said.

“The Rosenbergs are the only people that never cooperated with the federal government in an espionage case,” she said. “You know what happened to them? They electrocuted them, Wen Ho.”

I couldn't find much online about Acting Deputy Attorney General Gary Grindler, the man tapped by Sen. Patrick Leahy to appear at the Senate Judiciary's hearing this Friday, February 26 (H/T Bob in AZ).

The one-day minimal hearing is supposed to show the Senate registering oversight on the OPR report and the Margolis intervention to clear John Yoo and Jay Bybee of "professional misconduct" in the torture memos affair.

Did I say that Mr. Grindler is also considered an excellent attorney, having won the The Best Lawyers in America award in the area of white collar criminal defense?

I also see that he played a minor role in the controversies around the Wen Ho Lee investigation and incarceration. At the time (circa 1999-2000), Mr. Grindler was Principal Associate Deputy Attorney General in Janet Reno's DoJ. Wen Ho Lee, a Taiwanese-American, had been a scientist at Los Alamos National Laboratory in New Mexico for approximately 20 years prior to his arrest.

The situation was this: the FBI and DoJ had bungled their investigation of possible spy Wen Ho Lee so badly that the supposed evidence in the case was hopelessly compromised. Nevertheless, after he was arrested, Lee was placed under onerous Special Administrative Measures (SAM). Ultimately he spent nine months in strict solitary confinement, until he agreed to a plea agreement on a felony count of improperly downloading Restricted Data. He was released from custody and served no subsequent jail time.

According to a Senate investigation in 2001:

Specifically, Dr. Lee’s confinement consisted of 24 hour supervision by a rotation of guards, permission to speak only with his attorneys and immediate family members (his wife, daughter and son) and in English only, non-contact visits from his immediate family members limited to one hour per week, no personal phone calls, and that he remain secured in his cell 24 hours a day./246/ Further, Dr. Lee was to remain in full restraints (leg and hand irons) anytime he was to be out of his cell being moved from one location to another./247/

As previously noted, Dr. Lee’s lawyers protested his conditions of confinement almost from the beginning.

An Internet site set up to support Dr. Lee elaborated on his situation:

A chain around his belly connecting to his handcuff prevents him from raising his hand above his head. We were told that two U.S. Marshals with machine guns accompanied him whenever he goes within the confine of the prison and a 'chase car' with armed Marshals follows Dr. Lee when he is moved from Santa Fe to Albuquerque and back.

The judge who initially denied Dr. Lee a pretrial release, nevertheless admonished the government “to explore ways to loosen the severe restrictions currently imposed upon Dr. Lee while preserving the security of sensitive information.” But the government wouldn't have any of that. As to the kind of interrogation Dr. Lee received, a small piece of the transcript is quoted at the lead of this article.

When Janet Reno told Gary Grindler that there were protests about Lee not getting enough exercise time, Grindler wrote a memo back to her:

A January 12, 2000 memorandum to the Attorney General from Principal Associate Deputy Attorney General Gary Grindler demonstrates that at least some of the concerns of Dr. Lee’s lawyers were taken to the highest reaches of the Justice Department. The memo notes that the Attorney General had “advised that some individuals have expressed concern about Dr. Lee’s access to exercise,” and explains that the order for Special Administrative Measures that she was being asked to sign “does not limit Dr. Lee’s access to exercise. According to the Santa Fe County Jail rules, Dr. Lee will be limited to one-hour per day of exercise, as are all administrative segregation prisoners.”

I can’t access the memo, but I wonder if Grindler mentioned that the exercise hour was conducted in shackles, and continued so until July 2000.

The Senate Judiciary Subcommittee on Department of Justice Oversight concluded:

While the government may have believed such harsh conditions were necessary, they have not made a convincing case. Judge Parker was not convinced by the government’s arguments, and granted Dr. Lee’s renewed motion for pretrial release on August 24, 2001. In his remarks at the plea hearing, Judge Parker expressed his sentiments, telling Dr. Lee that “since by the terms of the plea agreement that frees you today without conditions, it becomes clear that the Executive Branch now concedes, or should concede, that it was not necessary to confine you last December or at any time before your trial.”

…. After careful review, it becomes apparent that the government was right to reach a plea agreement with Dr. Lee, whose actions did constitute a serious threat to the national security, but was wrong to hold him virtually incommunicado in pretrial confinement for more than nine months.

Not too much to go on here, but Grindler’s association with abusive conditions of imprisonment should be explored, given the nature of his testimony and appearance in this context. But leaving aside Grindler and the issues associated with him, Leahy's hearing feels almost like a joke, a kick-in-the-teeth to those of use who are extremely concerned and disgusted about the way this country has handled the torture issue. Where is Yoo? Bybee? David Margolis or Eric Holder? These are the people you'd think any competent Congressional committee would call on the carpet. But all the power of Congress these days vis-a-vis the Executive Branch appears it could fit in a teacup.

As psychologist-activist-blogger Stephen Soldz put it in an article on the OPR report and Margolis memo:

A beautiful job, now completed by Obama-Holder Justice Department hack Margolis. Future lawless administrations now have a ready template to use to provide legal rationale for any abuses they desire.

As a postscript to this story, it should be noted that:

In June 2006, Lee received $1.6 million from the federal government and five media organizations as part of a settlement of a civil suit he had filed against them for leaking his name to the press before any formal charges had been filed against him. Federal judge James A. Parker eventually apologized to Lee for the government misconduct of which he had been the victim.

Politicizing Crime, the OPR Report and the Degeneracy of the Ruling Elite

"Know thou this, that men are as the time is." -- Shakespeare

In an excellent post at Inside-Out the Beltway on the controversy over the shameless refusal by the U.S. Department of Justice to formally charge former Bush-era torture memo attorneys John Yoo and Jay Bybee with professional misconduct for their work in legitimating torture on behalf of the U.S. military and CIA, Chris in DC makes a very, very important point in a response to one of his commenters (bold emphasis added):

Cetamua asked whether future administrations could prosecute Cheney and others for war crimes even if this one doesn't. I replied that this was theoretically possible (many of these crimes have no statute of limitations), but that the problem with delaying any kind of accountability for high-level misconduct is that, as time passes, the misconduct is seen as condoned by society and thus becomes much more difficult to punish.

This is especially the case where, as here, the establishment mantra throughout that time is that prosecuting the conduct is "criminalizing politics" (when, in fact, the precise opposite is happening: politicizing crime). In fact, establishment acceptance of this cynical distortion is even more harmful than mere reluctance or refusal to prosecute, because framing the criminal activity in a purely political context allows it to become openly advocated in mainstream forums by the political factions that most benefit from a failure to prosecute (e.g., Dick Cheney).

The outcome, then, of the politicization of crime caused by the "criminalizing politics" meme is that the debate shifts from whether the activity is reprehensible and punishable to whether the activity is smart and desirable. Hence, we see the continuing, unashamed arguments from right-wingers not only that brutal torture is not a crime (when done by or for the United States), but that torture is in fact wise and imperative national security policy, with its opponents cynically cast as weak and unserious for even suggesting otherwise.

This is why you cannot play games with matters as severe as these. Backing away from the only morally and legally sane response to war crimes - full criminal investigation and prosecution - is not a "trans-partisan" invitation to politely overcome the rancor and monstrousness of the past, it is the crucial first step to normalization and continuation of that same monstrousness and criminality.

While many will look at the legal aspects of the case, at the Congressional investigations supposedly to follow, etc., the overwhelming effect of reading the Office of Professional Responsiblity (OPR) material (see, for instance, Emptywheel's site, where Marcy Wheeler and a number of associates are dissecting the various components of the OPR report) is of a totally bankrupt, politically criminal government. These people operate at the moral level of an Eichmann. They are infected with the virus of torture, which in its later stages, metastasizes into feelings of omnipotence, delusions of grandeur, malignant narcissism, and outright sociopathy.

I don't believe I've seen such depictions of moral depravity at a fundamental level since the shenanigans of the distaff state of Salò.

Meanwhile, much of the population believes that Barack Obama, Eric Holder, and their associates are somehow going to change all this, even as they have taken clear steps -- not least placing David Margolis in charge of defanging the OPR report (which is from my standpoint underplayed anyway... letting Stephen Bradbury off, for instance) -- to make sure none of the governmental and military/intelligence criminals are ever held to account.

This failure to hold people accountable because the extent of U.S. criminality and illegal actions would become known has poisoned all political action in Washington, and no doubt extends to other components of government, and other issues (as in the recent failure to pass substantive health care reform).

The OPR report is a symptom of the extreme reactionary content of these political times. It is a gauntlet thrown down to the society at large. Are we really what these criminals represent? How can the mainstream press be so morally obtuse that they are not screaming about this from day one? What use a society such as this?

Links (h/t Emptywheel):

• Memorandum for the Attorney General
• OPR Final Report (a searchable copy, courtesy of burnt, is here)
• OPR 1st Draft Report (a searchable copy, courtesy of burnt, is here)
• OPR 2nd Draft Report
• Yoo Response to OPR 2nd Draft
• Yoo Response to OPR Final Draft
• Bybee Response to OPR 2nd Draft
• Bybee Response to OPR Final Draft

See also Jack Balkin's Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway, and Jason Leopold, DOJ Report on Torture Memo: Yoo Said Bush Could Order "Massacre" of Civilians.

Update -- from David Swanson's Yoo, Bybee and Disinformation (I thought this worth quoting at length, especially since I agree with David's suggestions about what to do now):

Everything you're reading about torture lawyers John Yoo and Jay Bybee getting off the hook is wrong. They are not torture lawyers, they are not off the hook, there never was any hook, they may not be lawyers for long, impeachment and indictment are on the agenda, and you have a role to play.

Calling these men "torture lawyers" is dramatically dumber than labeling Al Capone a tax cheat. These are people who provided "legal" cover for aggressive wars, who put down in documents treated as secret "laws" that any president can launch any aggressive war at his whim, without regard to domestic or international law, Congress, the Supreme Court, you, me, or morality. The very report that is the subject of the latest "news" flurry quotes Yoo declaring that, "Sure!", a president can order a village massacred....

Yoo and Bybee are openly guilty of conspiracy to engage in aggressive war, banned by the U.N. Charter and Article VI of the U.S. Constitution, and of conspiracy to torture, a felony under 18 U.S.C. § 2340A-c and § 2441, and to spy without warrants, banned by the Fourth Amendment. Their memos are public. The fact that everyone waited for years to do anything about it, until they could see the Justice Department's own report on the matter doesn't change the absolute irrelevance of such nonsense. Yoo's and Bybee's actions, no matter what you make of them, consist entirely in authorship of a series of written documents available for all to read. And those documents constitute overwhelming grounds for impeachment and indictment....

The report concludes that these war lawyers "committed intentional professional misconduct". The fact that some schmuck in the DOJ adds a note saying that they don't really mean it, doesn't change the fact that any institution in which Yoo's and Bybee's behavior did not constitute misconduct would need to be destroyed in its entirety beginning with actions to newly identify as unacceptable Yoo's and Bybee's crimes. And that they are crimes is not really impacted by whether or not they are "misconduct".

Of course the war lawyers can and must be disbarred, and you can help at http://disbartorturelawyers.com

Senator Patrick Leahy and Congressman John Conyers understand the need to at least pretend that they are not taking their orders from an agency conducting a transparent fraud.... the reports are now public and the fraud out in the open. But Leahy is asking Bybee to resign, Conyers is avoiding the word "impeachment," and neither one of these gentlemen -- stand-out frauds in their own rights -- is talking about subpoenas.

Two things are needed here. First, we need to deter ongoing crime through punishment....

Second we need to find a way for the public to re-enter our government and gain some modicum of control over what it does. That is going to require restoring powers to Congress, and that is going to require at least one committee at the very least enforcing its own subpoenas through the Capitol Police force, if not the Congress impeaching and removing from office someone who used to work in the so-called executive branch. There is a campaign building pressure to demand Bybee's impeachment at http://impeachbybee.org

The Justice Department has been publicly and lawlessly ordered by the president not to enforce laws against the war lawyers. The threat of the DOJ issuing an official recommendation of disbarment does not exactly qualify as a hook (to be let off of). Nor does impeachment, although it serves the critical purpose of shifting power back to Congress, sufficiently deter ongoing crimes. What's going to be needed in the end is prosecution. But that's going to have to come through massive public pressure and intense pressure from Congress, from abroad, and from a strengthened independent communications system.

DoJ's OPR Report Released on Yoo, Bybee Torture Memos (and David Margolis's Whitewash Memo, too)

Attorney General Eric Holder has ordered the release of the report of the Office of Professional Responsibility's (OPR) investigation into the culpability of the Office of Legal Counsel's activities in constructing the torture memos of August 2002 and beyond. These memos, written by John Yoo, Jay Bybee, Stephen Bradbury and others were rescinded in whole by Barack Obama soon after becoming president.

The OPR release is both interesting and frustrating. It contains both the first draft of the report, the second draft, the final report itself, and the memorandum for Holder written by David Margolis, which, as a Newsweek report predicted, partly exonerated Yoo and Bybee from charges of professional misconduct found in the OPR report itself, reducing their culpability to the much lesser charge of "bad judgment." (I wrote about Margolis's history at DoJ in running point guard on such cover-ups in an article at Firedoglake/The Seminal on a few weeks back. Scott Horton at Harpers also wrote his own article on some of Margolis's checkered career.)

Marcy Wheeler is currently holding forth, with her distinguished crew of commenters, in an open thread on the report over at Emptywheel/FDL. My H/T for the links above for the report go to her; and she also has links to the official replies of both Yoo and Bybee to the reports earlier drafts.

My frustrations regarding the release center around the amount of redactions. Many, if not most of them center around discussions or interactions concerning the CIA. It's clear the CIA played a central role in the vetting of the supposed safety of the SERE-centered torture techniques. CIA psychologists are said to have made representations regarding the safety of the "enhanced interrogation techniques," and solicited similar statements from SERE's parent agency, JPRA. CIA-contract psychologists, including James Mitchell and Bruce Jessen, apparently ran the torture interrogations in the Spring/Summer 2002, for which the initial torture memos were written as after the fact justifications. One thing the OPR report does is corroborate that such "EIT" interrogation took place before the memos were written.

What is not well-known is that both government military research, funded through Ft. Detrick, with the participation of CIA researchers, were involved in studying the "uncontrollable stress" of SERE-style torture in 2002. The actual deleterious effects of such torture were well-known to the military and CIA, who either kept such information from the OLC attorneys (which seems less likely now, given the amount of interaction between Yoo and the others with CIA and military attorneys like William Haynes), or lied about it to them, or they all collaborated in submarining such information.

When CIA psychiatrist-expert Charles A. Morgan (one of the key researchers in the Ft. Detrick study mentioned above) denied that his research was for anything but PTSD studies, and also denied links to the CIA, going so far as to scrub such attributions from his Wikipedia page, he didn't count on the fact that online references to his military research, which was not related centrally to PTSD, was available (see long PDF), or that an early draft version of the Intelligence Science Board's Educing Information report specifically lists him with CIA organizational ties, listed as part of the study's twelve man committee of interrogation "experts." (These are documents in my possession, not currently online.) This is a story I will be telling in full in the very near future.

Center for Constitutional Rights has released a statement on news of the report's release, and makes the following points:

In response to the release of the Justice Department’s Office of Professional Responsibility (OPR) report on the conduct of the lawyers involved in crafting and providing legal cover for the illegal torture program, the Center for Constitutional Rights issued the following statement:

At first look, the long-awaited OPR report makes it abundantly clear that the decisions about the torture program took place at the highest level, and the damning description of the program further show that the torture memos were written to order by the lawyers from the Office of Legal Counsel who played a key role in creating the program. The report underscores the need for a more thorough investigation that has more scope and powers to follow the evidence.

Among others, the lawyers John Yoo, Jay Bybee and Steven Bradbury have caused incalculable damage to our country and to thousands of victims as a result of the twisted legal advice they provided while at the Office of Legal Counsel. The OLC opinions were intended to provide legal cover for what everyone knew was illegal conduct. They advised the establishment of the prison at Guantanamo outside the law through the purposeful evasion of the Geneva Conventions and they advised the creation of a secret detention network for “enhanced interrogations” in flagrant violation of domestic and international law. Once unthinkable, they authorized and justified torture, rendition and secret CIA detention, often in a hands-on manner so detailed that it gives the lie to the notion they were giving abstract legal advice rather than making policy decisions to use torture

Ultimately Jay Bybee must be impeached, tried and removed from his seat as a federal judge on the 9th Circuit, but he should have the decency to resign immediately.

While the OPR should have recommended state bar associations professionally sanction the attorneys for ethics violations, and it is clear these men should be disbarred and prevented from ever practicing law again, we call on Attorney General Eric Holder to order these men criminally investigated by an independent special prosecutor who is allowed to follow the facts where they lead, all the way up the chain of command. We further call on the state bar associations, who are in no way bound by the conclusions of the report, to sanction the torture lawyers.

In addition, we demand that the OLC and CIA release the all of the records CCR is seeking with co-counsel through the Freedom of Information Act (FOIA) in Amnesty International, CCR, et al. v. CIA, about the CIA’s torture, rendition and secret detention practices. The time has come for the public to see all of the documents that show the role these lawyers played in fashioning one of the most shameful sets of practices ever to emanate from Washington. A review of the OPR Report further confirms the illegal nature of the CIA’s practices; the government cannot abuse the FOIA to conceal these illegal or embarrassing government actions.