Category Archives: Legislation

The Beltway Lawyer Chatter about the Trump Admin

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As Trump Tests Legal Boundaries, Small DOJ Unit Poised for Big Role

Zoe Tillman, The National Law Journal

President-elect Donald Trump moved quickly in naming his picks for two key legal posts, selecting a conservative politician in Sen. Jeff Sessions to run the U.S. Department of Justice and a loyal adviser in Jones Day partner Donald McGahn II to serve as White House counsel.

Washington lawyers now have their eyes on a less visible appointment, but one that could set the tone on issues ranging from how completely the incoming president separates himself from his business interests to how his administration acts on campaign promises to spike trade agreements and revive harsh interrogation policies.

The Justice Department’s Office of Legal Counsel, which handles legal questions from the White House and federal agencies, often has the last word on murky areas of law and there are plenty trailing Trump into the White House. That positions the next OLC chief to play a key role as the White House maps out its agenda but may also mean navigating delicate politics in an administration that seems bent on testing conventional legal doctrine.

Former OLC officials say the next head of the office will have to walk a fine line to be a lawyer Trump trusts and won’t try to circumvent, without being seen as a rubber stamp.

“It’s going to be an interesting time at OLC because a number of issues are going to be turned upside down,” said Walter Dellinger, a partner at O’Melveny & Myers who led the office from 1993 to 1996.

Citing Trump’s statements in favor of waterboarding, for instance, Dellinger said “the fact that the incoming president has stated in several areas that he intends not to follow existing law will make the position more challenging—and more interesting.”

The Office of Legal Counsel often has a behind-the-scenes role in controversial executive branch policies. Under President George W. Bush, the Office of Legal Counsel established the legal framework for harsh interrogation techniques such as waterboarding; under President Barack Obama, it signed off on the deferral of deportation for millions of undocumented immigrants.

Questions about Trump’s ties to his eponymous company are expected to reach the office early in the new administration. In 2009, the OLC published an opinion about Obama’s acceptance of the Nobel Peace Prize, concluding that it didn’t violate the constitutional prohibition on receiving gifts or titles from foreign governments. Trump’s business dealings overseas and ties that his U.S. properties have to foreign governments present a new set of ethics questions.

Should Trump follow through on his campaign pledges to roll back Obama’s executive actions and federal regulations on everything from immigration to climate change, the office would advise him on whether he could do it, and how.

Early in Obama’s presidency, the OLC withdrew legal opinions from the second Bush administration about the use of harsh interrogation techniques on terror suspects. Trump, who said on the campaign trail that “torture works,” could ask the office to revisit the issue.

A large part of the office’s work is resolving legal spats among agencies and interpreting federal laws and regulations. The lawyers review executive orders, and serve as an adviser to the executive branch on separation-of-powers issues. Occasionally, a big legal question—like torture or government surveillance—will come through.

John McGinnis, a professor at Northwestern University Pritzker School of Law who served as deputy assistant attorney general in the office from 1987 to 1991, cautioned against assuming that Trump’s campaign proclamations signal the policies he’ll embrace as president.

“People in campaigns, this is all politicians, do not speak in policy legal terms. I would not want to predict that what will come to OLC can be captured in the soundbites of a campaign,” McGinnis said.

Since the election, Trump has continued to express his interest in reviving the practice of waterboarding, although he said in a recent interview with The New York Times that he was intrigued by his conversation with a military general who said the practice wasn’t effective.

LEGAL CREDIBILITY

The Office of Legal Counsel is staffed by about 25 attorneys and has a budget of roughly $8 million. Yet because of its influence, it is one of the more politically contentious offices at the Justice Department. That was especially true in the years after the Sept. 11, 2001, terrorist attacks, when the office faced criticism for providing a legal rationale for torturing terror suspects. Both Bush and Obama saw nominees to lead the office stall in the Senate amid partisan opposition.

With a Republican majority in the U.S. Senate and weakened filibuster rules for executive nominees, Trump is expected to have an easier time getting his nominee through.

Some former DOJ officials questioned whether Trump might have a tough time finding a lawyer willing to serve, given the nature of the legal questions they’re expected to confront and the president-elect’s reputation as someone who doesn’t like to be told “no.”

A former top DOJ official in the second Bush administration who spoke on condition of anonymity said he knew lawyers who were hesitant about working for the department and for the OLC, given the controversial questions that office takes on. However, he said that there were many others who would want to work in government regardless of reservations they might have about the president-elect. .

The office has been a stepping stone for many influential lawyers. Among those who held the post under past Republican presidents are the late Supreme Court justices William Rehnquist and Antonin Scalia; Gibson, Dunn & Crutcher partner Theodore Olson; J. Michael Luttig, general counsel of The Boeing Co. and a retired judge on the U.S. Court of Appeals for the Fourth Circuit; and Ninth Circuit Judge Jay Bybee, who ran the office in the aftermath of 9/11 and signed the legal opinion authorizing “enhanced interrogation techniques.”

Carl Nichols, a partner at Wilmer Cutler Pickering Hale and Dorr and a former principal deputy associate attorney general during the second Bush administration, said the OLC chief is typically one of the most trusted advisers to the attorney general.

The office has “enormous legal credibility,” Nichols said. The specifics of the legal questions surrounding Trump and his agenda differ in some ways from his predecessors, Nichols said, but the ultimate task of grappling with the scope of executive power is a familiar one for the OLC.

“It’s a place where the White House and the agencies know if they have a hard question, they’ll have really terrific legal minds thinking about it,” he said.

HARD QUESTIONS

OLC lawyers aren’t the only ones who give legal advice to the executive branch. There are White House lawyers and each agency has its own legal department. During the Obama administration, a body of senior agency lawyers known as “The Lawyers’ Group” met to consider national security-related legal questions.

Harold Koh, a professor at Yale Law School who served as the legal adviser to the U.S. Department of State during the Obama administration and worked as a lawyer in the OLC, wrote in a recent blog post that he thought the interagency approach, which had been used in previous administrations, was the most effective process.

“Different agencies have different equities, perspectives, and areas of expertise and getting the input of all relevant legal arms of our vast executive branch is vital to sound decisionmaking,” Koh wrote.

But the OLC’s decisions carry significant weight, said Jonathan Adler, a professor at Case Western Reserve University School of Law, and although the president isn’t bound by the office’s conclusions, there’s strong precedent against defying them. That has led presidents to occasionally try to circumvent the office, Adler said, rather than having to deal with a contrary opinion. He cited as one example Obama’s decision in 2011 to reportedly eschew the usual OLC process in soliciting opinions about the legality of military action in Libya without congressional approval.

The office’s legal opinions “reflect, or are supposed to reflect, serious, largely neutral or as neutral as possible assessments of important legal questions about what the executive branch may or may not do,” Adler said.

A successful OLC head will take an “extremely proactive” approach to find ways for the administration to legally achieve policy goals, building up political capital for the occasions when the office has to tell the White House or an agency that they can’t do something within the bounds of the law, McGinnis said.

Dellinger said that his advice to an incoming president would be to pick an OLC head “who has a substantial career that gives him or her substantial stature and the ability to say no, and that will help keep you out of trouble.”

To the next head of the OLC, Dellinger said he would advise he or she to make sure to consult with career government attorneys, to always give an honest opinion of the law, and to have a good career to fall back on in the event of a serious disagreement with the White House.

“The job will drive you crazy if you’re not prepared to walk out the door,” he said.

 

Rehab Program with Fun Activities in Saudi is Fake

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Europe is trying to install and measure effectiveness of rehab programs for convicted and known terrorists. Such is the case in the United States with the DHS/WH program on Countering Violent Extremism, a euphemism to terrorist and such is the case for the failed programs in Europe. So, have these tests been modeled after those of Saudi Arabia? Let’s find out from a terrorist himself. Not sure, but memory tells us that the Guantanamo detainees actually did all of these activities during detention including having a soccer field.

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Gitmo prisoner reveals that Saudi ‘terrorist rehab’ center is a scam

Gitmo prisoner reveals that Saudi ‘terrorist rehab’ center is a scam

Photo: Kate Brooks/Redux

NYPost: Counterterrorism experts have long suspected Saudi Arabia’s “rehabilitation” center for terrorists does a poor job of de-radicalizing jihadists. But a Saudi detainee at Guantanamo Bay now reveals it’s actually a recruiting and training factory for jihad.

According to recently declassified documents, senior al Qaeda operative Ghassan Abdullah al-Sharbi told a Gitmo parole board that the Saudi government has been encouraging previously released prisoners to rejoin the jihad at its terrorist reform school, officially known as the Prince Mohammed bin Naif Counseling and Care Center.

The Obama administration has praised the effectiveness of the Saudi rehab program — which uses “art therapy,” swimming, ping-pong, PlayStation and soccer to de-radicalize terrorists — and conditioned the release of dozens of Gitmo prisoners, including former Osama bin Laden bodyguards, on their enrollment in the controversial program.

To date, 134 Saudi detainees have been transferred to the Saudi reform camps in Riyadh and Jeddah. Last year, nine Yemeni detainees were sent there, as well, and more are expected to follow over the next two months, as President Obama strives to meet his campaign goal of closing Gitmo.

Photo: Kate Brooks/Redux

Al-Sharbi dropped a bombshell on the Gitmo parole board at his hearing earlier this year when he informed members that the Saudi kingdom was playing them for suckers. “You guys want to send me back to Saudi Arabia because you believe there is a de-radicalization program on the surface.

“True. You are 100 percent right, there is a strong — externally, a strong — de-radicalization program. But make no mistake, underneath there is a hidden radicalization program,” al-Sharbi added. “There is a very hidden strong — way stronger in magnitude — broader in financing, in all that.”

Al-Sharbi is one of the longest-serving, and most unrepentant, prisoners at Gitmo. A Saudi national with an electrical engineering degree from King Fahd University, he attended a US flight school associated with two of the 9/11 hijackers. He traveled to Afghanistan in the summer of 2001 and trained at an al Qaeda camp, building IEDs to use against allied forces.

Al-Sharbi was captured March 28, 2002, at an al Qaeda safehouse in Faisalabad, Pakistan, with senior al Qaeda leader Abu Zubaydah. According to his US intel dossier, he told interrogators that “the US got what it deserved from the terrorist attacks on 9/11.”

Given a chance at parole after 14 years, however, al-Sharbi was surprisingly frank with the board.

He explained that Riyadh is actively recruiting and training fighters to battle Iranian elements in neighboring Yemen and Syria. Saudi views Shiite-controlled Iran as a regional threat to its security.

“They’re launching more wars and the [United] States is backing off from the region,” he said. “They’re poking their nose here and here and there and they’re recruiting more jihadists, and they’ll tell you, ‘Okay, go fight in Yemen. Go fight in Syria.’ ”

Al-Sharbi said the Saudis also are “encouraging” former detainees “to fight their jihad in the States.”

Photo: Getty Images

“It’s not like a past history,” he said. “It’s increasing.”

A growing body of evidence backs up his claims. Last month, for example, a WikiLeaked email from Hillary Clinton revealed, citing US intelligence sources, that Saudi Arabia has provided “clandestine financial and logistic support to” ISIS and other Sunni terrorist groups in the region.

Al-Sharbi said the kingdom is playing a double game.

“They will proudly tell you they will fight terrorism,” he said. “That means they will support it.”

Al-Sharbi told the Gitmo board he doesn’t want to enroll in the Saudi rehab program, because he would be used to “fight under the Saudi royal cloak.”

“This is in the cause of a king. This is not a true jihad,” he said. “And I’m not going to Saudi unless I am sure they’re not gonna be using me.”

The Saudi rehab ruse has carried a lot of weight with the Gitmo parole board. Earlier this year, it released “Saudi al Qaeda recruiter and fighter” Muhammed Al Shumrani after his lawyers insisted that repatriating him to Saudi Arabia and enrolling him in its “well-established reintegration program” would cure his admittedly “problematic behavior.”

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Photo: Kate Brooks/Redux

Last year, the defense team of longtime bin Laden bodyguard Abdul Rahman Shalabi insisted that the same Saudi rehab program would make sure he’s reformed. In approving his release, the board said that it was “confident about the efficacy of the Saudi program.”

In both cases, US intelligence warned the board that the hardened terrorists would more than likely “re-engage in terrorist activity.”

By Riyadh’s own numbers, some 20 percent of the terrorist enrollees at its rehab club — which features golf carts, palm trees and an Olympic-size pool — go back to the jihad, returning to the ranks of the Taliban or al Qaeda. US officials believe the recidivism rate is much higher, but Saudi Arabia does not disclose criteria for evaluation.

One high-profile failure was Said Ali al-Shihri. After his graduation from the Saudi program, he returned to Yemen, where he ran an al Qaeda branch and helped plan the deadly bombing of the US Embassy and mastermind the failed plot to blow up a 2009 Christmas flight over Detroit, before a drone-fired missile finally caught up to him.

The Saudi center is more holiday resort than halfway house for paroled inmates. Jihadists are rewarded with gourmet meals, video games, ping-pong, jacuzzis and newly furnished private apartments reserved for conjugal visits. They also are allowed unescorted visits to family members. In September, the center granted “beneficiaries” Eid al-Adha holiday vacation for 12 days.

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Photo: Getty Images

Graduates are further rewarded with young brides and new cars.

Lending credence to al-Sharbi’s charges, the three-month program includes a few hours a day of lessons in Islam from Saudi clerics and “Shariah specialists.”

“Beneficiaries spend 15 hours a week in the Shariah program,” according to a local Jeddah press report, which is triple the amount of time devoted to psychological counseling.

Al-Sharbi’s parole was declined; he is still in Gitmo, along with 60 detainees — down from the 241 who were there when Obama started his term.

But with the administration rushing to reduce that number even further before the end of Obama’s term, how many more jihadists will be released into this highly suspect program?

Congress has an obligation to ask hard questions: Is this a pre-emptive campaign to prevent terror attacks or more likely an incubator for facilitating more attacks?

Why Obama will not Release KSM from Gitmo

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KSM’s response to questions: “The Islamic Response to the Government’s Nine Accusations”

ksm-gitmo

A horrifying look into the mind of 9/11’s mastermind, in his own words

What is it like to stare into the face of evil? James E. Mitchell knows.

WaPo: In his gripping new memoir, “Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying To Destroy America,” Mitchell describes the day he was questioning Khalid Sheik Mohammed, when the 9/11 mastermind announced he had something important to say. “KSM then launched into a gory and detailed description of how he beheaded Wall Street Journal reporter Daniel Pearl,” Mitchell writes. Up to that moment, the CIA did not know KSM had personally carried out the murder. When asked whether it was “hard to do” (meaning emotionally difficult), KSM misunderstood the question. “Oh, no, no problem,” KSM said, “I had very sharp knives. Just like slaughtering sheep.”

To confirm his story, the CIA had KSM reenact the beheading so that it could compare the features of his hands and forearms to those in the video of Pearl’s murder. “Throughout the reenactment, KSM smiled and mugged for the cameras. Sometimes he preened,” Mitchell writes. When informed that the CIA had confirmed that he was telling the truth, KSM smiled.

“See, I told you,” KSM said. “I cut Daniel’s throat with these blessed hands.”

This is the pure evil Mitchell and his colleagues confronted each day at CIA “black sites.” “I have looked into the eyes of the worst people on the planet,” Mitchell writes. “I have sat with them and felt their passion as they described what they see as their holy duty to destroy our way of life.”
*** As a reminder, this is a video of a short interview with Mr. Mitchell.

The world has heard almost nothing from KSM in the 15 years since the 9/11 attacks, but Mitchell has spent thousands of hours with him and other captured al-Qaeda leaders. Now, for the first time, Mitchell is sharing what he says KSM told him.

Mitchell is an American patriot who has been unjustly persecuted for his role in crafting an interrogation program that helped stop terrorist attacks and saved countless lives. He does not shy from the controversies and pulls no punches in describing the interrogations. If anything, readers may be surprised by the compassion he showed these mass murderers. But the real news in his book is what happened after enhanced interrogations ended and the terrorists began cooperating.

 

Once their resistance had been broken, enhanced interrogation techniques stopped and KSM and other detainees became what Mitchell calls a “Terrorist Think Tank,” identifying voices in phone calls, deciphering encrypted messages and providing valuable information that led the CIA to other terrorists. Mitchell devotes an entire chapter to the critical role KSM and other detainees played in finding Osama bin Laden. KSM held classes where he lectured CIA officials on jihadist ideology, terrorist recruiting and attack planning. He was so cooperative, Mitchell writes, KSM “told me I should be on the FBI’s Most Wanted List because I am now a ‘known associate’ of KSM and a ‘graduate’ of his training camp.”

KSM also described for Mitchell many of his as yet unconsummated ideas for future attacks, the terrifying details of which Mitchell does not reveal for fear they might be implemented. “If we ever allow him to communicate unmonitored with the outside world,” Mitchell writes, “he could easily spread his deviously simple but potentially deadly ideas.”

But perhaps the most riveting part of the book is what KSM told Mitchell about what inspired al-Qaeda to attack the United States — and the U.S. response he expected. Today, some on both the left and the right argue that al-Qaeda wanted to draw us into a quagmire in Afghanistan — and now the Islamic State wants to do the same in Iraq and Syria. KSM said this is dead wrong. Far from trying to draw us in, KSM said that al-Qaeda expected the United States to respond to 9/11 as we had the 1983 bombing of the Marine barracks in Beirut — when, KSM told Mitchell, the United States “turned tail and ran.” He also said he thought we would treat 9/11 as a law enforcement matter, just as we had the bombings of the U.S. embassies in Kenya and Tanzania and the USS Cole in Yemen — arresting some operatives and firing a few missiles into empty tents, but otherwise leaving him free to plan the next attack.

“Then he looked at me and said, ‘How was I supposed to know that cowboy George Bush would announce he wanted us ‘dead or alive’ and then invade Afghanistan to hunt us down?’” Mitchell writes. “KSM explained that if the United States had treated 9/11 like a law enforcement matter, he would have had time to launch a second wave of attacks.” He was not able to do so because al-Qaeda was stunned “by the ferocity and swiftness of George W. Bush’s response.”

But KSM said something else that was prophetic. In the end, he told Mitchell, “We will win because Americans don’t realize . . . we do not need to defeat you militarily; we only need to fight long enough for you to defeat yourself by quitting.”

KSM explained that large-scale attacks such as 9/11 were “nice, but not necessary” and that a series of “low-tech attacks could bring down America the same way ‘enough disease-infected fleas can fell an elephant.’ ” KSM “said jihadi-minded brothers would immigrate into the United States” and “wrap themselves in America’s rights and laws” until they were strong enough to rise up and attack us. “He said the brothers would relentlessly continue their attacks and the American people would eventually become so tired, so frightened, and so weary of war that they would just want it to end.”

“Eventually,” KSM said, “America will expose her neck for us to slaughter.”

KSM was right. For the past eight years, our leaders have told us that we are weary of war and need to focus on “nation building at home.” We have been defeating ourselves by quitting — just as KSM predicted.

But quitting will not bring us peace, KSM told Mitchell. He explained that “it does not matter that we do not want to fight them,” Mitchell writes, adding that KSM explained “America may not be in a religious war with him, but he and other True Muslims are in a religious war with America” and “he and his brothers will not stop until the entire world lives under Sharia law.”

 

Govt Wastebook Report, Repeat, Year After Year

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Snuggies, Shakespeare top annual government wasteful-spending list

WashingtonTimes: If Shakespeare is performed without the bard’s immortal words, is it really Shakespeare?

The National Education Association has committed $10,000 of taxpayers’ money to test that question — one of dozens of projects to make the wasteful spending list of Sen. James Lankford, an Oklahoma Republican who’s continuing the tradition of former Sen. Tom Coburn’s annual Wastebook.

The National Science Foundation again comes in for an outsized share of criticism for its research spending, including a $1.8 million grant to a university that spent some of the money on embroidered Snuggies, the robe-style blankets that are a staple of As-Seen-On-TV trinket advertising.

NSF officials also paid $315,000 to study whether Americans see the court system as fair, Mr. Lankford said in his second annual “Federal Fumbles” report.

“Our current spending habits are unsustainable and irresponsible,” Mr. Lankford said in releasing the report, which documented more than 100 areas where he said the federal government botched its spending decisions.

The silent Shakespeare grant Mr. Lankford highlighted is actually a repeat-performance. The senator’s first report in 2015 also cited the NEA for funding the Synetic Theater’s attempt to convert verbal witticisms into expressive gestures. This year’s production was “Twelfth Night.”

Mr. Lankford said the theater company may be doing good work, but it should stand on its own, not with taxpayer money.

He said Congress and the executive branch need to spend more time scouring spending. He said one step toward that would be to enact the Grant Reform and New Transparency (GRANT) Act, which would give the public more information about the grant process, which accounted for some $617 billion in federal spending in 2015.

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Example:

X CONFERENCE: Spending

X TEAM: Immigration and Customs Enforcement

O FUMBLE: $6 million to repair a building that remains unsafe

O HOW TO RECOVER THE BALL: ICE should conduct a cost-benefit analysis and a feasibility

study before renovating an existing building, where the cost could exceed $1 million

Talk about a tale of woe! In San Pedro (essentially Los Angeles, CA), ICE used a former

Service Processing Center to house detainees until it had to close due to safety concerns. Then

ICE decided to move employees back into the building while it processed and held illegal

immigrants temporarily.

X CONFERENCE: Spending

X TEAM: National Institutes of Health

O FUMBLE: $2,658,929 weight-loss program for truck drivers

O RECOVERY: Congress should develop clearer expectations for areas of research for NIH

The American economy is powered in no small part by the thousands of trucks on the road

each day. It is certainly important for individuals behind the wheel of giant 18-wheelers to be healthy. But do taxpayers really need to spend more than $2.6 million on a trucker weight-loss intervention program?

 Heck. read the report here.

Agencies Presenting Midnight Regulations for Obama to Sign

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Agencies have their lists for Obama to approve. What does Trump know and what is he prepared for? The last days of the Obama administration could be the most dangerous of his administration, is anyone paying attention?

 

Obama is set to ram through last-minute ‘midnight’ regulations to secure his legacy and tie President Trump’s hands

  • ‘Midnight regulations’ are a last chance for a president to make his mark
  • As many as 98 final regulations are under review at the White House
  • These include air pollution from the oil industry and measures aiming to help highly skilled immigrant workers obtain green cards

DailyMail: Barack Obama is set to ram through last minute regulations to try and cement his legacy.

‘Midnight regulations’ are those introduced between November’s election and January’s inauguration of a new president.

It is a last chance for an outgoing Commander-in-chief to put his stamp on the presidency and, in the case of Obama, tie the hands of his controversial successor.

Obama can pass the rules because of a loophole in US law allowing him to put last-minute regulations into the Code of Federal Regulations (rules that have the same force as law).

As many as 98 final regulations are under review at the White House and could be implemented before the brash billionaire takes office.

Seventeen of those are considered ‘economically significant’, with an estimated economic impact of at least $100m a year, Politico reported.

Obama is trying to push through regulations on issues close to him such as air pollution from the oil industry and measures aiming to help highly skilled immigrant workers obtain green cards.

He is also pressing ahead with negotiations on an investment treaty with China and decisions by the Education Department on whether to offer debt relief to students at defunct-for-profit colleges.

By contrast, Trump has shown a disdain for climate change and campaigned on an anti-immigration rhetoric, describing Mexicans as ‘rapists’ and pledging to build a wall on the US border with Mexico.

The Republican has also criticized China’s trade and currency practices and threatened to impose tariffs up to 45 per cent on Chinese imports.

Gina McCarthy, US Environment Protection Agency Administrator, said: ‘We’re running – not walking – through the finish line of President Obama’s presidency.’

Obama has gone ahead with the ‘midnight regulations’ despite House Majority Leader Kevin McCarthy warning him against doing so.

In a letter on November 15, he said: ‘Should you ignore this counsel, please be aware that we will work with our colleagues to ensure that Congress scrutinizes your actions – and, if appropriate, overturns them’.

Trump has also vowed to cancel ‘every wasteful and unnecessary regulation which kills jobs and bloats government.’

The so-called ‘midnight regulations’ can be reversed by the same executive agencies, but that requires a considerable rule-making process.

Congress could also effectively overturn them by passing more explicit statutory mandates – but risk turning an unwanted regulation into law.

A final powerful weapon at their disposal is the Congressional Review Act – however it has only ever been used once. This gives Congress 60 legislative days to review and overturn major regulations enacted by federal agencies.