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Sent: Wed, 13 Feb 2008 10:16 am
Subject: Bush's Law -- and Who Goes to Prison If You Apply the Same Law to Bush
& Co
Bush Justice Department Goes After Another Democratic
Lawyer (And Why This is Bad News for Yoo and Bradbury)
Scott
Horton
February
9, 2008
http://www.harpers.org/archive/2008/02/hbc-90002346
"Government prosecutors are saying that
by offering a legal opinion, the attorney made himself into
a part of a conspiracy. So, whether that opinion was right or wrong,
he became just another cog in a criminal enterprise."
It’s beginning to sound like a stuck record.
Another strike by the Bush Justice Department, keeping the country safe.
Who’s the target this time? A crack dealer? An al Qaeda terrorist? No.
It’s a wing-tip shoed Miami lawyer, who served as president of the bar
association, is held in universally high esteem (outside, of course, of
the political hacks who run the Bush Justice Department) and who advised
Al Gore in the 2000 Florida recount battle. According to the Justice
Department, the lawyer’s involvement with Democratic politics has nothing
to do with his being charged. Quite a few of his contemporaries are
having
problems buying that, and still bigger problems understanding his
supposed
“crime.”
Here’s the way the Miami Herald broke the story on
Thursday:
Ben Kuehne, a widely respected Miami lawyer whose
clients have included former Vice President Al Gore and other major
politicians, surrendered Thursday on federal criminal charges for his
behind-the-scenes role in a complex international drug-trafficking
case.
An indictment, unsealed at his morning court appearance, charges Kuehne
in a money-laundering conspiracy with approving tainted legal payments
by an accused Colombian drug kingpin to his defense attorney in Miami.
The fee payments turned out to be illegitimate because
they allegedly came from drug proceeds in violation of federal law,
federal prosecutors said. Kuehne, appearing in Miami federal court at
10
a.m., said: “Since I am completely innocent of these charges, I am
entering a plea of not guilty. . .”
Justice Department officials allege that Kuehne broke
the law in 2002-03 when he vouched for millions paid by one-time
Medellín drug lord Fabio Ochoa Vasquez to his high-profile trial
attorney, Roy Black. Kuehne’s research gave Black the confidence — in
the form of legal opinion letters — to accept payments totaling $3.7
million in fees and $1.3 million in expenses from Ochoa, according to
several sources. Kuehne earned a portion of the expense payments —
$220,000 to $260,000 — from Black for vetting Ochoa’s payments. The
payments were documented to a specific commercial operation and holding
long in the hands of the Ochoa family: a horse and cattle farm in
Colombia.
The Herald is giving its reporting a good
bit of Justice Department spin. What exactly is Kuehne’s involvement in
this “conspiracy”? He was asked by another lawyer to give an opinion: did
he think the retainer that was offered by a client could be accepted? He
looked at the money and its provenance and gave a positive opinion. But
according to the indictment, he went beyond the opinion by receiving and
passing on a series of retainer payments.
Some other facts make the Justice Department’s
conduct look stranger still. The matter was not determined by local
attorneys in the Miami U.S. Attorney’s office, but by political
appointees
from main Justice in Washington. Law.com collects a number of statements
from leaders in the Florida bar, reacting angrily to the charges,
including Kuehne’s lawyer:
“This highly improbable charge involves important and
unprecedented issues of law, policy and procedure,” Moscowitz wrote.
The
indictment was brought by Assistant U.S. Attorneys John Seller and
Thomas Pinder of the Justice Department’s asset forfeiture and money
laundering section in Washington. The case went to Washington because
the U.S. Attorney’s office in Miami had a conflict as Ochoa’s
prosecutor. Magistrate Brown’s courtroom overflowed with attorneys who
support Kuehne. They included CNN legal commentator Jayne Weintraub and
criminal defense attorney Frank Quintero Jr., who won a hard-fought
acquittal on drug-smuggling conspiracy and laundering charges. Others
waited outside because the courtroom was too small for everyone who
wanted to attend. Leaving court, Kuehne was upbeat and thanked everyone
for their support. “Ben Kuehne has more integrity than any lawyer I
know,” Weintraub said. The prosecution is “an indictment on the legal
profession.”
Other lawyers angrily denounced the charges.”It’s now
official: It’s a crime to be a criminal defense attorney,” Miami
criminal defense attorney Milton Hirsch said. Referring to Kuehne’s
courtly, buttoned-down demeanor, he said, “They picked a guy who sleeps
with wing-tipped shoes on and indicted him for going above and beyond
to
make sure legal fees paid to a different lawyer are clean.”
In sum, the prosecutors are saying that by
rendering a legal opinion, Kuehne made himself into a part of a
conspiracy. So whether his opinion was right or wrong, he was just
another
cog in a criminal enterprise. They’re arguing that he cannot claim an
innocent mistake as to the law or the facts as a defense. The Government
will get its chance to prove its claims and Kuehne will get to defend
against them in a court room.
But the Government’s claims spell real trouble,
and indeed possible prison time, for some senior people at the Department
of Justice. Just this week, Michael Mukasey appeared before the House
Judiciary Committee and said that federal agents were absolutely entitled
to rely on his opinions, or the opinions rendered by his two
predecessors,
concerning torture techniques. He testily told Chairman Conyers that he
refused to authorize an investigation into the torture or mistreatment of
prisoners pursuant to approved torture techniques, because torture that
was approved could not be investigated or charged. It all rested on the
opinions issued by the Office of Legal Counsel. And he refused to
disclose
those opinions, although he said he agreed with them.
But I for one do not believe Mukasey. His
statements on the law are clearly erroneous. In fact, Mukasey is
too smart to actually believe the absurdities he uttered under oath
before
Congress. He is dissembling for a political reason — to provide cover for
a series of criminal acts by cloaking them with the protective embrace of
an attorney’s opinion. And that’s precisely what Mukasey’s own team are
charging is a crime when done by Kuehne.
Now if the prosecutors charging Kuehne are
correct, then John Yoo and Steven Bradbury ought to be very worried. Each
of them issued legal opinions at the Office of Legal Counsel crafted for
the purpose of sanctioning the torture of human beings who have not been
charged with any wrongdoing. They appear to have embraced a series of
specific torture techniques, including
• Waterboarding
• Hypothermia
• Long-time
standing
• Sleep deprivation in excess of 48 hours
• The use of
psychotropic drugs
• The sensory deprivation- and overload program
(“Kubark”)
The first four of these techniques were labeled
as “torture” by all modern American administrations up to the arrival of
George W. Bush. Each is a violation of multiple federal criminal laws,
starting with the Anti-Torture Act and the War Crimes Act, and no serious
issue exists on that point. In fact, the Judge Advocates General of each
of the uniformed services testified to that effect before Congress,
citing
the existing statutory and case precedent. (Apparently, OLC hasn’t been
paying its LEXIS bills, since it doesn’t seem to be able to locate the
law, the treaties or the prior cases. That, unfortunately, won’t figure
as
much of a defense).
So if we apply the reasoning the Justice
Department advances in the Kuehne case, Yoo and Bradbury are engaged in a
criminal conspiracy to subvert the law and may be chargeable in
connection
with the underlying crimes. And indeed, while Michael Mukasey certainly
won’t charge these cases, the Attorney General he cited to the Judiciary
Committee as his personal model, Robert H. Jackson, absolutely would. In
fact, we can cut from the speculative: he did. The case is called
United States v. Altstoetter and the defendants in that case
include two officials of the Justice Department who gave erroneous advice
under international humanitarian law which led to more than a thousand
persons being tortured or shot. The sentence? Ten years, less time
served.
And in fact the lawyers got off lightly–they were released after seven
years for good behavior.
There is also a material difference between the
Kuehne case and the future charges against Yoo and Bradbury. The Kuehne
case looks very much like a cheap political stunt; payback for another
lawyer who tried to stand in the way of Bush’s march to power. The Yoo
and
Bradbury cases will be deadly serious. Moreover, bringing them will be
the
cost of our nation’s restoring the world’s faith once more to the pledge
that Robert Jackson gave in 1945. “To pass these defendants a poisoned chalice
is to put it to our
own lips as well,” he said—he was talking about a commitment to abide by
the rules of international humanitarian law which the United States
largely wrote. Jackson left the nation a great and noble legacy. And the
Justice Department today is a blight in the face of it.
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