The Break-In That History Forgot

New York Times:By Egil Krogh

I listened intently. At no time did I or anyone else there question whether the operation was necessary, legal or moral. Convinced that we were responding legitimately to a national security crisis, we focused instead on the operational details: who would do what, when and where.

Mr. Young and I sent a memo to John Ehrlichman, assistant to the president, recommending that “a covert operation be undertaken to examine all of the medical files still held by Ellsberg’s psychiatrist.” Mr. Ehrlichman approved the plan, noting in longhand on the memo, “if done under your assurance that it is not traceable.”

...The premise of our action was the strongly held view within certain precincts of the White House that the president and those functioning on his behalf could carry out illegal acts with impunity if they were convinced that the nation’s security demanded it. As President Nixon himself said to David Frost during an interview six years later, “When the president does it, that means it is not illegal.” To this day the implications of this statement are staggering. ...

I finally realized that what had gone wrong in the Nixon White House was a meltdown in personal integrity. Without it, we failed to understand the constitutional limits on presidential power and comply with statutory law.

In early 2001, after President Bush was inaugurated, I sent the new White House staff a memo explaining the importance of never losing their personal integrity. In a section addressed specifically to the White House lawyers, I said that integrity required them to constantly ask, is it legal? And I recommended that they rely on well-established legal precedent and not some hazy, loose notion of what phrases like “national security” and “commander in chief” could be tortured into meaning. I wonder if they received my message.

G!d forbid they should constantly ask, "Is it right?" (that is, in a nonideological sense).

How should the president's lawyers advise a reluctant White House?

Slate Magazine: By Dawn Johnsen

The proper role for presidential lawyers is actually quite clear, although more nuanced than either zealous advocate or neutral arbiter. The Constitution explicitly commands the president to 'take Care that the Laws be faithfully executed,' and it is up to the attorney general and, under his direction, DoJ's Office of Legal Counsel to provide the analytical expertise the president needs to ensure the legality of his administration's actions. Presidential lawyers should operate first and foremost as stewards of the rule of law and our constitutional democracy. Their legal advice must reflect an accurate and principled view of the law, not just plausible, ends-driven rationalizations. And in order to do that with any effectiveness, they must be allowed to tell the president 'no.'

The president unquestionably possesses very broad discretion to hire and replace those who serve at his pleasure, and that leeway is fundamental to his authority to control the executive branch. He has the authority to disagree with his lawyers when he honestly determines that they are wrong, based on a principled, alternative best reading of the law. But the president clearly oversteps permissible bounds—and in the process endangers our constitutional democracy—if he or his vice president retaliates against his lawyers for standing up for the rule of law or proceeds against their advice without a valid legal basis. ...

A group of former DoJ lawyers has provided a good starting point in developing consensus guidelines based on longstanding bipartisan tradition. (Disclosure: I am a co-author.) These guidelines balance the responsibilities of the president's lawyers to him and his policy agenda with their responsibility to the institution of the presidency and the law itself. Among the best practices: Provide the president with "an accurate and honest appraisal of applicable law, even if that advice will constrain the Administration's pursuit of desired policies"; advice should "reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government"; and "on the very rare occasion that the executive branch—usually on the advice of OLC—declines fully to follow a federal statutory requirement, it typically should publicly disclose its justification."...

The objective, going forward, is to deter future lapses from presidents of both parties. And that deterrence rests on the quality of the advice obtained from presidential lawyers. If these lawyers are urged to tell the president only half the story, if they are punished for saying that a proposed program would be illegal, and if they are forced to resort to threats of en masse resignations in order to stop unlawful governmental actions, our very constitutional democracy is in peril. If the president creates such a culture of disdain for the rule of law, Congress must step in.

Duke Case Prosecutor Says He Will Resign

From The New York Times: By DUFF WILSON and JOHN HOLUSHA

RALEIGH, N.C. June 15 — Durham County district attorney Michael B. Nifong said today he plans to resign his job, after admitting that he had “crossed the line” of ethical standards in some of the public statements he made about the Duke University lacrosse players he charged with rape.

An emotional Mr. Nifong made his announcement on the stand at the end of several hours of testimony in a state bar association hearing on whether he had violated ethical standards for prosecutors.

He apologized to the families of the Duke students he had charged, and for any harm he had done to the criminal justice system in North Carolina. And choking back tears, he added that he did not lie in his handling of the case, and he would continue to defend himself against allegations that he had.

Joe Cheshire, a lawyer for one of the Duke defendants, said afterward “I believe it’s a cynical, political attempt to save his law license. His apology is far too late.”

Mr. Nifong said that the last 14 months have been very hard on him and his family, as it has been the families of the men who were accused of rape.

Too bad about his family.
But this probably kills that senior Justice Dept. appointment. Bushies never apologize, let alone resign.

Duke Case Prosecutor Admits He 'Crossed the Line'

From The New York Times: By DUFF WILSON and JOHN HOLUSHA

RALEIGH, N.C. June 15 — Durham County district attorney Michael B. Nifong admitted today that he “crossed the line” of ethical standards in some of the public statements he made about the Duke University lacrosse players he charged with rape.

But he said other mistakes made in the case, including mishandling evidence and not turning favorable DNA tests over to defense lawyers, were based on his inexperience in handling felony cases and oversight.

He said he had not handled a felony case since 1999, concentrating on traffic offenses in recent years....

Mr. Nifong, 56, is a 29-year veteran of the district attorney’s office. He was appointed to the top job in April 2005 by Governor Mike Easley after his predecessor became a judge.

Mr. Nifong brought the rape charges while he was in an election contest against a better known former assistant district attorney. The bar accused him of pressing the rape case for political reasons.

Sounds like Nifong is now ready for a senior appointment in the Bush/Gonzales Justice Department. He's doing a heck of a job!

Duke Lacrosse Prosecutor Faces Trial

From The New York Times:

RALEIGH, N.C. (AP) -- More than a year after shocking allegations emerged about Duke University's lacrosse team, prosecutor Mike Nifong was back in court Tuesday -- this time as the defendant.

The North Carolina State Bar charged the Durham County district attorney with several violations of the state's rules of professional conduct, all tied to his handling of the lacrosse case.

If convicted by a disciplinary commission hearing the case, he could be stripped of his license to practice law in the state. ...

Nifong asked the office of North Carolina Attorney General Roy Cooper to take over the lacrosse prosecution in January. By then, most experts and legal observers had long since concluded the case could not be won.

Cooper agreed in April and dropped all charges against the three players. In a stunning rebuke, he said there was no rape or attack, calling the indicted players ''innocent'' victims of a rogue prosecutor's ''tragic rush to accuse.''

I'm inclined to say it couldn't happen to a nicer guy--but there are too many competing candidates in DC (several worthy of impeachment first).

Establishing a code of conduct in the life sciences

From The Bulletin Online

Should life scientists make an oath analogous to the Hippocratic oath that newly minted physicians make in the belief that they will "do no harm" once they utter the hallowed words? The goal of a Hippocratic oath for life scientists would be to instill a sense of professionalism and responsibility so that they will not engage in potentially harmful activities. A number of advocates have supported the establishment of an oath for life scientists as a way to address concerns about potential future bioterrorists...

A Hippocratic oath for life scientists would be nice window dressing, but it would simply be that. The more important method to ensure that graduating life scientists are ethical and responsible citizens is the oversight provided by their laboratory supervisors, mentors, and/or thesis advisers. These individuals have an important role in watching their students' behavior over the years. Those who show irresponsible behavior and a diminished capacity for self-improvement should not be allowed to graduate (as should be the case in medical school). Graduate schools (and medical schools) should develop policies and procedures for problem students. Behavioral infractions should be carefully documented and should be just as important in the evaluation of a student's academic future as the traditional graduation requirements.

From a terribly confused piece in the Bulletin of the Atomic Scientists. The author plainly does not know what the Hippocratic Oath actually says [which does not include "do no harm"], or its (properly) limited role in medical education and licensing. Nonetheless, she does get one thing (almost) right: "the medical profession [like virtually all professions] does not have a good track record in policing itself." She provides little reason for believing that life scientists are likely to do better, or that the steps she endorses relate adequately to her "do no harm" thesis.

Cheating in professional schools

From Inside Higher Ed :: Cheating on a Different Level:

On Friday, the Faculty Council at Indiana’s dental school voted to dismiss 9 of its students, suspend 16 for various lengths of time and send a letter of reprimand to 21 others for violating its professional code of conduct by knowing about and not reporting the incident. The class has just under 100 students.

Two professional conduct committees — one comprising students and the other faculty — looked into the cheating allegations and the entire faculty had a say in the final decision.

“This has been a wrenching experience for everyone involved — for students who made this big error and classmates, faculty, administrators and alumni,” Goldblatt said. “It’s sad that this happened and it’s sad that we had to take this action.”

The school has an obligation to take cases of cheating seriously because it certifies that graduates “can be trusted to do the absolute right thing in every situation in their professional lives, even when nobody is looking,” he added.

The article is accompanied by some strongly-felt comments and pretty distressing statistics.