Patrick Philbin

Torture Connection: 
Pushed the constitutional envelope to justify war without rules
  • B.A. 1989 Yale; J.D. 1992, Harvard
  • Clerked for D.C. Circuit Court judge Lawrence Silberman, U.S. Supreme Court Judge Clarence Thomas
  • Diploma in Legal Studies, 1995, Cambridge University
  • Corporate law practice, Kirkland and Ellis, 1995-2001
  • 2001-2003, Deputy Assistant Attorney General, Office of Legal Counsel
  • 2003-2005, Associate Deputy Attorney General for National Security
  • 2005-present, Kirkland and Ellis

Patrick Philbin finds laws restrict America's enemies but no laws restrict America

Patrick Philbin produced preliminary legal assessments clearing the way for Bush administration officials to push the envelope of traditional policy constraints with respect to the Geneva conventions, the right of habeas corpus, and wiretapping, among other national security concerns. He later feuded with Cheney's people and urged retraction of memos by John Yoo and others, but he has continued to defend Bush torture and surveillance policies. His agenda was not so much neoconservative geopolitics as it was Federalist Society reframing of constitutional interpretation; so far, courts have consistently rejected Philbin's analysis. Philbin and Yoo were both young attorneys in the Justice Department's Office of Legal Counsel. After 9/11, Philbin was asked to research issues surrounding use of military commissions in the impending war on terror. Philbin wrote in early November, 2001, that the President as commander in chief could try terror suspects before military commissions by invoking the laws of war, and that doing so would not require congressional input and would not necessarily require providing the protections of the Geneva accords to detainees. One observer described the memo as finding that "All the laws apply to them, and none of them apply to us." The military commissions system that Bush announced a few days later was eventually ruled unconstitutional by the Supreme Court, in part because of the lack of congressional input.

Philbin and Yoo conclude habeas corpus is not a right at Guantanamo

In December 2001, Philbin and Yoo coauthored a preliminary memo on habeas corpus, suggesting that prisoners at Guantanamo could not file for it because they were not on U.S. soil. Although fully supporting the administration's efforts to withhold habeas rights from detainees, Philbin and Yoo did include a caveat, observing that the law was not completely settled and courts might disagree. This reservation proved prescient; the Supreme Court found that Guantanamo was clearly U.S.-controlled soil and that prisoners there had habeas corpus rights. In April 2002, he wrote a memo for the Assistant Attorney General for Legislative Affairs, Daniel T. Bryant, rejecting Sen. Leahy's Swift Justice Authority Act, which was intended to establish and limit a system of military commissions. Philbin's conclusion was that the president's war powers were sufficient to provide for military commissions, and that congressional involvement was meddlesome.

Patrick Philbin attacks torture memo, defends torture

Later in 2002, he visited Guantanamo with several top administration lawyers, including William Haynes, John Rizzo, David Addington, and Goldsmith. He later testified before congress about the excellent interrogation system he observed there, which was not remotely torturous in any way, shape, or form. It is not clear what Philbin and the others were shown during this tour. Over the next year or so, Philbin and Goldsmith began to challenge Yoo's infamous torture memo--not because they were taking a stance against torture, but because they viewed the memo as inflammatory, poorly argued, and inappropriate for reliance in developing a robust but legally defensible program of interrogation, detainment, and military commissions. Goldsmith canceled the memo and resigned; Philbin stayed on, but Addington and Cheney identified him as a traitor and blocked his promotion in the Department of Justice. Philbin began to focus more of his professional attention on wiretapping and other surveillance issues, but he continued to defend Bush's torture policies in congressional testimony and at conferences. He continued to press the legal framework repeatedly rejected by the Supreme Court--that treaties and laws restricted our enemies but did not restrict us. For example, he argues that we are not an occupying power in Iraq or Afghanistan, which would trigger Geneva protections for our prisoners there; we are only defending ourselves following an attack on our soil. The fact that 9/11 occurred in the United states is to Philbin the distinctive feature of this war, requiring the administration to extend activities such as surveillance, which were usually applied in foreign operations, into the texture of American life. Philbin has returned to the corporate law firm of Kirkland and Ellis, where he is a partner (Philbin's profile).