Friday, February 19, 2010

Yoo's, Bybee's Torture Memos "Flawed," but no Misconduct

John Yoo's and Jay Bybee's memoranda as lawyers in the Justice Department's Office of Legal Counsel providing the legal basis for certain interrogation techniques--the torture memos--were "flawed," but reflected no professional misconduct, according to a memo released today from David Margolis, DOJ's top career attorney, to Attorney General Eric Holder.

Margolis's memo rejects the conclusions of the Office of Professional Responsibility, which opined in July 2009 that Yoo and Bybee engaged in professional misconduct by failing to provide "thorough, candid, and objective" analysis in the torture memos. 

Margolis sought and received comments from Yoo, Bybee, and others on the July 2009 OPR final report before issuing his own conclusions.  Yoo's comments are here; Bybee's are here.

There is much to write about here, and we'll provide analysis in several parts.  One issue that initially caught our attention is the role of the OLC as legal adviser to the President.  In response to criticism against Yoo and Bybee that their work simply rubber-stamped the Bush administration's policy preferences--and didn't provide any rigorous independent legal analysis--Margolis quotes at length from his interview with Jack Goldsmith.  Recall that Goldsmith succeeded Bybee as OLC chief and withdrew the Yoo memo.  Margolis relates his interview with Goldsmith on the role of the OLC:

Q (Margolis): One of the things I'm trying to figure out, we're trying to deal with is sort of, what is an OLC opinion and what is it supposed to be. . . . [W]hat is the role of the OLC and was there a line that was crossed here in that regard[?]

A (Goldsmith):  That's a very difficult question for me to answer. . . .  I can tell you this, that there is without getting into whether John crossed the line, there is debate about what the proper role of OLC is.  There's debate among former heads of the office and academics and people about what exactly, what interpretive stance OLC should take.  So, there are multiple questions.

To what extent should OLC be trying to give neutral, independent court-like advice, or should OLC be more like giving an attorney's advice to a client about what you can get away with and what you are allowed to do and what your risks are, something in between.  What are the sources of interpretation?  Is OLC bound by Supreme Court decisions?  Is OLC--can the Executive Branch take an independent role in interpreting the Constitution and the statutes?  You know, when and why and under what circumstances?

Does it matter whether the opinion is classified or not?  Does it matter whether there can be open debate on it?  Does it matter whether it's published?

These are all questions for which, you know, one day I'm going to write a book and they're difficult questions.  So, I'll just say that as a general matter, point one.

Q:  That's fair enough.

A:  But, as a general matter, I think, with all those caveats and I want those caveats on the record, in a general matter we're supposed to be--I think the answer is that it is clear that OLC is supposed to serve some independent role within the Executive Branch to try to provide independent advice.

Now, no head of the office had ever done that fully, and I can give you a lot of examples.  And there are many times in the history of not just OLC but Attorney Generals [sic] giving opinions to the President in the history of the country where Attorney Generals [sic] gave advice which was, you know, more of, here' an argument to cover what you've done, rather than my best independent view on the matter.

Goldsmith goes on to discuss Attorney General Bates's opinion validating President Lincoln's suspension of habeas corpus and Attorney General Jackson's opinion on the "destroyers for bases deal."

He concludes: "My only point is I don't know what the standard is.  And, again, I'm not trying to tell you how to do your job, but I don't know what the criteria are for whether it crossed the line."

This seems awfully weak for a former OLC chief that withdrew the Yoo memo.  (Did he not apply a standard himself in moving to withdraw the memo?)  As the OPR noted starting on page 15 of its July 2009 opinion, former OLC chief Stephen Bradbury issued a memoon Best Practices for OLC opinions that, among other things, said this:

In general, we strive in our opinions for clarity and conciseness in the analysis and a balanced presentation of arguments on each side of an issue. . . .  OLC's interest is simply to provide the correct answer on the law, taking into account all reasonable counterarguments, whether provided by an agency or not.

Bradbury served during the Bush administration, but his standards are bi-partisan.  A group of former Clinton administration OLC chiefs and advisors issued Principles to Guide the Office of Legal Counsel in 2004 that reflect Bradbury's sense of balance and objectivity.  Yoo's and Bybee's work pretty clearly violates this basic standard of balance and objectivity. 

The Bradbury memo and Principles are not professional responsibility standards--at least in the sense of the Model Rules or state rules of professional responsibility.  But they help clarify the role of the OLC--the point to this segment of Margolis's interview with Goldsmith.  Goldsmith's examples of Bates's and Jackson's opinions themselves seem rather to support balance and objectivity, not prove the opposite.  Yoo's and Bybee's work seems at least to violate the internal OLC standards designed to avoid the kind of overreaching that Bradbury's memos and the Principles caution against--and to this extent they also violate widely agreed upon ideas about presidential authority.


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Note the date of the Principles to Guide the Office of Legal Counsel: 2004. John Yoo left DOJ in 2003, as the post above should have mentioned. Margolis says, p. 15,
"OPR added consideration of the Best Practices Memo and the Guiding Principles. The consideration of these documents raises several concerns.... neither of them existed at the time [Bybee & Yoo] worked at OLC.... [OPR] relied on a memo setting forth _best_ practices to divine minimally acceptable professional obligations ... OPR made _no_ reference to the Guiding Principles in ... its first two drafts.... Then, OPR relied in part on those principles."

I think Yoo in particular is a horrible person. I hope folks will note that Margolis says that he, like many horrible people, has "due process" rights: that Yoo should benefit from rights he denied to enemy combatants, and that these rights were "international" in origin -- another burr under conservatives' saddles -- is ironic, though few will notice it.

In any case, Margolis can be taken to be saying: Look, this is a messy business. OPR has followed not the explicit standards of DOJ conduct but additional ad hoc ones; and these are ambiguous.

One Goldsmith remark omitted above is this: "[A]ny standard that would have landed Robert Jackson in trouble cannot be the right standard."

And it is the lack of clear standards that Margolis faults. Without these, discipline or disbarment could easily blow up in the faces of DOJ. Do we really want that?

I'm not an attorney and will follow the discussion with interest.

Posted by: Dan Tompkins | Feb 20, 2010 8:05:25 AM

"Did he not apply a standard himself in moving to withdraw the memo?"

The standard applied in withdrawing the memo was at least in part that it gave erroneous advice, not that it crossed a line of independence or balance. (Those are related, but independence and balance don't entail correct advice, nor does correct advice entail independence and balance.)

Posted by: Sanpete | Feb 24, 2010 7:37:25 PM

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