John Yoo and Jay Bybee shouldn't be home free.

The law, lawyers, and the court.
Feb. 22 2010 11:49 AM

David Margolis Is Wrong

The Justice Department's ethics investigation shouldn't leave John Yoo and Jay Bybee home free.

Also in Slate, Dahlia Lithwick writes that the overturning of the OPR report means there are no legal limits for torture.

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If this sounds perfectly obvious, that's because it is. Bybee and Yoo objected that these standards do not come from the case law on Rule 2.1. That is true, because the case law simply has never dealt with lawyers tailoring their advice to yield the client's desired result: the lawyer as absolver or indulgence-seller. Margolis concludes that the absence of case law on standards of candor means that the standard is ambiguous. But that certainly does not follow. Otherwise, any law that has never been interpreted by a court would automatically be ambiguous.

Margolis also isn't even sure that standards of candor apply to OLC lawyers. He approvingly quotes Jack Goldsmith's testimony that it's an unsettled question whether OLC should offer "neutral, independent, court-like advice" or something "more like ... an attorney's advice to a client about what you can get away with. ..." Wow. What about the president's constitutional obligation to faithfully execute the law, which OLC is supposed to help the president discharge? Whatever you think "faithful execution" means, it surely isn't "what you can get away with."

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Still, proving a guilty mental state for the OLC lawyers has always been the biggest challenge for the ethics investigation, and I have long thought that the case against the torture lawyers could founder. To prove that legal advice isn't candid, as the ethics standard requires, you need to prove that the lawyers themselves didn't believe it and therefore were offering it in bad faith. How do you do that?

Basically, there were two roads OPR could take. It took them both: First, OPR looked to the internal evidence of the memos themselves. The Office of Legal Counsel in the Justice Department is arguably the most elite law firm in the country. Yoo and Bybee are very capable, intelligent, and well-trained lawyers. If they produced an opinion riddled with weird arguments, cherry-picked quotations, and inexplicable omissions, the natural inference is that they weren't being candid. The famous "empty head, pure heart" defense simply doesn't wash when you are talking about OLC. Much of the OPR report tries to show—at elaborate length—that the arguments in the torture memos are so bad and so tendentious that lawyers of this caliber could not have produced them in good faith. That is what the five standards in the earlier drafts were about. Margolis' response is that the arguments in the torture memos are bad, but not that bad. This may look like a debate about the law, but really it is a debate about the mental state of the lawyers who wrote the memos: Did they twist the law so much that they simply couldn't have done it in good faith?

Yoo cited legal authorities (often with dubious interpretations) to support his conclusions. Yet somehow he managed to omit all the authorities on the other side—dissenting judicial opinions, later opinions by the same courts he did cite, and even Supreme Court decisions. This is first-year law-school stuff. OPR discusses one instance in which Yoo failed to mention some executive branch statements that undermined his argument—even after his assistant brought them to his attention. Margolis reads all this as merely a failure to be "thorough" and responds that "the requirement to be thorough does not necessarily require that any memorandum setting forth the attorney's opinion communicate to the client every countervailing argument and every non-controlling fact." This response completely misses the point. Cherry-picking authorities so that you mention those on your side and leave out the rest is not a failure of "thoroughness." It is evidence of bias.

Sometimes Margolis uses a divide-and-conquer strategy to downplay instances in which the Yoo-Bybee memo states a position one-sidedly or omits opposing authority or (in one instance) falsifies what a source actually says. Thus, of a tendentious misreading of a leading foreign case: "Even if the analysis represented a serious deficiency, it was not likely to have resulted in prejudice to the client, and therefore, in and of itself, does not constitute a violation" (italics are mine). Yoo's falsification of what a law review article said (it stated that the law of self-defense does not work for torture; Yoo cited it for the opposite proposition) is "too inconsequential to support a finding of misconduct in and of itself." The problem with Margolis' pooh-poohing is that all these separate grains of sand really do add up to a heap.

Margolis also makes short work of the Yoo-Bybee memo's strategic omissions. United States v. Lee is a 1981 case prosecuted by the Reagan Justice Department dealing with a Texas sheriff and his deputies who were convicted for water-boarding men they arrested to make them confess. The U.S. appeals court called the technique "torture" a dozen times, and the case comes up instantly if you type "water torture" into a legal database, as any competent lawyer would do if asked to research whether water-boarding is torture. Neither Bybee memo mentions the case, but this does not trouble Margolis, who blows off the omission of Lee because "the opinion does not describe the technique." True enough, but the government's brief in the Lee case does, and the brief is readily available on legal databases. It turns out that the only difference between the technique described in Lee and water-boarding is that the Texas sheriffs used a tilted chair instead of a tilted board.

Margolis also speculates "that Congress might have adopted a definition of torture that differed from the colloquial use of the term," in which case Lee could be dismissed on the basis that it wasn't using the word torture in a legal sense. The trouble is that the speculation is wrong, as Margolis would have discovered by looking at dictionaries from the time of Lee. (In fact, the legal definition of torture is so close in wording to that of the 1971 Oxford English Dictionary that it seems likely that the law and the treaty were following the dictionary.) Examining briefs and dictionaries is exactly the kind of research lawyers do, and we know from the torture memo itself that Yoo consulted several dictionaries, including older ones. Margolis's cavalier treatment of Lee is especially noteworthy because Senator Sheldon Whitehouse, D-R.I., closely questioned former Attorney General Michael Mukasey about the case in a July 2008 hearing and focused attention on it again at a Senate judiciary committee hearing in May 2009. The Senator actually displayed a poster board highlighting the word torture in the Lee opinion.

The second road OPR took to establish that Yoo and Bybee gave bad-faith legal advice allowing torture was to look at the circumstantial evidence. If Yoo and Bybee were under pressure from the CIA and the White House to produce an opinion that is as permissive and reassuring to interrogators as possible, the natural inference is that the opinions are shoddily one-sided because the lawyers needed to reach a desired result.

OPR investigators asked John Yoo if he added his analysis giving enormous latitude to the commander-in-chief in response to the CIA. The usually smooth and articulate Yoo fumbled for an answer:

Well, I know—well, I mean, they wanted, you know, this declination from the Criminal Division which we couldn't provide. So it wouldn't be—I mean, I just don't remember whether that was a response to a specific—it kind of makes sense that it would have been that we could have said, look, you know, we can talk about what happens if you go over the line, but we're not saying we would approve what went—you know, anything that happened, but I don't have any real—like for example, I don't remember sitting in a meeting and saying, oh, well, we can't provide a declination, but we could do this. But it makes sense, although I don't have any memory of it.

Translated: The CIA asked the Justice Department for an advance assurance (the "declination") that government lawyers would decline to prosecute interrogators for torture. When DoJ said no, the CIA came back to ask for new material in the torture memo that would do the job. The result was the notorious argument that the commander-in-chief can authorize torture or anything else, as well as another argument that it would be unconstitutional for Congress to try to force the executive branch to prosecute torturers.

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