21st Century Schizoid Boy

Former Deputy Assistant Attorney General John Yoo was the primary author of the Bybee Torture Memos during President Bush’s first term:

Yoo was asked to explain how the torture statute would interfere with the President’s war making abilities, and gave the following answers:…

Q: What about ordering a village of resistants to be massacred?… Is that a power that the President could legally-
A: Yeah. Although, let me say this. So, certainly that would fall within the Commander-in-Chief’s power over tactical decisions.

Q: To order a village of civilians to be [exterminated]? [Exterminated in brackets in the original]
A: Sure.

Yoo added that, were he to have had the opportunity to rewrite the Bybee Memo, he would not have deleted the Commander-in-Chief sections or defenses because they were “important and relevant” (70).

U.S. Department of Justice, Office of Professional Responsibility, Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists, Top Secret (Declassified), July 29, 2009, http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf.

That was in relation to:

After September 11, 2001, Yoo authored a number of OLC opinions dealing with terrorism and presidential power. One of the first was dated September 25, 2001… In the opinion, signed by Yoo, he asserted that no law “can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response” (32).

Are extreme examples fair to ask lawyers? Well, that’s exactly what lawyers are for — deciding the broad effects of a legal interpretation. In fact, Dan Levin, who replaced Yoo, used an extreme example to undo one of the torture memo’s clauses:

Dan Levin, “who was Counselor to Attorney General Ashcroft at the time [2006], was asked to serve as Acting AAG of OLC” (130).

Levin approved the CIA’s request to use the waterboard in a letter to Rizzo dated August 6, 2004 (133).

The Levin Memo deleted the Bybee Memo’s discussion of the Commander-in-Chief power because Levin believed it was unnecessary to the analysis, and because Levin considered it to be an enormously complicated question that could not be addressed in the abstract…

Levin modified the discussion of specific intent, which he also believed to be wrong. As presented in the Bybee Memo, Levin thought the section “suggested that if I hit you on the head with a… hammer, even though I know it’s going to cause specific pain, if the reason I’m doing it is to get you to talk rather than to cause pain, I’m not violating the statute. I think that’s just ridiculous” (136).

The report concludes:

Based on the results of our investigation, we concluded that former Deputy AAG John Yoo committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.

We concluded that former AAG Jay Bybee committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, object, and candid legal advice (17).

John Yoo accepted the initial assignment from the NSC and the CIA on behalf of the Department… We therefore concluded that he was primarily responsible (257).

Judge Jay Bybee, as the head of the OLC and signator of the Bybee Memo and the Classified Bybee Memo, was responsible for ensuring that the advice provided to the clients presented a thorough, objective, and candid view of the law. Although Bybee did not conduct the basic research… he reviewed many drafts, provided comments, and signed both memoranda… However, this was not a routine project… Bybee’s signature had the effect of authorizing a program of CIA interrogation that many would argue violated the torture statue, the War Crimes Act, the Geneva Convention, and the Convention Against Torture (261).

We recognize that the Bybee Memo was written at a difficult time in our nation’s history, and that the fear and uncertainty… might explain why some Department of Justice lawyers were willing to conclude, contrary to core principles of American and International law… However, situations of great stress, danger, and fear do not relieve Department attorneys of their duty to provide thorough, objective, and candid legal advice, even if that advice is not what the client wants to hear (260).

The report was hampered with many big fish simply not responding to requests from the OPC, some emails were missing or deleted, and systemic flaws were found in the system:

Although we have attempted to provide as complete an account as possible of the facts and circumstances surrounding the Department’s role in the implementation of certain interrogation practices by the CIA, it is important to note that our access to information and witnesses outside the Department of Justice was limited to those persons and agencies that were willing to cooperate with our investigation…

Although we believe our findings regarding the legal advice contained in the Bybee Memo and related, subsequent memoranda are complete, given the difficulty OPR experiences in obtaining information over the past five years, it remains possible that additional information eventually will surface…

Although we refer to works of legal commentary in this report, we did not base our conclusions on any of those sources. We independently researched and analyzed the issues that are discussed in this report (16)…

This investigation was long and difficult. It was hampered by the loss of Yoo’s and Philbin’s email records, our need to seek the voluntary cooperation of non-DOJ witnesses, and our limited access to CIA records and witnesses (20).

In addition to assessing individual responsibility in this matter, we noted, in the course of our investigation, several managerial concerns. First, we found that the review of the OLC memoranda within the Department and the national security arena was deficient. The memoranda were not circulated to experts on national security law in the Criminal Division, or to the State Department… Given the significance of the issue… the memoranda should have been circulated to all attorneys and policy makers with expertise and a stake in the issues involved.

We found that the limitations imposed on the circulation of the draft were, in part, based on the limited number of security clearances granted to review the materials. This denial of clearances to individuals who routinely handle highly classified materials has never been explained satisfactorily and represented a departure from OLC’s traditional practices of widely circulating drafts of important opinions for comment. In the end, the restrictions added to the failure to identify the major flaws in the OLC’s legal advice (265-266).

After 5 years making the report, its conclusions were rebuked:

I do not adopt OPR’s findings of misconduct… OPR’s own analytical framework defines “professional misconduct” such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney’s conduct. I am unpersuaded that OPR has identified such a standard… and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where Yoo and Bybee are licensed…

Yoo’s efforts establishes by a preponderance of the evidence that Yoo intentionally or recklessly provided misleading advice to his client. It is a close question. I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel. While I have declined to adopt OPR’s finding of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to adopt opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client.

Memorandum of Decision, David Margolis, Associate Deputy Attorney General, U.S. Department of Justice, January 5, 2010, http://judiciary.house.gov/hearings/pdf/DAGMargolisMemo100105.pdf.

John Yoo is currently a tenured Professor of Law at the University of California, Berkeley.

Judge Jay Bybee is currently a permanent, life-time appointed judge on the U.S. Court of Appeals for the Ninth Circuit.

At least 100 detainees in U.S. custody have been killed: http://www.salon.com/opinion/greenwald/2009/06/30/accountability/