The DOJ’s report on the OLC torture memos is finally out. There's a lot to read, but please comment as soon as you have some thoughts.
Here’s a brief timeline of the OPR process (relying heavily on Joe Palazzolo’s well-done post).
In September 2001, terrorists carried out the multi-plane attacks against the World Trade Center and the Pentagon, and the fourth plane went down in Pennsylvania.
In September 2001 - January 2002, the OLC issues a series of memoranda regarding the use of force and the Geneva Convention.
In the Spring of 2002, Zubaydah and Jose Padilla were captured.
In August 2002, the OLC issued two memos signed by Jay Bybee and largely written by John Yoo: a memo to the White House and a classified memo to the CIA regarding interrogations of suspected terrorists (the "Bybee Memorandum").
In March 2003, Khalid Sheikh Mohammed was captured.
In March 2003, OLC finishes memoranda regarding military interrogations.
In June 2004, the Bybee Memorandum was leaked to the Wall Street Journal.
In October 2004, the Office of Professional Responsibility (OPR) began its investigation of the DOJ lawyers who were involved in writing the torture memos.
In December 2004, the "Levin Memorandum," which replaced the Bybee Memorandum, was released to the press.
It is possible that sometime during 2006-07, the disciplinary statute of limitations expired as to the memos. (This is because the DC Bar would presumably apply Pennsylvania ethics law, including its four year statute of limitations, if it were to proceed against John Yoo, and the Pennsylvania Bar, where Yoo is licensed, would as well.) The extraordinary length of time it took to write the OPR report is something that still needs to be explained -- although the reasons could be perfectly understandable.
On December 23, 2008, as the Bush administration wound down and the Obama administration was preparing to take over, the OPR sent a 191 page draft report of its investigation to Attorney General Michael Mukasey, asking for a very quick review and response. The draft does not refer to any process by which any review or response will be solicited from Yoo or Bybee, although they had apparently been promised an opportunity to comment.
On December 31, 2008, Muksasey met with the OPR lawyers and made strong objections and on January 19th objected strongly in writing. Mukasey indicated that the OPR report would not be finalized before the new administration took over the White House.
In March 2009, OPR sent a second draft to Yoo and Bybee for comments.
In May 2009, Yoo and Bybee commented aggressively and critically on the second OPR draft.
On July 29, 2009, OPR issued its final report (OPR Final Report)
On October 9, 2009, Yoo and Bybee sent their response to the OPR Final Report to Associate Deputy Attorney General David Margolis, who was reviewing the OPR's report. Margolis is a highly respected, career lawyer at DOJ with deep experience in discipline issues.
On January 5, 2010, Margolis issued his memo (Margolis Memo) to Attorney General Eric Holder, rejecting the conclusion of the OPR report that Yoo and Bybee should be referred out to appropriate state bars for discipline.
UPDATE 1: I’m still working through the documents, but a striking irony already leaps out. Once the Bybee Memorandum was made public, it was the focus of blistering attacks for allegedly blowing the legal analysis on obvious and subtle issues. The memorandum was subjected to review and was withdrawn and rejected, and was replaced by the Levin Memorandum. (Upon close inspection, the new Levin Memorandum bears some strong continuities to the Bybee Memorandum, even as it rejects that document.)
Indeed, some of the alleged deficiencies of the OPR's Final Report are jaw-dropping. In so many words, Margolis accuses the OPR of shifting its rationale in result-oriented ways, playing fast-and-loose with procedure, and twisting the legal standard. It's not pretty to read. For details, read the Yoo Response, the Margolis Memo, this summary by Jennifer Rubin or this report on the press release by Yoo's lawyer. But let's all remember that even if the OPR Final Report is as shoddy as Yoo claims (and as Margolis occasionally suggests), that doesn't mean that the torture memos were ethical!
UPDATE 2: At page 25 of the Margolis Memo, the irony I identified above is expressly mentioned, although not resolved. Still, one cannot miss the implication of Margolis's comments on that point.
UPDATE 3: The Margolis Report relies heavily on DC's ethics law, as does the OPR's Final Report, but the Yoo Response argues strenuously that Pennsylvania law applies. I'm still trying to figure out who has the better of that argument. Comments are welcome.
UPDATE 4: Starting at page 65, the Margolis Memo has severe, withering criticism of John Yoo's performance, but nonetheless concludes that Yoo was offering his candid (if deeply flawed) advice: "While I have declined to adopt OPR's findings 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 author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client." (p. 67)(emphasis added) That sentence has an odd tension within it, doesn't it? When you think of a John Yoo who was blinded by ideology and ignoring his obligations to his clients, you probably have a different image than when you think of a John Yoo who was acting on his sincere views. (Btw, the WSJ op-ed has some disparaging comments about this portion of the Margolis Memo, claiming that the tone and mood suddenly change. That's a perceptive comment, but it's not clear that the critical tone was unwarranted.)
I had previously suggested that there isn't much room under rule 2.1 to discipline a lawyer who truly believes the legal analysis he is offering, even if you could still discipline that lawyer under 1.1 competence standards if the sincerely-held belief fell below the standard of competence. Margolis cites a lot of testimony supporting the notion that Yoo's beliefs were sincere, and Margolis rejects the OPR's emphasis on the fact that Yoo was aware of the legal result the client wanted. (As Yoo and Margolis note, it's usually the case that lawyers are aware of the desires of the client, and so they suggest that one should not use that fact to bootstrap a finding that the lawyer's advice was insincere. In particular, the OPR stands accused of misrepresenting the comments of a CIA lawyer on this point and of indulging in an unwarranted bootstrapping.) Based upon the press leaks in the past few months, I had wondered if we would see evidence that the torture memos were in effect re-written by David Addington in ways that were inconsistent with the earlier versions—which evidence presumably would have supported a finding that Yoo had violated 2.1.
UPDATE 5: I see that Professor Balkin has commented emotionally, stridently, and hyperbolically on the Margolis Memo. No doubt we will see a lot of blawgospheric commentary in the next few weeks. Commentary is available here, here (Marcy Wheeler's good, detailed, inside-baseball report with partisan insights regarding the first OPR draft), here (NPR suggesting that we will have full hearings on all this), here (Julian Ku at Opinio Juris, noting how badly the OPR's report fared), here (critical of Yoo and the Margolis Memo), here (Joe Palazzolo's very helpful timeline of the OPR process), here (Steven Schwinn, critical of the Margolis Report), here (Jason Leopold, at TruthOut, highly critical of Yoo and the Margolis Memo), here (from the Patterico site, in defense of Margolis and quite critical of the OPR Final Report), here (blog run by UC-Berkeley law students), here (Andy McCarthy at NRO, summarizing Mukasey's criticism of the OPR report), and here (Daphne Eviatar at Huffington suggesting where investigations should now head), here (Brad Wendel, up above, questioning whether it should matter that Yoo presumably believed in the advice he gave) here (Brian Tamanaha on why Yoo's sincerely held extremist views shouldn't be vindicated), here (interesting article on how Bybee used portions of the Clinton-era OLC laywers' statment to Bybee's benefit), and here (WSJ arguing that Yoo has been vindicated). David Luban has thoughts here. (In my view Luban makes a strategic mistake in defending the OPR report. It's better to acknowledge its flaws and build your own case.) James Fallows has a short piece with a large emotional and moral punch, here. Here's an oddity: the name of the junior lawyer working with Yoo had previously been redacted, but was inadvertently left in one footnote. Richard Epstein's interesting, distinctive take is here.
UPDATE 6: One of the fault lines running through the OPR Final Report, the Margois Memo, and the Yoo Response concerns the proper definition of a the ethical duties of a government lawyer. We often read that a government lawyer has a higher calling or higher duty, but when it comes to imposing discipline it is hard to offer a precise definition of that difference. Margolis found that the OPR defined the standard in part by using post-facto position papers, including one by former OLC lawyers who were openly critical of the torture memos. Margolis also refers to "OPR's failure to properly identify an applicable known, unambiguous standard." (p. 11) Thus we see a common problem in the interpretation of ethical standards: the difference between viewing ethics rules as (1) quasi-criminal statutes that must be construed fairly strictly, or as (2) high moral standards that we enthusiastically embrace—especially when we're thinking about government lawyers construing the word "torture" and knowing that their advice will affect real human beings. Margolis's use of the former interpretation is, I take it, part of what prompted Professor Balkin's rhetoric.
The OPR Final Report had also relied upon the notion that a lawyer has a higher duty when advising on legal topics that fall under jus cogens (the category of human behavior that is universally condemned and therefore perhaps universally unlawful regardless of what any nation's laws say). That notion has emotional and intuitive appeal, but it's not clear that you could really apply that for purposes of imposing discipline.
The Margolis Memo seems to support the comments I had offered at a conference at Berkeley—that although Yoo's performance fell below the standard of care as described in the statement by former OLC lawyers and as described in Jack Goldsmith's book, it would be difficult to find those standards in the ethics rules.
Here's an imperfect hypo I sometimes use in class to help think about this issue. Suppose that three identical triplets, with identical schooling, start their first days of work as lawyers at, respectively, the DOJ, a large defense contractor that has private security crews in Afghanistan that sometimes coordinate with military there, and an assistant professor of law. Each sits down to write a descriptive memo of what counts as "torture" under US law. Should the three memos be identical? Should the memo from the DOJ lawyer be different and, if so, how and why?
Part of the difficulty in defining the proper role of OLC lawyers stems from the thin treatment of roles in the Model Rules. Basically, the rules have four master roles: public citizen, officer of the court/system, third party neutral, and representative of clients. Under that fourth role are four sub-roles: litigator, negotiator, evaluator, and counselor. Only the litigator role has a deep treatment in the rules. The counselor sub-role is covered by the relatively short MR 2.1. As the Margolis Memo notes, discipline under 2.1 is extremely rare. And, as I noted above, it's hard to apply 2.1 to a lawyer who sincerely believes in the advice he is giving. My initial take on the OPR Final Report is that it simply rejects the copious evidence that Yoo actually believed in his legal advice, uses a conclusion of incompetence to support its conclusion about 2.1, and uses legal standards that, however plausible and laudable, just aren't in the ethics rules.
UPDATE 7: It might be helpful to list some of the possible conclusions that various people might draw. Leaving aside the quality of the OPR Final Report, and with the caveat that I’m not urging any of these conclusions, one might conclude: (1) Yoo and Bybee intentionally joined a common plan to commit torture with legal memos as cover; (2) Yoo and Bybee didn’t necessarily agree with any plan to commit torture but knew what some people in the Executive Branch wanted that and so the lawyers wrote memos designed to accommodate that desire; (3) the lawyers knew that some people in the Executive Branch wanted to either commit torture or move right to the edge of the line, and the lawyers, caught up in the situation, accommodated that desire with substandard legal advice even though the lawyers subjectively thought they were giving sound legal advice; (4) the lawyers had decent intentions about writing a legitimate memorandum but, lacking the restraint and judgment for the task, especially the judgment needed when one is an OLC lawyer opining about torture, they wrote memos that have been condemned as mistaken by a near-consensus of commenters; (5) the lawyers had decent intentions, but failed to meet basic standards of craft competence (e.g., choice of appropriate precedent, acknowledgment of existing limits on presidential power) such that the memos are widely considered to be substandard and mistaken; (6) the lawyers had good intentions and, working under difficulty pressure and tough timelines, wrote memos that meet the minimal standards of craft competence.
UPDATE 8: Kath Hall has recently written two thoughtful articles (the latter with Vivien Holmes) arguing that lawyers can be unaware of how social situations are steering them to unethical conduct. She also argues that those of us judging in hindsight can inaccurately attribute conscious intentionality to the lawyers involved in the disaster. (We've discussed similar, situation-based analyses at Legal Ethics Forum, and Andy Perlman and Tigran Eldred may be posting on this in the future.)
In my view, two recent examples of that tendency for hindsight judgments to over-attribute intentionality are in the now-vacated Qualcomm sanctions order (p. 24) and in the recent post by Brian Tamanaha regarding Yoo. Both examples cite the sterling credentials of the lawyers under investigation and suggest that given those credentials the only logical conclusion is that the lawyers intentionally acted badly. Reading the pieces by Kath Hall can give you a good handle on that form of moral evaluation.
If you are open to this line of analysis, you might be interested in Mitt Regan’s modern classic in the PR field, Eat What You Kill, in which Regan offered a highly contextualized explanation of how a biglaw partner failed to reveal a conflict in a bankruptcy case—and how he went to jail for that. Because Regan didn’t simply conclude, “a rotten lawyer deliberately made a morally corrupt decision,” there was a little pushback to Regan’s thesis for supposedly being insufficiently judgmental. I sided with Regan’s analysis, but have to admit that in the wake of upsetting events, there is an emotional need to offer explanations in the form of moral accusations—and, if a law has been broken, there is a legitimate legal need to do that as well. (Jeff Lipshaw has recently written on the notion of legal causation as moral accusation.)
What does all this have to do with John Yoo? Many of us are struggling with the fact that it appears that Yoo truly, sincerely believes in his extreme legal opinions. If you watch his appearances at conferences or on TV, you can even see his opponents get emotionally torqued up, as Yoo remains calm. So the question of the day is, “How can one sincerely hold such extremist views?” Well, is it possible that Yoo’s extreme beliefs reflect a mixture of craft errors, lack of judgment, and getting carried away in a small, intense social situation that was under great pressure? If so, is it possible both that Yoo could easily pass a lie detector test if asked, “Do you really believe in your legal analysis?” and that his views are nonetheless extreme? Or are the only choices mind-boggling incompetence and deliberate, conscious wrong-doing?