Yoo climbs down from his cross

Showing the same poor judgment that informed virtually every sentence of his perverse OLC output, John Yoo decided to go into print with this deliciously self-pitying tribute to his own martyrdom at the hands of an unappreciative world. It turns out that Yoo has not been doing the rounds for the last several years trying to defend his shoddy legal work under the Bush administration in order to retrieve his own shattered reputation. No, his motives, he assures us, have been pure and selfless. Yoo was intent instead on saving the Obama presidency by “winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe”.

Yep, what with all those OLC memos of his that have been withdrawn, renounced and subjected to ridicule, Yoo single-handedly saved a president who nonetheless turned on him and hounded him - by viciously “letting loose” an investigation that began under Bush, and, oh yeah, allowing his Attorney General to investigate everybody else except Yoo’s complicity in torture. Don’t you just hate when that happens?

Actually, Yoo is far too modest in his claims. His legacy to America is much greater and can’t be circumscribed by the term of a single presidency. No, as I commented last month, his gift to constitutional democracy ultimately is the Justice Department’s refusal to punish Yoo and his OLC cohorts for having indemnified government officials who engaged in egregious lawlessness and human rights abuses. Yoo has worked to guarantee that every president in the future may violate clearly established law with impunity for himself and his assistants, by the simple device of hiring unscrupulous lawyers to produce the necessary advice, however preposterous, sufficient to shield the wrongdoers from future prosecution. Call it an all-out assault on the rule of law. It’s quite a legacy, and worth coming down from one’s cross to receive our thanks and plaudits.

And that’s quite a cross Yoo has going there for him. He’s determined to settle scores with any who dare to investigate him, especially the ethics officials at OPR who produced a scathing report last year on Yoo’s torture memos. One paragraph in Yoo’s WSJ op-ed is unusually…instructive.

Rank bias and sheer incompetence infused OPR's investigation.

Self-awareness was never John Yoo’s strong point.

OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR's preferred outcome.

This from the man whose memos famously omitted to discuss any number of precedents that undermined the Bush administration’s preferred outcomes.

They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States.

Umm, no, OPR did not do that.

OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president's commander-in-chief power.

No they didn’t.

They accused us of violating ethical standards without ever defining them.

No, they didn’t.

They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence,

No they had plenty of evidence, though admittedly they might have had a good deal more if Yoo had not deleted and expunged all record of so much of his email correspondence.

even though we both patiently—and with no legal obligation to do so—sat through days of questioning.

Whoops, back up on his cross.

Anyway, this op-ed is worth drawing attention to if only because of the accompanying illustration. Notice how Uncle Sam is hampered in his self defense by the scales of justice. So I guess it’s alright to throw those out now.

Is honesty a “known, unambiguous obligation or standard”?

The final Justice Department assessment of the professional conduct of the torture memo authors (PDF) has been dumped released unceremoniously this Friday afternoon. The assessment is not posted, nor is there a press release about it, at the DOJ website.

The draft report(s) by the Office of Professional Responsibility had found John Yoo and Jay Bybee guilty of misconduct – rather remarkably, given that OPR investigations of wrongdoing by Justice Department officials almost always lead nowhere. However, as anticipated (see here), in its final assessment the DOJ softened the draft (OPR) findings to the point that Yoo and Bybee were found only to have exercised “poor judgment”. Absent a finding of misconduct, they will not be disbarred or in Judge Bybee’s case, face impeachment. Indeed it looks like there’ll be no penalty at all for having given the green light to the torture and abuse of prisoners in US custody.

David Margolis, an associate deputy attorney general, is the man who decided to let Yoo and Bybee off with a slap on the wrist. His reasoning? Essentially he argues 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.”

I’ll have more to say later about this final assessment and the politics behind Margolis’ decision once I’ve digested the whole thing. For now, I’ll simply note that Margolis (who is said to be extremely sensitive to which way the political winds are blowing in DC) is talking through his hat here. The memos generated by Yoo and Bybee are rife with gross inaccuracies and demonstrable falsehoods. Is it not a known and unambiguously accepted standard that attorneys are obligated to be honest and scrupulous in their representations of law and jurisprudence? At a minimum?

To cite but one example, which I reported on here last August, John Yoo falsified what the UN Convention against Torture says in his memo from April 28, 2003. In that memo, Yoo claimed that …

"the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment or punishment] in exigent circumstances, such as a national emergency or war."

Yoo’s memo added no qualifications, no evidence, no citation, and no argument to justify that statement. The statement is absolutely false, as I documented in my post last August. In other words, Yoo lied in order to provide the Bush administration with a back-door justification (“national emergency”) for torture where none exists legally.

Whatever else one may think of the dubious propositions advanced by Yoo in that memo, it could not possibly be any clearer that he has engaged in misconduct in this instance.

Why does David Margolis not recognize honesty and factual accuracy as an unambiguous obligation for Justice Department attorneys?

Update: In his assessment of the OPR report, Margolis does in fact get around to the question of honesty - admitting that professional rules obligate DOJ attorneys to refrain from provinding to a client advice that is knowningly or recklessly false or issued in bad faith. Their legal work also must be competent.

Nevertheless, Margolis goes on to consider and dismiss all the evidence that the OPR report assembled to show that John Yoo's work to justify the torture and abuse of prisoners was incompetent and knowingly or recklessly false or issued in bad faith. It's a tour de force of seeing-no-evil. I simply cannot imagine how any candid investigation of John Yoo's legal output could avoid the conclusion that he knowingly falsified both law and case law in the baddest of faith.

crossposted at unbossed.com

The OPR’s Torture Memo report will be an assault on the rule of law

According to Newsweek’s Michael Isikoff and Daniel Klaidman, the DOJ’s Office of Professional Reponsibility (OPR) is about to release an investigation that lets off the 2002 Torture Memo’s authors, John Yoo and Jay Bybee, with no more than a mild rebuke.

The report originally criticized them strongly for misconduct in producing that brief for torture with reckless disregard for legal precedent. But Bush’s Attorney General, Michael Mukasey, didn’t care for that finding. First he and then Eric Holder allowed the CIA to weigh in on the OPR draft report, whose criticisms of Yoo and Bybee were then toned down radically.

Reportedly the final draft will charge them only with showing “poor judgment”, a finding so flaccid that it does not even require a DOJ referral to state bar associations for disciplinary action against Yoo and Bybee. Bybee, a federal judge, could have faced impeachment.

The dumbing down of the findings clearly have politicized the OPR report, which is remarkable given that Yoo and Bybee stand accused of tailoring their legal opinion to suit the wishes of top Bush administration officials. It amounts to another searing searing indictment of the Holder Justice Department for failing to hold any high ranking officials accountable for the torture of prisoners under the Bush administration.

Perhaps worse, it encourages future presidents to develop further the Bush administration’s diabolical experiment in indemnifying government officials against gross lawlessness. What Bush’s lawyers were busy doing in the aftermath of 9/11, essentially, was generating junk legal opinions as a smokescreen behind which the CIA and others could operate with impunity no matter how egregiously and transparently illegal their activities. If they were ever threatened with prosecution, they could claim that they acted in good faith based upon these (junk) opinions. Now the OPR, by failing even to recommend that Yoo and Bybee be disbarred for their handiwork, is about to wink at that practice. It’s an assault upon constitutional democracy.

I’ll have more later on this subject. In particular I wish to highlight something that appears to be overlooked in commentary so far. That is, the revision of the report shields not only Yoo and Bybee, but also Alberto Gonzales and David Addington. It may well be that protecting the latter two (and thus their patrons, Bush and Cheney) was the main object in blunting OPR’s findings.