John W. Dean

Beyond the Pale: The Newly-Released, Indefensible Office of Legal Counsel Terror Memos

By JOHN W. DEAN
Friday, March 6, 2009

On March 1, the Obama Department of Justice released nine memos written in the aftermath of 9/11 by the Office of Legal Counsel (OLC). Seven of these documents, written between 2001 and early 2003, outlined the authority of the president to fight terror, but they gave a misleading picture of that authority as virtually unlimited by ignoring treaties, statutes, and even the Constitution itself. (Others have summarized the content of these documents.) These documents are extraordinary, as were the previously-released OLC legal opinions justifying torture.

Even the Bush Administration, at its very end, finally retreated from the seven memos' conclusions. Memos dated October 6, 2008 and January 15, 2009, issued by the acting head of OLC, Steven Bradbury, in effect repeal, reject and repudiate the conclusions of the seven prior memos. The question for historians now is how the memos came about, and the issue for policymakers is how to avoid similar disgraces in the future.

The Once Highly-Respected OLC's Damaged Reputation

At the outset, it should be noted that there is no reason to impute evil motives to the Bush attorneys involved in writing these legal opinions. Bradbury states in his memorandum for the files nullifying the seven opinions that when the opinions were prepared, policymakers "fear[ed] additional catastrophic attacks were imminent," so they sought "to employ all lawful means to protect the Nation." No doubt, they were scared as hell, but to call these "lawful means" – as Bradbury states – is questionable. After all, Bradbury himself is repudiating these opinions precisely because, in many instances, they clearly employ unlawful approaches. In addition, it is remarkable that long after the imminent fear had subsided, these legal opinions still remained applicable, and were not revoked.

These newly-released opinions have badly damaged the reputation of OLC, which had always been the least political operation within the Department of Justice. This small, elite office, staffed by the best and brightest attorneys, once prided itself as an office that followed the law, and so advised the president, regardless of what the White House wanted to hear. From personal experience, I know that during the Nixon years – with a president not known to be shy about wishing to exercise his powers to the fullest – OLC was a consistent restraining influence, regarding both foreign and domestic legal matters.

One example will suffice: Nixon wanted a clear signal from OLC that he could – and ideally should – criminally prosecute the New York Times for publishing classified information associated with the Pentagon Papers. Then-OLC head William Rehnquist (no shrinking violent either regarding presidential powers), in essence, advised against it.

In reading these newly-released memos, along with the previously-released documents relating to the use of torture as an interrogation technique, it is pretty clear who was the bad apple at OLC, it was the lead attorney in pursuing these extreme and baseless OLC positions law professor John Yoo. It is likely that Yoo did the drafting, and then either he or his boss, the Assistant Attorney General in charge of OLC, Jay Bybee, signed off on the memos. Bybee now sits on the U.S. Court of Appeals for the Ninth Circuit.

John Yoo's Legal Scholarship

Anyone familiar with Yoo's dubious scholarship, and his radical views, cannot be surprised by these latest revelations.

John Yoo, who received his undergraduate degree from Harvard and his law degree from Yale, was mentored by the most conservative members of Washington's legal establishment. He clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals of the D.C. Circuit, and then for Justice Clarence Thomas of the U.S. Supreme Court. Next, he served as general counsel of the U.S. Senate Judiciary Committee from 1995-96, when ultra-conservative Orrin Hatch chaired the committee. While on a leave of absence from the University of California at Berkeley School of Law, Professor Yoo served as a deputy assistant attorney general in the U.S. Department of Justice's Office of Legal Counsel, which is where he was working when the attacks of 9/11 occurred.

Because Yoo became the leading legal adviser to the Bush White House after 9/11, many have looked closely at his scholarship, and more will likely scrutinize Yoo's work with this new release of his OLC work product. When writing Broken Government, I paused to look at Yoo's work and frankly was shocked to find such an intelligent person engaging in blatant intellectual dishonesty. It was not merely occasional excesses. Rather, when I examined his book War By Other Means, I found page after page of his material to be filled with deliberate distortions. In my book, I set forth example after example of his technique, and in doing so, I did not even scratch the surface of his deceitful methods of advocacy.

Also, I found that I was not alone in questioning Yoo's intellectual integrity. For example, Georgetown law professor David Luban, when reviewing Yoo's book War By Other Means for the New York Review of Books (Mar. 15, 2007), reported that "Yoo argues forcefully and intelligently, but not always honestly. Half-truths, straw men, double standards, selective quotations, significant omissions, and caricatures of his opponents' positions – all are characteristic of War By Others Means." [Emphasis added.] Unfortunately, this is how Yoo wrote legal opinions for OLC as well, which was very much contrary to the prior standards of that office.

Incidentally, Yoo seems to think that it is merely liberals and moderates who are critical of his work, yet conservatives too find his scholarship deficient, as this release of more of his OLC opinions has confirmed. Many conservative legal scholars are embarrassed by his work, and some are speaking out. "I agree with the left on this one," said Orin Kerr, a professor of law at George Washington University. Kerr explained that the approach in Yoo's memos "was simply not a plausible reading of the case law," a reality confirmed by even the Bush OLC's "eventually reject[ing the] memos because they were wrong on the law, and they were right to do so."

Just as when his torture memos caused uproar, the always pleasant and polite John Yoo continues to defend his work, often with the same type of bogus arguments that initially enabled him to reach his alarming positions. Even now that the new memos have been released, he is unconcerned. Although there is one matter that clearly bothers him, and it should: the Justice Department's Office of Professional Responsibility is investigating his work. When asked about this investigation, Yoo said, "I wish they weren't doing it."

The Current Office of Professional Responsibility Investigation of Yoo and Others

In a February 18, 2008 letter to Senators Durbin and Whitehouse of the Senate Judiciary Committee, H. Marshall Jarrett, head of the Office of Professional Responsibility (OPR), acknowledged that he was investigating whether the OLC legal opinions given to the White House for dealing with terrorism were "consistent with the professional standards that apply to Department of Justice attorneys."

Shortly after the November 2008 election, an enterprising online reporter with apparent sources in the OPR reported that Marshall Jarrett would "rebuke" Yoo and Jay Bybee's work in advising the Bush Administration regarding interrogation techniques and torture. And earlier this year, February 18, 2009, he reported that OPR had completed its investigation before the Bush Administration departed, but Attorney General Michael Mukasey had stifled the negative report.

By February 23, 2009, Newsweek's Michael Isikoff (a seasoned Washington reporter) had sources confirming that OPR had sent a "sharply critical" draft report to Mukasey in the final weeks of the Bush Administration, but a Mukasey aide insisted that Yoo and Bybee (and apparently Stephen Bradbury as well) be given a chance to respond to the charges, with their responses included in the OPR report.

According to the New York Times, the release of the OPR report, which will now be issued by the Obama Justice Department, is imminent. The Times reports that the Justice Department "is preparing to release a report that is expected to criticize sharply members of the Bush legal team who wrote memorandums purporting to provide legal justification for the use of harsh interrogation methods on detainees despite anti-torture laws and treaties, according to department and Congressional officials."

The Findings and Consequences of the OPR Report

Give the fact that three people who have headed OLC since Yoo's days there have been highly critical of his work, it would surprise no one if OPR's report were highly critical as well. Even Jack Goldsmith, who is a friend of Yoo's, felt it necessary to revoke several of Yoo's memos when he headed OLC.

Yoo had wanted to take the top post himself, but was blocked by Attorney General John Ashcroft and his senior aides, who reportedly "had grown weary of what they saw as Yoo's end runs to the White House," according to Eric Lichtblau's Bush's Law: The Remaking of American Justice (2008). Jack Goldsmith reports in his book, The Terror President: Law and Judgment Inside the Bush Administration (2008) that it was Yoo who recommended him for the post.

Nonetheless, Goldsmith found Yoo's formal opinions "unsupported," and "argued without any citation of authority," and noted that they contained "questionable statutory interpretations," "errors," "unusual lack of care and sobriety in their legal analysis," reached an "extreme conclusion [that] has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law," offered "cursory and one-sided legal arguments," adopted a "tendentious tone," "lacked the tenor of detachment and caution that usually characterizes OLC work," and commented that their "legal arguments were wildly broader than was necessary" – to name a few of the problems with Yoo's work that were mentioned by Goldsmith, who says he did not want to render "a painful stab in his [friend's] back."

After Goldsmith resigned, the top spot was never filled during the Bush years. Steven Bradbury, as the top deputy, became the effective head of OLC. In his October 6, 2008 and January 15, 2009 memoranda for the files revoking Yoo's work, Bradbury claims that Yoo's past memoranda "do not reflect the current views" of OLC. While this evisceration of Yoo's work product speaks for itself, Bradbury (who is also under investigation, which may in part explain why he retracted Yoo's work) hastens to add his actions are not "intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility." One wonders, however, how Yoo could have fulfilled those standards and still had so much of his work repudiated.

The new head of OLC, as part of the Obama Justice Department, is Dawn Johnsen, a breath of fresh air, whom I have written about in a previous column. Ms. Johnsen, long before she knew she might head OLC, wrote about its work product in the Bush years. For example, writing for the Boston University Law Review (2008), she openly rejected Yoo's approach for OLC's work. Johnsen, who worked in OLC during the Clinton Administration, rejects the idea of OLC's issuing "advocacy opinions" as Yoo did. Rather, she explains, OLC's job is to tell the president what the law is, not what he might like it to be. While she does not question Yoo's sincerity in claiming that he told the White House what, in fact, the law was, she finds him very wrong as to the merits of that claim, and has so stated publicly.

It will be very difficult for the OPR to find anyone who will say that John Yoo has met the standards of responsibility for an attorney in the Justice Department – other than John Yoo himself, of course.

Yoo is no doubt aware of the contents of the forthcoming OPR report, since he has been given an opportunity to respond. One report notes that Yoo has "informed officials at the University of California at Berkeley, where he is a tenured law professor, [of the report] according to two senior law school officials." Currently, Yoo is a visiting professor at the Chapman Law School in Irvine, California, and in the March 3, 2009 interview (cited above) with a local reporter, he may have foreshadowed his own perception of the consequences of the OPR report: "If I never serve in government again, that would be fine with me. I'm happy with my job as a professor."



John W. Dean, a FindLaw columnist, is a former counsel to the president.

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