Thursday, February 25, 2010

Blatant Politics Trumps Justice in Justice Department

As all of you should know, the Department of Justice's Office of Professional Responsibility finally issued a report stating that John Yoo, Jay Bybee and others committed legal misconduct in drafting legal opinions on torture not based on the law, but on what their bosses- George W. Bush and Dick Cheney, and Cheney's chief aide David Addington- wanted.

And also as all of you should know, the assistant attorney general in charge over OPR, David Margolis, overruled the OPR investigation and said that since Yoo and Bybee honestly believed that the office of the President holds unlimited and absolute power, they were only guilty of being wrong- not of deliberate misconduct- and thus should suffer no penalty whatever.

Well, both the original report (heavily redacted) and David Margolis's sixty-seven page memo basically overturning the findings of the report are being reviewed by thousands of bloggers. Possibly the best review of both documents comes from David Luban of Slate, who completely demolishes the legal reasoning Margolis used to get Yoo and Bybee out of jail free:

Both the OPR report and Margolis agree that (in Margolis' understatement) "these memos contain some significant flaws." There they part company. The OPR report finds that Yoo and Bybee violated two rules of professional conduct: Rule 1.1, requiring competence, and Rule 2.1, requiring lawyers to "exercise independent professional judgment and render candid advice." Margolis rejects OPR's analysis and concludes that "poor judgment" rather than professional misconduct "accounts for the entirety of Yoo's work" on the torture memos.

But that's not the right characterization for memos that used extravagant legal reasoning to approve torture. It's like saying that Iago's advice to Othello showed poor judgment. OPR made a powerful case against Bybee and Yoo. In response, Margolis went after OPR like a defense lawyer, upped the burden of proof beyond what the ethics rules require, and minimized the liberties that Yoo and Bybee had taken with the law.

OPR's analysis changed between the drafts and the final report, and Margolis goes on for pages about that, quoting liberally and uncritically from Bybee's and Yoo's objections and insinuating that OPR's efforts to respond are worrying signs of "a shift in OPR's reasoning"—although he admits that he was the one who recommended that OPR solicit and review the objections. . . . In a catch-22, Margolis faults OPR for switching to the framework he insists is the proper one.

. . .

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. ..."

. . .

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. . . .. Margolis' response is that the arguments in the torture memos are bad, but not that bad. . . .

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. . . . 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." . . .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. . . . 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 . . . 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.

. . .

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.

. . .

Margolis objects to OPR's inquiry into whether the OLC lawyers were being told what result their client wanted—after all, lawyers usually know what result their clients when they go to draft a legal opinion. Again, though, this misses the point. If the OLC lawyers were being pushed by the White House or CIA to reach a certain result, that would be evidence that the contorted lawyering in the memos was deliberate.

Of course, the best evidence of what the lawyers were thinking, who they were talking to, and what pressures they faced, might be their e-mail traffic. But the OPR report informs us that "most of Yoo's emails had been deleted and were not recoverable."

Unfortunately, Luban concludes that, even if Margolis hadn't been working quite deliberately- and shoddily- to defend Yoo and Bybee, nothing much would have come from it:

Even if Margolis had followed OPR's recommendation, the cases would almost certainly have wound up in the dead letter box. Nonetheless, this is a bitter outcome for those who think that torture devised at the highest levels of government disgraces us as a nation.

Scott Horton, who has been investigating the Bush torture regime and the Obama administration's cover-up of that torture regime, adds:

Over the past two years, I have consistently been told by insiders at Justice that an elaborate game was played to try to slow down or block the OPR’s report. Efforts were made to pressure OPR to rewrite its report, to adopt softer standards, to allow Yoo and Bybee to respond internally, and to require OPR to address the responses. I was told that one man was consistently behind these tactics: David Margolis. So, far from being an objective and impartial analyst, Margolis became engaged in the process at least by the fall of 2008, as an advocate for Yoo and Bybee and opponent of OPR.

The first question is simple: Why is a career Justice Department official with well-documented sympathies being put in the position of final reviewer? Margolis not only lacks serious grounding in professional ethics rules; his prior decisions reflect an attitude that borders on overt contempt for them.

. . .

Margolis makes a great deal of OPR’s changes in its text. He suggests that this reflects a lack of clarity in the process and standards they apply. This is a dishonest argument, because the changes in the text resulted very largely from David Margolis’s own prodding and perversion of proper procedure. He was, we can now clearly say, setting them up for the fall.

And Andrew Sullivan, where I saw all this first, has the perfect conclusion:

Remember: only the Lynndie Englands go to jail in America; their commanders get to go on NPR and spin.

It is for this sort of thing that Obama, I believe, will go down in history alongside Gerald Ford as one of the worst presidents on American justice we have ever had. Margolis might have pushed for this cover-up since the OPR investigation began in 2004, but Eric Holder gave him full latitude to keep pushing back release, and both Holder and Obama back Margolis's analysis, marking the case as permanently closed in their eyes.

This is injustice- Yoo's and Bybee's injustice, Margolis's injustice... and Holder's and Obama's injustice.

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