Investigate this, Part Two

Yesterday, in connection with a post about the Obama-Holder Justice Department’s decision that former Bush administration officials John Yoo and Jay Bybee should not be disciplined over the “torture memos,” I referred to a letter written by then-Attorney General Michael Mukasey about the matter. Actually, the letter was co-authored by Mukasey and Deputy Attorney General Mark Filip. Both are former United States district court judges. The invaluable Andy McCarthy obtained a copy and released it on NRO’s Corner.
The letter deserves to be read carefully and in its entirety. Among other things, it demonstrates that the portion of the draft report that considered whether Yoo and Bybee were guilty of “professional incompetence” was plagued by basic errors and faulty analysis. Indeed, OPR’s work product (which it contemplated releasing as written until Mukasey and Filip raised their objections) is so shoddy that questions might be asked about the professional competence of its authors.
Mukasey and Filip make it clear that they are not engaging in such questioning. However, they state that “even after four and a half years to research, write, edit and shepardize the Draft Report, it contains, just pages into its legal analysis, errors of the sort the Draft Report itself repeatedly identifies as being part of basic legal competence under [the relevant ethics rule].”
For example:

The draft OPR report criticized Yoo and Bybee for not citing an unpublished Ninth Circuit decision. But Mukasey and Filip point out that Ninth Circuit rules have long prohibited the citation of unpublished opinions for almost all purposes, including the purpose for which the case in question in discussed in the OPR draft. As they suggest, it is odd to argue “that the Bybee Memo is sanctionable in part because it failed to cite [a] case, the citation of. . .which would have been potentially sanctionable under the rules of the issuing court.”
The draft report criticized the Bybee Memo for not advising that a court might refuse to extend the good faith defense to a crime of violence such as torture. OPR relies here, in part, on a Fourth Circuit case that, according to Mukasey and Filip, “contains no language suggesting that a good faith is unavailable for crimes of violence.
The draft report criticized the Bybee Memo because its “analysis began with the assertion that Congress’s use of the phrase ‘severe pain’ elsewhere in the U.S. Code [in a statute pertaining to health-care benefits] can shed light on its meaning” in the torture statute. OPR complained that the health care statute is unrelated to the torture statute. However, the Bybee memo’s analysis did not begin with the health care statute, but rather with three separate dictionary definitions of torture. And the Memo noted the remote nature of the statutory definitional analogy. Having acknowledged the limitations of the analogy, it was hardly professional incompetence for the authors to look to other statutory uses of the phrase “severe pain,” in the absence of direct precedent regarding its meaning under the statutory provision at issue.
The draft report relied on articles written by one David Luban without providing sufficient information to allow the reader readily to evaluate his usefulness as a source. Luban turns out to be a philosopher, not an attorney, as well as a persistent critic of President Bush’s approach to the war on terror. The Draft report doesn’t inform the reader of this, nor does it explain why Luban’s analysis, however insightful it might be, provides a proper basis for concluding that the work of Bybee (now a federal appellate judge) and Yoo (now a tenured law professor) acted with professional incompetence in their work at the Justice Department.
The draft report repeatedly quoted from interviews with Steve Bradbury and Jack Goldsmith, who succeeded Bybee as head of the Office of Legal Counsel. According to Mukasey and Filip, it does so in a way that suggests Bradbury and Goldsmith would agree with the conclusion that Yoo and Bybee committed misconduct or even were professionally incompetent. But the authors apparently never asked Bradbury or Goldsmith whether this was their view. Mukasey and Filip suggest that both men more likely believe, as they do (and as I do) that, although the legal analysis of Yoo and Bybee was flawed in some respects, it was not professionally incompetent.
The Draft report took issue with the Bybee Memo’s discussion of the “necessity defense” in part because “it is difficult to imagine a real-world situation” where an interrogator would “reasonably anticipate[] that his questioning would produce information that would avoid an imminent, threatening harm.” But the Bybee Memo counseled that the availability and strength of the “necessity defense” would depend on (1) the degree of certainty that government officials have that a particular individual has information needed to prevent an attack and (2) the likelihood that the terrorist attack is to occur and the amount of damage the attack would likely cause. With Yoo and Bybee having specified these limits on the defense, it is no grounds for a finding of professional incompetence that DOJ bureaucrats, years after 9/11, have trouble imagining a “ticking time-bomb” scenario.
The Draft report claimed that the Bybee memo did not address an element of the necessity defense requiring the defendant to show that there was no available alternative to violating the law. But the Memo specifically states that “the defendant cannot rely upon the necessity defense if a third alternative is open and known to him that will cause less harm.”

Given these and other shortcomings cited by Mukasey and Filip, it would be easy to conclude that the OPR lawyers who drafted the report were motivated not by a desire to evaluate in good faith the work of Yoo and Bybee, but instead by a partisan desire to punish these men for reaching legal conclusions they disagree with. However, I commend Mukasey and Filip for stopping short of such a conclusion, and instead simply pointing out the errors OPR made in its draft report, so that they might be corrected.
This approach should serve as the Justice Department’s guide going forward. Attack bad legal analysis, but be very, very hesitant to attack the motives or the professional competence of those you believe have committed it.

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