[1]
I've seen DOJ attorneys repeatedly act with amazing disdain for the rules of court and never get slapped down for it. Of course, they see nothing wrong with the torture memos. They can't imagine life being any different, nor does anyone oblige them to.

Posted by Deep Harm at Friday, February 19, 2010 22:51:55

[2]
It's sad, isn't it? The OPR in particular has been egregiously lax in the past, and yet here they came down pretty hard on Yoo and Bybee. It was left to David Margolis, occupying a choke-point in DOJ over OPR operations, to nullify their work.

One of the most salient things about Margolis' assessment is that it is far more consistently critical of the OPR draft reports than it is of the torture memo authors. It's only toward the very end of the report that Margolis really gets around to serious criticism of the legal output of Yoo and Bybee.

And even then, Margolis almost immediately provides both of them with cover. Bybee, he argues, wasn't really paying close attention to what Yoo was producing and nobody told him explicitly that Yoo's analysis stank. So Bybee can't be guilty of deliberate misconduct (evidently the "competent" requirement doesn't apply to him any more than to Yoo).

And as for Yoo, Margolis asserts that he is such an ideologue that he truly believed in the garbage he was producing. Thus because Yoo is a whackjob, there's no reason to suppose he tailored his advice specifically to please the Bush administration's torture advocates (despite the clear evidence that Yoo revised the Torture Memo after the intervention of David Addington and Alberto Gonzales). Margolis implies that Yoo was such a nut that he was utterly unable to produce competent advice, but thinks Yoo shouldn't face punishment for allowing ideology to over-ride clearly established law.

All of that is bad enough. But even worse, Margolis revisits the Nuremberg neighborhood. His all purpose justification for over-ruling the OPR findings is that Bush administration lawyers were working within a climate of tension and fear after 9/11 and thus should be forgiven for producing slipshod legal work.

Well, there was a lot of fear and tension in Germany after the Reichstag building burnt in 1933. I guess by Margolis' reasoning all the bad lawyering that followed, including the suspension of the German constitution, was to some degree justified by that fear.

OPR's lawyers, to their credit, explicitly rejected the contention by Margolis (and Yoo, and Bybee) that fearfulness excuses incompetent and dishonest legal advice.

Posted by smintheus at Saturday, February 20, 2010 12:14:39

[3]
The example you cite to show Yoo was being dishonest is from an anonymous set of bullet points. There's no evidence they were written by Yoo. According to the OPC's final report, the bullet points were written jointly by OLC and the CIA's Counter-Terrorism Center, then revised by someone other than Yoo (name redacted). (See page 100-1.)

Whoever wrote them, since they're only bullet points, it's ridiculous to complain they offer "no qualifications, no evidence, no citation, and no argument." And there may be explanation, argument and evidence provided in earlier memos. The part quoted here may be a shorthand way to refer to the claims that the CAT doesn't eliminate the necessity defense or infringe on the Commander in Chief powers in time of war.

"It's a tour de force of seeing-no-evil."

Be more specific. I'd say Margolis is a good deal more careful than you have been.

Posted by Sanpete at Sunday, February 21, 2010 06:19:31

[4]
Sanpete, I have been careful though I think you have not.

The copy of the 'bullet points memo' we have was referenced in a fax sent by Scott Muller of the CIA's OGC to John Yoo. Muller said to Yoo "I would like to discuss this with you as soon as you get a chance." That strongly implies that Muller was responding to a memo that Yoo had sent him.

Furthermore, the OPR report you cite says more than just that the memo was jointly created by OLC and the CIA's CTC. It goes on to state that the redacted person who later revised the memo recalled that the memo had been "drafted to give the CIA OIG a summary of the OLC's advice to the CIA about the legality of the detention and interrogation program". In other words, the legal advice was the OLC's work that the CIA then commented upon.

The OPR final draft report treats the 'bullet points memo' as an example of the OLC reaffirming its earlier and notorious advice on torture and abuse. You'd be hard pressed to argue that the 'bullet points memo' draft that we have is not the work of Yoo, which is how others have treated it, just because it is unsigned.

The final draft of this memo, sent to Patrick Philbin on June 16, 2003 retains the same statement about CAT that I focused on. So the false statement was not inserted by later revisions either at DOJ or the CIA.

What is "ridiculous" about my factual statement (not a complaint) that the memo's false statement is not supported by argument or evidence? Other parts of the bullet points memo do provide argument and citation, but this false statement just hangs there unsupported.

You may surmise that it is shorthand for whatever argument that you wish. The fact is that the statement as made is false.

If it were an obscure reference to an argument of the CinC's powers, then Yoo falsified the issue. The CAT does not "permit" exigent circumstances. Yoo's argument would have to be that the Constitution allows the CinC to ignore what the CAT requires.

A similar objection pertains to your suggestion that Yoo might be reprising his argument that a necessity defence can trump virtually any law or treaty obligation. Because that's not what the false statement says. This bullet point begins by arguing that US obligations under CAT regarding mistreatment of prisoners are limited to the US constitutional guarantees regarding treatment. Then it adds "Moreover, the [Torture] Convention permits..." In other words, it turns to a claim that CAT itself permits limitations to what it covers.

No matter how thinly you slice it, that statement is false. There may very well be an unknown memo out there in which Yoo argued this point in more detail. But that won't make the statement, as framed, any less false.

I plan to be more specific about Margolis' failings, as I said earlier. You are right about one thing, though. Margolis was very careful - to identify any plausible excuse not to hold Yoo and Bybee accountable.

Posted by smintheus at Sunday, February 21, 2010 09:59:42

[5]
Oh, and for what it's worth the 2004 report on the torture program by the CIA Inspector General treated the final memo (incorporating the draft bullet points in question) as an official OLC opinion. The Justice Department however wanted to distance itself from these bullet points starting immediately after John Yoo resigned from OLC, and advised the CIA that it was not an official opinion.

This disagreement between DOJ and CIA would not have been possible unless the bullet points actually reflected Yoo's work.

Posted by smintheus at Sunday, February 21, 2010 10:39:44

[6]
Specifically, the CIA IG report says of the final (June 2003) draft of the memo in question:

"According to OGC, this analysis was fully coordinated with and drafted in substantial part by OLC."

On the basis of this evidence alone, I don't see who could have drafted it in substantial part except John Yoo. Certainly it is misleading to say it was "written jointly" by OLC and CTC. The memo is legal advice, and OLC are the legal experts, not CTC.

Posted by smintheus at Sunday, February 21, 2010 11:03:24

[7]
You're guessing. That the memo was addressed to Yoo in no way implies he was the author of the bullet points. It doesn't even imply it was in response to a memo Yoo had sent. Even if the points were drafted in substantial part by OLC, that doesn't imply the original draft was done only by OLC rather than in conjunction with CTC. OPR and OGC don't pretend to know who wrote the bullet points, even though they had access to the parties involved and additional evidence. You shouldn't either.

It makes no sense to expect all the statements in a brief bullet point list to be supported by argument and evidence, especially if they're subsidiary points like the one you picked out, which is a subsidiary point of a subsidiary point. Most of the subsidiary claims naturally receive no support or explanation.

"No matter how thinly you slice it, that statement is false."

No one, including Yoo, elsewhere says anything corresponding to what you took that statement to mean. Since it's supposed to summarize OLC advice, that suggests it doesn't mean what you took it to mean. You suggest instead there may be some still missing memo that explains this novel doctrine. It's at least as likely that it's simply a poorly worded reference to claims we do have records of.

You claimed not only that the statement is false but that Yoo knew it was. It isn't a belief Yoo thought was false if it means what I suggested it does, i.e. that the CAT doesn't remove the necessity defense or affect the Commander in Chief powers. See Margolis starting at page 54.

"This disagreement between DOJ and CIA would not have been possible unless the bullet points actually reflected Yoo's work."

I think it does "reflect" Yoo's work, as summarized by someone, possibly but not necessarily Yoo himself.

Posted by Sanpete at Sunday, February 21, 2010 12:39:17

[8]
By the way, Brad DeLong, who linked to your post, has either removed or refused to publish a comment similar to what I posted above (and I tried twice since early this morning). Is that typical of his blog, that only views he likes are allowed or somthing? As free as he is in calling Yoo a liar, it's odd to me that he can't take some reasoned criticism himself.

Posted by Sanpete at Sunday, February 21, 2010 17:34:42

[9]
First, on a small matter, you're obsessing about a simple statement of fact I made: The CAT assertion is wholly unsupported. Why you're treating that as a "complaint" I cannot imagine. The reason I made that remark originally was to convey to readers here that there is no more to the assertion than what I quoted. The statement stands or falls entirely on its own.

And it does fall completely because it is false, as worded. CAT does not "permit" what the memo asserts that it "permits".

I've already indicated why both of your 2 attempts to provide alternative and more defensible interpretations fail. There is no logical reason for stating that CAT permits something if what one really means is that one can get away with ignoring what CAT requires.

What your argument boils down to is this: If the author of the memo meant something other than the plain meaning of what he actually wrote, and if he had written something else than what he did write in order to convey that other meaning, then my interpretation would be all wrong.

And you're absolutely right about that much. If everything were as different as you'd like to have it, then I'd be wrong.

But there's absolutely nothing in the bullet points memo to compel or even suggest another interpretation than the plain meaning of the words. Quite the contrary, the memo was generated because the CIA had doubts about whether its agents were in violation of international law. So the memo opens by discussing CAT (which is where the false statement occurs), the only treaty obligation that pertains to al Qaida prisoners according to the memo. Then it discusses why other international obligations are not applicable. And it concludes by summarizing the authorized forms of abuse that the CIA can use.

So there is no relevance in this memo for a discussion either of the CinC's putative power to act as a dictator in overriding law, or of a necessity defense. You're imaging that the author, for no apparent reason, decided to bring one of these topics up, and on top of that, shoe-horned it in with such cryptic words that a reader would have no notion of what the author actually meant by this one sentence without sitting the author down and quizzing him about it. It's just an obscure bolt from the blue, appropos of nothing else in the memo, without even a hint of its true meaning, and worded accidentally to imply something entirely different from what the author intended? Sorry, no sale.

The fact that we don't find this memo's crazy interpretation of CAT elsewhere in declassified Yoo memos doesn't suggest another and less obvious interpretation of the words is preferable. For one thing, there are other novelties in the bullet point memo than this one. For another, we're lacking an untold number of Yoo's memos, not to mention all the emails he deleted. And the sheer ridiculousness of the assertion regarding what CAT permits is a hallmark of those Yoo memos that the Bush administration sought most eagerly to keep secret.

Posted by smintheus at Sunday, February 21, 2010 19:02:35

[10]
As for the authorship of the memo, you claimed originally "There's no evidence they were written by Yoo." That's not true, there's plenty of evidence.

First, Yoo was the go-to guy on torture justifications for the Bush administration. Second, this was written substantially by OLC, and Yoo was the OLC guy to do this kind of work. Third, it was a summary of earlier work done by Yoo, so Yoo was the obvious person to do it.

Fourth, the CIA treated it as a definitive OLC opinion and tried to get DOJ to acknowledge that immediately after Yoo's departure. That is to say, the OLC author had been working back channels with the CIA rather than apprising the OLC chain of command of what he was writing. Classic pattern of Yoo's behavior. Fifth, the CIA sent a copy of the final draft to Philbin at OLC "For your records" without further explanation. Philbin would have no need of such a document unless the CIA was treating it as an OLC-generated document by Philbin's predecessor.

Sixth, the CIA wanted this memo as cover. Just as it had earlier sought cover, the CIA would ask for something in writing from OLC. It would not make sense in that circumstance to generate its own memo and ask OLC to ok it. The CIA wanted a "golden shield", which only the OLC could create.

Seventh, Muller sent a note to Yoo asking to discuss "this" without explaining what "this" was. The memo itself does not say it was generated by the CIA. So if Yoo had not written the first draft and sent it over to CIA, how would he have had any context for interpreting a document that Muller wanted to discuss with him?

It is very hard to see who else besides Yoo could have drafted such a memo from OLC for the CIA. Meanwhile we have explicit evidence that Yoo was involved at some stage. That is far from a "guess".

Posted by smintheus at Sunday, February 21, 2010 19:42:54

[11]
I don't know why your comment at Delong's blog isn't appearing. Typepad-enabled comments often are screwy.

Posted by smintheus at Sunday, February 21, 2010 19:45:07

[12]
I see that in the "Yoo Memo" from March 2003 (prepared for DOD), John Yoo pointed out that CAT does not explicitly "preclude" the justification of cruel, inhuman, or degrading treatment "by exigent circumstances". So what Yoo did in his 'bullet points memo' for the CIA in April is take an earlier 'CAT does not preclude' and transform it into the much more egregious 'CAT permits'.

Just as I surmised in my post last August (linked in the text), Yoo was trying to draw an illegitimate distinction between cruel treatment and torture. CAT explicitly prohibits any such justification for torture, but does not repeat that prohibition explicitly when it turns to cruel treatment. But as I pointed out, that interpretation is simply wrong. In particular, the US had written in 1999 to the UN Committee against Torture with regard to its CAT obligations, stating that cruel treatment cannot ever be justified on exigent circumstances. Naturally Yoo does not take note of this salient fact in the Yoo Memo.

Posted by smintheus at Sunday, February 21, 2010 21:13:36

[13]
When in a context of sharp criticism someone says a claim is unsupported, that's naturally going to be taken as a criticism. However, I allow that by its literal meaning it need not be taken that way.

"CAT does not "permit" what the memo asserts that it "permits"."

The word "permits" isn't as unambiguous as you make it out to be. I agree that a natural reading, maybe the most natural reading, of the statement is false, in that the CAT doesn't grant permission. But "permits" can also perfectly well mean in such a context "is consistent with." Yoo believed the CAT, as implemented in US law, is consistent with the use of cruel, inhumane or degrading treatment in emergency or war. As you can see from the "small matter" above, sometimes people use words in literally proper but unexpected ways. (You seem to acknowledge part of this and part of what follows in your later post about Yoo's view that CAT doesn't preclude cruel, inhuman, or degrading treatment.)

"What your argument boils down to is this: If the author of the memo meant something other than the plain meaning of what he actually wrote, and if he had written something else than what he did write in order to convey that other meaning, then my interpretation would be all wrong."

No. My argument is (1), and importantly, it may not be Yoo who wrote the expression, (2) the expression, being a summary of OLC advice, probably refers to some point or points we find in earlier OLC memos, where nothing like your reading is to be found, (3) points corresponding to a possible literal meaning of the expression do occur in the earlier memos, and (4) that meaning is one Yoo believed to be true. It follows that it probably, and literally, means what I've suggested and that Yoo believed it.

"there's absolutely nothing in the bullet points memo to compel or even suggest another interpretation than the plain meaning of the words"

Actually, "national emergency" suggests the necessity defense, while "war" suggests the Commander in Chief power.

"So there is no relevance in this memo for a discussion either of the CinC's putative power to act as a dictator in overriding law, or of a necessity defense."

The relevance of the point that the treaty is consistent with cruel, inhumane or degrading treatment in time of national emergency or war is that it's a legal principle applicable to CIA detention and interrogation of captured Al-Qa'ida personnel, who were being subjected to such treatment by the CIA in a time of national emergency and war.

Even if you won't accept my interpretation as preferable, which I think it plainly is, it has to be admitted that it's possible.

So, we don't know who made the statement in question, and it need not mean something Yoo would know was false. Therefore you haven't shown Yoo (or anyone else) knowingly made a false statement.

Posted by Sanpete at Sunday, February 21, 2010 23:41:26

[14]
"As for the authorship of the memo, you claimed originally "There's no evidence they were written by Yoo." That's not true, there's plenty of evidence."

I'll clarify: there's no evidence that *shows* Yoo authored the bullet points in general or the one in question.

"Yoo was the go-to guy on torture justifications for the Bush administration"

This was essentially busy work (so see next point), recapping stuff already worked out, not a request for a new rationale, thus the lack of need to get it cleared higher up, for a signed version, etc.

"Yoo was the OLC guy to do this kind of work"

Yoo relied heavily on the unnamed female attorney who was an OLC staff attorney, giving her assignments for research, etc. She's the only one in the OLC who we know worked on the bullet points.

"it was a summary of earlier work done by Yoo, so Yoo was the obvious person to do it"

Or to assign it to someone else.

"the CIA treated it as a definitive OLC opinion . . . "

Well, the other OLC attorney also worked for the OLC.

"It would not make sense in that circumstance to generate its own memo and ask OLC to ok it."

Sure it would, but there's no evidence the CIA was seeking additional protection (for which they would no doubt want a signed, properly cleared memo), only a more compact presentation.

"how would he have had any context for interpreting a document that Muller wanted to discuss with him?"

Who knows if he did before he got the memo? The original request to work on the bullet points no doubt came from CIA to someone at OLC, not necessarily Yoo, but he could easily have assigned it to someone else in any case.

The only thing not a guess is that Yoo saw the bullet points. He probably thought they were just fine.

Posted by Sanpete at Sunday, February 21, 2010 23:45:06

[15]
"John Yoo pointed out that CAT does not explicitly "preclude" the justification of cruel, inhuman, or degrading treatment "by exigent circumstances"."

Right, but why the qualification "exigent circumstances"? The lack of repetition of some of the language from Article 2 in Article 16 plays a part, but it can't be the whole story.

Posted by Sanpete at Sunday, February 21, 2010 23:47:07

[16]
Yoo was looking to create the widest possible leeway for abusive interrogations. He seized upon the lack of repetition in Article 16 as an open invitation to imagine what might be done as long as it wasn't expliicitly "precluded". Then in this later memo he apparently decided that wasn't sufficiently decisive sounding so he revised the wording to say that CAT "permits" exceptions.

The expression "permits" is a deliberate falsification. Why?

1) There was no call for ambiguity in this memo. Indeed Yoo shows himself to be highly aware of how the parsing of words, including selective quotation and misuse of terms in creating misleading paraphrases, can be employed to make a weak or impossible argument look somewhat tenable. Yoo is a master at dressing up preposterous justifications for torture.

2) There's nothing else in this memo to clue a reader in that Yoo was advancing a rather elaborate (and strained) argument based upon non-repetition of an explicit exclusion. Instead, it's presented as if Yoo were simply paraphrasing a clause of CAT.

3) The main issue in the memo was whether CIA practices were in violation of international obligations, especially CAT. The main problem wrt to CAT was Article 16. So Yoo suddenly got all obscure and slippery in his language right at the core of the problem.

4) Both the US and UN Committee against Torture had already excluded (a) any possibility of carving out an Article 16 exception based on exigent circumstances, or (b) treating differently in any essential way the prohibitions in Article 2 and Article 16. The US letter goes to some length to demonstrate why no Article 16 exceptions are possible, thus raising and demolishing the very argument that Yoo later tried to make. Yoo neglects to mention that information in the Yoo Memo, much less advise the DOD that his interpretation of the non-repetition is therefore untenable. So at best Yoo's defense in this case boils down not to "he sincerely believed this argument", but "he was so incompetent that he failed to investigate the established interpretation of Article 16".

Of course that applies more generally to Margolis' interpretation of much of Yoo's output...that Yoo was grossly incompetent rather than deliberately misleading. But Margolis also downplays the obligation of attorneys to provide competent advice such that clients may rely upon it to make informed decisions. Margolis' defense of Yoo falls between the two stools of dishonesty and incompetence. An attorney may always try to cover up such dishonesty by claiming incompetence, but at a certain stage the claim either has to be disallowed or, if taken seriously, acted upon. But Margolis treats it as if it (too) were a golden shield.

5) Yoo is capable of doing elaborate historical research in order to find plausible arguments to bolster his torture justifications. For example, his CAT interpretation is based in part on the provisions of a treaty the US refused to sign, and the views of Ronald Reagan that the US Senate rejected. So Yoo was certainly competent enough to seek out what the US had said to the UN Committee about implementing CAT, or what the UN Committee had ruled on the convention's interpretation. His failure to bring that information into the discussion is more than simple incompetence, especially considering that the information disqualifies his proposed interpretation.

6) There is indeed relevant background to this memo which you're not acknowledging. Both DOD and CIA were increasingly alarmed in winter/spring of 2003 that Yoo's earlier justifications for torture wouldn't cover their asses in any actual court proceedings. Lawyers at both agencies were highly skeptical in particular of Yoo's interpretations of international obligations, especially CAT. When a DOD working group expressed skepticism about a re-presentation of those interpretations, Yoo thought the way forward was to keep repeating and finding new ways to present those same interpretations, rather than revisiting and revising them. Repetition is the core of propaganda. That is what Yoo was up to in these months: Trying to wear the opposition down by restating interpretations that others found not credible, by expressing confidence where others were worried. That is essential background for understanding what Yoo was doing when he transformed an earlier 'CAT does not preclude exceptions' into 'permits exceptions'. The rewording is for rhetorical effect, it's not accidental, and it's part of a pattern of behavior.

Posted by smintheus at Monday, February 22, 2010 09:46:10

[17]
It was not busy work, it was essential for the CIA (hence their repeated post-Yoo's-departure attempts to get OLC to sign onto the memo officially).

If Yoo did assign work on the memo to assistants, he would still have been in charge of the operation. The assistant is said to have done minor clean-up duty, perhaps only after Yoo had departed from OLC.

Yoo would have made sure that the wording of these bullet points met his own specifications.

Posted by smintheus at Monday, February 22, 2010 09:53:21

[18]
Let's put this debate in more concrete terms, shall we, and see if you really think Yoo was being honest.

Suppose an attorney argues in a court filing that a certain town code "does not preclude" a homeowner from spraying his sewage up in the air like a fountain (rather than keeping it underground as normal people do). And suppose that later the attorney appeals to another jurisdiction, now asserting flatly and without qualification that the town code "permits" sewage to be sprayed in the air. And suppose that the town code does indeed state explicitly that human excrement may not be exposed to air, though it does not say the same explicitly of liquid sewage.

And suppose also that 3 years earlier, in a high profile debate, the council's minutes show that it had discussed and explicitly denied that the town code ever could permit sewage to be exposed to air. And suppose that in both his filings the attorney ignored that debate and did not cite the council's ruling. And suppose that the attorney's filings never address the consequences of drawing a distinction (as he alone does) between human excrement and liquid sewage. And suppose that his client is well known to desire, for perverse reasons, to be able to make as much excrement and sewage airborn as possible.

Would you still argue that the attorney was not trying to mislead?

Posted by smintheus at Monday, February 22, 2010 10:20:37

[19]
Were you trying to fool your readers with the wording you used about the lack of support for the bullet point about CAT, which seemed to me to be a criticism? Stuff happens. None of the discussion I've seen about the bullet points in the OPR memo by their critics or by OPR itself (which also had a decisively critical stance) has called attention to the wording that concerns you. The criticism is all consistent with taking the word "permits" as I've suggested, as OPR and others must have done. If OPR or others had suspected the meaning you see, that would obviously have been a glaring issue.

According to the woman who we know worked on the bullet points, they were intended to be given to the CIA inspector general's office to show that OLC had given advice about the interrogation program. The primary audience was thus other lawyers, and since they were considering evaluating the legality of the interrogation program, it had to be lawyers who had some familiarity with the legal issues of interrogation. It would be odd to imagine that a lawyer with any familiarity with CAT would misunderstand the bullet point to mean CAT gives permission for cruel, inhuman or degrading treatment. If they were trying to fool someone, they picked a sure way to fail.

Further, there was nothing of any real significance to be gained by such an effort. That the CAT is consistent with the use of cruel, inhuman or degrading treatment is all that's needed. They didn't need permission, or additional decisive-soundingness.

The CIA may not have regarded the bullet points as busy work, but Yoo seems to have seen no great significance in them. He claimed the bullet points were generated by the CIA and didn't constitute official OLC advice, only summaries of existing OLC advice. (OPR final 116) He further claimed almost all of the OLC work on them was done by a lawyer (not himself) who would never have signed off on such a sweeping and cursory statement if it was to be used as legal advice. The fact that the bullet points were unsigned and without an OLC letterhead suggests OLC had no intention to be giving any advice with them. If CIA was using them that way, that's a problem at CIA, not OLC.

In sum, the word "permits" doesn't seem to have been the problem you think it is even with lawyers critical of the bullet points, and Yoo maintains, without any contrary evidence, that he had little to do with drafting them. You haven't shown Yoo made the statement or that the statement was understood as you fear it would be rather than as I've suggested. Thus you haven't even come close to showing Yoo knowingly made a false statement.

Posted by Sanpete at Monday, February 22, 2010 14:52:27

[20]
You mischaracterize Margolis' findings and analysis when you mention him interpreting Yoo's errors as gross incompetence. He nowhere finds incompetence. He finds errors and poor judgment.

Margolis doesn't downplay the obligation of attorneys to provide competent advice such that clients may rely upon it to make informed decisions. He finds they have a clear professional obligation to do just that.

"Margolis' defense of Yoo falls between the two stools of dishonesty and incompetence."

Rather he finds Yoo's errors don't rise to the level of dishonesty or incompetence under the rules of professional conduct, and in particular that the errors didn't prejudice his clients' interests.

Posted by Sanpete at Monday, February 22, 2010 14:56:35

[21]
Delong sent me an unsolicited email confirming he had deleted my comments about this issue because, he said, he made no reference to an unsigned memo, and he doesn't allow misleading comments. He appears to have completely missed the irony of that claim. (He made no excuse for removing a comment regarding his other post alleging dishonesty by Yoo where I pointed out that his quote from a book by Yoo obviously didn't mean what DeLong said it did.) He's clearly gone over the edge when it comes to dealing with contrary views.

In any case, you may want to let him know that the memo his post quotes from is in fact unsigned. I'd say you should also let him know there's nothing that shows Yoo wrote the memo or that anyone it was addressed to misunderstood it, but you may feel otherwise.

Posted by Sanpete at Monday, February 22, 2010 15:15:06

[22]
I see that you don't respond to my town-code recasting of this debate. No surprise, since it highlights the absurdity of defending the OLC's use of "permits" and generally its interpretation of Article 16.

Posted by smintheus at Monday, February 22, 2010 18:30:37

[23]
For that matter, you barely acknowledge the 6 specific reasons I gave for concluding that the gross misinterpretation of Article 16 in the Yoo Memo, and the even more misleading statement in the bullet points memo, are deliberate mischaracterizations rather than mere incompetence. Again, no surprise. It's pretty damned hard to get around an official US statement that there are no exceptions permissible on exigent circumstances - and even harder to explain why Yoo ignores that statement.

Posted by smintheus at Monday, February 22, 2010 18:39:40

[24]
I stand by my assessment of Margolis' failure to come to grips with what Yoo did. His ultimate argument is that Yoo did not tailor his advice to suit what the Bushies wanted to hear, but rather that Yoo was so blinded by ideology that he believed the absurd arguments he was generating, and saw nothing wrong in cherry-picking evidence, texts, and case law to bolster his own preferred interpretations. In other words, that Yoo was incompetent to assess these issues fairly, accurately, and comprehensively.

True, Margolis acknowledges in passing that attorneys are obligated to produce competent work. But then he makes nothing of that once he gets around to saying that Yoo wasn't dishonest but just incompetent.

Posted by smintheus at Monday, February 22, 2010 18:47:22

[25]
Your argument here is so bizarre that it's worth highlighting:

>>It would be odd to imagine that a lawyer with any familiarity with CAT would misunderstand the bullet point to mean CAT gives permission for cruel, inhuman or degrading treatment. If they were trying to fool someone, they picked a sure way to fail.

Further, there was nothing of any real significance to be gained by such an effort. That the CAT is consistent with the use of cruel, inhuman or degrading treatment is all that's needed.<<

First, as I've said but you've never acknowledged, CAT is NOT CONSISTENT with cruel treatment if only because the US government had said there are none of the exceptions that Yoo falsely asserted CAT does not "preclude".

In both the Yoo Memo and the bullet points, Yoo is indeed saying that CAT gives permission for cruel treatment because Article 16 fails to repeat the explicit statement ruling out exceptions to torture. Permission is the whole point of this part of the operation. Yoo wants the CIA and the DOD lawyers to believe they have permission to treat prisoners cruelly. What part of that don't you understand?

And Yoo did fail, repeatedly, to convince other government attorneys that the ongoing mistreatment of prisoners was consistent with Article 16. That's why the bullet points and Yoo Memo exist - to quell the challenges that had been raised to his earlier output.

Again, something you fail to acknowledge. The bullet points memo was inherently rhetorical because it sought to persuade a skeptical audience at CIA. Thus it's fair to treat the use of "permits" as a flagrant attempt to mislead by suggesting there is no doubt precisely at the critical point where in fact there is nothing but doubt.

Posted by smintheus at Monday, February 22, 2010 19:04:51

[26]
You mischaracterize what the OPR report says that Yoo said about the bullet points. Yoo isn't quoted as saying that the memo was generated by the CIA, which is not even mentioned in that paragraph.

It was a June 2004 phone conversation with Goldsmith, at a time that the DOJ was mounting a defense against the CIA's continued treatment of the bullet points as official OLC output. The CIA IG report was about to be released. Goldsmith clearly would have wanted Yoo to help the OLC distance itself from the bullet points, which Yoo did (reportedly).

But Yoo's reported statements don't quite cohere. OLC didn't "generate" them, he says... but then maybe they did provide the gist for them by producing summaries of earlier memos. And, oh, yeah, an OLC lawyer did work on them. But (s)he wouldn't have signed them as OLC work because they were too sweeping and simplistic to be official.

It's classic Yoo, all over the map.

As for Yoo not putting any stock in the bullet points, Scott Muller told OPR that Yoo was told the bullet points were being generated specifically to be used by the CIA Inspector General in his investigation of the abusive interrogations. The anonymouse OLC attorney at p. 101 of the OPR report also said that she understood the bullet points were drafted to give the CIA IG a summary of OLC's earlier advice, and that she understood that the IG might evaluate the legality of the program.

That was far from small change. The CIA OIG report between 2003 and 2004 was the single biggest obstacle to the continuation of the Yoo policies of abusive interrogations.

It would have been pretty darned strange if Yoo assigned such potentially critical work to an anonymous and very junior attorney (Jennifer Koester by name, identified on p. 50), without bothering to vet her work before it was sent back again to CIA. So Yoo would have been responsible for anything in that memo that he passed on.

Posted by smintheus at Monday, February 22, 2010 19:45:41

[27]
Oh, and it's worth underlining that the Goldsmith call is significant another way. The fact that he'd phone the then badly discredited John Yoo to discuss the bullet points memo suggests pretty strongly that at OLC Yoo was thought to be chiefly responsible for it. And he was, even if he did delegate some of the research to another junior lawyer.

Posted by smintheus at Monday, February 22, 2010 20:28:58

[28]
You don't directly address all the points I raise, you know. I responded to your town council example indirectly. I pointed out that with the bullet points there was no likelihood of deception, given the primary audience, and no evidence of a perception that it was intended to be deceptive among those who knew all about CAT and saw the memo and were critical of it. I don't think your example fits either of those points.

About your six points, I addressed your point 1 in the first two sentences of my previous response. You seem to imagine Yoo was above unintended unclarity or ambiguity, even in what he didn't write himself. Your point 2 was addressed in the rest of that paragraph. No one at OLC or OPR interpreted it as intended to mean CAT granted permission (which isn't the same as not precluding). Nothing follows from your point 3 that isn't countered in the first three paragraphs of my response. Your points 4 and 5 don't show that Yoo intentionally used deceptive wording (as opposed to poor or incomplete analysis) in the Yoo memo, so there's not much of a parallel. I responded to point 6 with additional information about the history and purpose of the bullet points.

"In both the Yoo Memo and the bullet points, Yoo is indeed saying that CAT gives permission for cruel treatment because Article 16 fails to repeat the explicit statement ruling out exceptions to torture."

He says no such thing in the Yoo memo, and no one cited by OPR thinks the bullet points were intended to say that. All he says in the Yoo memo is that CAT doesn't preclude, and the bullet points can mean the same. As discussed earlier, not precluding isn't the same as granting permission. If you don't see that clear distinction, it's no wonder you find my argument bizarre.

"The bullet points memo was inherently rhetorical because it sought to persuade a skeptical audience at CIA."

There's no evidence of that, and bare bullet points aren't a good means of persuasion. You're still guessing.

"Yoo isn't quoted as saying that the memo was generated by the CIA"

Yoo said OLC didn't generate it. Who do you think he meant did, then? The bullet point fairy? Repeating what he said doesn't show any incoherence or problem in Yoo's remarks on this.

"That was far from small change."

I didn't say or imply the CIA's purpose was small change. However, as I did say, the process of summarizing previous work for bullet points is not a major task. it's very much the kind of thing one would rely on a subordinate to do.

"So Yoo would have been responsible for anything in that memo that he passed on."

Of course he was responsible, like all bosses are. But that doesn't mean he paid much attention to it. He didn't sign it.

"The fact that he'd phone the then badly discredited John Yoo to discuss the bullet points memo suggests pretty strongly that at OLC Yoo was thought to be chiefly responsible for it."

It only suggests he thought Yoo might have some knowledge about them.

The fact remains that you have no evidence demonstrating Yoo wrote the bullet points, nor that he paid any particular attention to the wording, nor that he or anyone else intended anything they believed to be false, nor that anyone who saw the memo interpreted it to mean anything Yoo didn't believe. It's all guesswork on your part. So, the fact remains you've come nowhere close to showing Yoo said something he knew to be false.

Posted by Sanpete at Tuesday, February 23, 2010 10:34:45

[29]
"It's pretty damned hard to get around an official US statement that there are no exceptions permissible on exigent circumstances - and even harder to explain why Yoo ignores that statement."

It's also a different subject. If you have a specific objection to Margolis' treatment of that point (which is indirect--he doesn't mention the particular statement you refer to, I don't think), I'd be glad to know what it is. Margolis argues starting at page 54 that the difference between Yoo-Bybee and OPR on this point is a difference of opinion yet to be settled by a court. The State Department letter you refer to isn't a law or court decision, and so doesn't have the force of law. It's also possible to read the State Department statement as not ruling out the necessity and related defenses, since they are common law defenses, not statutory (i.e. they aren't provisions of US law).

I can't follow your remarks about Margolis and Yoo's supposed incompetence. Again, Margolis nowhere says Yoo was incompetent. About Yoo's clouded vision, I'm not able to see why you think Margolis didn't come to grips with Yoo's actions.

Posted by Sanpete at Tuesday, February 23, 2010 10:41:30

[30]
I think the tendency of your argumentation is made clear from a few salient points, all of which I find absurd.

1) Your insistence that Yoo never paid particular attention to the bullet points - though Muller asked to talk about them with Yoo as soon as possible; and Yoo was told they were being created for a CIA IG investigation that might rule on the legality of the mistreatment of prisoners, the very thing Yoo had devoted himself to shielding; and they became a major bone of contention between CIA and DOJ.

2) Your failure to see any logical problem in Margolis's failure to hold Yoo accountable. Margolis argued that Yoo was so blinded by ideology that he unintentially produced crappy work. That boils down to an assertion that Yoo's not dishonest, just incompetent. But Margolis thinks such incompetence doesn't rise to the level of, you know, incompetence, because incompetence would mean Yoo would need to face consequences.

3) Your denial that in the Yoo Memo as in bullet points, Yoo was trying to persuade his audience that the text of CAT gave them permission to treat prisoners cruelly. He argued that Article 16's failure to repeat an explicit exclusion on exigent circumstances was meaningful and granted permission to mistreat prisoners. The debate within DOD and CIA was about whether mistreatment was permitted under CAT. So the verb 'permits' was chosen in an intellectual background that was seeking to gain the maximum leverage from any ambiguity between granting permission explicitly vs not precluding explicitly. Even if Yoo assumed that the audience for the bullet points knew that CAT had no statement on mistreatment under exigent circumstances, none the less he was trying to persuade that CAT gave permission through its silence.

4) Your refusal to grant that the theoretical issue of whether Article 16 leaves room for cruel treatment under exigent circumstances had already been decided negatively and authoritatively by the Executive - the branch of government whose opinions Yoo traditionally exalted. Whatever Yoo meant by "permits", no matter how great a range of ambiguity he was calling upon, it was simply false.

5) Your insistence that there is no evidence Yoo drafted the bullet points. There is plenty of evidence, even if you think it's not an absolute certainty given the memo is unsigned.

Posted by smintheus at Tuesday, February 23, 2010 11:57:42

[31]
Any absurdity is due to your willful misreading or ignoring of what I've clearly said.

"Your insistence that Yoo never paid particular attention to the bullet points"

I've made no such claim, let alone insisted on it. Again, what I insist on is that you haven't shown that he paid any particular attention to the bullet points or their wording. You're confusing your speculations with fact.

"But Margolis thinks such incompetence doesn't rise to the level of, you know, incompetence, because incompetence would mean Yoo would need to face consequences."

That's your unsupported view, not what Margolis' analysis implies. You would have to show why Yoo's work rises to the level of incompetence under the rules of professional conduct, considering Margolis' arguments.

"Your denial that in the Yoo Memo as in bullet points, Yoo was trying to persuade his audience that the text of CAT gave them permission to treat prisoners cruelly."

Again, you utterly fail to distinguish the clear difference between giving permission and not precluding. As long as you refuse to recognize that difference, you'll remain quite lost.

"Your refusal to grant that the theoretical issue of whether Article 16 leaves room for cruel treatment under exigent circumstances had already been decided negatively and authoritatively by the Executive - the branch of government whose opinions Yoo traditionally exalted."

Again, the statement you refer to can be read in a manner consistent with Yoo's views. Again, the legal question isn't settled by State Department letters. Nor is the Executive Branch view settled by what a previous administration said. It's quite clear that the leaders of the Executive Branch Yoo served under agreed with Yoo's view.

"Your insistence that there is no evidence Yoo drafted the bullet points."

Again, what I've clearly and repeatedly said is that there's no evidence that *shows* he drafted them. In fact, there's plenty of reason to believe he didn't draft them, as already explained, and it isn't only that he didn't sign them.

Posted by Sanpete at Tuesday, February 23, 2010 12:48:23

[32]
Goldsmith's June 18, 2004 letter to Helgerson indicates clearly that it was Yoo who worked with the CIA on the bullet points. He doesn't name Yoo, but he does describe him as the Deputy Assistant AG in OLC who had departed DOJ shortly before June 17, 2003. That can only be Yoo.

After the fact DOJ wanted to distance itself as much as possible from the bullet points and asked the CIA to accept that they were drafted by CIA OGC in consultation with Yoo. However CIA retained its view that they were substantially drafted by OLC for use by the CIA Inspector General. I think the weight of evidence - including Yoo's hemming and hawing on the phone with Goldsmith - supports the latter interpretation.

You may not prefer that interpretation, and may prefer instead DOJ's cya version of events, but it's inaccurate to say "there's no evidence that shows he drafted them".

Posted by smintheus at Tuesday, February 23, 2010 14:01:02

[33]
"You may not prefer that interpretation, and may prefer instead DOJ's cya version of events, but it's inaccurate to say "there's no evidence that shows he drafted them"."

It's entirely accurate. We know Yoo worked on the bullet points in some manner, but that doesn't imply (or show) he drafted them.

Posted by Sanpete at Tuesday, February 23, 2010 15:24:57