Among the many striking aspects of the Justice Department’s recently-released ethics report on the creation of the "torture memos" are the repeated indications that John Yoo, the memos’ principal author, was in frequent direct contact with the White House and under intense pressure to quickly approve abusive interrogation techniques that policymakers had already chosen to implement but knew might amount to torture.
The final report reveals that despite repeated criticism of Yoo’s draft opinions and conclusions from the most experienced, knowledgeable senior attorneys and military officials within the Bush administration, the memos, written by a relatively junior attorney within the Office of Legal Counsel and representing an admittedly "aggressive" view of the law, were adopted and used to determine CIA and defense department interrogation policy.
Those facts underscore that the long-delayed final report from the DOJ’s Office of Professional Responsibility should be the beginning, not the end, of any investigation. What we still need to know is who was instructing the OLC lawyers and what exactly the lawyers were told. If White House officials were instructing them to create legal justifications for a program those officials knew was likely illegal, then we have evidence of a high-level criminal conspiracy.
Yoo Was Under "Significant Pressure" to Justify Torture
That’s in fact what National Security Counsel legal advisor John Bellinger suggested, perhaps inadvertently, when he told the OPR investigators, as they describe in their report: "Yoo was ‘under pretty significant pressure to come up with an answer that would justify [the program]‘ and that, over time, there was significant pressure on the Department to conclude that the program was legal and could be continued, even after changes in the law in 2005 and 2006."
The final report provides lots more evidence of that. For example, Yoo began drafting the sections of a memo concluding that the president has extraordinary power to ignore the law and setting out several possible defenses to torture directly after a meeting at the White House. Although Former Deputy Assistant Attorney General Patrick Philbin told Yoo that "he thought the sections were superfluous and should be removed," Philbin said that "Yoo responded,’They want it in there.’" OPR recounts that "Philbin did not know who ‘they’ referred to and did not inquire; rather, he assumed that it was whoever had requested the opinion."
Because of the urgency of the process – there are frequent references to time pressures imposed by the White House throughout the report — Philbin advised Bybee that he could sign the opinion despite its problematic sections on defenses and executive power because "they are telling us this has to be signed tonight."
Former Attorney General Alberto Gonzales, meanwhile, who was White House counsel at the time the memos were drafted, told OPR that he didn’t recall discussing the two controversial sections of the memo, but "speculated that because David Addington had strong views on the Commander-in-Chief power, he may have played a role in developing that argument."
Gonzales later commented that Addington was " ‘an active player’ in providing his view and input on the draft memorandum."
"I’d be very surprised if David [Addington] did not participate in the drafting of this document," Gonzales said at one point.
But if OLC’s job is to provide the executive branch with objective legal advice, then why would the Vice President’s legal advisor actively participate in the OLC memo drafting process? Addington appears to have been not just interested in the outcome, but eager to influence it.
Senior Administration Lawyers Objections Were Ignored
Significantly, throughout this drafting process, Michael Chertoff, then chief of the Justice Department’s criminal division and apparently the only lawyer involved who was actually an expert on criminal law — refused to sign on to parts of Yoo’s analysis and refused to provide a letter promising not to prosecute interrogators for the conduct specified in the memos.
Chertoff at one point told Yoo that he was concerned that the memo could be interpreted as providing "blanket immunity." He also told Yoo that for the interrogation techniques to be defensible, he needed more evidence that OLC had researched their actual effects on individual subjects. But the final memos instead simply adopted the CIA’s blanket assertions that the techniques would not cause lasting harm and were effective.
Philbin also told Yoo that he disagreed with parts of his memos and their analysis, including his use of an irrelevant medical benefits statute to define the "severe pain" necessary for abuse to constitute torture. Construing severe pain as the kind associated with organ failure, Philbin said, "did not provide ‘useful, concrete guidance concerning what amounts to ‘severe pain,’ " because "there is no readily identifiable level of pain that precedes medical events such as organ failure."
Yet despite these criticisms, OPR notes that as the drafts progressed of Yoo’s torture memo – what Yoo euphemistically called the "bad things" memo – the drafts increasingly emphasized that the pain had to rise to extraordinarily "severe" levels in order to be considered torture – deliberately including the comparison to pain that accompanies organ failure.
Philbin and Chertoff also both expressed concerns about the "specific intent" required by Yoo’s definition of torture, which seemed to excuse anything except sheer sadism. The Bybee memo, for example, principally authored by Yoo and signed by Bybee, who was then head of the office, concluded that an interrogator could torture subjects so long as he didn’t have the intent to cause them severe pain or harm:
"Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith."
But as former Acting OLC director Daniel Levin told OPR: "It sort of suggested that if I hit you on the head with a, you know, steel hammer, even though I know it’s going to cause specific pain, if the reason I’m doing it is to get you to talk rather than to cause pain, I’m not violating the statute. I think that’s just ridiculous…It’s just not the law."
The OPR report notes that Yoo also had "a lot of arguments" with members of the Pentagon’s Working Group on the interrogation techniques, who strongly disagreed with OLC’s legal analysis. Those critics included Navy General Counsel Alberto Mora, who specifically said he believed some of the EITs constituted cruel and unusual treatment or torture and would violate domestic and international law. Army JAG Major General Thomas J. Romig also had "serious concerns" about approving detainee interrogations that "may appear to violate international law, domestic law, or both."
That the final memos ignored the concerns of senior military attorneys in the administration yet were relied upon to set policy strongly suggests that criticism was not what the client wanted to hear.
Having provided the White House with the opinions it wanted, Yoo was well-positioned to replace Jay Bybee as head of the OLC when Bybee left to become a federal judge. The only reason Jack Goldsmith was hired instead, according to footnote 83 of the report, is that Ashcroft objected "because he thought Yoo was too close to the White House."
Critical Evidence Is Still Missing
To anyone who’s actually read the report, the White House’s fingerprints on the torture memos may seem obvious. But it’s significant that the OPR investigators were unable to reconstruct exactly what the White House instructed Yoo and his colleagues to do, because critical information – including "most of Yoo’s e-mail records and Philbin’s e-mail records during the period when key memos were being drafted and completed – "had been deleted and were not recoverable."
OPR was also kept from reconstructing the chain of command by the fact that key witnesses "declined to be interviewed," including former Attorney General John Ashcroft, former counsel to Vice President Dick Cheney David Addington, and former Deputy White House Counsel Timothy Flanigan.
OPR also had "limited access to CIA records and witnesses (including almost all of the CIA attorneys and all witnesses from the White House other than former White House Counsel Alberto Gonzales.)"
Ultimately, these missing pieces – plus Jay Bybee’s suspiciously "poor memory of the drafting process" made it impossible for OPR to connect the dots: to determine who instructed whom to do what.
Witnesses in the report repeatedly characterize John Yoo and Jay Bybee’s legal analyses as "aggressive" – not unlike Justice Department Assistant Attorney General David Margolis’s conclusion that the lawyers’ work exhibited "poor judgment" rather than criminal intent. Perhaps that would be an appropriate conclusion if these lawyers were advising a client making an argument to a court, where they’d face an equally aggressive opponent and the final decisions would be made by a neutral judge.
But that’s not what happens when the Office of Legal Counsel advises the president. There is no neutral judge. Indeed, OLC’s role is more like that of a judge – stating what the law is for the executive branch. That’s why the role of OLC lawyers is supposed to be different than the usual attorney-client relationship.
Indiana law professor Dawn Johnsen, President Obama’s nominee to head the OLC (and whose confirmation has been held up in the Senate for almost a year now) has written that the "paramount principle that should guide OLC’s work is the imperative to provide accurate and honest legal appraisals, unbiased by policymakers’ preferred outcomes." The guidelines that should guide OLC lawyers, Johnsen wrote, referring to a set of "ten commandments" that she and 18 other alumni of the Office of Legal Counsel agreed upon, "come down squarely on the side of accuracy over advocacy. . . . In short, OLC must be prepared to say no to the President."
The OPR report makes clear that Yoo and Bybee didn’t – or were not allowed to – just say no. The question that remains, and that Congress must now investigate, is whose position were they advocating, and were they instructed to ignore contradictory legal authority?
If so, then they and their "client" may have crossed more than the line between advocate and arbiter. The line that matters now is the one between "poor judgment" and criminality. And that’s far more important than whether John Yoo and Jay Bybee face ethical sanctions from their respective state bar associations.