Monday, February 22, 2010

More on the OPR report

Haven't had time to read it myself yet, but wanted to flag David Luban's critique of Margolis's memo rejecting the report's recommendations:
To be sure, one problem for OPR is that very little case law exists interpreting the rule requiring lawyers to give candid, independent advice, and none of it deals with facts remotely like this case. In its early drafts, OPR spelled out standards for when an opinion clearly violates candor and independence:

1. Exaggerating or misstating the significance of the authority that supported the desired result; 2. Ignoring adverse authority or failing to discuss it accurately and fairly; 3. Using convoluted and counterintuitive arguments to support the desired result, while ignoring more straightforward and reasonable arguments contrary to the desired result; 4. Adopting inconsistent reasoning or arguments to favor the desired result; 5. Advancing frivolous or erroneous arguments to support the desired result.

If this sounds perfectly obvious, that's because it is. 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.
Moreover, remember the issue here: not whether Bybee and Yoo should be disciplined, but whether they should be referred for disciplinary proceedings. Assuming the referrals were acted upon, the Bar organizations in question would conduct, in effect, trials of their own. If it's not clear whether discipline is appropriate, then why not allow OPR to make its recommendation and let the Bar organizations sort it out?

Which just highlights the folly of giving one man, who belongs to the federal department under review, make such a decision. Bmaz at Emptywheel has more on that.

... Luban also notes that we now know the name of another author of part of the torture memos: Jennifer Koester Hardy:
Koester, who was two years out of law school and around 28 years old at the time, was clearly a junior level attorney in the process. She appears to have had no authority to approve the final versions of the memos that went out from the department, and was tasked with working with Yoo on them in part because having just joined OLC, she "had some time available," according to the report. But she did take the lead in developing the first drafts of the memos, and briefed the White House on their contents.
Quite a little project to stumble into.
The final OPR report appears not to draw any conclusions about Koester's performance. But a draft version of the report, released last week along with the final report, finds that "Koester, because of relative inexperience and subordinate position, did not commit misconduct," but that "she appears to bear initial responsibility for a number of significant errors of scholarship and judgment (p. 188)."
Of course, Bybee and Yoo had a duty to check her work, particularly anything that seemed way off, as so much did in the memos. But that was a feature, not a bug.
The report describes a process in which Koester produced numerous drafts for Yoo, then, updated them based on his and other's feedback. Koester appears to have accepted and agreed with Yoo's notoriously aggressive general approach to the torture question. Indeed, according to the report, it was Koester who drafted perhaps the most controversial section of the memos: the discussion of the "commander in chief" power, in which OLC essentially advises the government that the president, as commander in chief, can disregard any law he wants during wartime. "Koester also told us that she thinks she ended up writing the Commander-in-Chief section, with 'a lot of input' from Yoo and Philbin," writes OPR (p. 50).
Well yes, if you're going to completely make up stuff about Article II powers, give it to the 28-year-old.

After OLC, she clerked for Clarence Thomas and is now at Kirkland & Ellis. "Truly, I say unto you, you already have your reward."

... Anyone offended by the "outing" of Hardy should read this reader comment at Sullyblog.

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