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This Is Prodoundly Disturbing...

Brian Tamanaha Joins Those of Us Who Have Concluded that John Yoo Does Not Argue in "Good Faith"

Nice to see. From one perspective it is obvious. From another perspective it is sad that most every lawyer and law professor who agrees with Brian is still being vewy, vewy quiet.

Brian Tamanaha:

Defenders of the Bush Administration who argue against the criminal prosecution of former government officials for their illegal activity—torture, violation of FISA, etc.—uniformly raise a two part “good faith” excuse: 1) those who ordered and engaged in these illegal activities relied in “good faith” on Department of Justice legal opinions that authorized the activities; and 2) the legal opinions were “good faith” interpretations of the applicable law by Office of Legal Counsel lawyers (Yoo, Bybee, Delahunty).

The first part of this “good faith” excuse raises large questions: Can one rely in “good faith” on a memo which purports to authorize obviously illegal activity?... Is “good faith” reliance a valid defense?

This post sets aside those issues to focus on the second part of the “good faith” excuse.... The memos authorizing these illegal activities bear all the trappings of ordinary legal argument. How does one prove that these “legal opinions” were constructed in bad faith?... But the recent release by the OLC of several of the relevant memos removes any doubt: these memos were elaborate exercises in manipulative legal argument.... OLC lawyers were faced with a big hurdle: the applicable law was directly contrary to what the Administration wanted to do. (That’s the thing about law—it can get in the way.) Rather than concede that the actions were illegal and could not be done, however, the lawyers constructed a covering legal analysis which arrived at the desired ends. The soundness of their legal argument did not matter. What mattered was that OLC has the power to issue legal opinions that are authoritative for immediate purposes (within the executive branch) and the mere issuance of the opinion supplied the first part of the “good faith” excuse described above (providing a defense to those who directly engaged in the illegal conduct). (As an analogy, think of a tax lawyer knowingly preparing a letter that approves of the legality of an illegal tax shelter, thereby supplying the client with a reliance defense against subsequent IRS enforcement actions.)...

[I]t is essential to understand the extraordinary claims these OLC lawyers made. Their core argument... is that, as head of the executive... and Commander in Chief of the military, the president has the authority to do whatever he deems necessary... to conduct the “war” against terror... “plenary power” (that is, absolute, unqualified) over these matters.... The president can authorize torture, approve of searches and seizures without warrants, order the domestic use of the military, abrogate treaties on his own authority, and he may “dispose of the liberty” of prisoners as he pleases, to offer a few examples, all without interference from courts and congress. The memos specifically assert that the First Amendment and the Fourth Amendment of the Constitution must give way when the president deems it necessary in defense of the nation.... Pause and let that sink in. It’s all there in the memos. Read them and be chilled....

[L]awyers in the OLC (Yoo, Bybee, and Delahunty) claimed that the president is above the law in the various respects identified above—and these were the official positions of the Department of Justice until the belated repudiation by outgoing OLC Deputy Steven Bradbury in his January 15, 2009, memo.... So why has the “good faith” excuse for these legal memos evaporated? Exhibit A is Bradbury’s repudiation.... The abject emptiness of their legal arguments is reflected in Bradbury’s unequivocal language, retracting point after point: “the assertions excerpted above are not the position of the OLC;” “the sweeping assertions in the opinions…are not sustainable;” “the prior opinion…is incorrect;” “We disagree…;” “This Office has substantial doubts…;” “we have substantial doubts…:” “The survey of early history [in the memo]…does not support the opinion’s assertion…;” the argument “is problematic and questionable…;” “the reasoning supporting these assertions is unconvincing;” “We found the two opinions’ treatment of this history to be unconvincing, their analysis…to be doubtful.”

As Bradbury makes clear, the legal analysis in these memos, time and again, was just plain bad legal argument.... Consider this concluding passage from a Yoo-Delahunty memo.....

The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. If the government’s heightened interest in self defense justifies the use of deadly force, then it would certainly also justify warrantless searches.

Huh? The reasoning goes like this:

  1. Individuals can use deadly force to defend against a deadly attack;

  2. The government can use deadly force to defend the nation against an attack;

  3. Therefore: the government can engage in warrantless searches.

As Bradbury asserted (politely), dismissing this analysis: “We believe that this reasoning inappropriately conflates the Fourth Amendment analysis for government searches with that for use of deadly force.” It’s stupefying.... The OLC memos are replete with selective historical arguments, selective readings of constitutional and legislative history, selective citation to judicial precedents, selective readings of statutes, and selective leaps of logic. Advocacy of this sort is standard stuff for lawyers, but OLC lawyers are in a different position precisely because their opinions have authoritative consequences. There is a difference between what the law is and what the Administration wants the law to be, and the role of OLC lawyers is to advise on what the law is....

The positions taken in these memos were not “mistakes” in legal analysis by unskilled lawyers working under pressure. They were elaborately crafted by capable lawyers. The legal analysis nonetheless fails time and again because the positions they were determined to justify could not be legally justified. That is precisely why this was not “good faith” legal argument.... The law wouldn’t bend as far as they wanted. But they wrote the legal memos anyway, placing the president above the law. As a result, the president and those acting on his behalf were above the law—for a time.