Office of Professional Responsibility Memo: David Margolis's Review of the OPR Report on the OLC Memos

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Oversight Report
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Tuesday, January 5, 2010
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Thursday, February 18, 2010
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THE DEPUTY ATTORNE j GENE

FROM: David Margolis

Associate Deputy Attorney Genera

U.S. Department of Justice

Office of the Deputy Attorney General

Associate Deputy Attorney General

Washington, D.C. 20530

January 5, 2010

SUBJECT: Memorandum of Decision Regarding the Objections to the Findings of

Professional Misconduct in the Office of Professional Responsibility's Report of

Investigation into the Office of Legal Counsel's Memoranda Concerning Issues

Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation

Techniques" on Suspected Terrorists

DISCUSSION:

On July 29, 2009, the Office of Professional Responsibility (OPR) issued a final report

entitled Investigation into the Office of Legal Counsel's Memoranda Concerning

Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation

Techniques" on Suspected Terrorists. OPR concluded that former Office of Legal Counsel

(OLC) attorneys John Yoo and Jay Bybee engaged in professional misconduct by failing to

provide "thorough, candid, and objective" analysis in memoranda regarding the interrogation of

detained terrorist suspects. Consistent with OPR's usual procedures, OPR indicated its intent to

refer its finding of misconduct to the state bar disciplinary authorities in the jurisdictions where

Bybee and Yoo are members.

In keeping with usual Department practice,' I invited Bybee and Yoo to submit responses

to OPR's final report. They submitted those responses on October 9, 2009, and the matter is now

ripe for decision. My task is a narrow one. The OPR report addresses a number of topics

without reaching misconduct findings against any Department attorney. I did not review OPR's

analysis of those topics. For example, during the course of its investigation, OPR reviewed

prosecutive declinations regarding interrogations of certain detainees, but I have not examined its

analysis of those issues. In addition, OPR reviewed and analyzed several memoranda authored

by former OLC attorney Steve Bradbury. Because that review did not result in a finding of

misconduct or poor judgment, I have not reviewed that analysis. Rather, my review was strictly

limited to the findings of misconduct against Yoo and Bybee.

For the reasons stated below, I do not adopt OPR's findings of misconduct. This decision

should not be viewed as an endorsement of the legal work that underlies those memoranda.

However, OPR's own analytical framework defines "professional misconduct" such that a

finding of misconduct depends on application of a known, unambiguous obligation or standard to

the attorney's. conduct. Tam unpersuaded that OPR has identified such a standard. For this

reason and based on the additional analysis set forth below, I cannot adopt OPR's findings of

misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary

authorities in the jurisdictions where Yoo and Bybee are licensed.

I. Historical and procedural background .

The terrorist attacks of September 11, 2001, engaged the United States in an

unprecedented conflict involving a non-sovereign enemy. As a result of the unprecedented

nature of the conflict, it has been the job of OLC to determine the legal contours of our nation's

efforts to combat the terrorist threat. For example, on September 25, 2001, OLC issued a

Memorandum Opinion for the Deputy Counsel to the President, President's Constitutional

Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,

2001 WL 34726560 (2001), and on October 23, 2001, OLC issued a Memorandum for Alberto

R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department

of Defense, Authority for Use of Military Force to Combat Terrorist Activities Within the United

States, 2001 WL 36190674 (2001). The latter opinion notes, "The situation in which these issues

arise is unprecedented in recent American history." Id. at *2. These were but the first of many

opinions OLC issued regarding the response to September 11, 2001. These opinions fulfilled the

role of OLC to identify the legal parameters within which policy-makers could make choices

1Beginning in the 1990s, I have been the Department of Justice official who has resolved

challenges to negative OPR findings against former Department attorneys, most often in the

context of proposed bar referrals.

2

about how to respond to the terrorist threat.

In April 2002, the Central Intelligence Agency (CIA) asked OLC for an opinion regarding

the contours of the torture statute. This inquiry was prompted by the arrest of Abu Zubaydah.

The CIA represented that Zubaydah was one of the highest ranking members of the al Qaeda

terrorist organization. In response to this request and to a subsequent request for approval of use

of specific interrogation techniques on Zubaydah, on August 1, 2002, OLC issued, under the

signature of Jay Bybee, who was then the Assistant Attorney General for OLC, two

memoranda-an unclassified memorandum titled, "Memorandum for Alberto R. Gonzales,

Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C.

2340-2340A" (the unclassified Bybee memo) and a classified memorandum titled,

"Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency,

Interrogation of al Qaeda Operative" (the classified Bybee memo). In response to a request

from the Department of Defense, on March 14, 2003, OLC issued another interrogation

memorandum signed by then OLC Deputy Assistant Attorney General John Yoo titled,

"Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Re:

Military Interrogation of Alien Unlawful Combatants Held Outside the United-States" (the Yoo

memo).

A June 7, 2004 Wall Street Journal article reported, "Bush administration lawyers

contended last year that the president wasn't bound by laws prohibiting torture and that

government agents who might torture prisoners at his direction couldn't be prosecuted by the

Justice Department." Josh Bravin, Pentagon Report Set Framework For Use of Torture, Wall

Street Journal, June 7, 2004, at Al. The next day, the Washington Post reported that it had

obtained a copy of an August 2002 memorandum regarding the torture statute and that the legal

reasoning in the August 2002 memorandum had been used in a 2003 Pentagon report on

assessing interrogation rules. Dana Priest and R. Jeffrey Smith, Memo Offered Justification for

Use of Torture, Washington Post, June 8„2009, available at http://www.washingtonpost.com/

ac2/wp-dyn/A23373-2004Jun7. Within weeks, Congressman Frank Wolf wrote a letter to OPR

requesting an investigation of "the circumstances surrounding the drafting of the August 2002

memorandum. Letter, Wolf to OPR, June 21, 2004. OPR ultimately 'agreed to Congressman

Wolf's request and launched a full investigation on October 25, 2004. OPR final report at 5.

Although Congressman Wolf's request was limited to the leaked unclassified Bybee memo, OPR

examined inter alia the drafting of the unclassified Bybee memo, the classified Bybee memo, and

the Yoo memo. Although it is not common-especially in light of its limited resources-for OPR

to commence an investigation subsequent to the departure of a subject attorney, it is not without

precedent nor prohibited by any Department rule. By comparison, when an attorney departs

subsequent to the commencement of an investigation, OPR cannot close that investigation

without approval from the Office of the Deputy Attorney. General. Factors weighed in

determining whether to close such an investigation include the status of the investigation at the

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time of departure, how much time OPR has devoted to it, and whether the alleged conduct has

broader implications for the Department than merely meeting the goal of holding the departed

attorney accountable for his conduct.

On December 23, 2008, OPR provided then Attorney General Michael Mtikasey a 191-

page draft report advising of its intent to release a redacted, unclassified version of the report to

the public on January 12, 2009. A memorandum from OPR to Mukasey invited a "sensitivity"

review, requesting response by January 2, 2009. Memorandum, OPR to Mukasey, December 23,

2008. OPR also requested a meeting with the Attorney General prior to the anticipated January

12, 2009 public release "to discuss any comments [he] may have concerning the report." Id.

OPR advised Mukasey, "Consistent with our standard practice with regard to finalizing

such reports, we are asking that the Department conduct a sensitivity review to determine

whether it believes anything in the unclassified version of the report cannot be released publicly."

Id. OPR's Policies and Procedures set forth the circumstances for public release of OPR findings

and provide that the decision whether to release OPR findings rests with the Attorney General

and Deputy Attorney General. See Office of Professional Responsibility Policies and Procedures

¶12 available at http://www.usdoj.gov/opr/polandproc.htm . OPR's procedures also provided,

"OPR's findings in certain cases may be publicly disclosed. The Department may consider

disclosing the final disposition, after all available administrative reviews have been

completed . . . ."

There is some disagreement about whether OPR advised the subjects that they would

have an opportunity to review and comment on a draft of the report prior to its release. Because

the subjects have now had a chance to review and comment on both the second draft and the final

report, I need not resolve any difference in understanding between OPR and the subjects

regarding the representations that OPR made to the subjects. In its final report, OPR represented,

"In order to best accomplish OPR's mission, we allowed the subjects of the investigation to

review and comment on a draft of this report prior to its issuance." OPR final report at 14.

However, on December 23, 2008, OPR advised Attorney General Mukasey in writing of its

intention to release the report to Congress and the public on January 12, 2009. OPR's December

23, 2008 memorandum to Mukasey made no mention of review by the subjects, and the time

Beginning in 2007, OPR conducted a joint investigation into the removal of nine United

Statds Attorneys and hiring practices of the former administration, and those reports were

publicly released prior to any review by the subjects. However, those investigations primarily

fell within the investigative purview of the Inspector General aid were handled in a manner more

consistent with statutory authorities of the Inspector General, which are inapplicable to OPR

acting solely on its own. See 5 U.S.C. App. 3.

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frame for OPR's intended release would have precluded any meaningful opportunity for such

review. Hence, it is apparent that absent the intervention of the Offices of the Attorney General

and the Deputy Attorney General, OPR would nothave shared the draft with the subjects prior to

its release to Congress and the public.

In the meantime, Mukasey and then-Deputy Attorney General Mark Filip were

considering how to respond substantively to the draft report. I did not at that time review the

draft report nor did I provide any input into Mukasey and Filip's assessment of it. On December

31, 2008, Mukasey and Filip and members of their staffs met with OPR attorneys to provide the

substantive comment that OPR invited. See Letter, Mukasey and Filip to OPR, Jan. 19, 2009

(Mukasey/Filip letter). I was not present at that meeting. Subsequent to that meeting, OPR

advised Mukasey and Filip:

[G]iven OPR's need to review and consider the preliminary concerns [the

Attorney General and Deputy Attorney General] expressed at the December 31

meeting, the further issues raised in a January 7, 2009 OLC letter to [OPR] . . . ,

and any comments provided after subjects of the report and their attorneys review

the Draft Report, the report will not be finalized before the end of the current

Administration.

Mukasey/Filip letter at 1. As a result of having been so advised, Mukasey and Filip

memorialized their concerns in a January 19, 2009 letter to OPR.

The Mukasey/Filip letter identified a number of "process concerns." More specifically,

the letter observed:

We appreciate OPR's effort to provide us with an opportunity to review and

comment on the Draft Report before the end of this Administration. Nevertheless,

the time proposed for our review was unrealistically and, with all respect,

unacceptably, short. This is particularly true given the length of the OPR

investigation, which has been ongoing for nearly four and a half years, the fact

that [the Office of the Attorney General (OAG)] has been asking about progress

on the Draft Report since at least the early summer of 2008, and the length and

classification level of the Draft Report itself. More specifically, the Draft. Report

is nearly 200 single-spaced pages long and is classified at the sensitive

compartmented information level, greatly complicating the ability of anyone

including the Attorney General himself—to review it. Notwithstanding these

complications, the Draft Report was not provided to OAG or [the Office of the

Deputy Attorney General] until December 23, 2008, and you asked for comments

prior to January 12, 2009, the date you originally proposed to release the report to

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Congress and the public. Even if this period did not include the Christmas and

New Year's holidays, it would have been insufficient for us to conduct a thorough

review, given our other responsibilities within the Department and the additional

responsibilities attendant to trying to ensure a smooth transition to a new

Administration. Our concerns with this rushed process were exacerbated by the

number of errors and other issues-discussed more fully below-that we identified in

the abbreviated review we were able to undertake.

Mukasey/Filip letter at 2.

In addition to lodging these process concerns, Mukasey and Filip, while agreeing that the

subject memoranda contained errors, criticized the substance and conclusions of the draft report.

Primary among their criticisms was their "strong disagreement and surprise that the Draft Report

proceeds seemingly without any consideration of the context in which the OLC opinions were

prepared and, equally important, the time available to prepare them." Id. at 4. In addition to this

general observation, Mukasey and Filip set forth specific substantive criticisms of the particulars

of OPR's draft report.

After considering the comments of Mukasey and Filip as well as a response from OLC,

OPR issued its second draft report. In a departure from standard practice and without

explanation, OPR in its initial two drafts analyzed the conduct of the attorneys without

application of OPR's own standard analytical framework. See http://www.usdoj.gov/opr/

framework.pdf. This departure was not insignificant. I have held my current position within the

Department for nearly seventeen years. During that time, I have reviewed almost every OPR

report of investigation. OPR developed its framework over a decade ago and to the best of my

recollection has applied it virtually without exception since that time. 3

In accordance with the understanding reached subsequent to disclosure of the first draft to

then Attorney General Mukasey, OPR provided its second draft to Yoo and Bybee, and invited

them to respond to the report within sixty days. At that time, OPR was able to provide the

subjects the classified report and a redacted unclassified version of the report. Consistent with its

3At the time OPR issued its second draft, the only exceptions of which I was aware were

the three reports that OPR and the Office of Inspector General issued regarding the removal of

United States Attorneys and the Department's hiring practices during the previous

administration. As noted earlier, those reports primarily examined matters governed by federal

statutes and regulations within the investigative purview of the Inspector General. Those reports

did not examine whether the underlying conduct implicated applicable Rules of Professional

Conduct.

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usual practice, OPR also provided Yoo and Bybee the transcript of their own interviews with

OPR, but did not provide additional documents that OPR obtained or generated during the course

of its investigation.

Yoo and Bybee timely submitted their responses to the report on May 4, 2009. 4 Yoo's

and Bybee's responses were harshly critical of the second draft and in particular strongly

criticized OPR's failure to apply its analytical framework. For example, Yoo responded:

[T]he conclusion in the Draft Report that Professor Yoo "committed professional

misconduct" is reached in direct and outrageous violation of OPR's own formal

Policies and Procedures setting forth the standards for reaching such a

determination. Those Policies and Procedures are explicit in stating that a

violation of bar rules is not enough to reach this conclusion; there must also exist

scienter on the part of the attorneys involved. Yet OPR has reached its

conclusions without any regard at all to this requirement, not even lip service.

Yoo response to second draft at 8 (emphasis in original). Bybee likewise strongly criticized

OPR's failure to reference its own framework, noting:

OPR is not supposed to make up new standards to govern particular cases.

Instead, its investigations have been guided by published policies designed to

ensure that ethics inquiries do not threaten to impede the deliberative process,

impair the proper functioning of the Executive Branch, and expose public servants

to the risk of partisan retribution. In this report, OPR nonetheless fails to cite or

apply the published standards of professional conduct as outlined in its July 2005

Analytical Framework and its July 2008 Policies and Procedures.

Bybee response to second draft at 18. 5 In addition to criticizing OPR's failure to apply its

analytical framework, Bybee and Yoo responded to each criticism that OPR lodged against the

pertinent memoranda.

On July 29, 2009, OPR issued its final report. There are substantial differences between

'Subsequent to the completion of the second draft and prior to the submission of the

responses, OPR's leadership changed hands for reasons unrelated to this matter.

5The dates reflect the most recent revisions of the policies and the framework. However,

those policies and the framework have existed in essentially the same format for a decade or

more.

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the first draft of the report, which OPR was prepared to publish in January 2009, and the final

report. For example, unlike in either of the earlier drafts, OPR referenced its analytical

framework in its final report. Anticipating this possibility, Yoo commented in his response to the

second draft:

OPR may, of course, now seek to cobble together an after-the-fact finding

of the requisite scienter in an effort to "fix" this gaping hole in its analysis. . . .

[S]uch a repair job will only highlight the fact that OPR reached its

conclusion without worrying much about whether that conclusion was justified by

proper process and analysis. This reality is underscored by the fact that OPR was

apparently intent in January of this year on publicly releasing an earlier draft of

the report without even awaiting proper review. See Mukasey Letter at 3. OPR

goes to great lengths to criticize what it asserts was ends-driven legal reasoning in

the Bybee Memoranda, but dressing up OPR's Draft Report with newly concocted

postmortem "findings" will but prove that OPR has itself engaged in exactly this

alleged sin.

Yoo response to second draft at 9. It is true that OPR declined to apply the analytical framework,

or to explain its failure to do so, or to cite the existence of the framework in either of the first two

drafts or its December 23, 2008 cover memorandum to Mulcasey. A reasonable explanation for

those decisions would be that they are evidence that the facts of this case do not fit a traditional

misconduct analysis and do not demonstrate a violation of a known and unambiguous obligation.

On the other hand, OPR has advised that it did not apply the analytical framework in its first two

drafts in an effort to facilitate public release of the report.

Application of the framework is not the only substantive change in the final report. A

couple of other examples highlight the extent to which OPR's analysis continued to evolve. In

each of the first two drafts, OPR criticized Yoo and Bybee's reference to medical benefits

statutes to help elucidate the meaning of the term "severe pain."' OPR examined Yoo and

Bybee's reliance on West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 100 (1991)

as justification for their examination of whether and how Congress had used the term "severe

pain" in statutes wholly unrelated to the torture statute. OPR observed, "[T]he sole authority

cited in the Bybee Memo—the Casey case—for turning to the medical benefits statutes was

premised upon the in pari materia doctrine." Id. at 141. OPR concluded, "We know of no

authority, and the Bybee Memo cited none, in support of the proposition that identical words or

'The torture statute actually contains the phrase "severe physical or mental pain or

suffering." 18 U.S.C. §2340. The medical benefits statute is discussed in a section of the memo

captioned, "Severe Pain or Suffering." Unclassified Bybee memo at 5-6.

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phrases in two unrelated statutes are relevant in interpreting an ambiguous term." OPR second

draft at 140.

In their responses to the second draft, Yoo and Bybee commented on these conclusions.

Yoo argued first that Casey itself was an example of comparing words in unrelated statutes to

divine meaning in a particular statute. Yoo response to second draft at 25. Second, Yoo and

Bybee noted that OPR criticized them for failing to cite J. Sutherland, Statutory Construction §

5201 (3d F. Horack ed. 1943), a source cited by the Court in Casey. They pointed out, however,

that a different section of Sutherland (and numerous cited cases) makes clear that consideration

of similar language in unrelated statutes is a permissible form of statutory construction. Yoo

response to second draft at 26-27; Bybee response to second draft at 39-40. In its final report,

OPR withdrew its observation that the Casey case "was premised upon the in pan materia

doctrine." See OPR final report at 181. And, in direct opposition to its second draft, OPR's final

report stated, "Interpreting ambiguous statutory language by analogy to unrelated but similar

legislation is a recognized technique of statutory construction." Id. at 182. Nonetheless, OPR

persisted in criticizing a different aspect of Yoo and Bybee's references to the medical benefits

statutes:

The fact that the medical benefits statutes were neither related, similar, nor

analogous to the torture statute, coupled with the fact that they did not in fact

define, explain or interpret the meaning of "severe pain," undermined their utility

in interpreting the torture statute and led us to conclude that the Bybee Memo's

reliance on those statutes was unreasonable.

OPR final report at 184.

Another example of a shift in OPR's reasoning occurred in its analysis of the Bybee

memo's discussion of the necessity defense. OPR has challenged the strength of the Bybee

memo's assertion that the necessity defense might be available to an individual accused of

violating the torture statute. In its first two drafts, OPR criticized the Bybee memo for failing to

consider whether the United States Sentencing Guidelines (U.S.S.G.) provision dealing with

necessity as a possible basis for a reduced sentence might have constituted a Congressional

"determination of values" regarding the extent to which the common law defense of necessity

would be available to defendants charged with violations of federal criminal statutes. OPR first

draft at 166; OPR second draft at 174-75. Part K of the United States Sentencing Guidelines

includes provisions related to departures from applicable guideline ranges. Section 5K2.11

includes a policy statement stating; "Sometimes, a defendant may commit a crime in order to

avoid a perceived greater harm. In such instances, a reduced sentence may be appropriate,

provided that the circumstances significantly diminish society's interest in punishing the conduct,

for example, in the case of a mercy killing." Regarding this provision, OPR observed:

While it can be argued that the guidelines do not constitute a legislative

determination with respect to the entire body of federal criminal law, much of

which predates Congress's creation of the United States Sentencing Commission

in 1984 or the implementation of the Sentencing Guidelines in 1987, a thorough

discussion of the necessity defense would have considered the relevance of

U.S.S.G. § 5K2.11. If, as the Bybee Memo contended, Congress was aware of the

Model Penal Code's definition of the necessity defense when it enacted the torture

statute, thereby making a "determination of values" that the defense was available,

Bybee Memo at 41, n. 23, it is equally reasonable to conclude that lawmakers

were aware of the Sentencing Guidelines and intended that the defense's factors

should be addressed at sentencing, rather than as a defense to criminal liability.

OPR first draft at 166; OPR second draft at 175. Section 5K2.11 was enacted in 1987, and OPR

did not cite a case that had considered the possibility that Section 5K2.11 abrogated the necessity

defense. Bybee observed:

[I]t is simply ridiculous to assert that the Guidelines—created by the Sentencing

Commission—constitute a legislative determination with respect to the entire

body of federal criminal law. And OPR's support for this particular criticism

comes from one state court decision issued in 1966, nearly twenty years before the

Sentencing Guidelines were adopted.

Bybee response to second draft at 76 (emphasis in original). A search of cases decided since

1987 reveals literally hundreds of cases addressing the necessity defense but none that suggest

that the defense was abrogated by the guidelines. In OPR's final report, the analysis of the Bybee

memo's treatment of the necessity defense contains no reference to the Sentencing Guidelines.

On the face of things, it may seem unfair to comment upon changes to the OPR report

that resulted from its considering subjects' responses that I recommended that they solicit and

review. However, as more fully set forth below, these changes are relevant to my evaluation of a

final analysis that purports to have found a violation of a known and unambiguous obligation or

standard—a different standard than the one OPR applied in its first two drafts.

II. OPR's findings

In its final analysis, OPR found that John Yoo intentionally violated his "duty to exercise

independent legal judgment and render thorough, objective, and candid legal advice" with respect

to five documents: the unclassified Bybee memo, the classified Bybee memo, the Yoo memo, a

July 13, 2009 letter from John Yoo to Acting CIA General Counsel John Rizzo, and a letter from

Yoo to then White House Counsel Alberto Gonzales, dated August 1, 2002. OPR fmal report at

10

11, 251-54. OPR also found that Bybee recklessly disregarded that same duty by agreeing to sign

and issue the unclassified Bybee memo and the classified Bybee memo. Id. at 11, 255-57.

A. OPR 's analytical framework and OPR's failure to properly identify an

applicable known, unambiguous standard

OPR's analytical framework establishes as a starting point that "OPR finds professional

misconduct when an attorney intentionally violates or acts in reckless disregard of a known,

unambiguous obligation imposed by law, rule of professional conduct, or Department regulation

or policy." Id. at 18. OPR makes its determinations based on the preponderance of evidence

even though most state bar disciplinary authorities, including the District of Columbia, apply the

more stringent clear and convincing evidence standard. See OPR final report at 13 n.13 and D.C.

Court of Appeals Board of Professional Responsibility Rule 11.5. Pennsylvania applies a hybrid

standard. See Office of Disciplinary Counsel v. Duffield, 537 Pa. 484, 494 (1994) ("Evidence is

sufficient to prove unprofessional conduct if a preponderance of the evidence establishes the

conduct and the proof of such conduct is clear and satisfactory.")

OPR investigations can result in two types of misconduct findings. OPR finds intentional

misconduct when an "attorney (1) engages in conduct with the purpose of obtaining a result that

the obligation or standard unambiguously prohibits; or (2) engages in conduct knowing its

natural and probable consequence, and that consequence is a result that the obligation or standard

unambiguously prohibits." Id. OPR finds reckless misconduct when:

(1) the attorney knows or should know, based on his or her experience and the

unambiguous nature of the obligation or standard, of an obligation or standard; (2)

the attorney knows or should know, based on his or her experience and the

unambiguous applicability of the obligation or standard, that the attorney's

conduct involves a substantial likelihood that he or she will violate, or cause a

violation of, the obligation or standard; and (3) the attorney nonetheless engages

in the conduct, which is objectively unreasonable under all the circumstances.

Thus, an attorney's disregard of an obligation is reckless when it represents a

gross deviation from the standard of conduct that an objectively reasonable

attorney would observe in the same situation.

Id. at 18-19.

Thus, in addition to requiring identification of a known, unambiguous obligation, a

finding of professional misconduct also requires that the obligation unambiguously apply. Based

on this standard, a review of OPR findings begins with an assessment of whether OPR has

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identified a known, unambiguous obligation that applied to Yoo and Bybee's issuance of the

pertinent memoranda. In its final report, OPR's misconduct findings do not identify a violation

of a specific bar rule. Rather, OPR gleaned the "duty to exercise independent legal judgment and

render thorough, objective, and candid legal advice" from several sources including D.C. Rule of

Professional Conduct (DCRPC or DC Rule) 2.1,7 DCRPC 1.1, an OLC Best Practices Memo

issued on May 16, 2005,8 and a document entitled "Principles to Guide the Office of Legal

Counsel" (Guiding Principles), which a number of former OLC attorneys endorsed in December

2004. Id. at 21-24. In addition to gleaning its applied standard from the listed sources, OPR also

declared:

Moreover, we looked at the circumstances surrounding these particular requests

for legal advice, to assess whether the requirements of the applicable professional

rules and Department regulations were met. In doing so, we began with the

premise that "the right to be free from official torture is fundamental and

universal, a right deserving of the highest status under international law, a norm of

jus cogens." Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th

Cir.), cert. denied, 507 U.S. 1017 (1993). See also, e.g., Filartiga v. Pena-Irala,

630 F.2d 876, 884 (2d Cir. 1980). We thus determined that Department attorneys

considering the possible abrogation or derogation of ajus cogens norm such as the

prohibition against torture must be held to the highest standards of professional

conduct.

Id. at 24-25 (footnote omitted). The confluence of OPR's determination that the abovereferenced

sources imposed a duty to provide analysis that was thorough, candid, and objective,

and its observations about the jus cogens norm led OPR to hold Yoo and Bybee to the highest

standard of thoroughness, candor and objectivity in its analysis of the subject memoranda. OPR

may well have defined the standard to which the Department may decide (or perhaps even has

'Yoo contends that OPR erred in its determination that DCRPC 2.1 governed his conduct

because he is and was only a member of the Pennsylvania bar and because choice of law analysis

dictates that OPR should have applied the Pennsylvania Rules of Professional Conduct (PRPC)

to analyze his conduct. This choice of law question is more than academic because at the time,

DCRPC 2.1. provided, "In representing a client, a lawyer shall exercise independent professional

judgment and render candid advice," whereas PRPC 2.1 provided, "In representing a client, a

lawyer should exercise independent professional judgment and render candid advice." Because I

do not adopt OPR's findings for different reasons, I need not resolve this legal question.

8Memorandum for Attorneys of the Office Re: Best Practices for OLC Opinions, authored

by Steven G. Bradbury, Principal Deputy Assistant Attorney General, May 16, 2005.

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decided) to hold OLC attorneys who author opinions about important matters, but the pertinent

question is whether this standard is properly applied to determine whether OLC attorneys

complied with the standards imposed on them by Rules of Professional Conduct. If OPR has

failed to identify properly a "known, unambiguous obligation imposed by law, rule of

professional conduct, or Department regulation or policy," or has failed to establish that the

obligation unambiguously applied to the attorneys' conduct, then its misconduct analysis fails on

that basis.

As with other issues noted above, OPR's description of the standard applicable to OLC

attorneys providing opinions on important matters evolved from first draft to final report. In the

first two drafts OPR concluded, without application of the analytical framework, that Yoo and

Bybee violated DCRPC 1.1 (competence) and 2.1 (advisor). OPR first draft at 8; OPR second

draft at 9. In its final report, OPR referenced both rules, but it is not clear that it found a

violation of either.

OPR described its conclusions in the second draft by stating:

Based on the results of our investigation, we concluded that former AAG Jay S.

Bybee and former Deputy AAG John Yoo failed to meet their responsibilities

under D.C. Rule of Professional Conduct 1.1 to provide competent representation

to their client, the United States, and failed to fulfill their duty to exercise

independent legal judgment and to render candid legal advice, pursuant to D.C.

Rule of Professional Conduct 2.1.

OPR second draft at 9. Thus in the drafts, OPR found professional misconduct without any

discussion of whether the applicable standards were known and unambiguous or any analysis of

whether the alleged violations were knowing or reckless. In other words, the misconduct

findings in the drafts were not tethered to OPR's analytical framework.

In the final report, however, OPR concluded:

Based on the results of our investigation, we concluded that former Deputy

AAG John Yoo committed intentional professional misconduct when he violated

his duty to exercise independent legal judgment and render thorough, objective,

and candid legal advice.

We concluded that former AAG Jay Bybee committed professional

misconduct when he acted in reckless disregard of his duty to exercise

independent legal judgment and render thorough, objective, and candid legal

advice.

13

OPR final report at 11. While OPR did insert its analytical framework into its final analysis, its

findings of professional misconduct do not specify the rule or rules of professional conduct that

were violated.

With respect to Rule 2.1 itself, OPR's description of what was required by that rule

likewise changed from the drafts to the final report. In the drafts, OPR described its Rule 2.1

analysis as follows:

Although a number of courts have found attorneys to have violated Rule 2.1, the

reported decisions and professional literature provided little guidance for

application of the standard in this context. We therefore approached our Rule 2.1

analysis by considering, as a threshold matter, whether there was evidence that the

client desired a particular result or outcome, and whether the attorney was aware

of the desired result. If so, we looked for the following acts or omissions by the

attorney, all of which we considered evidence that the attorney failed to meet the

obligations of Rule 2.1:

1. Exaggerating or misstating the significance of 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.

OPR first draft at 126-27; OPR second draft at 134-35.

In response to the second draft, Bybee complained that after observing that the case law

and professional literature provided little guidance regarding Rule 2.1, "OPR accordingly deems

it appropriate to make up its own standard without including a single citation to any source,

primary or secondary." Bybee response to second draft at 31. Both subjects objected to OPR's

consideration of the "threshold matter" of whether the attorneys were aware of the result that the

client wanted. Both Yoo and Bybee reasoned that lawyers almost always know which answer to

a legal question is consistent with the wishes of the client. Yoo response to second draft at 15-

16; Bybee response to second draft at 5-6 (citing Levin declaration ¶8 and Guiding Principles at

14

5)Y The Guiding Principles provision that Bybee cited provides, "Although OLC's legal

determinations should not seek simply to legitimate the policy preferences of the administration

of which it is a part, OLC must take account of the administration's goals and assist in their

accomplishment within the law." Guiding Principles at 5 (emphasis added). Former OLC Acting

AAG Dan Levin told OPR the same thing in an interview conducted prior to OPR's completion .

of the first draft. OPR asked Levin, "Is it implicit in a situation like this that you're trying to

accommodate the client?" Levin at 62. He responded, "Well, I think you're always trying to find

a legal way for them to do what they want to do." Id. Another one of those Guiding Principles

provides:

OLC's legal analyses, and its processes for reaching legal determinations, should

not simply mirror those of the federal courts, but should also reflect the

institutional traditions and competencies of the executive branch as well as the

views of the President who currently holds office.

Guiding Principles at 3 (emphasis added). In the final report, OPR (correctly, I believe) no

longer characterized the attorney's knowledge of the client's desired result as a threshold matter

under its Rule 2.1 analysis. The section of the OPR final report corresponding to the draft

section quoted above reads:

Although some courts have found attorneys to have violated Rule 2.1, the

reported decisions and professional literature provided little guidance for

application of the standard in this context. Accordingly, in addition to the rules

and comments set forth immediately above, we looked to the OLC's own Best

Practices Memo, as well as the OLC Guiding Principles Memo, for guidance.

OPR final report at 22. Thus, not only did OPR abandon the threshold matter of the attorneys'

awareness of the client's desired result, but it also abandoned the five factors that it had used to

evaluate whether Yoo and Bybee had met their Rule 2.1 obligation. In their place, OPR added

consideration of the Best Practices Memo' and the Guiding Principles. The consideration of

these documents raises several concerns. First and foremost, neither of them existed at the time

9OPR's first two drafts did not cite the Guiding Principles. Bybee's response cited them

to refute OPR's criticism regarding Yoo and Bybee's awareness of the result desired by the

client. Thereafter, OPR cited the Guiding Principles as support for the standard articulated in its

third and final report.

I'OPR had also referenced the Best Practices Memo in its earlier drafts to elucidate the

obligations under Rule 2.1.

15

Yoo and Bybee worked at OLC. Second, OPR's analysis relied on a memo setting forth best

practices to divine minimally acceptable professional obligations. Third, OPR made no reference

to the Guiding Principles in either of its first two drafts even though they pre-dated OPR's drafts.

Bybee himself cited the Guiding Principles in his response to the second draft to refute the notion

that an attorney's knowledge of his client's desired outcome suggests something sinister. See

Bybee response to second draft at 5. Then, OPR relied in part on those principles to assist in

defining minimally acceptable professional obligations.

OPR acknowledged that the Best Practices Memo and the Guiding Principles did not

exist when Yoo and Bybee issued the interrogation memoranda. Nonetheless, OPR justified its

ex post facto application of the Best Practices Memo to Yoo and Bybee's conduct on the ground

that Bradbury told OPR that he wrote the Best Practices to "'reaffirm traditional practices in

order to address some of the shortcomings of the past.'" OPR final report at 15 n.16. Further,

OPR asserted that the Guiding Principles reflected that "OLC attorneys from prior

administrations share Bradbury's view of the mission and role of the OLC." Id. at 16. However,

former OLC attorneys whom OPR interviewed provided information that questions the

appropriateness of applying these broad, generally applicable principles to determine whether

Yoo and Bybee's work on these matters constituted professional misconduct.

OPR was encouraged both before and after the issuance of the first draft to consider the

conduct of Yoo and Bybee in light of the circumstances that then existed. The unclassified and

classified Bybee memos were issued on August 1, 2002, less then a year after September 11,

2001. While this circumstance in and of itself suggests that Yoo and Bybee acted at a time when

the terrorist threat was quite palpable, OPR was also made aware of specific information

indicating that American lives were particularly at risk at that time. OPR's first two drafts did

not mention these circumstances. Mukasey and Filip remarked on this issue in their January 19,

2009 letter. They wrote:

We respectfully but strongly believe that any review of the Bybee and Yoo OLC

opinions for professional competence must be informed by this context. It is one

thing for people, including us personally, to evaluate in a period of relative calm

whether the analysis in the OLC opinions is more sound than subsequent analyses

(and criticisms) offered by OLC or other legal commentators. It is quite another

to be asked to address such matters alone, and to begin writing without the benefit

of extensive subsequent review and commentary, for an Executive Branch and

Nation trying to formulate a plan to ensure that the September 11 attacks would

not be repeated.

Mukasey/Filip letter at 5. In its second draft, OPR again declined to address the impact of the

circumstances outlined by Mukasey and Filip. Rather, OPR addressed this concern merely in

16

terms of time pressure and dismissed it on the ground that "none of the attorneys involved in the

writing process asserted that they did not have sufficient time to complete the memoranda or that

time pressures affected the quality of their work." OPR second draft at 179 n.167. OPR also

noted that "after the issuance of the Bybee Memos, the OLC had approximately six additional

months to produce the Yoo Memo, which incorporated the Bybee Memo nearly verbatim." Id.

I generally agree with OPR's decision to rely on Yoo's and others' refusal to suggest that

their work product was negatively impacted by time pressures. However, the broader question

that Mukasey and Filip raised relates to the strict application of standards like those articulated in

the Best Practices Memo and Guiding Principles to these circumstances. In other words, given

the small group of individuals authorized to have access to these memoranda, the very limited

(non-public) audience for which the memos were intended, and the pressing national security

concerns, was it appropriate to criticize Yoo and Bybee's failure to point out, for example, that

four of seventeen judges on the European Court of Human Rights dissented from the majority's

decision that certain interrogation methods were not torture? See OPR final report at 192

(addressing the unclassified Bybee memo's treatment of Ireland v. United Kingdom, 25 Eur. Ct.

H.R. (ser. A)(1978)).

Furthermore, information in the record from other former OLC attorneys raises doubts

about the appropriateness of applying generally applicable principles or best practices to the

circumstances of this matter. Bradbury told OPR:

I will say, although I know your focus is on these classified opinions, I don't think

it's quite—it shouldn't be understood that everything in here is a rigid requirement

that must be followed in every case because there will always be circumstances

where you are addressing a very sensitive classified program, and access to the

program on a need-to-know basis is necessarily very restricted, and we're put

under certain limitations.

Bradbury Pt. I at 5-6."

Former OLC Assistant Attorney General Jack Goldsmith, who succeeded Bybee, made

the decision to withdraw the Yoo memo. OPR interviewed Goldsmith during the course of its

investigation and asked Goldsmith to define the standard that he thought should be applied to the

interrogation memoranda. The exchange was lengthy, but instructive:

"Bradbury's OPR interview occurred in three sessions on September 27, 2007 (Part I),

January 10, 2008 (Part H), and January 15, 2008 (Part III).

17

One of the things I'm trying to figure out, we're trying to deal with is sort

of, what is an OLC opinion and what is it supposed to be. . . . [Wihat is the

role of OLC and was there a line that was crossed here in that regard[?]

That's a very difficult question for me to answer. I taught a course on this

last term, called "Lawyering for the President." I can tell you this, that

there is without getting into whether John crossed the line, there is debate

about what the proper role of OLC is. There's debate among former heads

of the office and academics and people about what exactly, what

interpretive stance OLC should take. So, there are multiple questions.

To what extent should OLC be trying to give neutral, independent

court-like advice, or should OLC be more like giving an attorney's advice

to a client about what you can get away with and what you are allowed to

do and what your risks are, something in between. What are the sources of

interpretation? Is OLC bound by Supreme Court decisions? Is OLC—can

the Executive Branch take an independent role in interpreting the

Constitution and the statutes? You know, when and why and under what

circumstances?

Does it matter whether the opinion is classified or not? Does it

matter whether there can be open debate on it? Does it matter whether it's

published?

These are all questions for which, you know, one day I'm going to

write a book and they're difficult questions. So, I'll just say that as a

general matter, point one.

That's fair enough.

But, as a general matter, I think, with all those caveats and I want those

caveats on the record, in a general matter we're supposed to be—I think the

answer is that it is clear that OLC is supposed to serve some independent

role within the Executive Branch to try to provide independent advice.

Now, no head of the office had ever done that fully, and I can give

you a lot of examples. And there are many times in the history of not just

OLC but Attorney Generals [sic] giving opinions to the President in the

history of the country where Attorney Generals [sic] gave advice which

was, you know, more of, here's an argument to cover what you've done,

rather than my best independent view on the merits.

I'll give you an example that may seem academic. When Lincoln

suspended the writ of habeas corpus it was very controversial. His

arguments were fairly weak. He told Congress that he thought he had the

power to do it and he said, my Attorney General will be providing you an

opinion within weeks. And Attorney General Bates provided an opinion

and it was pathetically weak.

18

Justice Jackson, when he was the Attorney General, for the

destroyers for bases deal, wrote what many view in retrospect as, in terms

of interpreting the statutes concerning neutrality and the international law

of neutrality and whether the destroyer for bases deal violated those, wrote

what many people after the fact said was an extremely weak unconvincing

opinion.

So, I can give you lots of examples like that from different

Administrations.

I can also give you examples through different Administrations of

heads of the office and AGs saying no, you can't do that. I think it's

extremely difficult to say in the abstract, and this may seem like a cop-out,

but when you combine all this with, you know, the threat reports that were

being done and everything, I don't know whether anyone crossed the line.

I certainly couldn't say that myself. I don't even know what the standard

is.

But, you know, I guess I would say to you that the difference here—

this is my fault. The difference here from Bates' opinion or Justice

Jackson's, both of them very bad opinions, the difference is that you had

someone in the office say no, those were wrong. So, you've got opinions

where I say these are in some respects erroneous.

Justice Jackson didn't have that problem, and his opinion was

terrible. And Bates' was terrible. And I guess in my preaching moments I

would say whatever standard you bring to bear here, it should apply to

Justice Jackson and Attorney General Bates as well. I'm serious.

My only point is I don't know what the standard is. And, again,

I'm not trying to tell you how to do your job, but I don't know what the

criteria are for whether it crossed the line.

Goldsmith at 63-66. After at least one news report indicated that OPR had found Yoo and. Bybee

to have engaged in misconduct, Goldsmith sent me an unsolicited memorandum regarding the

matter, which I forwarded to OPR prior to issuance of its final report. In his memorandum,

Goldsmith acknowledged that he had not seen the draft report, but he reiterated the point he made

in his interview with OPR. After discussing among other things the historical examples

mentioned in his interview, Goldsmith wrote:

I mention these historical examples in order to suggest that OPR should exercise

great caution when assessing the professional responsibility of executive branch

lawyers who act in time of national security crisis. Any standard that would have

landed Robert Jackson in trouble cannot be the right standard. It is especially

inappropriate, I believe, for OPR to infer misconduct or bad faith from legal

19

errors, even clear legal errors, committed in this context. OPR is not looking at

the OLC opinions with the same time constraints as the lawyers who wrote the

opinions; instead, OPR has taken nearly five years and still has not rendered

judgment. The OLC lawyers did not have this luxury. Perhaps more important,

OPR is looking at the OLC opinions not in the context of threat and danger in

which they were written, but rather in what former Deputy Attorney General

James Comey once described as "the perfect, and brutally unfair, vision of

hindsight."

Goldsmith memo to Margolis, June 5, 2009, at 4 (footnotes omitted).

Pat Philbin, who was a Deputy Assistant Attorney General at OLC when the Bybee

memoranda were issued, described for OPR the "context of threat and danger." He told OPR:

And to use sort of a technical term, everyone was

freaked out about it, because they thought we really were going to suffer a

significant attack.

And it was in the context of that and a relativel recent c ture of a

articular individual

that the sort of great urgency for this issue arose.

Philbin at 9-10. In describing his understanding at the time about what the administration wanted

from OLC in regards to the opinion on the interrogation techniques, Philbin advised:

I think generally there was a sense that this is urgent because of the

and urgent because a lot of people are going to die if we

don't prevent this attack. And so I think not just for this, but generally in the war

on terrorism the view was, you know, call it straight down the middle, but don't

be building in a buffer of well, we'd rather not actually go to sort of the black

letter of where it limits the law, or we'd rather just stay further away.

Id. at 15-16. Again, OPR considered whether Yoo and Bybee had met the highest standard of

thoroughness, candor and objectivity, but when it questioned Philbin about whether OLC should

bring the opposing points of view to the Attorney General's attention, Philbin responded that if

he was aware that there might be significant disagreement with an answer to a legal question

posed to OLC, he would want to inform the Attorney General of that although he did not think he

20

would put that in an opinion. Id. at 26-28.

Adam Ciongoli was Counselor to Attorney General Ashcroft and the lawyer in the Office

of the Attorney General who had oversight responsibilities for OLC. In that capacity, he

reviewed the unclassified Bybee memo prior to Bybee's signing it. Ciongoli told OPR that he

thought the unclassified Bybee memo "could have been written differently if people had known

that it was going to become a public document. . . . It is not the kind of opinion you want leaked

because it is not written for sound bites or as a scholarly article." Ciongoli at 38.

In its final report, in a single paragraph, OPR addressed the threat context issue raised by

Goldsmith during his interview and by Mukasey and Filip in their letter to OPR and described by

Philbin in his interview. OPR concluded:

[S]ituations of great stress, danger, and fear do not relieve Department attorneys

of their duty to provide thorough, objective, and candid legal advice, even if that

advice is not what the client wants to hear. Accordingly, we concluded that the

extraordinary circumstances that surrounded the drafting of the Bybee and Yoo

Memos did not excuse or justify the lack of thoroughness, objectivity, and candor

reflected in those documents.

OPR final report at 254. People of substantial intellect and integrity advocated that OPR's

"review of the Bybee and Yoo OLC opinions for professional competence must be informed by

this context," Mukasey/Filip letter at 5, and that OPR "exercise great caution when assessing, the

professional responsibility of executive branch lawyers who act in time of national security

crisis." Goldsmith memo at 4. Yet OPR dismissed this issue in a paragraph with no discussion

of those positions, no attempt to address those historic events that challenge their conclusion

including the Jackson and Bates examples to which Goldsmith directed them, and no mention

that Philbin had explained the belief at the time that "people are going to die if we don't prevent

this attack." Philbin at 15. Yet in this context, OPR found Yoo and Bybee to have engaged in

misconduct not because they were wrong, but because they-were not thorough. . See OPR final

report at 160 ("We did not attempt to determine and did not base our findings on whether the

Bybee and Yoo Memos arrived at a correct result").

Furthermore, there are other Rules of Professional Conduct that are relevant to the

standard to be applied in this case. DCRPC 1.2 addresses the scope of an attorney's

representation, and provides, "A lawyer shall abide by a client's decisions concerning the

objectives of the representation . . . ." DCRPC 1.2(a). The Rule sets forth two pertinent

exceptions to this general statement. First, the Rule provides that "A government lawyer's

authority and control over decisions concerning the representation may, by statute o[r] regulation,

be expanded beyond the limits imposed by paragraph[] (a) . ." The general functions of the

21

Office of Legal Counsel are described in 28 C.F.R. §0.25, and that regulation does not appear to

re-allocate the authority or control over decisions concerning OLC's representation of the United

States. The regulation, among other things, provides that OLC assists the Attorney General in his

role as legal advisor to the President and the Cabinet and permits OLC to issue both formal and

informal opinions. Rule 1.2 and Section 0.25 support the Guiding Principles' assertion that

"OLC's legal analyses, and its processes for reaching legal determinations, should not simply

mirror those of the federal courts, but should also reflect the institutional traditions and

competencies of the executive branch as well as the views of the President who currently holds

office." Guiding Principles at 3.

DCRPC 1.2(e) provides:

A lawyer shall not counsel a client to engage, or assist a client, in conductthat the

lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal

consequences of any proposed course of conduct with a client and may counsel or

assist a client to make a good-faith effort to determine the validity, scope,

meaning, or application of the law.

The commentary to this rule provides further guidance:

A lawyer is required to provide an honest opinion about the actual consequences

that appear likely to result from a client's conduct. The fact that a client uses

advice in a course of action that is criminal or fraudulent does not, of itself, make

a lawyer a party to the course of action. However, a lawyer may not knowingly

assist a client in criminal or fraudulent conduct. There is a critical distinction

between presenting an analysis of legal aspects of questionable conduct and

recommending the means by which a crime or fraud might be committed with

impunity.

DCRPC 1.2 cmt. 6. This rule arguably applies precisely to the task that OLC undertook.

Furthermore, the DC Rules provide, "In interpreting these Rules, the specific shall control the

general in the sense that any rule that specifically addresses conduct shall control the disposition

and outcome of matters and the outcome of such matters shall not turn upon the application of a

more general rule that arguably also applies to the conduct in question." DCRPC, Scope ¶5.

Rule 1.2(e) provides more specific guidance to Yoo and Bybee's task than the more general Rule

2.1. Rule 1.2(e) requires good faith and prohibits a lawyer from counseling the client to engage

in conduct that the lawyer knows to be illegal. The DC Rules define "knowledge" as actual

knowledge, although it can be inferred from circumstances. DCPRC, Terminology ¶6. This rule

can be reconciled with Rule 2.1 only if Rule 2.1's obligation of candor and exercise of

independent professional judgment prohibit a lawyer from providing advice to the client that the

22

lawyer knows to be wrong or that is issued in bad faith.

DCRPC 1.4 addresses communications between the lawyer and the client. It provides,

"A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make

informed decisions regarding the representation." DCRPC 1.4(b). The commentary provides,

"The lawyer must be particularly careful to ensure that decisions of the client are made only after

the client has been informed of all relevant considerations," and "The guiding principle is that the

lawyer should fulfill reasonable client expectations for information consistent with (1) the duty to

act in the client's best interests, and (2) the client's overall requirements and objectives as to the

character of the representation." Id. cmt. 2 and 3. This rule seems particularly relevant since

OPR criticized, in some instances, Yoo and Bybee's failure in the memos to consider and refute

countervailing arguments. Rule 1.1 provides that legal representation requires that degree of

thoroughness reasonably necessary for the representation. Arguably, then Rule 1.1 requires that

Yoo and Bybee consider countervailing arguments but not necessarily that they communicate

each of those countervailing arguments to the client, much less that they do so in a written

opinion. Rule 2.1 requires candor and exercise of independent professional judgment, but it is

not at all clear that Rule 2.1 requires communication of every considered and rejected argument

to the client as part of the giving of advice.

OPR did not explicitly consider the implications of Rules 1.2 or 1.4 when fashioning its

standard. further, as Yoo and Bybee observed in their responses, OPR did not rely on any cases

from the District of Columbia to support its standard.' In his response, Yoo cited In re Stanton,

470 A.2d 281 (D.C. 1983). In that case, a bar hearing committee had found that an attorney

intentionally failed to pursue his client's lawful objectives because after the client rejected his

advice that she not plead guilty to pending charges, he refused to assist her in the plea. On

review, the Board on Professional Responsibility adopted the finding of misconduct but took

pains to reject the suggestion of the hearing committee that the correctness of the attorney's

advice to the client regarding the plea was at all relevant. In so doing, the Board wrote:

[W]e can hardly conceive of a good faith opinion of a lawyer concerning a legal

matter which would be "so far fetched as to justify a finding of 'neglect' or of

`intentionally' failing to pursue a client's objective."

A lawyer is duty-bound to exercise his best professional judgment on

behalf of his client. Only where total inattention or incompetence is made out on

the part of the lawyer in reaching the decision should we ever be in the business of

'2OPR cited In re Ford, 797 A.2d 1231 (D.C. 2002) observing that Rule 1.1 requires

proof of a serious deficiency. OPR final report at 23 n.25. It does not appear that OPR's

analytical standard incorporated this holding, however.

23

assessing the correctness of the lawyer's advice to his client.

Id. at 287. This assertion occurred in a different context than OPR considered and addresses the

predecessor to Rule 1.3, which prohibits an intentional failure to pursue the client's objectives.

Nonetheless, OPR seemed in one respect to have adhered to the Stanton approach when it said,

"We did not attempt to determine and did not base our findings on whether the Bybee and Yoo

Memos arrived at a correct result." OPR final report at 160. However, OPR later concluded,

"[T]he Bybee Memo's conclusion that the torture statute 'does not apply to the President's

detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority'

was wrong and most certainly did not constitute thorough, objective, and candid legal advice."

OPR final report at 201.

OPR asserted that reported decisions and professional literature provided little guidance

regarding the application of Rule 2.1. Although the opinions of the District of Columbia courts

are not instructive and the District of Columbia Court of Appeals has apparently never found a

violation of Rule 2.1, examination of cases from other jurisdictions is useful. Those cases reveal

two general trends regarding Rule 2.1. First, violations of Rule 2.1 generally are accompanied by

violations of other bar rules. Second, those cases almost uniformly involve lawyers whose

independence is compromised by their own interest or by an inappropriate (often sexual)

relationship with the client. See e.g. In re Coffey's Case, 880 A.2d 403 (N.H. 2008) (Attorney

who charged excessive fee to client and then caused her to transfer property to satisfy the fee

even though she lacked the mental capacity to make an informed decision found to have violated

Rule 1.7 (conflicts) and Rule 2.1); State ex rel. Oklahoma Bar Ass 'n v. Groshon, 82 P.3d 99

(Okla. 2003) (Attorney who made inappropriate sexual advances to client found to have violated

Rules 1.1, 1.7, 1.8, 2.1, and 8.4); In re Harper, 571 S.E.2d 292 (S.C. 2002) (Attorney whose

client invested in development in which attorney had interest failed to advise client about

financial troubles, including bankruptcy filing, of a creditor to whom she had loaned money and

was found to have violated Rules 1.1, 1.2, 1.3, 1.4, 1.7, 1.8, 2.1, and 8.4.); In re Courtney, 538

S.E.2d 652 (S.C. 2000) (Attorney who engaged in sexual relations with client in divorce action

found to have violated Rules 1.1-1.4, 1.7, 1.8, 2.1, 3.3, 3.4, 4.1, and 8.4); In re Discipline of

Dorothy, 605 N.W.2d 493 (S.D. 2000) (Attorney who charged client excessive fees and costs for

handling routine child custody and support issues found to have violated Rules 1.1, 1.2, 1.3, 1.4,

1.5, 1.16, 2.1 and 8.4); Musick v. Musick, 453 S.E.2d 361 (W.Va. 1994) (Attorney who engaged

in sexual relations with client failed to maintain the emotional detachment necessary for a lawyer

to render sound, competent and independent advice); Case of Bourdon, 565 A.2d 1052 (N.H.

1989) (Same). OPR has not cited, and I have not located, any case in any jurisdiction that

reaches a finding of a violation of Rule 2.1 where an attorney provided the client advice free of

any discernible conflict or in which a court considered an alleged violation of Rule 2.1 that was

not collateral to violations of other Rules of Conduct.

24

Finally, OPR relied in part on DCRPC 1.1, which requires attorneys to provide competent

representation, to impose on the Rule 2.1 obligation a duty to be thorough as well. Rule 1.1

requires "the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the

representation." Once again, however, OPR evaluated only what Yoo and Bybee included in the

memoranda to determine whether Yoo and Bybee were thorough, and the requirement to be

thorough does not necessarily require that any memorandum setting forth the attorney's opinion

communicate to the client every countervailing argument and every non-controlling fact. See

DCRPC 1.2. In addition, the District of Columbia Board of Professional Responsibility has

observed that proof of a violation of Rule 1.1 requires a "serious deficiency" in the

representation, which has "generally been found in cases where the attorney makes an error that

prejudices or could have prejudiced a client and the error was caused by lack of competence." In

re Evans, 902 A.2d 69-70 (D.C. 2006).

While I agree with OPR that the Department expects its attorneys to provide thorough,

objective, and candid legal advice as a performance matter, OPR has converted this high

expectation into a minimum standard for assessing professional misconduct. OPR's work in this

case was no less important than the work Yoo and Bybee performed in 2002 although it lacked

the urgency that their tasks occasioned. OPR's report relates to the topic of torture no less than

the memos that it investigated. Yet, OPR intended in January of this year to release publicly a

draft report that has since undergone substantial analytical changes including the unexplained

addition of the analytical framework that was absent in the first two drafts. After responding to

the second draft and then receiving a materially altered final report, the subjects perceived that

OPR was "dead-set" on finding misconduct and accused OPR of engaging in precisely the type

of "one-sided" analysis that OPR condemned and of "cherry-picking" the record. Bybee

response to final report at 4, 136; Yoo response to final report at 91.

My task, however, is not to analyze OPR's work other than for purposes of determining

whether to adopt its findings. The fact that OPR's standard for analysis changed from a second

draft, which issued four and a half years after it began its, investigation, to the final report in and

of itself likely establishes that the standard that it ultimately applied was neither known nor

unambiguous. There are, however, similarities between OPR's description of the standards that

it applied in the drafts and in the final report even though the drafts specifically reached findings

of violations of identified bar rules and the final report reached a finding of violation of an

obligation to be thorough, candid, and objective. Nonetheless, the evolution of the analytical

standard combined with the fact it was gleaned in part from a "best practices" memo issued after

these events, the fact that OPR's analysis failed to address other potentially applicable rules and

opinions from the District of Columbia, and the fact that evidence in the record calls into

question the appropriateness of applying broad standards of conduct reflected in after-the-fact

"best practices" to attorneys answering novel and difficult legal questions for a limited audience

at a time of national crisis lead me to conclude that the standard at which OPR arrived in its final

25

report, to wit the highest standard of thoroughness, candor and objectivity, is not unambiguously

established by law, policy, rule, or the record and fails to distinguish between the Department's

expectations of its attorneys and the less stringent minimal requirements established by Rules of

Professional Conduct.

Although I have found that OPR failed to identify a known and unambiguous applicable

standard, the DC Rules obviously impose obligations on attorneys subject to its provisions. Rule

2.1 on its face requires that attorneys exercise independent professional judgment and render

candid advice. Rule 1.2 also requires that an attorney not counsel his client to engage in conduct

that the attorney knows to be illegal. See also DCRPC 3.3(a)(2). The commentary provides, "A

client is entitled to straightforward advice expressing the lawyer's honest assessment." Id. cmt.

1. Although the DC Rules do not define "candor," DCRPC 3.3 sets forth an attorney's obligation

of candor toward a tribunal. That rule provides, "A lawyer shall not knowingly . . . [m]ake a

false statement of material fact or law to a tribunal. . ." DCRPC 3.3(a)(1). Although Rule 3.3

on its face likewise requires a knowing violation, an attorney who recklessly disregards his duty

of candor may also have committed a violation. Rule 8.4 prohibits attorneys from engaging in

conduct involving dishonesty. In reference to Rules 3.3(a)(2) and 8.4, the District of Columbia

Court of Appeals stated, "We agree ... that it was necessary to show either knowing or reckless

dishonesty for a violation of either rule to arise . . . ." In re Evans, 902 A.2d at 73 (emphasis

added). Evans appears to be the only District of Columbia Court of Appeals opinion that applies

a reckless standard to Rule 3.3. Prior cases applied the reckless standard in assessing conduct

under Rule 8.4, but the first application of the reckless standard to Rule 8.4 occurred after the

Yoo memo was issued. See In re Romansky, 825 A.2d 311, 316 (D.C. 2003) ("Although we

have suggested that a showing of recklessness can sustain a violation of [Rule 8.4(c)], we have

yet to squarely apply the standard in cases such as this.") It seems likely that an attorney's duty

of candor toward his client as an advisor would be no higher than his duty of candor to the court,

and therefore the requirement of candor in Rule 2.1 at most prohibits an attorney from knowingly

or recklessly making a false statement of material fact or law to a client. The court has defined

recklessness as "conscious indifference to the consequences of [one's] behavior," or "conscious

disregard of [a] risk." Id. (citations omitted). The requirement in Rule 2.1 that an attorney

exercise independent professional judgment must be read in conjunction with other obligations of

the attorney and cannot mean that the attorney is supposed to exercise judgment independent of

the client's objectives, but rather that the attorney should not provide dishonest advice to'satisfy

the client's objectives nor should the attorney provide advice when the attorney is encumbered by

a conflicting personal interest or an inappropriate relationship with the client. A contrary reading

would directly conflict with Rule 1.2. Based on the foregoing, I conclude that the DC Rules

created an unambiguous obligation on Yoo and Bybee not to provide advice to their client that

was knowingly or recklessly false or issued in bad faith. While the OLC best practices may

require more, failure to meet those standards should result in poor evaluations or administrative

disciplinary action, but not bar referrals.

26

DCRPC 1.1 also unambiguously requires an attorney's work to be competent, including

the appropriate level of thoroughness, but Yoo and Bybee's legal work violated this rule only if it

contained serious deficiencies that prejudiced or could have prejudiced the client, that is the

Executive Branch of the United States. Separate and apart from this requirement, Yoo and

Bybee were unambiguously required to "explain a matter to the extent reasonably necessary,to

permit the client to make informed decisions regarding the representation." DCRPC 1.4.

B. OPR's criticisms of the memoranda

My determination that OPR failed to identify and apply a known, unambiguous obligation

necessarily leads me not to adopt its ultimate findings. However, because I determined that Yoo

and Bybee had an unambiguous obligation not to provide advice to their client that was

knowingly or recklessly false or issued in bad .faith, to provide competent representation, and to

explain the matter to the extent reasonably necessary to permit the client to make informed

decisions regarding the representation, I examined the specific criticisms identified by OPR to

determine whether they violated those standards. My purpose is not to provide a definitive

conclusion as to whether a particular criticism is valid because those assessments are in many

instances a matter of judgment and mine is only one more opinion. Rather, my purpose was to

determine whether the evidence establishes that Yoo and Bybee intentionally or recklessly

provided false advice to their client or failed to meet other obligations.

In addressing these issues, I have cited liberally from the testimony provided to OPR

focusing on testimony that does not appear in the final report. I recognize that different

individuals combing through the record would find portions that support the outcome towards

which the individual is predisposed. While I have had access to all of the transcribed testimony,

I have not reviewed all of the documents available to OPR. OPR has not denied such access, but

OPR has referenced those portions of the record on which its conclusions rely, and my access to

the testimony and other select documents was sufficient to allow me to look behind those

conclusions. Finally, because OPR's investigations typically involve interviews with percipient

witnesses, the testimony available to me included exclusively officials who served in the prior

administration. In evaluating their testimony, I considered what biases they may have brought to

the interview and whether their testimony appeared credible based on their entire interview.

OPR's first draft cited a number of law review and newspaper articles critical of the

unclassified Bybee memo that appeared after the memo leaked in 2004. Mukasey and Filip

questioned OPR's reliance on those critics in their January 19, 2009 letter. In response to that

letter, in its second draft, OPR observed, "Although we refer to works of legal commentary in

this report, we did not base our legal conclusions on any of those sources." OPR second draft at

8. OPR made a similar assertion in connection with its citation of the views of former

Department officials: "Similarly, although we report the views of some former Department

27

officials regarding the merits of the Bybee and Yoo Memos conclusions, we did not base our

findings on their comments." Id. at 8-9. I agree that OPR should generally reach its own

conclusions about the matters under review, but when applying an analytical framework that

considers whether a result is unambiguously prohibited or requires a determination of whether

conduct is objectively unreasonable, the views of the witnesses who are properly interviewed as

part of OPR's investigation, while not controlling, are relevant For this reason, I have in some

instances cited the views of former Department officials in order to evaluate whether the results

reflected in the memoranda evidence misconduct.

1. The unclassified Bybee memo

a. Specific intent

OPR observed that "OLC' s advice concerning the specific intent element of the torture

statute was incomplete in that it failed to note the ambiguity and complexity of this area of the

law." OPR final report at 160. More specifically, OPR concluded that "[s]ome of the Bybee

Memo's analysis was oversimplified to the point of being misleading." Id. at 171. In its

discussion of this subject, OPR faulted the memo for citing Ratzlaf v. United States, 510 U.S.

135 (1994) in which the Court addressed the federal statutes prohibiting structuring financial

transactions to avoid various reporting requirements, 18 U.S.C. §§5322 and 5324. Under this

scheme, Section 5324(a)(3) sets forth the prohibition on structuring transactions to avoid the

reporting requirements, and Section 5322(a) provides the criminal penalty for a person who

"willfully violat[es]" the prohibition. The Court held that this statutory scheme requires that the

government prove that the defendant knew the structuring in which he engaged was illegal.

Ratzlaf, 510 U.S. at 149.

In the beginning of its discussion of specific intent, the unclassified Bybee memo

observed:

For example, in Ratzlaf v. United States, 510 U.S. 135, 141 (1994), the statute at

issue was construed to require that the defendant act with the "specific intent to

commit the crime." (Internal quotation marks and citation omitted). As a result,

the defendant had to act with the express "purpose to disobey the law" in order for

the mens rea element to be satisfied.

Unclassified Bybee memo at 3 (parenthetical in original). OPR wrote that this passage "clearly

implied that the Court had considered the meaning of specific intent and had concluded that it

required an express purpose to disobey the law on the part of the defendant." OPR final report at

171. However, the referenced passage restricted application of the Court's holding to the "statute

at issue" in that case. Furthermore, the very next sentence of the memo stated, "Here, because

28

Section 2340 requires that a defendant act with the specific intent to inflict severe pain, the

infliction of such pain must be the defendant's precise objective." Unclassified Bybee memo at

3. This sentence seems to refute any implication that an interrogator must act with specific intent

to violate the torture statute in order to be guilty of that offense. Yoo justified citation to Ratzlaf

as merely "'an example of a statute that was construed to require specific intent . . . .'" OPR final

report at 172 (citation omitted). Bybee noted to OPR that "the Bybee memo did not 'seek to

extend Ratzlaf to other statutory regimes' . ." Id. (citations omitted). In fact, the memo

nowhere else mentions Ratzlaf. Different observers might view the citation to Ratzalf as an

illustrative example, an improper implication, or irrelevant and unnecessary. Finally, in the

classified Bybee memo, Yoo and Bybee wrote, "To violate the statute, an individual must have

the specific intent to inflict severe pain or suffering. . . . As we previously opined, to have the

required specific intent, an individual must expressly intend to cause such severe pain or

suffering." Classified Bybee memo at 16. For these reasons, I disagree that the memo suggests

that an interrogator would have to specifically intend to violate the law.

OPR also observed that the "meaning of specific intent may vary from statute to statute,"

and in support of this proposition cited cases interpreting 18 U.S.C. §§664 and 656. Section 664

creates a criminal violation for "[a]ny person who embezzles, steals, or unlawfully and willfully

abstracts or converts to his own use or to the use of another" the property of an employee welfare

benefit plan or employee pension benefit plan. Section 656 defines an offense for any bank

employee who "embezzles, abstracts, purloins or willfully misapplies" the bank's money.

According to OPR, courts interpreting these statutes have differed regarding the specific intent

required by the quoted language. Unlike those two statutes and the vast majority of federal

criminal statutes, however, the torture statute actually defines the specific intent required to

establish a violation. Section 2340 defines torture as those acts "specifically intended to inflict

severe physical or mental pain or suffering." Thus, while a criminal law treatise should probably

discuss the meaning of "specific intent" in various contexts, some might view such a discussion

as irrelevant at best and confusing at worst in a memo discussing the elements of a statute that

itself sets forth the required specific intent."

"I recognize that the Levin memo notes that the term "specific intent" is ambiguous.

However, the memo cited a Supreme Court case on specific intent for the proposition that

"purpose" corresponds loosely with specific intent, while "knowledge" corresponds with general

intent. Levin memo at 10 citing United States v. Bailey, 444 U.S. 394, 405 (1980). The memo

relies on an earlier opinion from the Court of Appeals for the proposition that knowledge alone

may satisfy the specific intent requirement. Id. citing United States v. Neiswender, 590 F.2d

1269 (4th Cir. 1979). To the extent that those two cases conflict, the Supreme Court ruling

controls, and that ruling is more consistent with the unclassified Bybee memo.

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Finally, with respect to specific intent, OPR characterized as "cursory" the cautionary

language Yoo and Bybee included regarding specific intent and good faith. This assessment

reflects little more than a subjective view. With respect to whether a defendant's knowledge that

a prohibited result will occur is sufficient to prove his specific intent to bring about the result, the

memo observed:

Thus, 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. Instead, a defendant is guilty of

torture only if he acts with the express purpose of inflicting severe pain or

suffering on a person within his custody or physical control. While as a

theoretical matter such knowledge does not constitute specific intent, juries are

permitted to infer from the factual circumstances that such intent is present. . . .

Therefore, when a defendant knows that his actions will produce the prohibited

result, a jury will in all likelihood conclude that the defendant acted with specific

intent.

Unclassified Bybee memo at 4. In its discussion of good faith, the memo asserted that a

defendant who acts with the good faith belief that his conduct will not produce the prohibited

result does not specifically intend the result even if his belief is unreasonable. Id. The memo

advised, however:

Although a defendant theoretically could hold an unreasonable belief that his acts

would not constitute the actions prohibited by the statute, even though they would

as a certainty produce the prohibited effects, as a matter of practice in the federal

criminal justice system it is highly unlikely that a jury would acquit in such a

situation. Where a defendant holds an unreasonable belief, he will confront the

problem of proving to the jury that he actually held that belief. As the Supreme

Court noted in Cheek [v. United States, 498 U.S. 192 (1991)] , "the more

unreasonable the asserted beliefs or misunderstandings are, the more likely the

jury . . . will find that the Government has carried its burden of proving" intent.

Id. at 203-04.

Unclassified Bybee memo at 5. Once again, some readers might believe that the cautionary

language was cursory. Others might find sufficient the statements that a jury would "in all

likelihood" reject the argument that a defendant with knowledge of the likely results of his

actions did not specifically intend those results and that it was "highly unlikely" that a defendant

could successfully argue good faith based on an unreasonable belief.

In their responses to the second draft, Yoo and Bybee cited Pierre v. Attorney General,

30

528 F.3d 180 (3rd Cir. 2008). In that case, the Third Circuit Court of Appeals, sitting en banc,

undertook to "determine the level of intent required, under the Convention Against Torture (the

`CAT'), for an applicant to show that he is more likely than not to be tortured if sent to the

proposed country of removal." Id. at 182. In so doing, the court considered an implementing

regulation that provided, "'In order to constitute torture, an act must be specifically intended to

inflict severe physical or mental pain or suffering. . . .' [8 C.F.R.] § 208.18(a)(5)." Id. at 186

(emphasis in original). The criminal torture statute defines "torture" as "an act by a person acting

under the color of law specifically intended to inflict severe physical or mental pain or

suffering . . . ." 18 U.S.C. §2340(1). Thus at least with respect to the issue of intent, the Third

Circuit construed language identical to the language at issue in the OLC interrogation

memoranda. The court concluded:

[W]e hold that "for an act to constitute torture, there must be a showing that the

actor had the intent to commit the act as well as the intent to achieve the

consequences of the act." Auguste [v. Ridge], 395 F.3d [123,] 145-46 [(3d Cir.

2005)]. Specific intent requires not simply the general intent to accomplish an act

with no particular end in mind, but the additional deliberate and conscious

purpose of accomplishing a specific and prohibited result. Mere knowledge that a

result is substantially certain to follow from one's actions is not sufficient to form

the specific intent to torture. Knowledge that pain and suffering will be the

certain outcome of conduct may be sufficient for a finding of general intent but it

is not enough for a finding of specific intent.

Id. at 189. This holding was endorsed by ten of the thirteen judges sitting on the en banc court.

The three judges who concurred in the result but disagreed with the specific intent discussion

noted, "In an August 1, 2002 memo to the White House Counsel, Jay Bybee, Assistant Attorney

General, set forth an interpretation of 'specific intent' that is similar to that espoused by the

majority." Id. at 193. They noted that the formulation had been "soundly repudiated" by OLC.

Id.

This juxtaposition of the Third Circuit's virtual endorsement of the unclassified Bybee

memo approach to specific intent despite OLC's previous rejection of it illustrates the difficulty

in conducting the analysis OPR conducted in this case. Different lawyers answering previously

undecided legal questions often will produce different answers. However, neither one of them

has necessarily (or even probably) engaged in professional misconduct. In fact, in a different

context, the Supreme Court has noted that an application of law may be incorrect but nonetheless

objectively reasonable. See e.g. Bell v. Cone, 535 U.S. 685, 694 (2002) ("The focus of the . . .

inquiry is on whether the state court's application of clearly established federal law is objectively

unreasonable, and we stressed in Williams that an unreasonable application is different from an

incorrect one."); Williams v. Taylor, 529 U.S. 362, 411 (2000) ("[A] federal habeas court may

31

not issue the writ simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law erroneously or incorrectly.

Rather, that application must also be unreasonable.") This phenomenon is perhaps most

strikingly evidenced by the fact that the Supreme Court unanimously reversed approximately

thirteen cases in its last term. Thus, a majority of judges on the courts of appeals in thOse cases

and the attorneys who advocated affirmance of those decisions were so wrong that not even one

Supreme Court justice agreed with them. Nonetheless, this recurring phenomenon produces

neither impeachments nor bar referrals.

OPR dismissed Pierre because it was decided after the subject memoranda issued. At the

very least, Pierre indicates that Yea and Bybee's legal analysis of specific intent was not

unambiguously prohibited by their duty to provide candid advice reflecting the exercise of

independent professional judgment.

Based on all of the foregoing, I conclude that the analysis of specific intent did not

evidence a violation of Rules 1.1, 1.4 or 2.1.

b. Severe pain

OPR criticized the unclassified Bybee memo definition of "severe pain." OPR reviewed

the subject memoranda discretely. In other words, OPR analyzed the unclassified Bybee memo

as a stand-alone document rather than considering that memo in combination with the

contemporaneously issued classified Bybee memo, which addressed only specific techniques.

OPR's approach might be proper for memoranda intended for public release or even for broader

distribution within the government. However, the two memoranda are intertwined such that

consideration of the entirety of the advice requires consideration of the contents of both

memoranda in tandem.

As observed earlier, OPR originally found that the consideration of the medical benefits

statute was improper because the statute was wholly unrelated to the torture statute. In its final

report, OPR withdrew that criticism but concluded that the use of "severe pain" in the medical

benefits statute provided little or no support for the conclusion that "'severe pain' in the torture

statute must rise to the level of pain associated with 'death, organ failure, or serious impairment

of body functions.'" OPR final report at 184.

This criticism is well founded. The medical benefits statute provides that "severe pain" is

a symptom that may evidence an emergency medical condition. In order to constitute an

emergency medical condition, severe pain along with other symptoms must lead a reasonably

prudent person to believe that 'the absence of immediate medical attention [could] result in- (i)

placing the health of the individual . . . in serious jeopardy, (ii) serious impairment to bodily

32

functions, or (iii) serious dysfunction of any bodily organ or part."' Unclassified Bybee memo at

6 (quoting 42 U.S.C. §1395w-22(d)(3)(B)). The statutes do not define "severe pain." The

statute's provision that severe pain may evidence the need for immediate medical attention to

avoid organ failure does not suggest that pain that does not result in organ failure is not severe.

While I understand OLC's desire to provide some objective guidance for what is inherently a

subjective term, the formulation in the memo was confusing. As noted by others, organ failure

and death are not necessarily preceded by significant pain, so the "level of pain associated with

death, organ failure, or serious impairment of body functions" has no clear meaning. Of course,

this reality suggests that the formulation was not helpful not that it was too restrictive.

Once again, however, the formulation may have been unhelpful, but several factors

support a finding that the reference to the medical benefits statutes was not professional

misconduct. First, the memo does not define "severe pain" as strictly limited to incidents

resulting in organ failure or death. Rather, the memo advised that severe pain must rise to a .

"similarly high level," Unclassified Bybee memo at 6, and that victims must suffer pain that is

"of the kind that is equivalent to the pain that would be associated with serious physical injury so

severe that death, organ failure, or permanent damage resulting in a loss of significant body

function will likely result." Id. at 13 (emphasis added). These qualifiers do not help much and

could have been clearer, but the memo read carefully does not authorize interrogators to engage

in any behavior that does not in fact cause serious physical injury, organ failure or death. More

importantly, this definition was accompanied by the approval of specific techniques in the

classified Bybee memo, and approval of the use of specific techniques to interrogate Zubaydah

was the immediate purpose of the CIA's inquiry.

Furthermore, OLC issued a memo (the Levin memo) to replace the unclassified Bybee

memo. The Levin memo rejected the unclassified Bybee memo formulation and undertook to

provide alternative guidance with respect to the term "severe pain." Unlike the unclassified

Bybee memo, the Levin memo was expressly written for public release. Levin memo at 1. Like

the unclassified Bybee memo, the Levin memo began its discussion of severe pain with

dictionary definitions of "severe." It then alluded to the ratification history of the CAT and cited

a Senate report recommending consent to ratification of CAT in which the Senate Foreign

Relations Committee observed that the term "torture" was "'usually reserved for extreme,

deliberate and unusually cruel practices, for example, sustained systematic beating, application of

electric currents to sensitive parts of the body, and tying up or hanging in positions that cause

extreme pain."' Levin memo at 3 (citation omitted). The Levin memo pointed out that torture is

worse than cruel, inhuman and degrading treatment. Id. at 4. The Levin memo cited a number of

cases in which courts had determined that certain actions constituted torture under the Torture

Victims Protection Act, and identified those actions as: severe beatings; repeated threats of death

and electric shock; sleep deprivation; extended shackling to a cot (at times with a towel over the

nose and mouth and water poured down the nostrils); seven months of confinement in a

33

suffocatingly hot and cramped cell; eight years of solitary or near-solitary confinement; severe

beatings to the genitals, head, and other parts of the body with metal pipes, brass knuckles,

batons, a baseball bat; removal of teeth with pliers; kicking in the face and ribs; breaking of

bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging the

victim and beating him; extreme limitations of food and water; subjection to games of Russian

roulette; cutting off fingers; pulling out fingernails; electric shocks to the testicles; beatings;

pistol whipping; threats of imminent death; electric shocks; and attempts to force confessions by

playing Russian roulette and pulling the trigger at each denial. Id. at 5-6 (citations omitted).

The Levin memo reflected an improvement over the unclassified Bybee memo, but a

critic could argue that the CIA could interpret the memo as authorizing any technique not

expressly described. That criticism would be unfair for some of the same reasons that the

definition of "severe pain" in the Bybee memo does not constitute misconduct, that is that the

unclassified Bybee memo was only part of the communications between OLC and the CIA

regarding interrogation techniques, and it was OLC's understanding that the CIA would not use

these memos to authorize techniques beyond those authorized explicitly by OLC. This

understanding is reflected in the classified Bybee memo that approved identified techniques

under limited circumstances and advised that the guidance would not necessarily apply if those

facts changed. For this reason, even if the memo's definition of severe pain constituted a serious

deficiency, it was not likely to cause prejudice to the client because it was issued

contemporaneously with the more restrictive classified Bybee memo and therefore does not

constitute a result unambiguously prohibited by Rule 1.1.

Both the Levin and unclassified Bybee memos undertook to communicate that the torture

statute prohibited only extreme, deliberate and unusually cruel practices. The Levin formulation

was an improvement but almost any effort to provide prospective guidance on the meaning of a

purely subjective term ran risks of misinterpretation. While the unclassified Bybee memo was

not particularly helpful, I find that its issuance to a limited audience in conjunction with the

narrower memo evidences a performance deficiency, but does not amount to professional

misconduct.

OPR cited

34

Based on the foregoing, I find that the discussion of severe pain, while flawed, does not

evidence a violation of Rule 1.1, 1.4 or 2.1.

c. Ratification history of the Convention Against Torture

With respect to the unclassified Bybee memo's treatment of the ratification history of the

Convention Against Torture (CAT) and its impact on the meaning of torture, OPR primarily

criticized Yoo and Bybee's evaluation of disclosed facts. In other words, OPR did not suggest

that Yoo and Bybee failed to report that the Reagan understanding was not accepted, and that the

Bush understanding differed from the Reagan understanding. Rather, OPR claimed that Yoo and

Bybee dismissed the differences as "rhetorical." OPR final report at 185. OPR cited certain

portions of the Senate ratification history and Yoo and Bybee cited other parts, but the discussion

in the memo, while fairly extensive, provided little actual guidance regarding the interpretation of

the criminal statute other than to confirm the seemingly unremarkable proposition that "the

prohibition against torture reaches only the most extreme acts." Unclassified Bybee memo at 19.

As noted above, even the Senate Foreign Relations Committee report confirmed that the term

35

torture was reserved for "extreme, deliberate and unusually cruel practices." Levin memo at 3.

The main difference between the two understandings was the elimination of the Reagan

understanding's clause limiting torture to acts causing "excruciating and agonizing" pain.

In discussion preceding the section on the ratification history, OLC cited dictionary

sources to observe that torture generally involves "'excruciating pain"' or "'intense pain.'"

Unclassified Bybee memo at 13. However, in the conclusion, OLC wrote, "Severe pain is

generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of

an intensity akin to that which accompanies serious physical injury such as death or organ

failure." Id. at 46. In the actual discussion of the ratification history, OLC observed,

"Accordingly, we believe that the two definitions submitted by the Reagan and Bush

administrations had the same purpose in terms of articulating a legal standard, namely, ensuring

that the prohibition against torture reaches only the most extreme acts." Unclassified Bybee

memo at 19. Because OLC's final definition of severe pain did not include those terms, and

because the conclusion that torture reaches only the most extreme acts echoes the Senate report, I

do not find that this discussion represented a serious deficiency in the memo or evidenced a

knowing or reckless misrepresentation of fact or law.

d. United States Judicial interpretations

OPR also criticized the unclassified Bybee memo's discussion of judicial decisions.

First, OPR pointed out that the memo failed to address cases interpreting the CAT regulations,

which are applied in the context of the prohibition on deporting aliens to a country in which they

May be subject to torture. OPR final report at 186-87. OPR noted, however, that this criticism

was fairly minor and "the case law and the CAT regulations are generally consistent with the

- Bybee Memo's uncontroversial conclusion that torture is an aggravated form of cruel, inhuman,

and degrading treatment" Id. at 187. OPR observed nonetheless that "we note the omission here

because of our determination that OLC's interpretation of the torture statute in the context of the

CIA interrogations program demanded the highest level of thoroughness, objectivity, and

candor." Id. This conclusion illustrates clearly why the OPR standard is unworkable as a

minimum standard of professional conduct. While generally criticizing the authors for slanting

their opinions in favor of a restrictive view of what constitutes torture, OPR simultaneously

criticized them for failing to cite opinions that support at least one of their conclusions. This

criticism is particularly harsh for a memo intended for a limited audience and crafted in a finite

amount of time during a national security emergency. While the standard OPR applies might

work as a matter of Department expectations when there are no time constraints and no pending

national security emergencies resolution of which may depend on the memo, it is not realistic to

suggest that a memo for a small group of sophisticated attorneys in a time of national crisis fell

short of professional obligations for failure to cite additional supportive cases.

36

OPR also criticized Yoo and Bybee's treatment of cases interpreting torture under the

Torture Victims Protection Act. OPR observed that Yoo and Bybee included in the body of the

memo the case that involved the most extreme conduct while other cases involving less extreme

conduct were relegated to the appendix. OPR also concluded that the memo inaccurately alleged

that the TVPA cases "'generally do not approach [the lowest] boundary [of what constitutes

torture]." OPR final report at 188 (quoting Unclassified Bybee memo at 27). To support the

latter conclusion, OPR relied on two cases, Daliberti v. Republic of Iraq, 146 F.Supp.2d 19

(D.D.C. 2001) and Simpson v. Socialist People's Libyan Arab Jamahiriya, 180 F.Supp.2d 78

(D.D.C. 2001), aff'd in part, rev 'd in part 326 F.3d 230 (D.C. Cir. 2003).

In Daliberti, the court heard evidence on the four plaintiffs' motion for a default

judgment after counsel for the Republic of Iraq withdrew from the case. The evidence showed

that Plaintiff 1 was kidnaped by Iraqi authorities while he was working in Kuwait close to the

Iraqi border. He was held for five days in a small cell with no lights, window, water, or toilet

facilities. Daliberti, 146 F.Supp.2d at 22. While incarcerated, he was interrogated, accused of

espionage, and threatened with physical torture such as "cutting off his fingers, pulling out his

fingernails, or shocking him electrically in his testicles." Id. Plaintiff 2 was kidnaped at an Iraqi

checkpoint on the Kuwaiti-Iraqi border. Id. He was taken blindfolded and at gunpoint to

Baghdad where he was convicted of illegally entering Iraq and sentenced to 7 or 8 years in

prison. Id. He was then held in a vermin-infested cell that contained one toilet for 200 prisoners

and denied treatment for a serious heart condition. Id. Plaintiffs 3 and 4 were arrested after they

accidentally crossed into Iraq from Kuwait. Id. at 23. They were convicted of illegal entry and

sentenced to eight years. Id. While in captivity they were in constant fear of their lives, heard

other prisoners being beaten, and were denied adequate food, water, toilet facilities, and medical

treatment. At one point an Iraqi guard attempted to execute Plaintiff 3 but was restrained by

another guard. Id. The court concluded that each of the plaintiffs was a victim of torture and

hostage taking. Id. at 24. In Simpson, the plaintiff alleged that she and her husband were

forcibly removed from a cruise ship that had taken safe harbor in Libya, held captive for three

months, and threatened with death if they left. The court denied the defendant's motion to

dismiss the complaint for failure to state a claim under the TVPA.

OPR correctly observed that some of the acts underlying the findings in those cases are

not clearly torture. On the other hand, both cases are consistent with the unclassified Bybee

memo's representation that the courts generally had not conducted in depth analysis of the

elements of torture. Simpson was of limited utility because the opinion resolved a motion for

failure to state a claim observing that "the court may dismiss a complaint for failure to state a

claim only if it is clear that no relief could be granted under any set of facts that could be proved

consistent with the allegations." Simpson, 180 F.Supp.2d at 82. For this reason alone, Yoo and

37

Bybee's relegation of Simpson to the appendix was not unambiguously prohibited." While the

conduct in Daliberti was not as extreme as the conduct in Mehinovic v. Vuckovic, 198 F. Supp.

2d 1322 (N.D.Ga. 2002), some of the treatment of plaintiffs was severe. Yoo and Bybee's

statement that the cases generally involved conduct that did not approach the lowest boundary of

what constitutes torture is debatable. However, the body of the unclassified Bybee memo

referred the reader to the appendix for a summary of the other TVPA cases, and the appendix

accurately described the facts of Daliberti. For this reason, the memo's statement about what the

cases "generally" involved was not unambiguously prohibited.

e. International decisions

(1) Ireland v. United Kingdom

The unclassified Bybee memo discussed two international decisions that addressed

interrogations. In Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A)(1978), the European

Court of Human Rights reviewed an opinion of the European Commission on Human Rights and

concluded that wall standing, hooding, subjection to noise, sleep deprivation, and deprivation of

food and drink did not constitute torture. OPR final report at 191. OPR "found that the Bybee

memo ignored several important facts surrounding the decision." Id. After discussing those

facts, OPR concluded, "A thorough, objective, and candid examination of Ireland v. U.K would

have mentioned some or all of th[os]e . facts." Id. at 192.

OPR first noted that the memo failed to point out that the United Kingdom (UK) had not

contested the Commission's findings that the techniques were torture. In that regard, the UK

argued that the Court lacked authority to consider the Commission's findings because the UK did

not contest them. The .European Court rejected this argument and nonetheless considered and

reversed the Commission's finding. OPR presumably viewed the UK's acceptance of the

Commission's ruling as diminishing the significance of the Court's holding in some sense,

perhaps by making its ruling gratuitous or dicta. A contrary argument could be made that the

European Court's deCision to first consider and then reverse the Commission's findings despite

there being no objection from the UK strengthens the import of the ruling. This contrary

argument finds some support in the opinion itself. Responding to the UK's contention that the

Court should not review the Commission's ruling, the Court observed:

Nevertheless, the Court considers that the responsibilities assigned to it within the

14 Simpson was reversed by the Court of Appeals for the District of Columbia and cited in

Levin's memo as an example of conduct that did not constitute torture. See Simpson v. Socialist

People's Libyan Arab Jamahiriya, 326 F.2d 230 (D.C. Cir. 2003) and Levin memo at 5.

38

framework of the Convention [for the Protection of Human Rights and

Fundamental Freedoms] extend to pronouncing on the non-contested allegations

olviolation of Article 3 (art. 3). The Court's judgments in fact serve not only to

decide those cases brought before the Court but, more generally, to elucidate,

safeguard and develop the rules instituted by the Convention, thereby contributing

to the observance by the States of the engagements undertaken by them as

Contracting Parties (Article 19).

Ireland v. UK, at ¶ 154. Thus, because the UK's acceptance of the Commission's findings does

not unequivocally undermine the import of the Court's holding, I am unpersuaded that Rule 1.1,

1.4 or 2.1 unambiguously required Yoo and Bybee to discuss that point.

OPR also pointed out that the 'unclassified Bybee memo failed to note that the

Commission's majority and minority committee reports found that the five techniques in

question violated domestic law. See Ireland v. UK at ¶ 100. However, the European Court of

Human Rights was aware of and tacitly agreed with the committees' findings yet nonetheless

concluded that the five techniques at issue were not torture. The Court observed:

The Court considers in fact that, whilst there exists on the one hand violence

which is to be. condemned both on moral grounds and also in most cases under the

domestic law of the Contracting States but does not fall within Article 3 (art. 3) of

the Convention; it appears on the other hand that it was the intention that the

Convention, with its distinction between "torture" and "inhuman or degrading

treatment", should by the first of these terms attach a special stigma to deliberate

inhuman treatment causing very serious and cruel suffering.

Id. at ¶ 167. Taking notice of the committees' findings regarding domestic law might have been

relevant to the policy-makers' decision regarding whether to employ the techniques at issue in

the classified Bybee memo. However, those findings seem to have little or no tendency to

undermine or weaken the European Court's holding since the court itself recognized that the

techniques likely violated domestic law yet nonetheless found that the techniques were not

torture. Therefore, I am again unpersuaded Rule 1.1, 1.4 or 2 1 unambiguously required Yoo and

Bybee to note the committees' findings regarding domestic law. This conclusion is even more

evident given OPR's acknowledgment that an advising attorney's decision not to refer to moral,

economic, social and political considerations is not subject to disciplinary review. OPR final

report at 21 n.23.

OPR also observed that four judges out of the seventeen-judge European Court dissented

from the ruling and suggested that Yoo and Bybee should have mentioned those dissenters. OPR

final report at 192. I am aware of no Rule of Professional Conduct that requires attorneys to set

39

forth the number of dissenters when citing a judicial decision from an appellate level court, and

OPR cited none. Neither Rule 1.1, 1.4 nor 2.1 unambiguously required it.

Finally, regarding Ireland v. UK, OPR also criticized Yoo and Bybee for failing to cite

additional international decisions. OPR final report at 192. OPR observed that all but one of

those decisions supported the "uncontroversial conclusion that the term 'torture' should be

applied to more severe forms of cruel, inhuman and degrading treatment" Id. n. 147. Once

again, OPR's criticism of Yoo's failure to cite additional supportive cases seems inconsistent

with its overarching observation that Yoo "put his desire to accommodate the client above his

obligation to provide thorough, objective, and candid legal advice, and that he therefore

committed intentional professional misconduct" Id. at 254. Nonetheless, OPR identified one

case that purportedly undermines the holding in Ireland v. UK

In Selmouni v. France, (25803/94) [1999] ECHR 66 at' 101 (28 July 1999), the

European Court of Human Rights observed that "certain acts which were classified in the past as

`inhuman and degrading treatment' as opposed to `torture' could be classified differently in the

future." However, that observation made no specific reference to Ireland v. UK nor the five

techniques at issue in that case. On the other hand, Selmouni cited Ireland v. UK with apparent

approval:

In order to determine whether a particular form of ill-treatment should be

qualified as torture, the Court must have regard to the distinction, embodied in

Article 3, between this notion and that of inhuman or degrading treatment. As the

European Court has previously found, it appears that it was the intention that the

Convention should, by means of this distinction, attach a special stigma to

deliberate inhuman treatment causing very serious and cruel suffering (see the

Ireland v. the United Kingdom judgment cited above . . .).

Selmouni at ¶ 96. Based on this apparent endorsement of the broad holding of Ireland v. UK and

the lack of specific relation between the court's cautionary language in paragraph 101 and the

Ireland v. UK decision, neither Rule 1.1, 1.4 nor 2.1 unambiguously required citation to

Selmouni.

In sum with regard to the unclassified Bybee memo's analysis of Ireland v. UK, OPR's

suggestions that the memo should have discussed the UK's lack of opposition to the

Commission's ruling, the majority and minority committees' conclusions regarding domestic

law, the number of dissenters, Selmouni v. France, and other similar factors outlined by OPR

may be reasonable. However, failure to discuss those matters did not produce a result that was

unambiguously prohibited. Rather, those suggestions appear to be little more than OPR's

substitution of its own judgment for the judgment of Yoo and Bybee on those points. While

40

OPR's judgment calls are certainly entitled to consideration, the mere fact that OPR made the

judgment does not prove that contrary judgments are not also reasonable. Absent an

unambiguously applicable standard that requires the course that OPR deems best, those OPR

judgments do not establish the boundaries of misconduct.

(2) Public Committee Against Torture in Israel v. Israel

OPR also criticized Yoo and Bybee's discussion of Public Committee Against Torture

in Israel v. Israel, 38 LL.M. 1471 (1999) (PCATI v. Israel). In that case, the Israeli Supreme

Court answered three specific questions. The court first held that the Israeli General Security

Service (GSS) has authority to conduct interrogations of terrorist suspects. Id. at 121. Second,

the court held that GSS's authority to conduct interrogations did not include the authority to

engage in certain coercive techniques described in the opinion. Id. at ¶32. Third, the court held

that the necessity defense cannot be used to authorize in advance certain types of interrogations.

Id. at 136. While noting that the question was not squarely before it, the court also observed;

"[W]e are prepared to accept that, in the appropriate circumstances, GSS investigators may avail

themselves of the 'necessity defense' if criminally indicted." Id. at 135.

The techniques before the court included shaking, waiting in the Shabach position, the

frog crouch, excessively tight handcuffs, and sleep deprivation. The unclassified Bybee memo

asserted that the opinion is "best read as indicating that the acts at issue did not constitute

torture." Unclassified Bybee memo at 30. OPR concluded that this assessment "was not based

on the language of the opinion." OPR final report at 195.

While it is certainly far from obvious that PCATI v. Israel is "best read" as indicating that

the acts at issue did not constitute torture, there is arguably a reading of the opinion that supports

the inference Yoo and Bybee drew. The petitioners in PCATI v. Israel contended that the subject

techniques constituted torture. Id. at ¶14. The state contended that the actions were not torture.

Id. at ¶15. Although it decided that GSS was authorized to conduct interrogations, the court

concluded that "a GSS investigator . . . is subject to the same restrictions applicable to police

interrogators." Id. at ¶32. The court, therefore, next considered whether conditions of necessity

could be used ex ante to authorize non-ordinary interrogation techniques. Id. at ¶35. The court

concluded that the concepts of the necessity defense could not serve to authorize physical

interrogations in advance and that physical interrogations must be authorized by the legislature or

else the GSS, like the police, lacked such authority. Id. at ¶38. The court, did not state that such

legislation would violate international obligations with respect to techniques at issue; rather, the

court observed:

The "necessity" defense cannot constitute the basis for rules regarding an

interrogation. It cannot constitute a source of authority on which the individual

41

investigator can rely on [sic] for the purpose of applying physical means in an

investigation. The power to enact rules and to act according to them requires

legislative authorization. In such legislation, the legislature, if it so desires, may

express its views on the social, ethical and political problems of authorizing the

use of physical means in an interrogation. Naturally, such considerations did not

come before the legislature when the "necessity" defense was enacted.

Id. at 137. Although the reference to "social, ethical and political problems" could be read to

include possible violations of international obligations, the court did not explicitly reference

those obligations. Contrarily, in the face of a contention that the techniques at issue constituted

torture, the court's failure to mention explicitly that such legislation would conflict with

international obligations could be read to suggest that the court viewed the techniques as not

absolutely prohibited by treaty, and therefore not torture. °

While this conclusion is far from inescapable, it is also not entirely implausible. The fact

that the court suggested that the necessity defense might be available to a criminally-charged

interrogator adds marginally to such a conclusion. The Israeli court noted that Israel's treaty

obligations forbade interrogations involving torture, cruel and inhuman treatment, and degrading

treatment, and that "[t]hese prohibitions are absolute." Id. at 123. Yet, the court observed,

"[T]here is no doubt that shaking is not to be resorted to in cases outside the bounds of

`necessity' or as part of an 'ordinary' investigation." Id. Further, the court concluded, "Our

decision does not negate the possibility that the 'necessity defense' will be available to GSS

investigators . . . ." Id. at 140.

Yoo and Bybee relied heavily on the court's dicta that the necessity defense might be

available to a criminally-charged interrogator to reach their conclusion that the opinion is "best

read" as indicating that the court did not believe the techniques at question constituted torture.

While this argument makes some sense, Yoo and Bybee failed to make the distinction between a

defense to a crime and a justification in advance. In other words, the CAT obligates nations not

to engage in torture and provides that "Pay) exceptional circumstance whatsoever, whether a state

of war or a threat of war, internal political instability or any other public emergency may be

invoked as a justification of torture." Unclassified Bybee memo at 31, quoting CAT Art. 2(2).

However, an individual's assertion of necessity as a defense to a criminal charge may not be

precluded by a prohibition on state assertion that exceptional circumstances warranted state-

°The unclassified Bybee memo was internally inconsistent on this point because the

memo stated that the court concluded that the techniques were cruel and inhuman, Unclassified

Bybee memo at 30, but the Israeli court noted that the prohibition on torture, cruel and inhuman

treatment, and degrading treatment was absolute. PCATI v. Israel, at ¶23.

42

sanctioned torture. After all, the United States would bring the criminal charge in the first

instance thereby indicating that the actions were not authorized by the state, and an individual's

assertion of necessity would presumably be disputed by the government. Under these

circumstances, a judicial determination that an individual could properly assert the common law

defense of necessity would not necessarily undermine the United States' treaty obligations. In

other words, the Israeli court's assumption that the necessity defense would be available to a

criminally-charged interrogator does not necessarily lead to the conclusion that the court believed

that the techniques were not torturous.

The memo also asserted that the Israeli "court carefully avoided describing any of these

acts as having the severity of pain or suffering indicative of torture." Unclassified Bybee memo

at 30. However, the court described shaking as follows:

The method is defined as the forceful and repeated shaking of the suspect's upper

torso, in a manner which causes the neck and head to swing rapidly. According to

an expert opinion ... , the shaking method is likely to cause serious brain damage,

harm the spinal cord, cause the suspect to lose consciousness, vomit and urinate

uncontrollably and suffer serious headaches.

PCATI v. Israel at 19. This description contradicts the memo's assertion and suggests an

exaggerated effort to support the "best read" interpretation.

Although the analysis of PCATI v. Israel is flawed, I do not find that it in and of itself

supports a finding of misconduct. First, Yoo and Bybee disclosed that the court did not expressly

resolve the torture question. Second, they disclosed that their "best read" analysis was inferential

based on the court's assertion that the necessity defense would be available to an interrogator.

They failed, however, to point out that that question was not actually before the court. Third,

however, the holding in the case, while perhaps relevant to policy-makers, had likely no

relevance to the construction of a United States criminal statute. Fourth, the techniques at issue

bore little resemblance to the CIA's proposal with the exception of sleep deprivation, which had

been determined not to be torture by the European Court of Human Rights. Fifth., there is a

reading, however strained, of the opinion that supports Yoo and Bybee's conclusion, although

characterizing it as the "best read" interpretation was inappropriate. For these reasons, I find

that even if the analysis represented a serious deficiency, it was not likely to have resulted in

prejudice to the client, and therefore, in and of itself, does not constitute a violation of Rule 1.1.

I will later address the Rule 1.4 and 2.1 implications in the context of all of the other valid

criticisms.

43

f. Commander-in-Chief power

OPR's analysis of the Commander-in-Chief section of the unclassified Bybee memo

relied on four primary criticisms. First, OPR noted (1) the advice was incomplete and one-sided;

(2) Yoo should have disclosed that his view was a minority view, (3) Yoo knew the section

might be "-used in an effort to provide immunity to CIA officers engaged in acts that might be

construed as torture;" and (4) Yoo should have stated more explicitly that a direct Presidential

order was required to trigger the Comrnander-in-Chief clause. Id. at 252.

With respect to the first two points, OPR reported that Pat Philbin "told us that he thought

the Commander-in-Chief section was aggressive and went beyond what OLC had previously said

about executive power, and that he told Yoo to take it out of the Bybee memo." Id. The report

also cited a passage from Goldsmith's book, The Terror Presidency, and cited Bradbury,

Goldsmith, and "commentators and other legal scholars" who criticized Yoo and Bybee's failure

to cite Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In The Terror Presidency,

Goldsmith wrote that Yoo and Bybee's broad conclusion "has no foundation in prior OLC

opinions, or in judicial decisions, or in any other source of law." OPR final report at 203

(quoting The Terror Presidency at 148). Goldsmith withdrew the Yoo memo because he

determined that it contained "unnecessary, overbroad, and in some respects erroneous" advice.

Goldsmith at 55.

While the report includes these assessments, OPR interviewed other Department

attorneys who saw the ultimate issue less clearly. Philbin told OPR, "It wasn't that I thought it

was plainly wrong and you can't defend it at all. . . . My solution to that was not try to figure out

to the end whether, is this right and can we really—but just take it out, because it's unnecessary

for that." Plulbin at 17-18. Philbin later offered, "Mt's an aggressive view of the clause to say

Congress can't regulate at all the steps the President takes in dealing with enemy combatants.

It's aggressive. I think it's a very tough question whether it's wrong. I'm not sure that it is

wrong." Id. at 22-23. Ciongoli likewise told OPR he thought the Commander-in-Chief section

was aggressive but defensible. Ciongoli at 23. OPR asked Levin, who issued the memo

superseding the unclassified Bybee memo, why he did not repudiate the Commander-in-Chief

section, and he replied, "[Blecause it was unnecessary to address and it's an extraordinarily

complicated question." Levin at 40. While he clearly thought that the issue need not have been

addressed, he also told OPR, "I don't think I would say there is no commander-in-chief override

if the circumstances are extreme enough." Id. Ultimately, Philbin advised Bybee that he could

sign the memo with the Commander-in-Chief section in it. Philbin explained:

But given the situation and the time pressures, and they are telling us this has to be

signed tonight—this was like at 9 o'clock, 10 o'clock at night on the day it was

signed—my conclusion is that's dicta_ That's not what's supporting this

44

conclusion. I wouldn't put it in there. But I think it is permissible, it's okay for

you to sign it.

Id. at 19. Philbin also made the point that the unclassified Bybee memo and the classified Bybee

memo should be read together because these memos were intended to address the specific

techniques discussed in the classified Bybee memo. Although the unclassified Bybee memo was

capable of broad application, the classified Bybee memo addressed specific techniques applied to

a specific individual under specific circumstances and advised the CIA, "If these facts were to

change, this advice would not necessarily apply." Classified Bybee memo at 1.

The memo's discussion of this topic is decidedly one-sided and conclusory. Furthermore,

none of the witnesses told OPR that the conclusion was anything less than aggressive, and the

memo itself does not disclose that the position taken is the subject of considerable dispute. On

the other hand, the memo was intended only for high level officials within the White House, the

CIA, and, with respect to the Yoo memo, the Department of Defense. These officials included

the White House Counsel, the General Counsel for the CIA, and the General Counsel for the

Department of Defense. They were most likely aware that Yoo's assessment of the Commanderin-

Chief authority represented the most aggressive view on the topic. As noted earlier, it is not

clear-that the Rules of Professional Responsibility or existing Department policy unambiguously

required Yoo to raise in the memos counterpoints to his conclusion given the limited and

sophisticated audience for which they were intended and Yoo's well known belief that his

ultimate conclusion was correct. Without question., it would have been a "best practice" to

disclose contrary viewpoints, but it is not at all clear in this context that a known, unambiguous

obligation required those disclosures such that failure to include those viewpoints represented

professional misconduct. In other words, if the client wants bottom-line advice (and there is

some evidence that is what the CIA wanted, see Attachment I to Bybee' s response to the final

report, Letter, Mahoney to Rizzo, at 1), must the lawyer provide the pros and cons nonetheless?

The commentary to DCRPC 2.1 provides, "In presenting advice, a lawyer . . . may put advice in

as acceptable a form as honesty permits." Rule 1.4 provides that a lawyer "should fulfill

reasonable client expectations for information .. . ." OLC differs from private counsel with

respect to the import of its decisions on government actions and authorities. Nonetheless, it was

less than clear at that time that Yoo was obligated as a matter of professional responsibility to

disclose those viewpoints that contradicted his firmly held belief in the scope of Commander-in-

Chief authority. In other words, while best practices may suggest it, no rule of professional

conduct unambiguously required OLC attorneys to refute every counter-argument in every

opinion.

OPR also found that Yoo knew that this broad interpretation of the Commander-in-Chief

authority could be used to immunize CIA interrogators. OPR based this conclusion on the fact

that the Commander-in-Chief and defenses section of the report were added after the Department

45

refused the CIA's request for advance declinations of criminal prosecutions of CIA interrogators.

OPR final report at 252. OPR also found, "Yoo was aware that, absent the requirement of a

direct presidential order, the Commander-in-Chief section could become 'this kind of general

immunity from everything anybody ever did.' Id. Among other things, OPR cited comments

from Goldsmith's book expressing concern that "the opinions could be interpreted as if they were

designed to confer immunity for bad acts." OPR final report at 197, quoting The Terror

Presidency at 149-50. Philbin told OPR, on the other hand, that while he did not think the

Commander-in-Chief section should have been included, he did not think the memo provided

any sort of immunity. Philbin at 22. He reasoned that OLC was providing guidance about "a

specific question about a specific person and doing specific things," and in that context, he did

not think the Commander-in-Chief section of the memo provided any immunity. Id. Goldsmith

is correct that the memo "could be interpreted as if [it was] designed to confer immunity" on CIA

interrogators. The unclassified Bybee memo issued, however, in connection with the CIA's

request for an opinion regarding the legality of certain specific techniques under specific

circumstances. The CIA's request for OLC guidance strongly suggested that the CIA was

disinclined to authorize additional specific techniques absent OLC approval. The request to OLC

and the denied request for declination show that the CIA was, as it should have been, seeking

maximum protection for its employees before embarking on what it knew would be a

controversial program that was, in its view, necessary to protect American lives. Thus, the CIA

likely well knew that the passage of time would bring personnel changes within the Department

of Justice and that these interrogations would be viewed with "the perfect, and brutally unfair,

vision of hindsight." In his book, Goldsmith described historical "cycles of timidity and

aggression" based on cited examples that led him to observe, "The executive branch and

Congress pressure the [intelligence] community to engage in controversial actions on the edge of

the law, and then fail to protect it from recriminations when things go awry." The Terror

Presidency at 163.

OPR's finding seemed to depend on a concern that the CIA was asking for maximum

license when the evidence in the record suggests that they were asking for maximum protection.

The following exchange with Philbin illustrates the point:

Q Aside from whether it might be accurate in terms of the statute, did you

have any concerns about how the client would interpret and use the

memo?

A I'm not sure—

In other words, you're giving it to someone who's trying to figure out—

aside from the specific techniques, there's a possibility that the memo will

be used generally to make their own policy decisions about what they can

do. Did you have a concern that—

A That's an assumption I would disagree with.

46

Q Okay_ I'd like to hear that.

A It was clear in everyone's mind that all that's happening is this, and they

aren't going to do a thing different from this without asking us. I mean,

that's the mindset you get from CIA is, we want to be covered. And so

we're going to be covered on this specifically, and that's all it was, and

not, here's some general parameters, go forth and make up the rest of it on

your own.

Philbin at 38-39. Philbin also told OPR that he was not aware of any concern on the part of the

CIA about how employees might be protected if they engaged in behavior beyond the approved

techniques. Id. at 43. Philbin was unaware that the CIA was pressing or pushing for a specific

answer from OLC. He believed that the need was to identify the legal line and not to usurp "the

policyrnaker's prerogative of going up to that line." Id.

was the OLC attorney who assisted Yoo with researching and writing

the unclassified Bybee memo. OPR asked her if she was aware of'how hard the CIA was

pushing the declination question. She advised that she did not know how hard they were pushing

it, but that the sense she got from the CIA was

that their concern was what they don't want to have happen is have someone do

something in the field that someone sort of haphazardly says is okay, or they give

an okay. And then have them discredited as an officer in the CIA 10 years later

because someone comes back and says, you engaged in illegal conduct.

at 44.

Yoo himself denied that there was any pressure from the White House or the CIA for a

particular result. Yoo testified:

Q . . . Was there anything that you felt indicated that you should take an

aggressive attitude in interpreting the law?

A Not from the White House, or not from certainly those meetings that we're

talking about now.

Q What about the CIA?

A Certainly not from the CIA. I mean, I don't, I don't actually think of them

as being particularly aggressive. And certainly on the legal issues, you

know—for example, they never came to us and tried to suggest how they

would read the statute, for example. .. . I think in this one everybody

really was sort of taking our lead on it, because I think also of the lack of

authorities, lack of any interpretation. But also I had never felt that

47

anybody was pushing us in one direction or another.

Yoo Pt. I at 37-38. In Yoo's testimony to OPR, he was inconsistent about the purpose of the

Commander-in-Chief and defenses section. For example, Yoo testified:

Q And then at some point the CIA kind of came back and said, well,

what if we go across the line, you know, even given what you've

approved, what if we step across the line.

A Yeah.

Q Was the idea of these defenses and the Commander-in-Chief a

reaction to that sentiment?

A Well, I know— well, I mean, they wanted, you know, this

declination from the Criminal Division which we couldn't provide.

So, it wouldn't be—I mean, I just don't remember whether that was

a response to a specific—it kind of makes sense that it would have

been that we could have said, look, you know, we can talk about

what happens if you go over the line, but we're not saying we

would approve what went—you know, anything that happened, but I

don't have any real—like, for example, I don't remember sitting in a

meeting and saying, oh, well, we can't provide a declination, but

we could do this. But it makes sense, although I don't have any

memory of it.

Yoo Pt. II at 6-7.

• A And then we have this other pressure about the CIA wanting a

declination letter, and their concern that—which I think is

understandable—their concern that the general memo and the statute

itself are still ambiguous about exactly what you do with specific

interrogation methods.

And so, no, I can completely see the inference that one

thing we decided to do in response was to talk about what would

happen if you did violate the statute, even though you are not

intending to violate the statute.

Id. at 31.

• A

. But I don't think we were trying to give them sort of immunity

or declination.

48

Id. at 36.

A . . . But, you know, I think there's no doubt that we, in response to

a separate declination, that we tried to inform them about the other

doctrines that would apply in that situation. Because the only

reason they would want a declination letter is for areas where they

might go beyond the opinion.

Id. at 37.

• (Discussing OPR's question regarding whether the unclassified Bybee memo

articulated that the Commander-in-Chief authorization would require a

Presidential order)

A ... I do know we talked about it and that was sort of the

conclusion we carne to is that this was something the President

would have to approve, and that it wasn't something that could just

be claimed by everybody lower down, because then it would sort of

be this kind of general immunity from everything that everybody

did.

Q Right. Well, I guess that's what I'm asking you, if the fact that it's

not in the written opinion, do you think it ends up reading like it is

sort of a general immunity for anybody to claim it?

I don't know. I mean, I would have thought, you know, what we

might have thought was perfectly clear for people who work in this

area might appear to other people, people not in the area that that

was the case. But that wasn't our intention, and I know that wasn't

the advice we would have given them orally.

* *

A So, you know, they're written for people who work in the area and

are sort of familiar with the sort of general background.

Id. at 38-39.

• Q So, your understanding of the meaning of that section is not that it

would apply to a routine interrogation in the field someone is using

to gain—say a military or a CIA person is in the field trying to

interrogate a prisoner to get information about conduct of the war,

and—

A No.

Q —violates the statute, goes over the line and violates the statute,

49

that—

A No, no, the necessity and self-defense—

Q —the DOJ would be able to prosecute an individual based on your

opinion?

A Yeah, unless there was, unless they had some kind of direct, you

know, there was some direct chain of orders that—you know,

because the President also doesn't draft the orders for how they are

specifically carried out. But those orders have to be within-the

President's original directive.

Q Okay.

A Yeah, for that Commander-in-Chief argument, that's right.

Q And do you think that the way it's written, given that that's not

specifically stated, could end up being a bar to prosecution, that

someone could rise it effectively under your—

A C don't think so.

Q —memo?

A I don't think so because the CIA, I mean, the CIA ... is very

familiar with this doctrine . .

Id. at 41-42.

• Q

So, it's your recollection that those sections were the result of

discussions, idea sessions between you and Jay and Pat probably?

A Uh-huh. Yeah . . . . I do remember talking about it with Pat and Jay

a number of times, this Commander-in-Chief issue, the defenses

issue, because—and this also went to my earlier concern about the

clarity of the definition, the interpretation of a statute, because my

concern was that if the statute was interpreted in such a vague way,

you know, I thought it was entirely possible that it would be

applied incorrectly. And so what I wanted to know was what

would happen if that would happen. And I'm pretty sure, I would

not be surprised that the CIA had mentioned this also, not the

Commander-in-Chief arguments or defenses, but I'm sure they

would have asked, you know, what would happen if the

interpretation—what would happen if we interpret it incorrectly, you

know, applied it incorrectly.

Did that have an influence on you, m terms of adding the

Commander-in-Chief section and the defenses section, or was it in

response to something that the CIA asked you about, or—

A Yeah, I'm pretty sure they—as I say, I'm pretty sure they raised this

50

issue. You know, if the definition is so vague, what happens if we

go over the line.

Q. Okay.

A You know, I don't think they would have said—they wouldn't have

said it this way. They would not have said, can't you include a

discussion of the Commander-in-Chief power: Or could you

include a discussion of the necessity defense. That wouldn't be the

way they would—I'm sure what they would say rather would be,

you know, what happens if the statute's vague and, you know,

somebody misapplies it in good faith?

* * *

A Now, the defenses issue I was aware from very early on because

it's discussed in all the legal literature—not all, but a lot of the legal

literature about this question of interrogation, and it's discussed in

Israeli opinions, does discuss this question of the necessity defense.

And so I thought it was ultimately something we were going to

have to discuss .

Id. at 60-63.

In Bybee's testimony before OPR, he was not at all equivocal on the issue of whether the

memo was intended to provide advance declination. He echoed Philbin's observation that the

two August 1, 2002 memos were intended to be read together. He told OPR:

I think that anybody who read those two memos and read them together as they

were intended to be read, would—especially would take away from the classified

memorandum that if anybody was planning on doing anything differently from the

assumptions that they had provided to OLC that they ought to come back for very,

very specific advice and that going out and sort of making up your own rules,

based on that advice or trying to second guess how OLC would see different

situations than were described to us would be a really dangerous thing to do.

This is—that the CIA was a .ain very, very careful in providing the very

specific questions, and we were equally specific in answering them . . . .

Bybee at 115.

Finally, John Rizzo, who was Acting General Counsel at the CIA at the time the August

1, 2002 memos were issued and the named recipient of the classified memo, confirmed what

other witnesses bad said about the CIA's intention in seeking OLC's guidance. Rizzo was given

an opportunity to respond to the second draft. In that draft, OPR observed:

51

[Wle found ample evidence that the CIA did not expect just an objective, candid

discussion of the meaning of the torture statute. Rather, as John Rizzo candidly

admitted, the agency was seeking maximum legal protection for its officers and at

one point Rizzo even asked the Department for an advance declination of criminal

prosecution.

OPR second draft at 182. Rizzo strongly objected to this finding regarding the CIA's

expectations, yet OPR nonetheless included it in the final report. Id. at 226. In his response, in

reference to the above-quoted section of the second draft, Rizzo wrote:

This section of the Report erroneously concludes that the CIA's interest in

providing maximum legal protection meant that the CIA did not want objective,

thorough analysis of the torture statute. Nothing could be further from the truth.

As I indicated on numerous occasions, CIA looked to the Department for legal

guidance to ensure its compliance with the torture statute and other applicable

law. If the Department had instructed CIA that any of the enhanced interrogation

techniques were not legally permissible, the CIA would not have used those

techniques. . . The report suggests that providing maximum legal protection for

CIA officers and obtaining objective analysis of the enhanced techniques were

mutually exclusive propositions—they were not. The only practical way to provide

the CIA with the maximum legal protection it sought was to objectively interpret

the torture statute and other applicable law and apply the law to the various

enhanced interrogation techniques. If CIA had asked the Depaitllient to provide

anything other than an objective analysis of the law and the techniques we would

have undercut the very protections we sought for our officers. This theme in the

report is simply not accurate, and it literally makes no sense.

Rizzo April 8, 2009 response at 4.

Among the difficulties in assessing these memos now over seven years after their

issuance is that the context is lost. In order to assess the memos accurately, it is important to

consider what the individuals who were involved in the process said about their thinking at the

time. Nonetheless, in the hands of capable attorneys, virtually every fact cuts both ways. For

example, John Rizzo contends that seeking maximum legal protection for CIA officers was a

good thing, and that desire led him to seek guidance from the office within the Department

tasked with giving it. See 28 C.F.R. § 0.25. The innocent explanation for his inquiry would be

that before the CIA advised its officers to engage in coercive techniques, the agency and the

individuals should understand the potential risks associated with that activity. The torture statute

expresses its prohibitions in terms of imprecise degrees of injury such as "severe" pain and

"prolonged" mental suffering, and the assessment of whether these techniques constituted torture

52

would often be in the eyes of the beholder. Knowing that the techniques for which they sought

authorization were close to the statutory line, the agency wanted to eliminate as much as possible

its officers' exposure to criminal liability for engaging in interrogation techniques that the agency

believed necessary for the protection of American lives.

From OPR's much later perspective, Rizzo's effort to seek maximum legal protection

was suspicious and suggested an intent on behalf of the CIA to obtain maximum license to

engage in torturous interrogation techniques with impunity, and Yoo was their willing facilitator.

Although the evidence regarding which of these interpretations reflects reality is to some extent

in conflict, I am unpersuaded that the preponderance of the evidence supports the sinister

alternative. First, the conclusion assumes bad faith on the part of too many people—Yoo, Bybee,

Philbin, Ashcroft, Rizzo, and the CIA interrogators in the field, among others. Second, and

perhaps most persuasively, the only memo actually directed to Rizzo at the CIA was the

classified Bybee memo that confined its scope to specific enumerated techniques applied to a

particular individual under particular circumstances and instructed that the advice would not

apply if the facts change. The classified Bybee memo relied on the facts that (1) the interrogation

team was certain that Zubaydah had information he refused to divulge, (2) the information

pertained to terrorist networks overseas and plans to conduct attacks within the United States or

against American interest overseas, (3) Zubaydah seemed unwilling to disclose this information,

and (4) intelligence reflected a level of "chatter" consistent with that which preceded the

September 11 attacks. Classified Bybee memo at 1. In hindsight, the concerns underlying the

classified Bybee memo may have been overblown, but I certainly am not willing to conclude that,

less than one year after 9/11, the officials responsible for preventing another attack took the

threat too seriously. Finally, I agree that the unclassified Bybee memo and the Yoo memo can be

interpreted as providing a broad grant of immunity to CIA interrogators. However, the memos

speak in terms of defenses that "could be raised" rather than circumstances that would authorize

the agency to engage in torturous acts. In other words, rightly or wrongly, the memo answers the

question not explicitly before the court in PCATI v. Israel, that is whether the defenses could be

raised by an interrogator charged with a criminal offense. The memos do not purport to describe

circumstances in which the CIA could authorize torture in advance, and the preponderant

evidence suggests that the CIA did not intend to use the memos that way. As Bybee noted, given

the restrictive language in the classified Bybee memo, any effort to construe the memo as

authorization to engage in techniques beyond the specifically approved techniques would have

been "a really dangerous thing to do."

Furthermore, OPR has pointed to no additional interrogation methods that the CIA

implemented without OLC approval. To the contrary, the OPR final report reflects that when

unapproved techniques were used by CIA interrogators, the CIA's Deputy Director of Operations

notified the CIA Office of Inspector General, which conducted a review of the techniques and,

where appropriate, made referrals to the Department of Justice.

53

Finally, OPR criticized the unclassified Bybee memo and Yoo memo for failing to

specifically state that the Commander-in-Chief authority depends on an order from the President

himself. As Yoo noted, however, the audience for these memos likely was well aware of that

restriction, and Bybee offered that the memo was not intended to address that specific question.

Bybee told OPR that the memo was more dixecting the recipients' attention to the issue and that a

more complete discussion would have required 50 pages and caused further delay. Bybee at 89.

He noted that if he had known the memo was going to be released and not restricted to "an

audience of sophisticated lawyers down the street," then he would have wanted it drafted

differently. Id. at 92. While not explicitly saying that the authority described must be executed

through a direct order from the President, the memo generally described the authority as the

President's authority. The section is titled, "The President's Commander-in-Chief Power," and

in its introductory paragraph noted, "As Commander-in-Chief, the President has the

constitutional authority to order interrogations of enemy combatants to gain intelligence

information concerning the military plans of the enemy" Unclassified Bybee memo at 31.

While the memo failed to explicitly state that the President himself must issue such an order, it

also provided no suggestion that someone other than the President could exercise his

Commander-in-Chief authority to direct otherwise illegal activity. Once again, while a more

complete discussion of the question would have been an improvement, the decision to add the

section came only approximately two weeks prior to the date on which the CIA said it needed a

decision. OPR final report at 52-53. That reality along with the limited intended audience for

the memo suggest that neither Rule 1.1, 1.4, nor 2.1 unambiguously required that OLC explicitly

address that issue in the memos.

In sum, based on the foregoing, although it is apparent that the Commander-in-Chief

section was not perfect, it does not reflect professional misconduct. The memo was issued for a

limited purpose and accompanied by a companion memo that constrained its scope and reduced

the risk—to the extent that any actually existed—that the CIA would use the memo as broad license

to engage in unauthorized interrogation practices.

g. Criminal defenses to torture

(1) The necessity defense

OPR also questioned Yoo and Bybee's determination that the necessity defense could be

available to interrogators charged with violations of the torture statute. Those criticisms included

Yoo and Bybee's failure to cite United States v. Oakland Cannabis Buyers' Cooperative, 532

U.S. 483 (2001), failure to conduct an element-by-element analysis of the defense, and failure to

analyze correctly the ratification history of the Convention Against Torture (CAT).

The memo would have been more complete if it had included a citation to and description

54

of Oakland Cannabis. In that case, the Court speculated whether the common law defense of

necessity would ever be available to someone charged with a statutory crime that does not

provide for it, but ultimately declined to resolve the question. Id. at 490-91. The unclassified

Bybee memo cited United States v. Bailey, 444 U.S. 394 (1980) for the proposition that "the

Supreme Court has recognized the defense." Unclassified Bybee memo at 40. However, citing

Bailey, the Court observed in Oakland Cannabis only that "we recognize that this Court has

discussed the possibility of a necessity defense without altogether rejecting it." Oakland

Cannabis, 532 U.S. at 490.

On the other hand, the Court's speculation in Oakland Cannabis was dicta because the

Court resolved the issue before it not by abrogating the defense in all cases, but by specifically

holding only that the medical necessity defense to distribution of marijuana was precluded by

statute. Id. at 491. Thus, while Oakland Cannabis speculated about the viability of the common

law necessity defense, the law in every relevant circuit recognized it. OPR noted, "Opinions

discussing and setting forth the elements and limitations of the necessity defense were available

from every federal judicial circuit except the Federal Circuit (which does not hear criminal

cases)." OPR final report at 209. Although a more complete description of the law might have

been helpful to the intended audience, the controlling law in each circuit permitted the defense

under appropriate, albeit narrow, circumstances. Of note, courts considering the necessity

defense since Oakland Cannabis have not taken the bait and rejected the defense. To the

contrary, in Raich v. Gonzales, 500 F.3d 850, 858 n. 4 (9th Cir. 2007), the court observed, "We do

not believe that the Oakland Cannabis dicta abolishes more than a century of common law

necessity jurisprudence." See also United States v. Al-Rekabi, 454 F.3d 1113, 1122 (10th Cir.

2006) and United States v. Alston, 526 F.3d 91, 94 (3' Cir. 2008). In sum, the failure to cite

Supreme Court dicta that contradicted "a century of common law necessity jurisprudence" does

not constitute misconduct.

OPR criticized the unclassified Bybee memo's alleged failure to conduct an element-byelement

analysis of the defense. However, while not in the format OPR suggested, the memo did

discuss the factors typically part of any formulation of the defense of necessity including, most

importantly, that "the defendant cannot rely upon the necessity defense if a third alternative is

open and known to him that will cause less harm." Unclassified Bybee memo at 40.

The more difficult question on this subject is not whether the necessity defense remained

generally viable at the time the memo was written, but whether it would be available to a

defendant charged with violation of 18 U.S.C. §2340A. The memo and OPR's report engage in

lengthy analyses of how the ratification history of the CAT might impact that question. The

significance of the ratification history boils down to whether, when Congress passed the torture

statute, it failed to address explicitly the CAT provision providing that no extraordinary

circumstances can justify torture because it did not want to or because it did not need to.

55

Because the question remains open until a court decides it, either interpretation is possible. OPR

made a strong case that the ratification history of the CAT suggests that any Congressional effort

to implement CAT would necessarily preclude application of the defense. OPR final report at

216-17. Yoo and Bybee, on the other hand, contend that Congress was aware of the CAT

provision that no exceptional circumstances could be invoked to justify torture and that its failure

to prohibit defenses in the statute evidences its rejection of the CAT restriction so far as it

applied to make the necessity defense unavailable to an individual defendant.

In OPR's analysis, it asserted in support of its position that "the treaty explicitly stated . .

that necessity was not a defense to torture." OPR final report at 216 citing CAT art. 2(2). But the

treaty does not say that the necessity defense would not be available to an individual charged

with a crime. Rather, it says that a state may assert no exceptional circumstance as a justification

for torture. In this sense, OPR seeks to "have it both ways" with respect to the Israeli case in the

opposite way Yoo and Bybee did. OPR argued that the Israeli court's statements that the

necessity defense might be available to a criminally-charged GSS interrogator did not evidence

that the Israeli court thought the techniques at issue were not torture. Here, however, OPR

contended that the treaty prohibited necessity as a defense to torturous acts. As the Israeli court

noted, the defense of "justification" depends on prior state authorization of the actions underlying

a criminal charge, whereas the defense of necessity "involv[es] an individual reacting to a given

set of facts." See PCATI v. Israel, at 11135-37. This distinction makes a difference to the analysis

of both PCATI v. Israel and the statutory history of the torture statute.

Yoo and Bybee conflated the concepts as well. They concluded that the necessity defense

might be available to an interrogator charged with torture, but found that the Israeli case was best

read as concluding that the interrogation techniques at issue were not torture because the court

said the necessity defense would be available. Yoo and Bybee's contention that the necessity

defense would be available to a CIA interrogator based in part on Congress's failure to adopt the

purpose portion of the CAT definition provides some basis to explain the inconsistency.

Nonetheless, the memo would have been more complete if it had discussed this seeming

contradiction.

OPR's criticism of Yoo and Bybee's conclusion regarding the necessity defense also

relied on the statement in Oakland Cannabis Buyers that the Court rejected "the Cooperative's

intimation that elimination of the [necessity] defense requires an explicit statement." OPR final

report at 216, citing Oakland Cannabis Buyers, 532 U.S. at 491 n.4. However, in that case, the

defendants sought to assert a defense of medical necessity to a marijuana distribution charge.

Congress included marijuana on Schedule I, which lists by its own terms drugs that have no

currently accepted medical use in the United States. See 21 U.S.C. §812. The Court relied on

this provision to conclude that the medical necessity defense was not available. For this reason,

the Court's observation that Congress need not explicitly eliminate the necessity defense has

56

little relevance to the availability of the defense in the torture context.

The Supreme Court has recognized that "Congress in enacting criminal statutes legislates

against a background of Anglo-Saxon common law." Bailey, 444 U.S. at 415 n.11. The Anglo-

Saxon background against which Congress passed the torture statute provided for the defense of

necessity, and it is at least plausible that Congress's failure to specifically preclude its application

to the torture statute evidenced a determination of values_ 16 Further complicating this discussion

is the reality that any court that interprets this statute will do so in the context of a criminal

prosecution. The Supreme Court has recognized the longstanding principle that "ambiguity

concerning the ambit of criminal statutes should be resolved in favor of lenity." Liparota v.

United States, 471 U.S. 419, 427 (1985). In this context, the Supreme Court has considered and

relied on statutory history to construe a criminal statute narrowly against the government. See

e.g. Flores-Figueroa v. United States, 129 S.Ct. 1886 (2009); United States v. Granderson, 511

U.S. 39(1994); United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992); and United

States v. R.L.C., 503 U.S. 291(1992). However, the Court has also noted:

It is true that the need for fair warning will make it "rare that legislative history or

statutory policies will support a construction of a statute broader than that clearly

warranted by the text," Crandon v. United States, 494 U.S. 152, 160, 110 S.Ct.

997,1002-03,108 L.Ed.2d 132 (1990), and that "general declarations of policy,"

whether in the text or the legislative history, will not support construction of an

ambiguous criminal statute against the defendant, Hughey v. United States, 495

U.S. 411, 422,110 S.Ct. 1979, 1985, 109 L.Ed.2d 408 (1990). But lenity does not

always require the "narrowest" construction, and our cases have recognized that a

broader construction may be permissible on the basis of nontextual factors that

make clear the legislative intent where it is within the fair meaning of the statutory

language.

United States v. R.L.C., 503 U.S. 291, 306 n. 6 (1992). How the Court might view the statutory

history is even further complicated because the necessity defense is not part of the statute but

arises from common law. Although OPR may ultimately prove correct, until a court resolves the

issue, OPR's interpretation of the ratification history reflects a mere difference of opinion.

Furthermore, the distinction discussed in PCATI v. Israel likewise applies here. The CAT clearly

prohibits a government from authorizing torture in advance based on exceptional circumstances,

'As noted above, although the question was not precisely before the court, the Israeli

court was "prepared to accept that, in the appropriate circumstances, GSS investigators may avail

themselves of the 'necessity defense' if criminally indicted." PCATI v. Israel, at ¶35.

57

but that prohibition does not necessarily lead to the conclusion that an individual criminal

defendant could not raise necessity as a defense to a torture charge. Once again, Yoo and

Bybee's analysis of the CAT provisions as they relate to the availability of the necessity defense

does not reflect a violation of Rule 1.1, 1.4 or 2.1.

(2) Self Defense

With respect to the issue of self-defense or more accurately "defense of others," OPR first

criticized Yoo and Bybee for citing secondary sources rather than primary sources to describe the

defense. The memo cited well-respected sources regarding a longstanding common law defense,

and nothing about the particular formulation of the defense reflected in those sources suggests

that citing them is professional misconduct or resulted in an inaccurate general description of the

defense.

Second, OPR criticized the memo for overstating the number of "leading scholarly

commentators" on the issue of whether self-defense can apply to torture. In the unclassified

Bybee memo, Yoo referred to "commentators" but named only one. In the Yoo memo, he added

a second commentator, and OPR contended that the article on which Yoo relied does not actually

support the defense. Whether one commentator or many support the availability of self-defense

in the torture context is of little actual consequence and would probably have been better left out

of the memos altogether, but the issue is simply too inconsequential to support a finding of

misconduct in and of itself.

Realistically, this issue seems to simply come down to (1) whether Congress intended to

and did eliminate the defense and (2) if not, whether the facts of a particular case support the

defense. Yoo and Bybee flagged that the defense usually applies when the otherwise prohibited

force is directed at the actor who intends to injure or kill third parties rather than at someone who

has information about that actor. OPR's final report disclosed no case that addresses that issue.

OPR noted, and I agree, that the discussion of self-defense in many ways overlaps the discussion

of the necessity defense. Under Yoo and Bybee's analysis, it is difficult to conjure a hypothetical

interrogation in which defense of others would apply but necessity would not. Yet, although

OPR was critical of the support that Yoo and Bybee cited for their conclusion, it did not cite

contrary case law that refuted the conclusion. In the absence of judicial precedent to the contrary,

OLC's conclusion that interrogators would be able in certain circumstances to assert defense of

others in response to a criminal charge was not unambiguously prohibited.

OLC also suggested that an interrogator might be able to augment such a defense to

torture charges based on In re Neagle, 135 U.S. 1 (1890). In that case, the Court ordered the

release of Deputy United States Marshal Neagle, who the state charged with murder after he

killed an assailant who attacked a federal judge. The Supreme Court held that Neagle was

58

entitled to habeas corpus relief because he was acting under the authority of the United States.

Neagle, 10 S.Ct. 658, 672. The unclassified Bybee memo opined:

If the right to defend the national government can be raised as a defense in an

individual prosecution, as Neagle suggests, then a government defendant, acting

in his official capacity, should be able to argue that any conduct that arguably

violated Section 2340A was undertaken pursuant to more than just individual

self-defense or defense of another. In addition, the defendant could claim that he

was fulfilling the Executive Branch's authority to protect the federal government,

and the nation, from attack.

Unclassified Bybee memo at 45. This supposition is similar to the public authority defense. The

public authority defense applies when the defendant engages in criminal conduct at the request of

a government official. United States v. Strahan, 565 F.3d 1047, 1051 (7 th Cir. 2009). When

defendants have claimed to act under the authority of the CIA, courts have sometimes referred to

the defense as "the CIA defense." See United States v. Pitt, 193 F.3d 751, 756 n.3 (3d Cir. 1999)

(citing cases). The CIA defense differs from the typical public authority defense because the

claimed authorization is apparent rather than real. See id. This is in part because the CIA cannot

authorize individuals to violate the Constitution or statutes. United States v. Anderson, 872 F.2d

1508, 1516 (11 th Cir. 1989). Courts generally reject apparent authority as a viable theory of

defense. See United States v. Fulcher, 250 F.3d 254 (4th Cir. 2001) (accumulating cases).

Torture is illegal, and the CIA cannot authorize conduct that violates a statute. The CIA

sought OLC's opinion in order to assure that it did not authorize torturous acts. The CIA

authorized only the techniques approved by OLC. Therefore, it is not likely that a CIA employee

who used an unauthorized interrogation technique and was later charged with torture could claim

that he was "fulfilling the Executive Branch's authority to protect the federal government and the

nation, from attack." Had the United States Marshals Service told Neagle that he could not use

lethal force under any circumstances, he may have been able to assert defense of others as a

defense to the murder charge, but he could not claim he was exercising his official authority.

The Court found in Neagle that the authority to use lethal force to protect Judge Field was

implied, and OLC has found other authorities implied as a result of Neagle. See e.g. Authority of

FBI Agents Serving as Special Deputy United States Marshals, to Pursue Non-federal Fugitives,

19 USAG 33, 1995 WL 944018 (February 21, 1995) and Use of Federal Employees for Olympic

Security, 20 USAG 200, 1996 WL 33101196 (May 17, 1996). hi the latter opinion, citing an

earlier decision, OLC observed that the authority to punish an offense suggests inherent authority

to take reasonable and necessary steps to prevent an offense. Use of Federal Employees for

Olympic Security, 1996 WL at *6 n.3. Thus, a CIA employee who engaged in authorized

interrogation techniques and who was later charged with torture might raise a defense loosely

based on Neagle. However, an authority explicitly withheld cannot also be implied. Thus, Yoo

59

and Bybee's contention that Neagle suggests the availability of a defense to charges arising out of

expressly prohibited interrogation techniques seems wrong, particularly since the CAT treaty

permits no justification for torture.

2. The Classified Bybee memo

a. Failure to discuss history surrounding use of water in

interrogations

OPR first criticized the classified Bybee memorandum's discussion of waterboarding for

failure to cite the United States' history surrounding the use of water in interrogations. OPR

claimed the classified Bybee memo, should have discussed In re Estate of Marcos Litigation, 910

F.Supp. 1460 (D.Haw. 1995)' and United States v. Lee, 744 F.3d 1124 (5 th Cir. 1984). In the

former, the court considered damage claims from Filipino victims of the oppressive Marcos

regime. The court listed fourteen interrogation methods it described as forms of torture. Marcos,

910 F.Supp. at 1463. The court's description of one of those techniques is similar to the

waterboard. Subsequent to a jury trial during which the July found in favor of 22 named

plaintiffs, the court appointed a special master to depose a sampling of class members in the

Philippines in an effort to develop a basis for the jury to determine damages for the class. See

Hilao v. Marcos, 107 F.3d 767, 772 (9th Cir. 1996). The Special Master deposed 137 class

members, approximately three of whom had been subjected to a waterboard-like procedure. In

two of the cases, the waterboard-like procedure was part of a course of conduct that included

other clearly torturous acts. In the third, the plaintiff, at 8:00 pm,

was taken to a forest, stripped, forced to lie on a table, had his hands and feet held

down, and had soapy water poured into his nose and mouth which made him feel

like he was drowning. This treatment lasted until 4:00 am, during which time

[plaintiff] lost consciousness "many times," felt chest pains, and cried. He

testified that he never screamed because there was water in his mouth. After he

would pass out, the soldiers would revive [plaintiff] which he said felt like

"somebody was pushing the water out of his stomach." [Plaintiff] testified, "I

experienced a lot of sufferings during that time. I wish that it would be better for

them to kill me than to bear what they were actually doing to me at that time."

In re Estate of Marcos, 1994 WL 874222, 35 (D.Haw. January 3, 1995). The special master

validated this claim and recommended a damage award of $30,000. Id. While the Ninth Circuit

Court of Appeals considered two separate appeals in the case, only one of the opinions discussed

a specific interrogation, and it was not the interrogation described above. See Hilao v. Estate of

Marcos, 103 F.3d 789(9'° Cir. 1996). On appeal, the court quoted and approved the district

court's jury instruction regarding torture that tracked the TVPA language. Id. at 792-93. The

60

Special Master apparently applied that same standard. A discussion of the Marcos case may

have been helpful in some limited sense, but the only fact pattern that even resembled the

procedure for which the CIA sought approval was found to constitute torture by a special master

in an unpublished decision. Furthermore, it is even lesS clear that a discussion of this case was

necessary in a memorandum written specifically to the CIA and for very limited distribution.

Finally, Yoo and Bybee cited the Court of Appeals opinion in the appendix of the unclassified

Bybee memo. Unclassified Bybee memo at 49. For these reasons, I am not persuaded that

failure to cite this case evidences professional misconduct.

In Lee, the United States brought civil rights charges against law enforcement officers

who subjected individuals in their custody to water torture. However, the opinion does not

describe the technique nor conduct any analysis that would be useful as a predictor for how

courts might construe Section 2340A in the future. In the Levin memo, written to replace the

unclassified Bybee memo, Levin observed that Congress may have adopted a definition of torture

that differed from the colloquial use of the term and noted that only the CAT definition was

relevant to his analysis. Levin memo at 2. For these reasons, failure to cite Lee does not

evidence professional misconduct.

OPR also described additional historical examples of "water torture," but the examples

are distinguishable from the proposed technique and were not analyzed under language similar to

the torture statute or the CAT. While citation to these examples may have provided useful

historical context, it seems that such context would largely relate to the policy decision rather

than to the legal question. For this reason, the Rules of Professional Conduct did not require

reference to those historical incidents. See OPR final report at 21 n.23.

b. Failure to discuss distinctions between SERE training and

interrogation

OPR next criticized the classified B bee memo for faili to oint ou

A close reading of the unclassified Bybee memo demonstrates that the psychological

impact of the proposed techniques mattered only to the approval of the waterboard. The torture

statute proscribes acts "specifically intended to inflict severe physical or mental pain or suffering

61

. . ." 18 U.S.C. §2340(1). The statute defines "severe mental pain or suffering" as prolonged

mental harm caused by one of certain enumerated acts listed in the statute. In the classified

Bybee memo, Yoo and Bybee first considered whether the proposed techniques would cause

severe physical pain. After concluding that the techniques would not cause severe pain, they

turned to the issue of whether the proposed techniques would cause severe mental pain or

suffering. As a threshold matter, however, they first determined that nine of the ten proposed

techniques were not encompassed by the enumerated acts, and therefore there was no need to

evaluate whether the acts would cause severe mental pain or suffering. They did determine that

the waterboard constituted a threat of imminent death, which is one of the enumerated acts in the

statute. Therefore, they next addressed whether the waterboard would result in prolonged mental

harm. They wrote, "Based on your research into the use of these methods at the SERE school

and consultation with others with expertise in the field of psychology and interrogation, you do

not anticipate that any prolonged mental harm would result from the use of the waterboard."

Classified Bybee memo at 15.

Yoo an• By 1 .1 6 etermine •

that the waterboard did not cause severe physical pain and suffering, and the SERE training

would seem to be directly relevant to that question. Therefore, the only remaining question for

them was whether the waterboard would cause severe mental pain and suffering for Zubaydah.

They could determine that the waterboard would cause Zubaydah severe mental pain and

suffering only if (1) it would cause severe mental pain and suffering on anyone to whom it was

applied, or (2) it would cause severe mental pain and suffering on Zubaydah based on his

particular psychological assessment. The SERE training—despite its differences with real world

application of the waterboard—would be relevant to the threshold question of whether everyone

subjected to the waterboard suffers severe mental pain or suffering. Because they determined

that not everyone who undergoes the waterboard suffers severe physical pain or suffering, they

next. considered whether Zubaydah would suffer severe mental pain or suffering as a result of the

waterboard. The CIA's psychological assessmen

concluded that he would not experience any

mental m the use of the techniques, and OLC relied on that conclusion. Classified

Bybee memo at 7, 17. The memo continued, however, to attribute too much significance to the

SERE training when it stated, "The continued use of these methods without mental health

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consequences to the trainees indicates that it is highly improbable that such consequences would

result here." Id. at 17-18. The memo would more correctly have observed that Zubaydah's

psychological assessment, combined with the SERE experience and the CIA's intention to have

medical experts monitor the interrogation, made it highly improbable that Zubaydah would suffer

mental health consequences. As drafted, however, the memo could be interpreted as concluding

or an individualized assessment.

Because of the context, however, at erroneous at worst

or poorly drafted (at best) observation was not critical to the approval of the techniques on

Zubaydah.

c. Other criticisms

OPR faulted the classified Bybee memo for failing to discuss whether procedures used to

effect sleep deprivation would cause severe physical or mental pain or suffering apart from the

sleep deprivation itself. OPR pointed out that the Bradbury techniques memo' noted that the

classified Bybee memo had not considered the mechanisms for effecting sleep deprivation. The

Bradbury techniques memo concluded, however, that those mechanisms would not cause severe

pain or suffering and approved sleep deprivation as an interrogation technique that would not

violate the torture statute. Bradbury had the advantage of considering the reported experiences

from prior interrogations involving sleep deprivation that would not have been available to Yoo

and Bybee. See Bradbury techniques memo at 37 n.45. Furthermore, by way of example only,

the European Court of Human Rights found that sleep deprivation was not torture but likewise

did not explore the means used to keep a detainee awake. See Ireland v. United Kingdom, supra.

The memo would have been more complete had OLC asked the CIA how it intended to keep a

detainee awake and addressed those mechanisms.

Next, OPR claimed that the classified Bybee memo should have noted that a Supreme

court case from 1944 quoted an American Bar Association (ABA) report describing steep

deprivation as "the most effective torture and certain to produce any confession desired." OPR

final report at 236 quoting Ashcroft v. Tennessee, 322 U.S. 143, 151 n.6 (1944). As observed by

Levin, colloquial uses of the term "torture" have little relevance to determining whether a

particular technique violates the torture statute. Levin memo at 2. Furthermore, the actual

question before the Court was weather Ashcraft's confession was compelled not whether the

interrogation was torturous. The Court cited the referenced ABA report only as one account of

17Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence

Agency Re: Application of 18 U.S.C. §§ 2340-2540A to Certain Techniques That May Be Used.

in the Interrogation of a High Value al Qaeda Detainee, May 10, 2005.

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the disputed events surrounding Ashcraft's interrogation. Although the Court found Ashcraft's

confession was compelled, the Court itself did not describe the interrogation as torturous. Id. at

154. For these reasons, I am unpersuaded that the Rules of Professional Conduct required Yoo

and Bybee to cite Ashcroft in the classified Bybee memo.

Finally, OPR faulted Yoo and Bybee for failing to consider how a detainee would be

forced to maintain stress positions. Although the Bradbury techniques memo addressed the

mechanisms used to keep someone awake, it did not address the mechanisms used to cause

someone to maintain stress positions. OPR faulted Yoo and Bybee for failing to consider

whether the "subjects would be shackled, threatened, or beaten by the interrogators, to ensure

that they maintained those positions." OPR final report at 237. First, it is implausible that the

CIA would seek authority to use a stress position but fail to advise the CIA that the detainee

would be beaten in order to maintain the position. Second, the torture statute itself prohibits

certain types of threats that would cause prolonged mental harm including threats of imminent

death, threats to inflict torturous pain, and threats of death or torturous pain to third parties. The

memo listed those prohibited threats in its discussion of the techniques in question. Classified

Bybee memo at 1. Finally, although the memo does not address the possibility that shackling

could.constitute torture, its broad prohibition .on the infliction of severe pain communicated to

the CIA that it could not inflict severe pain in an effortto maintain an approved stress position.

For these reasons, the DCRPC did not unambiguously require Yoo and Bybee to address the

mechanisms for maintaining approved stress positions.

3. Conclusion

In sum, I concluded that in the unclassified Bybee memo, Yoo and Bybee's discussion of

severe pain, PCATI v. Israel, Commander-in-Chief authority, and self-defense (particularly the

discussion of In re Neagle) were flawed. On the other hand, although the analyses of specific

intent, the CAT ratification history, United States judicial interpretations, Ireland v. United

kingdom, and the necessity defense were debatable, those analyses generally were most

susceptible to criticism because they slanted toward a narrow interpretation of the torture statute

at every turn. I concluded above that the DC Rules, considered in total and not in isolation,

obligated Yoo and Bybee not to knowingly or recklessly provide incorrect legal advice or to

provide advice in bad faith. Further, Rule 1.1 unambiguously obligated them to provide ,

competent advice. The District of Columbia courts have held proof of violation of Rule 1.1

requires a serious deficiency defined as "an error that prejudices or could have prejudiced a client

. . . caused by lack of competence." In re Evans, 902 A.2d 69-70 (D.C. 2006).

With respect to Bybee, particularly in light of his supervisory role in the issuance of these

memos, I conclude the preponderance of the evidence does not support a finding that he

knowingly or recklessly provided incorrect advice or that he exercised bad faith. Also, there is

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little or no evidence to support a finding that Bybee exhibited conscious indifference to the

consequences of his behavior. Yoo and Philbin were well-respected attorneys with stellar

backgrounds both of whom had clerked for the United States Supreme Court. Although he

engaged in significant review of the issues himself, his consultation with respected colleagues

and the absence of any evidence suggesting that he issued the opinion in order to satisfy his client

or that he was motivated by an improper purpose refutes any argument that he acted with

conscious indifference to the consequences of his action.

Although Yoo and Bybee's errors were more than minor, I do not believe that they

evidence serious deficiencies that could have prejudiced the client. This conclusion is largely

supported by the reality that the memos were written for a limited audiance and were but part of

the dialogue with the CIA. The most significant errors, which occurred in the unclassified Bybee

memo, were not likely to cause prejudice because the classified Bybee memo issued

contemporaneously and approved specified techniques against a specific individual and advised

that the advice would not necessarily apply if the facts changed. The conclusions of the classified

Bybee memo did not depend on necessity, self-defense, or Commander-in-Chief authority.

Rather, those conclusions were based on analysis of the proposed techniques considered under

the framework of the torture statute. Furthermore, although the CIA received the unclassified

Bybee memo, the more limited classified Bybee memo was directed specifically to the General

Counsel of the CIA. Echoing in some respects the holding in Evans, the Virginia Supreme Court

has observed that discipline under Rule 1.1 is "not justified based on research that results in the

wrong legal conclusion because incorrect legal research alone, although attorney error, is not

clear and convincing evidence of incompetence for purposes of that Rule." Barrett v. Virginia

State Bar ex rel. Second District Committee, 634 S.E.2d 341, 347 (Va. 2006). Although the

memos reflect errors, I do not find that the number and magnitude of those errors are sufficient to

prove that Yoo and Bybee violated Rule 1.1.

Finally, because OPR found that Yoo engaged in intentional misconduct, I more fully

address his intent below.

C. Yoo's intent

The most striking criticism of the unclassified Bybee memo and the Yoo memo is that the

memos resolved every legal question towards the most restrictive possible application of the

torture statute. OPR concluded that the memos therefore evidenced Yoo's "desire to

accommodate the client" and that the preponderance of evidence showed that Yoo knowingly

failed to provide thorough, objective and candid advice regarding the Commander-in-Chief

authority, specific intent, self-defense, and the ratification history of the CAT. OPR final report

at 251-54. But John Yoo's expansive view of executive power did not begin when he was hired

at OLC. OPR test drove its theory that Yoo was trying to please the client when it interviewed

65

Adam Ciongoli. After suggesting that the unclassified Bybee memo was telling the client what it

wanted to hear, OPR asked Ciongoli, "Is there anything in your encounters with John Yoo or

dealings with John Yoo, what he told you, what he learned, that either would support that theory

or contradict it?" Ciongoli at 39. Ciongoli responded:

I would not subscribe to that theory regarding John. I think John believes very

strongly in a particular view of the law. I think that view is reflected in his

writing. . . I think if [Yoo had] been asked to craft opinions that conflicted with

that view of presidential power, he would have refused to draft them. So, I think

that John—the fact that John's conclusion was that there was fairly, that there was

fairly broad latitude in this context was not because the Agency or anyone else

was seeking latitude, but because John believes there is very broad latitude.

Id. at 40. In his book, Goldsmith was highly critical of the opinions in keeping with his

withdrawal of them. Yet, in his discussion ofhow the opinions came to be written, he observed

that the unclassified Bybee memo was reviewed by only a small group of lawyers at the White

House, the Justice Department, and the CIA. He stated, "All of these men wanted to push the

law as far as it would allow. But none, I believe, thought he was violating the law. John Yoo

certainly didn't." The Terror Presidency at 167. He further observed, "The poor quality of a

handful of very important opinions is probably attributable to some combination of the fear that

pervaded the executive branch, pressure from the White House, and Yoo's unusually expansive

and self-confident conception of presidential power." Id. at 168.

Yoo, who acknowledged he was not an expert in criminal law, had the Assistant Attorney

General for the Criminal Division Michael Chertoff review the unclassified Bybee memo. In

response to questioning by OPR, Chertoff advised that there was nothing in his exchanges with

Yoo on the memos that suggested that Yoo was anxious to accommodate the CIA. Chertoff at 9-

10. Chertoff told OPR that after reviewing a draft he advised Yoo that the specific intent section

was technically correct but the distinctions Yoo drew were not likely to be persuasive to a jury

and that he should emphasize due diligence. Id. at 11-12. The final memo observed, "[W]hen a

defendant knows that his actions will produce the prohibited result, a jury will in all likelihood

conclude that the defendant acted with specific intent." Unclassified Bybee memo at 4. In the

classified Bybee memo, Yoo concluded that the identified techniques did not appear to be

specifically intended to inflict severe physical or mental pain and suffering, and observed, "This

conclusion concerning specific intent is further bolstered by the due diligence that has been

conducted concerning the effects of these interrogation procedures." Classified Bybee memo at

17.

It is also important that Yoo was required to and did consult with Pat Philbin regarding

the unclassified Bybee memo. In an affidavit submitted to OPR, Jim Comey observed, "In all of

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my dealings with him, Mr. Philbin consistently demonstrated that he provided candid legal

advice whether or not the advice was what the recipients wanted to hear and whether or not it

would be welcome. Mr. Philbin did not tailor his advice to suit the wishes of his audience."

Comey affidavit ¶ 3. In another affidavit, Jack Goldsmith described Philbin as "the most candid

and critical lawyer that I met in my two years in government." Goldsmith affidavit 113. Ciongoli

said of Philbin, "I have more confidence in Pat Philbin's legal ability than any lawyer I've ever

met." Ciongoli at 35. Philbin's review of the memo and.his final recommendation that Bybee

could sign it strongly suggest that the memo at the very least set forth a defensible analysis of the

law.

For all of the above reasons, I am not prepared to conclude that the circumstantial

evidence much of which is contradicted by the witness testimony regarding Yoo's efforts

establishes by a preponderance of evidence that Yoo intentionally or recklessly provided

misleading advice to his client. It is a close question. I would be remiss in not observing,

however, that these memoranda represent an unfortunate chapter in the history of the Office of

Legal Counsel. While I have declined to adopt OPR's findings of misconduct, I fear that John

Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client

and led him to author opinions that reflected his own extreme, albeit sincerely held, views of

executive power while speaking for an institutional client. These memoranda suggest that he

failed to appreciate the enormous responsibility that comes with the authority to issue

institutional decisions that carried the authoritative weight of the Department of Justice. I do not

believe the evidence establishes, however, that he set about to knowingly provide inaccurate

legal advice to his client or that he acted with conscious indifference to the consequences of his

action. In reaching this determination, I am mindful that at the time the memos were authored,

the number of individuals with whom Yoo could consult was extremely limited, and his

consultation with the Assistant Attorney General of the Criminal Division was a reasonable

action given Yoo's own lack of criminal law experience.

III. Conclusion

The above analysis leads me to conclude the same thing that many others have concluded,

to wit that these memos contained some significant flaws. But as all that glitters is not gold, all

flaws do not constitute professional misconduct. Because the subject memoranda have now been

publicly released, the number of flaws and the significance of them can be debated. The bar

associations in the District of Columbia or Pennsylvania can choose to take up this matter, but

The Department will make no. referral. Now that the opinions that are the subject of OPR's

investigation have been released, I recommend the release of as much of this decision memo, the

OPR drafts and final report, and the responses from Yoo, Bybee, Mukasey and Filip, and

Goldsmith that can be released consistent with classification or privacy concerns. OPR's

findings and my decision are less important than the public's ability to make its own judgments

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about these documents and to learn lessons for the future. While some may view the public

release of the OPR final report versus a referral to a state bar disciplinary authority as a

distinction without a difference, the decision not to refer the matter to a state bar disciplinary

authority results from adherence to traditional Department procedure. I firmly believe that

Department attorneys are entitled to that much due process even in cases attracting significant

public interest.

From my perspective of having reviewed OPR reports for nearly seventeen years, OPR's

analysis in this case depends on an analytical standard that reflects the Department's high

expectation of its OLC attorneys rather than the somewhat lower standards imposed by

applicable Rules of Professional Conduct. However, my decision not to adopt OPR's misconduct

finding should not be misread as an endorsement of the subjects' efforts. OPR's analytical

framework permits a finding of poor judgment when a Department attorney

chooses a course of action that is in marked contrast to the action that the

Department may reasonably expect an attorney exercising good judgment to take.

Poor judgment differs from professional misconduct in that an attorney may act

inappropriately and thus exhibit poor judgment even though he or she may not

have violated or acted in reckless disregard of a clear obligation or standard.

OPR final report at 19. I have found that Yoo and Bybee did not violate a clear obligation or

standard. However, as I have noted, the standard that OPR identified is consistent with the

action that the Department reasonably expects of its attorneys. In contradiction of that high

standard, the unclassified Bybee memo consistently took an expansive view of executive

authority and narrowly construed the torture statute while often failing to expose (much less

refute) countervailing arguments and overstating the certainty of its conclusions. Even though

the memorandum was intended for a limited audience, Yoo and Bybee certainly could have

foreseen that the memorandum would someday be exposed to a broader audience, and their

failure to provide a more balanced analysis of the issues created doubts about the bona fides of

their conclusions. I appreciate Philbin's description of the task at hand, to wit to identify the line

and not to build in a margin of comfort inside the line. However, this task did not necessarily

demand a memorandum devoid of nuance, and I believe primarily that the unclassified Bybee

memorandum overstates the certainty of its conclusions in a way the represents a "marked

contrast to the action that the Department may reasonably expett an attorney exercising good

judgment to take." Thus, I conclude that Yoo and Bybee exercised poor judgment by overstating

the certainty of their conclusions and underexposing countervailing arguments.

While OPR's final report includes additional criticisms of the other memos and letters

that it reviewed, its misconduct finding against Yoo is grounded in the identified flaws in the

unclassified and classified Bybee memos. See OPR final report at 251-54. Many of the

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criticisms of the other memos and letters derived from the criticisms of the unclassified Bybee

memo. Furthermore, OPR did not specifically evaluate.whether the legal work in the Yoo memo

constituted misconduct separate and apart from the criticisms of the unclassified Bybee memo.

For this reason and because OPR' s findings of professional misconduct were based on a standard

that was neither known nor unambiguous, I conclude that my poor judgment finding accounts for

the entirety of Yoo's work in the subject memoranda.

 

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