Tuesday, February 23, 2010

Berkeley Law Students Applaud DOJ Report Findings, Torture Memo Lawyers Engaged in Misconduct: Urge Congress, State Bar and University to Investigate

[Update]: The Yoo situation seems all but settled as Congress is looking in to whether or not to hold hearings. The analysis below strikes me as a step in the right direction.
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From the Boalt Alliance to Abolish Torture:
The final report of the Justice Department’s Office of Professional Responsibility (OPR) released Friday found that former Office of Legal Counsel lawyer John Yoo engaged in “intentional professional misconduct” and that Yoo's colleague, former Office of Legal Counsel lawyer John Bybee, engaged in “reckless disregard of his professional obligations” in their rendering of legal justifications for the Bush Administration’s torture policy. OPR Report, p. 252, 256. The OPR report concludes 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.” OPR Report, p. 254.

Although Associate Deputy Attorney General David Margolis decided to downgrade the OPR findings to “poor judgment” and to refrain from referring the OPR findings to the relevant state bars, House Judiciary Committee chair, John Conyers, has disputed Margolis's decision and has scheduled Congressional hearings on the matter. Though the DOJ’s recommendation does not include sanctions, the contents of the OPR report also provide a sound basis for action by other entities with jurisdiction over the lawyers’ conduct, including the University of California and the Pennsylvania and DC Bar Associations.

“The Pennsylvania and DC bar associations and the University of California have refused to investigate the conduct of Professor Yoo until the release of the OPR report,” stated first-year Berkeley Law student [RH]. “Now they no longer have an excuse – they must fulfill their duty to investigate the professional misconduct and ethics violations spelled out in the OPR report.”

Student members of the Boalt Alliance to Abolish Torture (BAAT) at Berkeley Law School, where John Yoo is a tenured professor, applauded the findings in the report and expressed dismay over the new facts revealed, including that Yoo “knowingly provided incomplete and one-sided advice.” OPR Report, p. 252. As a tenured professor of law, the OPR report concludes “by a preponderance of the evidence” that Yoo “knowingly failed to present a sufficiently thorough, objective, and candid analysis” through “his failure to carefully read the cases, and his exclusive reliance on the work of a junior attorney.” OPR Report, p. 253.

“It was apparent that Yoo engaged in professional misconduct, but I’m still shocked by the report – that as a lawyer advising the President on a matter so important as torture, Yoo failed to carefully read the cases he was citing and relied on a junior attorney for critical legal analysis,” said first-year Berkeley Law student [TF]. “If I did the same thing on a law school assignment, I’d fail. Yet, Yoo is a tenured professor here at Berkeley.”

BAAT was formed by law students and student organizations to restore respect for the international prohibition against torture. The organization has been active in educating law students and recently sent petitions to the Justice Department, the Pennsylvania Bar Association, and the University of California Faculty Senate urging investigations of the OLC lawyers. “Thorough investigations are essential if we want to ensure that human rights violations and civil rights abuses have stopped and that they never happen again,” says BAAT member and first-year Berkeley Law student [NGN].

Boalt Alliance to Abolish Torture: http://sites.google.com/site/abolishtorture/
Excerpts from the OPR Report:
“Yoo committed intentional professional misconduct” and “knowingly provided incomplete and one-sided advice.” p. 252.

“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.” p. 254.

“Given Yoo’s background as a former Supreme Court law clerk and tenured professor of law, we concluded that his awareness of the complex and confusing nature of the law, his failure to carefully read the cases and his exclusive reliance on the work of a junior attorney, established by a preponderance of the evidence that he knowingly failed to present a sufficiently thorough, objective, and candid analysis of the specific intent element of the torture statute.” p. 253.

“Yoo knowingly provided incomplete advice to the client.” p. 253.

“[Yoo] knowingly misstated the strength of the Bybee Memo’s argument ‘that interrogation of [prisoners] using methods that might violate [the torture statute] would be justified under the doctrine of self-defense....’” p. 253.

“Yoo’s legal analyses justified acts of outright torture.” p. 252.
You can also check out Slate's take on the issue.

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32 Comments:

Blogger Patrick said...

We're all on the mailing lists, and we've all seen this. I'm very tempted to take down this post until it provides at least some analysis . . . but I'm also open to being talked out of it.

2/23/2010 9:32 AM  
Blogger Matt said...

I'm still not on their mailing list. They must think that I like torture.

2/23/2010 9:35 AM  
Anonymous Anonymous said...

where does the post or email point out that multiple people within DOJ excoriated the OPR report and rejected it? why should UC or any bar association use a report that has been criticized and officially rejected?

now that the official conclusion is "poor judgment but no breach of ethics," why should tenure be revoked?

2/23/2010 9:50 AM  
Anonymous Anonymous said...

Patrick, us alums aren't on the mailing lists.

I can't believe there is a Boalt Alliance to Abolish Torture. It sounds like some fabricated high school extracurricular group. Do they do anything, or are they just there to oppose John Yoo/make worthless press releases?

2/23/2010 9:59 AM  
Anonymous Anonymous said...

What a ridiculous post. If James wants to link to the press release and provide some analysis, that's great, but just reprinting it is silly and indulgent. This isn't the BAAT listserv. My favorite part is he excerpts out the two student names. Um, don't they want their names out there in regards to this issue? And aren't their names already on the publicly available press release?

2/23/2010 10:06 AM  
Blogger Patrick said...

Actually, I excerpted the students' names.

2/23/2010 10:09 AM  
Anonymous Anonymous said...

10:06 again--fine, then you get half credit for this silliness. I know teacher names get excerpted out, but that's when students are giving opinions about them, not when the teacher's name is mentioned in a public document. After all, you didn't excerpt Yoo's name.

I'd point out that I'm not necessarily disagreeing with BAAT here, just with this manner of posting.

2/23/2010 10:13 AM  
Anonymous Anonymous said...

The BAAT website is remarkably devoid of member names. I found 4 names (the two in this press release and two in another press release).

Bottom line: BAAT = fail.

2/23/2010 10:19 AM  
Anonymous Anonymous said...

Whatever happened to the whole, let's not bash student groups on N&B? Or does that only apply to the Federalist Society?

2/23/2010 10:23 AM  
Blogger Dan said...

No names is a Nuts and Boalts policy that has been in effect since life crawled out of the primordial sludge.

James, a long time ago, an anonymous commenter took me to task for putting up links/quotes with little or no analysis. It's advice I took to heart, and my posts have improved dramatically as a result. I would have enjoyed hearing your take on this issue.

Patrick, I'm apparently not on the mailing list.

2/23/2010 10:25 AM  
Anonymous Anonymous said...

10:23
People are bashing the drafters of a press release which has been posted on N&B. If they were not free to do that, then the blog would be inundated with such announcements.

2/23/2010 10:50 AM  
Blogger James said...

Why not just focus on the content and not the fact that:

*Gasp* I posted something written by someone else that I completely agree with.

You'd have more fun with pointless ad hominems.

I'm taking the time to argue with an anonymous poster on N&B, which is sort of a fail in itself.

2/23/2010 10:56 AM  
Anonymous Anonymous said...

James, that is the first thing we have ever agreed on: you are fail.

2/23/2010 11:30 AM  
Blogger Sean said...

If you completely agree, why not include in your post the points of analysis which are particularly compelling, keeping in mind previous N&B posts explaining the weaknesses of the OPR report?

2/23/2010 11:35 AM  
Blogger James said...

Oh, 11:30, I doubt it's the first.

Am I really so distracting that no one has anything to say about the content of the post?

2/23/2010 11:46 AM  
Blogger Carbolic said...

It's a stretch to argue that the OPR report provides a "sound basis" for further investigation, given how the report's analysis and conclusions were pretty strongly rejected by Margolis, Mukasey, and Filip.

In particular, the "fact" that Yoo “knowingly provided incomplete and one-sided advice” was criticized by all three for being controverted by the evidence.

2/23/2010 11:49 AM  
Anonymous Anonymous said...

I'm no Joe Expert on the Yoo ordeal, but I seriously want to know if anyone agrees with Yoo that the president has the inherent constitutional power to destroy a village of civilians (as he says in the OPR report). Seems a bit off to me. I don't see how this could have been what the Framers intended for executive power.

"I'm just asking questions" - G. Beck

2/23/2010 11:52 AM  
Anonymous Anonymous said...

“If I did the same thing on a law school assignment, I’d fail."

Hah. No, you'd probably just get a P. Let's not be dramatic.

2/23/2010 11:55 AM  
Blogger Patrick said...

Is not Obama exercising that authority right now in Afghanistan?

I'm just asking questions.

2/23/2010 11:55 AM  
Blogger Matt said...

Afghanistan doesn't count because Obama is a Democrat.

(I'm just answering questions.)

2/23/2010 12:00 PM  
Anonymous Anonymous said...

James,

As far as I'm concerned, you have rendered yourself irrelevant. Your inability to put together any substantive response to previous postings or academic discourse on the topic, coupled with your blind allegiance to partisan causes, undermines any scintilla of intelligence your postings may possess.

2/23/2010 12:02 PM  
Blogger Carbolic said...

The "BAAT" press release is pretty devoid of analysis--all they are doing is proclaiming the (subsequently disavowed) report's conclusions. They don't even seem to have read the report (apart from pages 252-56), much less the criticisms of it.

And James, I know you think that you're not the story here. But posting "I agree with this" and copying a press release isn't really blogging.

Respectfully, I recommend a mulligan. Why don't you replace this post with a few points on why Margolis, not the OPR report authors, is mistaken.

2/23/2010 1:02 PM  
Blogger James said...

Whenever the phrase "x isn't really blogging" is used I crack up because, at the end of the day, nothing and everything is blogging. Now, x isn't really good blogging would be a different argument. But, as with anything on N&B, if a post comes from a position that anonymous commenters don't like, it's going to be trashed regardless. The radical left doesn't like what I have to say about the strikes, the right about John Yoo. I'm ok with that because every time an anonymous poster used "scintilla" in an effort to call me dumb, I smile.

Switching gears, I think the Slate piece goes through the Mukasey/OPR back and forth and points out how Mukasey moved the goalposts on the OPR, with both agreeing that there were substantial flaws in what Yoo produced.

From the Slate piece: The Office of Legal Counsel in the Justice Department is arguably the most elite law firm in the country. Yoo and Bybee are very capable, intelligent, and well-trained lawyers. If they produced an opinion riddled with weird arguments, cherry-picked quotations, and inexplicable omissions, the natural inference is that they weren't being candid.

2/23/2010 1:24 PM  
Blogger Carbolic said...

Okay, let me clarify. Simply copying press releases isn't what we consider blogging here at N&B.

Your "moving on" points are going in the right direction. Why not create a post and expand on them?

I will say, though, that your last sentence sounds more like a pre-OPR criticism than one derived from the report. For example, Margolis argues that a narrowly tailored memorandum (written for a limited/sophisticated audience and accompanied by another memo addressing the use of specific techniques on a specific individual) doesn't need as many "extra detail" as a memo intended for wide distribution/application. (I realize your discussing the post-OPR Slate article here.)

2/23/2010 2:20 PM  
Anonymous Anonymous said...

I find it disconcerting that BAAT did not even address DOJ's repudiation of the OPR report and the DOJ's concerns about the manner in which OPR report was written.

BAAT seems to be hiding the ball. Or at least "knowingly providing incomplete and one-sided" information.

2/23/2010 4:57 PM  
Anonymous Anonymous said...

The DOJ repudiating the findings does not fit within their reconstructed narrative.

2/23/2010 5:31 PM  
Blogger Carbolic said...

4:57--Are you suggesting that "BAAT" knowingly provided incomplete and one-sided advice to the PA and DC bar associations?

Or that they failed to present a sufficiently thorough, objective, and candid analysis of the issue?

I certainly hope not. After all, it would be an ethical violation to misrepresent the law solely out of a desire to reach a pre-determined result--that is, bar sanctions.

2/23/2010 5:31 PM  
Anonymous Anonymous said...

PSA: the liberals' use of the "can the president crush a child's testicles?" and "can the president wipe out a village?" is the equivalent of the conservatives' "what would you do if an atom bomb were ticking with 30 minutes to go?" both sides reveal themselves as ignorant partisans, devoid of serious intellect, when they ask questions like that.

but if you're insistent on using that technique with Yoo, why stop at the testicle question? use your imagination and really go overboard, because Yoo's position is that there are no limits. so dream up a truly amazing question about what the president can do.

2/23/2010 6:33 PM  
Anonymous Anonymous said...

Carbolic,

4:57 here

I was saying the latter. Though if they do advise the PA and DC bars to sanction Yoo, they better watch our for one Leslie Brodie lest she report the students to the CA Bar for lack of moral character.

2/23/2010 6:51 PM  
Anonymous Anonymous said...

If I did the same thing on a law school assignment, I’d fail. Yet, Yoo is a tenured professor here at Berkeley.

I call BS. I think it takes a lot more than that to fail. P=JD baby.

2/23/2010 10:11 PM  
Anonymous Anonymous said...

this post should be removed because it's bullshit.

it's extremely misleading for two big reasons:

1) "BERKELEY LAW STUDENTS APPLAUD DOJ REPORT..." suggests the entire student body applauds the findings when it's a very, very, very small minority.

2) they purposely or very, very negligently omit all portions about how this report was all but dismissed by the higher ups.

this BAAT group really seems to be a deceptive and untrustworthy bunch...

do they realize they're making their "causes" look bad and people turn against them? it's like those fucking protestors who ruin our graduation after 19 years of hard fucking work to get there. who in the hell would support them after they yell at our grandmothers and harass our little sisters?

2/24/2010 10:58 AM  
Anonymous Anonymous said...

@ 6:33 Analogy fail.
Why is asking questions about how far one's legal conclusions extend evidence that the questioner is partisan and "devoid of intellect" (?) I'm gonna try that line that the next time I'm on call & get asked a hypo.

3/04/2010 3:13 PM  

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