The Collapse of the "Good Faith" Excuse for Yoo..."Rather than concede that...actions were illegal"

[ProSense]

Thursday, March 05, 2009

The Collapse of the "Good Faith" Excuse for Yoo (Bybee, Delahunty)

Brian Tamanaha

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

The first part of this “good faith” excuse raises large questions: Can one rely in “good faith” on a memo which purports to authorize obviously illegal activity? Was it “good faith” for officials if their primary reason for seeking a legal opinion was to secure a defense against later criminal prosecution? Is “good faith” reliance a valid defense?

This post sets aside those issues to focus on the second part of the “good faith” excuse, which at first blush appears even murkier. The memos authorizing these illegal activities bear all the trappings of ordinary legal argument. How does one prove that these “legal opinions” were constructed in bad faith? The faulty legal analysis could, after all, have merely been the innocent mistakes of lawyers working on complex legal issues under stressful circumstances (as their defenders suggest).

But the recent release by the OLC of several of the relevant memos removes any doubt: these memos were elaborate exercises in manipulative legal argument. This cannot be explained away as post 9/11 haste and stress. The positions asserted in the memos were reiterated, elaborated, and expanded long thereafter.

OLC lawyers were faced with a big hurdle: the applicable law was directly contrary to what the Administration wanted to do. (That’s the thing about law—it can get in the way.) Rather than concede that the actions were illegal and could not be done, however, the lawyers constructed a covering legal analysis which arrived at the desired ends.

<...>

As Bradbury makes clear, the legal analysis in these memos, time and again, was just plain bad legal argument. Some of the arguments veer into the bizarre. Consider this concluding passage from a Yoo-Delahunty memo arguing that the president can order warrantless searches (case citations deleted):

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

Huh? The reasoning goes like this:

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

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

Therefore: the government can engage in warrantless searches.

As Bradbury asserted (politely), dismissing this analysis: “We believe that this reasoning inappropriately conflates the Fourth Amendment analysis for government searches with that for use of deadly force.” It’s stupefying. (There are a few other whoppers in the memos—like the claim that if the president has authorized actions contrary to the terms of a particular treaty this amounts to a “suspension of the treaty” rather than a violation.)

<...>

The law wouldn’t bend as far as they wanted. But they wrote the legal memos anyway, placing the president above the law. As a result, the president and those acting on his behalf were above the law—for a time.

more

[damntexdem]

1. 'if the president has authorized actions contrary to the terms of a particular treaty ....'

this amounts to a “suspension of the treaty” rather than a violation.'

Hmm, if I have a contract with you, and if I take actions contrary to that contract, this amounts to suspension of the contract rather than a violation of it. As bad as the economy is now, how much worse would it be, how impossible would it be for business to exist, if this were contract law? And how impossible would any international order be, other than constant total war, if this were treaty law?

[ProSense]

2. From the day the memo was exposed, their excuses have been lame.

They broke the law, it's that damn simple.

[DevonRex]

3. The line that blows me away is, "If the government's heightened interest

in self defense justifies the use of deadly force, then it would certainly also justify warrantless searches."

Heightened INTEREST????? OMG.

[Winterblues]

4. As a result, the president and those acting on his behalf were above the law—for a time.

It would appear that they were and are still above the Law as this Administration is quite hesitant to prosecute.

[ProSense]

5. Interesting. ICC for

Bush?

[Richard Steele]

6. Stupefying is a good word for it. K&R

[jtrockville]

7. Is anyone pushing for disbarment of Yoo, Bybee, and Delahunty?

If that's how these dim-wits want to play it, then their profession should bar them from ever practicing law again. Ideally, criminal prosecutions should follow.

[ProSense]

8. Someone should be. A colleague asked UC-Berkeley to fire Yoo

links

[jtrockville]

9. Losing their job isn't enough. They need to lose their profession.

And spend the rest of their life in prison, if there is such a thing as justice anymore.