How Bybee Turned Liberal Critics’ Writings To His Advantage
By Mary Jacoby | February 20, 2010 12:06 pm

UPDATE Feb. 21 – Former Office of Legal Counsel chief Walter Dellinger, one of the signatories to the “Principles to Guide the Office of Legal Counsel,” wrote to correct what he said are mischaracterizations in this article. Read his response here.

Dawn Johnsen hasn’t been confirmed as head of the Office of Legal Counsel. But her views became part of the behind-the-scenes battle to shape the final Justice Department ethics report into the Bush administration lawyers who authorized harsh interrogation tactics against terrorism suspects, documents released on Friday show.

Dawn Johnsen (Image via CAP Action Fund)

In concluding that the Bush administration OLC lawyers Jay Bybee and John Yoo had committed misconduct – an assertion later softened by career DOJ official David Margolis to “poor judgment” – the DOJ’s Office of Professional Responsibility relied on a 2004 manifesto prepared by Johnson and 18 other former Clinton administration Justice Department officials.

The Dec. 21, 2004 manifesto was written in response to media revelations of the now-withdrawn legal memos authorizing techniques that critics have called torture.

Titled “Principles to Guide the Office of Legal Counsel,” the document was signed by Johnsen and 18 other former Clinton-era Justice Department officials, many of whom now hold key positions in the OLC and Obama administration.

The Dec. 21, 2004, document asserted, among other things, that OLC “should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.

It also said: “The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.”

Jay Bybee (doj)

While intended to be a ringing condemnation of the Bush-era legal decision making process, the lawyer for former OLC Assistant Attorney General Jay Bybee, a subject of the OPR investigation and now a federal appeals court judge, used the liberal leaning document instead to buttress his defense.

In a May 2009 response to OPR’s first draft of its ethics report, Latham & Watkins’s Maureen Mahoney cited the Guiding Principles to support Bybee’s argument that OLC lawyers are within bounds to consider the desired policy outcome of their White House political bosses.

“[T]here is nothing wrong with OLC having such knowledge of its clients’ interests. In fact, according to the “Principles to Guide the Office of Legal Counsel,” dated December 21, 2004, ‘OLC must take account of the administration’s goals and assist their accomplishment within the law,’” Mahoney wrote, adding her own emphasis to the word “must.”

Mahoney also wrote: “Should Dawn Johnsen’s independence be called into question because she shares the views of the President and Attorney General on important issues?”

The back-and-forth over the Guiding Principles is significant because it shines a light into the partisan battles continuing within the Department of Justice. Since the Sept. 11, 2001 terrorist attacks, the Department has struggled with the tensions inherent in its dual role as an impartial law enforcement agency and as a facilitator of the policy wishes of the administration in power.

In a Jan. 5, 2010 memo to Attorney General Eric Holder, Margolis wrote that he believed OPR had made the correct decision in its final report to abandon the argument that the Bush-era OLC lawyers committed misconduct by crafting legal analysis to fit the desired policy outcome of an administration.

Margolis also criticized OPR for its late decision to cite the Guiding Princples and a 2005  Best Practices memo written by then-OLC Principal Deputy Assistant Attorney General Steven Bradbury, after making no reference to those documents in earlier drafts of its report.

“The consideration of these documents raised several concerns,” Margolis wrote. “First and foremost, neither of them existed at the time Yoo and Bybee worked at OLC.”

The Guiding Principles were published by the American Constitution Society, a liberal legal society that has produced many Obama administration officials. ACS is the left-leaning counterpart to the conservative Federalist Society, to which Yoo and other Bush administration lawyers belonged.

David Barron (harvard.edu)

Two of the signatories of the Guiding Principles document are currently running the Office of Legal Counsel – David Barron, who has guided the office in an acting capacity while Johnsen’s nomination has been stalled for the last year by Republican opposition in the Senate; and Martin Lederman, one of Barron’s deputies.

Another signatory of the Guiding Principles was Christopher Schroeder, a Duke University law professor whose own nomination to head the DOJ’s Office of Legal Policy, which oversees judicial nominations, has been similarly stalled.

Lisa Brown, former executive director of ACS and now the White House staff secretary, also signed the document, as did Neil Kinkopf, a former OLC lawyer in the Clinton administration who now works in the Office of Legal Policy.

This story was corrected to say the “Guiding Principles” were published by, not prepared under the auspices of, the American Constitution Society.

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