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Opr-Bybee2nd.Pdf BEFORE THE UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF PROFESSIONAL RESPONSIBILITY ) In the Matter of ) ) Certain Former Officials of the ) Department of Justice ) Office of Legal Counsel ) ) RESPONSE TO DRAFT REPORT ON BEHALF OF JUDGE JAY S. BYBEE Maureen E. Mahoney Everett C. Johnson LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 (202) 637-2200 Counsel for Jay S. Bybee I. Executive Summary.............................................................................................................1 II. Background..........................................................................................................................7 A. Judge Bybee’s Legal Career ....................................................................................7 B. Judge Bybee’s Tenure at OLC.................................................................................8 1. OLC was frequently consulted concerning the war effort...........................8 2. The initial request for legal advice related to a single captured terrorist.........................................................................................................9 3. Despite the exigent circumstances, OLC followed its standard procedures and the memo was reviewed by numerous attorneys at the highest levels of government. ................................................................9 4. OLC added the Commander-in-Chief and defenses analysis at the client’s request. ..........................................................................................10 5. Judge Bybee responsibly fulfilled the oversight role of the AAG in the formulation of the memos....................................................................11 6. The 2002 memos, read together, are narrow in scope and strictly limited to the facts set forth. ......................................................................12 7. OLC followed standard procedures in producing the 2003 Memo............12 C. OLC Continues to Authorize The Techniques At Issue After Bybee’s Departure and A New Review of the Statutory Text.............................................13 D. OPR’s Investigation...............................................................................................15 III. OPR DID NOT AND CANNOT MAKE THE FINDINGS OF BAD FAITH AND RECKLESSNESS REQUIRED BY D.C. LAW AND OPR’S OWN STANDARDS....................................................................................................................18 A. OPR Standards.......................................................................................................18 B. The Appropriate Jurisdiction .................................................................................19 C. The Burden of Proof ..............................................................................................20 D. Proper Application of D.C. Rule of Professional Conduct 1.1..............................20 1. Errors in OPR’s Draft Report ....................................................................20 2. Application of the Proper Standard under Rule 1.1 in D.C. ......................23 E. Proper Application of D.C. Rule of Professional Conduct 2.1..............................31 1. OPR’s recitation of the standard................................................................31 2. Rule 2.1 requires proof of bad faith—a finding which OPR did not and could not make ....................................................................................31 IV. OPR’s UNSUPPORTED “Findings” of “Failures of Scholarship” in OLC’s Interpretation of the anti-torture statute .............................................................................35 A. “Severe Pain”.........................................................................................................37 1. It is Uncontroversial to Examine Statutes with Similar Phrasing..............38 2. The Memo Never Stated that Torture Requires Organ Failure, Death, or Serious Physical Injury ..............................................................40 3. The Standard Memo’s “Severe Pain” Interpretation is Similar to that in Later Memos...................................................................................41 4. Congress Later Endorsed the Memo’s Definition of “Severe Pain”..........42 B. “Specific Intent”.....................................................................................................43 C. CAT Ratification History.......................................................................................47 D. U.S. Judicial Interpretation ....................................................................................49 1. Implementation of Article 3 of the UNCAT..............................................50 2. Analysis of the Torture Victim Protection Act (TVPA)............................51 E. International Decisions..........................................................................................52 1. Ireland ........................................................................................................52 2. Israel...........................................................................................................53 3. Citation to additional international decisions ............................................53 V. OPR’S UNSUPPORTED “FINDINGS’ OF “FAILURES OF SCHOLARSHIP” IN THE DISCUSSION OF THE COMMANDER-IN-CHIEF POWERS AND POSSIBLE COMMON LAW DEFENSES.......................................................................54 A. Inclusion of the Commander-in-Chief and Possible Common Law Defenses.................................................................................................................55 1. OLC Appropriately Answered the Client’s Question................................55 2. OPR’s Speculation Is Contrary to the Evidence........................................57 B. Commander-in-Chief Power..................................................................................58 1. OLC Adopted a Reasonable View on Unsettled Questions of Law ..........59 2. The Decision Not to Reiterate Youngstown...............................................65 3. The Decision Not to Reiterate Congress’s Enumerated Powers................68 4. The Decision Not to Reiterate Take Care Clause Jurisprudence...............69 5. Relevant Context........................................................................................70 C. Common Law Criminal Defenses to Torture.........................................................71 1. The Standards Memo appropriately discussed Supreme Court Precedent....................................................................................................71 2. OLC made clear that asserting either defense in these circumstances would be an extension of law.............................................73 3. OLC’s discussion of the defenses was sufficiently thorough ....................74 4. The Memo did not ignore relevant material in its assessment of the necessity defense........................................................................................75 5. Citing Secondary Sources..........................................................................76 6. OLC authored the Standards Memo for sophisticated clients who had an advanced knowledge of these basic principles...............................77 VI. OPR’S INEXPLICABLE FAILURE TO DIFFERENTIATE ROLES.............................77 VII. OPR’s Procedural Irregularities.........................................................................................78 VIII. THE LONG-TERM COSTS OF PUNISHING DIFFERENCES IN OPINION...............80 ii IX. CONCLUSION..................................................................................................................86 iii I. EXECUTIVE SUMMARY Six months after the September 11, 2001 attacks, United States forces captured top al Qaeda leader Abu Zubaydah. Because Zubaydah had assumed the role of chief military planner for al Qaeda, he possessed critical imminent threat information. In particular, the Central Intelligence Agency (“CIA”) determined that Zubaydah had information about a “second wave” of devastating attacks targeting, among other things, the tallest building in Los Angeles. After Zubaydah resisted traditional interrogation methods, the CIA developed an enhanced strategy for Zubaydah and asked the attorneys at the Department of Justice’s Office of Legal Counsel (OLC) for its opinion on the legality of using ten specific interrogation techniques to interrogate him. The request required OLC to interpret the federal criminal anti-torture statute found at 18 U.S.C. §§ 2340-2340A—a statute that had never before been interpreted by any court. The statute defines torture as an act “specifically intended to inflict severe physical or mental pain.” In 2002, OLC attorneys, including the head of the office, Judge Jay S. Bybee, his deputy, John Yoo, and the “second deputy” Patrick Philbin, prepared two memoranda in tandem answering the CIA’s inquiries. The first memo (“Standards Memo” or “Memo”) was addressed to White House Counsel Alberto Gonzales and set forth OLC’s interpretation of the statute, attempting to draw a concrete and understandable line between those extreme activities that constitute torture and other lesser forms of cruel, inhuman, and degrading conduct. The memo listed various activities that would constitute torture—including, among others, burning, electric shocks, hanging by the hands or feet, and severe beatings—and noted that the development
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