e ClasSified Response to the U.S. Department of Justice Office of Professional Responsibility Classified Report Dated July 29, 2009 Submitted on Behalf of Judge Jay S. Bybee e Maureen E. Mahoney Everett C. Johnson LATHAM & WATKINS LLP 555 Eleventh Street. NW Suite 1000 Washington, DC 20004 (202) 637-2200 -e· - Page .( IN'TR.ODUCTION 1 ll. TIlE UNDISPUTED FACTS ESTABLISH THAT JUDGE BYBEE PROVIDED GOOD FAITH ANSWERS TO UNSETTLED QUESTIONS OF LAW AT A TIME OF NATIONAL CRISIS 5 A Judge Bybee Acted In Good Faith 5 B: Judge Bybee Had No Reason to Question the Memos' Candor or Competence 8 C. It Would Have Been Irresponsible for Judge Bybee to Hold the Opinions for Further Refinement in the Midst of a National Crisis 14 D. Numerous High-Level Officials Reviewed And Concurred With The Memos 16 E. The Memos Were Limited In Scope And Adequately Disclosed Risks And Uncertainties Which the CIA Understood .............•............................................... 23 F. OLC's Clients Did Not Misinterpret The Legal Advice Set Forth In The . Memos · 26 ID. OPR'S FINDINGS OF MISCONDUCT ARE PREDICATED ON A COMPLETELY ERRONEOUS INTERPRETATION OF TIlE GOVERNING ( STANDARDS 30 A OPR Has Impermissibly Adopted Standards That Exceed Requirements of the D.C. Rules 31 1. OPR failed to find that there is clear and convincing evidence that Judge Bybee violated a specific rule of professional responsibility as required by D.C. .law.....•......•.•...............•............................................... 31 2. OPR's findings are impermissibly predicated on aspirational guidelines written long after the conduct at issue 33 3. OPR impermissibly imposed a heightened standard on OLe attorneys issuing opinions about torture 34 B. OPR Improperly Disregards Controlling Interpretations of the Duties of Competence, Communication, Independence, and Candor .35 1. OPR fails to recognize that the standards governing ''thoroughness'' are defined by Rule 1.1 and are satisfied through diligent efforts to reach' a soWldconclusion 35 2. OPR fails to recognize that the duty to communicate risks to the client is defined by Rule 1.4(b) and does not mandate discussion of all counter arguments 39 - 3. OPR fails to recognize that the duty of candor is'satisfied by counsel's "honest assessment" of the issues and that there is no e· duty of objectivity divorced from the interests of the client. .43 OPR Intentionally Ignores Controlling Supreme Court Precedent Defining "Recklessness" 46 IV. OPR'S FINDINGS OF MISCONDUCT ARE BASED ON·A FLAWED ANALYSIS OF THE BYBEE MEMOS 48 A. Specific Intent 49 I. The Bybee Memos set forth a well-reasoned and correct analysis of the specific intent element 49 2.· The 2002 Memos adequately disclosed risks and uncertainties 50 3. The use of two ambiguous sentences in a lengthy analysis did not render the advice "misleading" 55 B. "Severe Pain" 58 1. The Bybee Memo reasonably examines statutes with similar phrasing ~ 60 2. The Bybee Memo never states that torture requires organ failure, death, or serious physical injury 65 The Bybee Memo's "severe pain" interpretation is similar to that in e later memos 67 4. Congress later endorsed the Bybee Memo's definition of "severe pain" : 70 C. CAT Ratification History 70 D. United States Judicial Interpretation 74 E. International Decisions 78 I. Ireland v. the United Kingdom 79 2. Public Committee Against Torture in Israel v. Israel.. 81 Commander-in-Chief Power 82 I. OLC appropriately included a Commander-in-Chief discussion 83 2. The Bybee Memo clearly only addresses Presidential orders made pursuant to the Commander-in-Chief Power 86 3. The Bybee Memo adopts a reasonable view ·onunsettled questions of law 88 4. The Bybee Memo Relied on Prior OLC Opinions and Reasonably Declined to Reiterate Unnecessary Discussions 97 e Common Law Criminal Defenses 107 - 1: The Necessity Defense 108 2. Self-defense 114 The Classified Bybee Memo 117 1. The Failure to Discuss Military Prosecutions for the Use of Water Torture Was Not Even Negligent 118 2: The Classified Bybee Memo Properly Relied on Evidence That the CIA Psychologists Derived From SERE Training 123 3. Analysis of Sleep Deprivation and Stress Positions 126 OPR's Laundry List of Supposed Errors and Omissions Falls Far Short of Violating Any Rule of Professional Conduct 129 THE UNDISUTED FACTS ESTABLISH TIIAT JUDGE.BYBEE PERFORMED IllS DUTIES IN CONFORMANCE W1m THE RULES OF ETmCS AND DID NOT ENGAGE IN MISCONDUCT 131 A. Judge Bybee Did Not Violate His Duty of Candor Because He Honestly Believed The Advice, As OPR Concedes 132 B. The Issuance of the Mem~s Could Not Support a Finding of Recklessness Based on the Quality or Competence of the Analysis Because the Conclusions Were Not Unquestionably Wrong 133 C. The Issuance of the Memos Could Not Support A Finding Of . Recklessness Because Judge Bybee Did Not Disregard An Obvious and High Risk That His Decision Would Violate His Clients' Rights .l34 VI. THE NUMEROUS IRREGULARITIES PERVADING OPR'S INVESTIGATION DEMONSTRATE TIIAT JUDGE BYBEE HAS NOT RECEIVED A FAIR lIEARING~ 136 A. OPR's Investigation Languished For Years Before Being RUshed to Completion in Anticipation of a New Administration Taking Office 136 B. OPR Refused to Disclose Exculpatory Evidence 139 C. Repeated Leaks ofOPR's Draft ''Results'' Prejudiced Judge Bybee 141 D. OPR Repeatedly Ignores or Misconstrues The Facts and The Law to Advance Its Own Conclusion 143 E. OPR's Analysis is Improperly Influenced by Policy Disagreements Regarding the CIA's Interrogation Program I46 VII. THE LONG-TERM COSTS OF PUNISHING DIFFERENCES IN OPINION 148 VIII. CONCLUSION 152 APPENDICES 154 - When Attorney General Mukasey and Deputy Attorney General Mark Filip were given • access to the Office of Professional Responsibility's (OPR) Draft Report in the waning hours of the Bush Administration, they concluded that it represented an "unprecedented" exercise of disciplinary authority based on ''unsupported speculation," legal analysis by "commentators and scholars with unstated potential biases," and a "misunderstanding" of important "Department of Justice and Executive Branch interagency practices." Letter from Michael B. Mukasey & Mark Filip to H. Marshall Jarrett at 2-3 (Jan. 19,2009). They urged OPR to reverse course because there was "[no] reason to believe that these OLC lawyers were actmg in anything but good faith" at a time when the nation was confronted with ''the express threat of further [terrorist] attacks and murders" Id. at 14. They warned OPR that the use of its disciplinary powers to find misconduct in these circumstances would be "likely to have harmful consequences not only for those immediately involved, but also for the Department and ultimately for the country." Id OPR forged ahead and has now issued a Final Report that is based on all the same flaws and that poses all the same dangers. It is, indeed, ''unprecedented'' and unprincipled. Critics of the interrogation policies have long speculated that OPR had uncovered damning facts that would reveal a conspiracy between the White House and OLC to provide sham advice to justify interrogation techniques that plainly constituted "torture" under 18 V.S.C. §§ 2340, 2340A (''the Act''). The Report confirms, however, that OPR found nothing of the kind. Even though OPR intends to "notify bar counsel in the states where ... Bybee [is] licensed" that he acted "in reckless disregard" of his ethical duties by issuing"the Bybee Memos· on August 1, 2002 (Report at 260), OPR does not actually dispute the facts that prove just the • opposite: • Judge Bybee acted in good faith, honestly believed the advice he gave, did not know that the memos were "incomplete or one-sided" and "did not commit intentional professional misconduct." Report at 256. • Judge Bybee, as the Assistant Attorney General for OLC, "should not be held responsible for the accuracy and completeness of every ... argument" in these memos, which were researched and drafted by other OLC attorneys with established "expert[ise] in presidential war powers." Report at 255,256. • The memos were reviewed by a dozen or more Executive branch lawyers, including Attorney General Ashcroft, Deputy Attorney General Limy Thompson, Assistant Attorney General MichaelChertoff, and Legal Adviser to the National Security Council, John Bellinger, and no one ever told Judge Bybee not to issue the opinions. See Attachment 19. I We refer to the Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Standards of Conduct for Interrogation Under 18 U.S.c. §§2340-2340A (Aug. 1,2002) as the "Bybee Memo." Similarly, we refer to the previously classified Memorandum from Jay S. Bybee for John Rizzo, Acting General Counsel oftbe Central Intelligence Agency, Re: Interrogation of • al Qaeda Operative (Aug. 1, 2002) as the "Classified Bybee Memo:' - • Other AAGs who succeeded Judge Bybee at OLC also determined that the CIA's proposed techniques, including waterboarding, did not violate the Act. See id (-- • Judge Bybee's period for reviewing the draft memos was truncated because he was informed that the CIA had to have the signed advice by August 1, 2002 in order to proceed with an urgent interrogation of a high ranking member of al Qaeda believed to have information critical to the prevention of a threatened second wave of attacks. See infra Section II.C. .• . The client representative of the CIA understood that "the issues were uncertain and that there were no controlling precedents" and did not :request "an exhaustive memorandum that thoroughly discussed all possible counter arguments." Rather. he was seeking "OLC's best judgment about the correct answer to a difficult question of law" so that it "could proceed with a vital interrogation, using lawful methods, as soon as possible." Letter from Maureen Mahoney to John Rizzo (Oct. 5, 2009) , 1. ("Rizzo Letter").