The Collapse of the "Good Faith" Excuse for Yoo-Positions Taken In These Memos Were NOT "Mistakes"

[kpete]

Thursday, March 05, 2009

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

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).

Brian Tamanaha

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...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.
http://www.usdoj.gov/opa/documents/olc-memos.htm
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The OLC memos are replete with selective historical arguments, selective readings of constitutional and legislative history, selective citation to judicial precedents, selective readings of statutes, and selective leaps of logic. Advocacy of this sort is standard stuff for lawyers, but OLC lawyers are in a different position precisely because their opinions have authoritative consequences. There is a difference between what the law is and what the Administration wants the law to be, and the role of OLC lawyers is to advise on what the law is and on how the Administration may achieve its objectives consistent with the law (or to say that the actions cannot be done).

The positions taken in these memos were not “mistakes” in legal analysis by unskilled lawyers working under pressure. They were elaborately crafted by capable lawyers. The legal analysis nonetheless fails time and again because the positions they were determined to justify could not be legally justified. That is precisely why this was not “good faith” legal argument. To the contrary, these legal memos were carefully constructed unsound legal arguments. Short of advising that the actions could not be done consistent with the law, which was the only proper course, any legal argument they constructed would have been unsound because the actions were not legally permissible.

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 at:
http://balkin.blogspot.com/2009/03/collapse-of-good-faith-excuse-for-yoo.html