President Bush’s final attorney general, Michael Mukasey, and deputy attorney general, Mark Filip — former federal judges widely respected across the political spectrum for their intellect and command of the law — eviscerated a draft of the report. They had to do so quickly — OPR, knowing they were tough graders, dumped it in their laps near the end of their tenure — but they put their criticism in writing and provided it to the incoming Justice leadership. Holder did not see fit to release Mukasey and Filip’s letter last Friday night with the rest of the “bad news,” so Andy McCarthy
did the honors.
Also defending Yoo is well-known Washington attorney Miguel Estrada, who emigrated from Honduras at 17, graduated from Columbia and Harvard Law School magna cum laude (much like President Obama), was an editor on the
Harvard Law Review (also like the president), clerked for a Supreme Court justice, served as a federal prosecutor in New York, argued cases before the Supreme Court while in the Solicitor General’s Office at the Justice Department, and has become one of the nation’s leading appellate lawyers at a major international law firm. (Bush nominated him to an appeals court, but the Left blocked the nomination.) “Having seen OPR’s work and tactics up close,” Estrada told us, “I would have a hard time choosing one dominant trait in their approach. It is probably a three-way tie between stupidity, rank incompetence, and partisan malignancy.”
And what did Maureen Mahoney, who represented Bybee, think of OPR’s work? In the conclusion of her objections to OPR’s report, she sums it up with typical panache: “We have, in OPR’s report, the poor execution of a bad idea.” Ms. Mahoney is not just any lawyer. She was a senior official in the Solicitor General’s Office in the 1980s and went on to become a legendary litigator and appellate lawyer at a leading international law firm. Like Estrada, Ms. Mahoney is someone whose credentials and experience as a top-flight lawyer cannot be seriously doubted.
And what about Jack Goldsmith, who became head of OLC after Bybee and withdrew the most controversial opinions written by Yoo? Goldsmith is a well-known Harvard Law School professor and author of a book,
The Terror Presidency, that describes the extraordinary challenges of his time at OLC. Some on the left praised that book, seeing it as a denunciation of Yoo and Bybee; but actually, Goldsmith’s arguments are complex and can’t be converted into soundbites. For example, although Goldsmith did not think highly of Yoo’s analysis in some of the memos, he agreed that none of the interrogation techniques, including waterboarding, violated U.S. law. He also believed that Yoo had come to his views honestly and did not merely use them as a cover to justify torture. Goldsmith warned OPR against second-guessing Yoo and Bybee, particularly without considering the context in which they were operating at the time, with 9/11 still fresh and the ever-present fear of a follow-on attack. OPR ignored Goldsmith’s warning.
Finally, we return to David Margolis, who was tasked with determining whether the OPR had adequately justified its conclusions about Yoo and Bybee. Margolis decisively rejects OPR’s report. Because of his position at Justice, Margolis is far more polite than Estrada or Mahoney, but no less devastating to OPR. He identifies numerous errors in OPR’s work, many of the embarrassing sort that are attributable only to carelessness and a lack of intellectual rigor, and consistently sides with Mukasey, Filip, Estrada, Mahoney, and Goldsmith.
Margolis explains that OPR’s theories continued to “evolve” from draft to draft, and that he could discern no coherent standard employed by OPR. Margolis does conclude that Yoo and Bybee exercised “poor judgment” in the analysis and conclusions they presented in one of the memoranda under review (but, notably, not the other two). But that is really no different than what the Justice Department concluded under Bush, which is why all three memoranda were either withdrawn or superseded years ago.
