Update, 3/9/10: Rotunda says he is not the person with whom Yoo had this email exchange. See this post for a discussion of the further puzzles that presents. I apologize to Rotunda for assuming he must be the person in the report.
There’s an interesting passage in the OPR report (PDF pages 58-59 in the Final Draft) showing how John Yoo, faced with the prospect of incorporating affirmative defenses in the Bybee Memo but apparently knowing little about them, wrote to someone to ask for help. The passage is the only part of the OPR Report where Yoo asks for help.
More interesting still, that passage in the Second Draft (PDF 33-34) of the memo has slightly fewer redactions which reveal that Yoo wrote to a law professor for help.
On July 22, 2002, Yoo sent an email to [redacted] University law professor [redacted] asking him to explain how common law defenses were incorporated into federal criminal law.34
[Redacted] responded that he was “just headed out” but explained in a short email message, without citing any specific statutory or case law authority, that federal courts generally accept and recognize common law defenses.
34 Yoo’s email reads as follows:
I’ve got a work question for you. How are the common law defenses, such as necessity, self-defense, etc., incorporated into the federal criminal law? From what I can tell, there is no federal statute granting these defenses, yet federal courts recognize that they exist. Is there some Supreme Court case that requires or mentions them? [my emphasis]
What professor, I wondered, was Yoo asking for help writing his torture memos?
Helpfully, OPR includes a list of names in Appendix C. While there are a few titles redacted, there is just one professor listed: Ronald Rotunda, Professor, Chapman University School of Law. In other words, it appears that Rotunda was the professor Yoo asked for help (note: Rotunda would have been transitioning between University of Illinois and George Mason when Yoo wrote him the email).
Given the excerpt, there’s absolutely no reason to think Rotunda did anything wrong by writing Yoo a terse response to an email. Rotunda appears to be cited in the OPR Report simply a means to show that Yoo had no fucking clue what he was writing about when he addressed the necessity and self-defense defenses. If this is the extent of the help Rotunda gave Yoo, then he simply extended Yoo professional courtesy. There’s not even any indication that–when Yoo sent the email–Rotunda knew Yoo was working on a highly classified torture memo. Furthermore, it’s clear that Rotunda is an expert on the subject Yoo emailed him on, so while Rotunda is a staunch conservative, there’s no indication that Yoo was seeking out the most ideologically convenient advice.
But there are two details I find worthy of note. First, Yoo and Rotunda would have been colleagues at Chapman University when Yoo hid out there last year.
More interesting, though, is the letter that Rotunda sent to OPR head Mary Patrice Brown in May last year, defending Yoo. The letter is being linked on a range of conservative sites in defense of Yoo, and would have been written at the end of the year Yoo spent at Chapman.
Now, Rotunda must have known that he appeared in the report, because he starts by admitting that he got sent a copy, which is what he bases his response on.
Last March, Tamara J. Kessler of the Office of Professional Responsibility sent to me an Unclassified Draft Memorandum that unnamed lawyers in the Department of Justice (“DOJ”) have prepared.
Even if they redacted his name in the memo, as they do publicly (which would seem odd given that it’s an unclassified paragraph), he presumably would remember the email.
Yet in the section of his letter purporting to reveal his own “bias,” Rotunda does not reveal that Yoo consulted him on the torture memo.
Before I proceed further, I should disclose my own personal bias. As a deontological matter, I am against torture. I agree with Jack Goldsmith that torture is “a universally condemned and morally repugnant practice.” Even the authors of the DOJ Unclassified Draft admit that “Much of the case law in fact supports the Bybee Memo’s conclusion that the term ‘torture’ should be applied to more severe forms of cruel, inhuman and degrading treatment.” Even in the ticking bomb scenario, I am against torture. I know that intelligent people like Professor Alan Dershowitz have advocated a “torture warrant,” but I disagree. Although I disagree with Alan Dershowitz, that fact does not mean that I cannot evaluate the issues in the DOJ Unclassified Draft, using standard principles of legal ethics. I have known Professor Dershowitz for years, and I regard him as a very competent person, although I sometimes disagree with him.
I also have to disclose that I have read the Bybee Memorandum, and it never says that torture is all right. It does discuss, and accurately describes, what the case law considers to be torture. It also collects these cases in an Appendix.
Even the authors of the DOJ Unclassified Draft admit that “Much of the case law in fact supports the Bybee Memo’s conclusion that the term ‘torture’ should be applied to more severe forms of cruel, inhuman and degrading treatment.” That is a startling admission, and one wonders why the authors placed it in a footnote at page 150 instead of in the introduction — a point I discuss below.
Mind you, his audience, then, would have known Rotunda was cited in the report. But his audience now doesn’t necessarily know that.
And amusingly, Rotunda tries to refute the claim that the Bybee Memo was meant to be a comfort letter–a Get Out of Jail Free Card–though he doesn’t touch the legal analysis that Yoo asked him for input on.
Sometimes an opinion letter by counsel is a “comfort letter.” It advises clients that they can do something without fear of liability. If the lawyer bases his opinion letter on false facts, the lawyer is liable for drafting the opinion letter. “For example, a lawyer is liable under the federal securities laws for providing an opinion letter based on facts that the lawyer knows are false. Even if the letter explicitly states that the lawyer was basing his opinion on an assumed set of facts that the client had supplied and that the lawyer had conducted no independent investigation, the lawyer will still be liable.”
The Bybee Memorandum was not this type of letter. It was not a comfort letter. It was an opinion letter that methodically discussed all of the words in the relevant statute, the ways these words have been interpreted in the legislative history, various dictionaries, other portions of the United States Code, the federal case law, state case law, international case law, etc.
The Bybee Memorandum did not give comfort. It examined the case law, legislative history, etc., and concluded that minor psychological or physical harm is not torture, while severe harm (whether mental or physical) is torture. And, it advised, if one were charged with torture, one might have some defenses that might work, or might not work. That gives no comfort. To tell me that I can raise a defense of duress, or self defense, or plead good faith if the Government prosecutes me for torture or an individual sues me for damages does not give me comfort. One could just as well say that the jury can ignore the judge’s instructions and acquit. Yes, the jury can do that, but it gives me no comfort. [citations removed; my emphasis; click through to read the rest of this passage]
That is, Rotunda–who clearly is qualified to do so–does not defend the citations Yoo mobilized to argue that torturers might be able to plead self defense or necessity. He doesn’t even touch the Commander-in-Chief section, aside from one citation of Yoo’s weakest incarnation of Commander-in-Chief power.
Rather, he engages in word games to show purported doubt in the defenses rather than claiming that Yoo cited case law appropriately.
Which, in the same way that Tim Flanigan didn’t provide any exonerating details of the July 16, 2002 meeting at which Yoo was directed to include these defenses in the memo, even though Flanigan appears to have a much clearer memory of that meeting than Gonzales or Yoo or Koester claim to, doesn’t say much for the defensibility of Yoo’s argument.
If the guy he went to for advice on these defenses can’t even defend Yoo’s use of the law, then I guess that’s a pretty good indication that his citations of the law are indefensible.
Update: Yoo’s second draft includes another response from Rotunda which again neglects to mention Yoo consulted him on the memo (though Rotunda provides a mini-CV along with his comments). In this letter, Rotunda does raise three instances in which he says others–including DOJ under Holder in the Demjanjuk case–adopted Yoo’s reasoning on intent.