No Comment — February 22, 2010, 3:28 pm

Quid Pro Quo

A critical question in examining the criminal culpability of the torture memo writers goes to what lawyers call mens rea or “guilty mind.” With respect to a joint criminal enterprise to torture, the requisite mens rea is simple: the perpetrators must have the intention to introduce torture. John Yoo and Jay Bybee have repeatedly stated that they believe their advice was and is correct, that none of the techniques they counseled or approved were torture, and that therefore they are innocent. They continue to adhere to this position, even in recent interviews, for a simple reason: it would be vital to their defense in the event of a future criminal prosecution.

But the facts developed by the OPR report strongly support another approach to the mens rea problem. There is strong evidence to show that each of the key actors—Jay Bybee, John Yoo, and Steven Bradbury—had the same compelling motivation in rendering false legal advice. Each sought a specific high office that the recipients of the memos were able to give to them.

Jay Bybee, while working in the White House, advised his boss Alberto Gonzales that he wanted a judicial nomination. The Washington Post reports:

Bybee’s friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, [Randall] Guynn said, was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, “Would you be willing to take a position at the OLC first?” Guynn said. Being unable to answer for what followed is “very frustrating,” said Guynn, who spoke to Bybee before agreeing to be interviewed.

So Bybee accepted the position at OLC, which he never sought, as a favor to Gonzales while he waited for an opening on the Ninth Circuit. Gonzales, as a member of the “war council,” certainly knew what was being asked of OLC. Indeed, the request was emanating from the White House. Bybee certainly could have understood that failure to deliver the memos would mean the end of his judicial aspirations. The unredacted portions of the OPR Report note that Bybee was in line for a judgeship and that he departed as some of the key memos were being issued. But there is no suggestion that OPR explored the relationship between the memos and Bybee’s judicial candidacy in any depth. No doubt it was hampered by the lack of cooperation in this process from the White House.

John Yoo, working as a Deputy Assistant Attorney General, clearly aspired to become Bybee’s successor. In the legal world, the position of deputy assistant attorney general is a modest preferment, whereas an assistant attorney general slot is a marquee position usually opening doors to partnership at major law firms, judgeships, or still higher government offices. Yoo was open about his goals, and he mobilized major resources to obtain them—including his “clients,” David Addington and Dick Cheney. His candidacy for Bybee’s job ultimately became rancorous, perhaps in part because of the way he addressed the torture issue. John Ashcroft resisted the White House’s pressure and rejected Yoo, leaving him bitter. Yoo’s struggle for the seat that Bybee left vacant has been discussed in Jane Mayer’s Dark Side and other works. But again the OPR Report is curious in its indifference to factors that so obviously drove the process.

With Steven Bradbury, however, the OPR Report research provides useful information in the form of an email from Deputy Attorney General James Comey:

[Philbin] had previously reported that Steve [Bradbury] was getting constant similar pressure from Harriet Miers and David Addington to produce the opinions [authorizing torture techniques.] I have previously expressed my worry that having Steve as ‘Acting’ – and wanting the job – would make him susceptible to just this kind of pressure.

Comey is referring to pressure coming from the White House for Bradbury to issue an opinion legalizing torture procedures. And Comey is unequivocal as to why Bradbury is willing to render the desired opinion—in order to secure a formal nomination as assistant attorney general in charge of OLC. In fact, almost immediately after Bradbury produced the memo, the White House okayed his name going forward for the appointment as an assistant attorney general.

The evidence therefore supports the case for a quid pro quo scheme in which Bybee, Yoo, and Bradbury were offered powerful government preferments (in Bybee’s case, a life-time judgeship) in exchange for rendering the opinions. In fact, the Justice Department’s Public Integrity Section has regularly prosecuted public office holders—both those making the appointments and those seeking them—on the ground that the extraction of a wrongful act in exchange for a preferment constitutes an act of public corruption. Consider, for instance, the recent prosecution of Judge Bobby DeLaughter in Mississippi, whose judgment in a criminal case was claimed to have been corruptly influenced by the offer of a federal judgeship, or Governor Don Siegelman in Alabama, who was prosecuted for appointing a campaign supporter to an honorary unpaid oversight board.

The Justice Department bristles at the idea that the process of internal appointments or the process of judicial nominations—both supervised and controlled tightly by Justice—would be essentially criminal activities if wrongful actions are sought in connection. But the actual prosecutorial practice of the Justice Department clearly suggests they can be. And the evidence that emerges from the Justice Department’s own internal probe would be far more than is needed to get to a jury.

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