05 Mar Tamanaha on the Newly-Released OLC Memos: The Collapse of Yoo’s “Good Faith” Argument
As you have likely heard by now, the DOJ has released nine more memos from the Bush Administration’s Office of Legal Counsel concerning various national security and international law issues. My colleague Brian Tamanaha has read through them and has a post over at Balkinization on why they show that John Yoo’s argument that he and his colleagues acted in good faith is not tenable. I recommend reading the whole post, but here’s a snippet that caught my eye:
As [outgoing OLC Deputy Steven] Bradbury makes clear [in his January 15, 2009 memo], the legal analysis in these memos, time and again, was just plain bad legal argument. Some of the arguments veer into the bizarre. Consider this concluding passage from a Yoo-Delahunty memo arguing that the president can order warrantless searches (case citations deleted):
The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. If the government’s heightened interest in self defense justifies the use of deadly force, then it would certainly also justify warrantless searches.
Huh? The reasoning goes like this:
Individuals can use deadly force to defend against a deadly attack;
The government can use deadly force to defend the nation against an attack;
Therefore: the government can engage in warrantless searches.
As Bradbury asserted (politely), dismissing this analysis: “We believe that this reasoning inappropriately conflates the Fourth Amendment analysis for government searches with that for use of deadly force.” It’s stupefying. (There are a few other whoppers in the memos—like the claim that if the president has authorized actions contrary to the terms of a particular treaty this amounts to a “suspension of the treaty” rather than a violation.)
Check it out.
I’m just not sure “mindbogglingly illogical” is the same thing as bad faith.
“The legal analysis nonetheless fails time and again because the positions they were determined to justify could not be legally justified.”
…which has absolutely nothing to with whether the arguments were in a bad faith. They need something which establishes motive, not merely proves what is generally understood, which is that Yoo’s legal advice was unsound.
“good faith, n. A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.” 7 Black’s Law Dictionary 701.
In this case we’re talking about corrupt politicians and lawyers who set out to nullify the laws of the United States in their entirety on the crackpot “theory” that the US Constitution gives the President the same powers claimed by Stalin, Hitler, Charles I of England, or the Roman Emperor Caligula. They may have been insane, but they were certainly not acting in good faith — they were acting to commit crimes pursuant to the US Code.
I don’t believe for a second they were acting in good faith, I’m just saying proving it is another matter entirely.