Tuesday, February 23, 2010

The Third Author of the Torture Memo: Some Random Observations

Talking Points Memo revealed that, probably due to an oversight, the memo released by Dept. of Justice's David Margolis, which overruled the findings of professional misconduct made by the Office of Professional Responsiblity (OPR) in the Dept. of Justice investigating the conduct of John Yoo and Jay Bybee of the Office of Legal Counsel (OLC), mentioned a third author of the infamous memo: Jennifer Koester.

Koester (now, Jennifer K. Hardy), who at the time was a very junior attorney at the OLC, was helping out John Yoo and Jay Bybee. The full analysis is here. TPM details the level of involvement Koester had, her interaction with John Yoo, and how she was chosen for the job (hint: it was pretty random. She was new to the OLC and had some free time).

My point is: why should this matter to us? (or more bluntly: who cares?) I understand the slight sensationalism that is involved, but it's really not important. Those who are ultimately responsible, if they are indeed responsible (Margolis found OPR's definition of professional misconduct "unpersuasive". David Luban and Dahlia Lithwick strongly disagree), are the OLC higher ups such as Yoo and Bybee, who signed the memo.

Koester's role should not matter too much. She was a young attorney fresh out of law school. Like any young associate who is trying to impress her partner, I imagine she knew what Yoo and Bybee wanted to get out of the memo and where they were driving. And, dutiful attorney that she was, complied.

Should she have questioned her superiors more? Sure. Should she have pushed back more? No doubt. In a perfect world, we should expect that. But we also can't overlook the dynamics between an employer and an employee, especially when the employer is the head of the OLC and the deputy assistant attorney general and she the rookie attorney.

Of course, it sure didn't hurt the memo that Koester belongs to the right wing camp. After all, she did clerk for Justice Thomas and she was in the Federalist Society. But then again, should hirings based on ideological positions really surprise us all that much today? Given her ideological home, I really have a hard time seeing how she would have changed the memo all that much. Perhaps it was a fluke that she got assigned to the case, but in retrospect it seems like they got the right person for the job (from their perspective, of course).

One more point to consider: maybe we should insist on ideological diversity for OLC officials (or just more ideological diversity generally). Cass Sunstein, in an important paper, argued that when people of like minded positions deliberate, they tend to polarize and "go to extremes", ending up in a more extreme position from where they started. If the OLC was inhabited by like minded people (and I'm not saying that it was), then this might explain why some people, for example, Jack Goldsmith, who came to the OLC after Yoo, consider those positions to deviate even from the standard conservative take on executive power.


  1. Are you making a claim about the importance of different perspectives in general, or is there something in particular about the OLC that invites your view that it is important for the OLC to employ people with different ideological perspectives?

  2. I think I'm making both. Obviously this is in the context of the OLC, but I suggest that we might want to think about ideological diversity in general.
    Is the OLC special in the sense that ideological diversity would be a good idea?It is a major body advising the President on legal matters, so it might be a good idea for that body to present differing perspectives, given the malleability of constitutional law and foreign relations law.

  3. These are all tough issues. But first off, I'm not sure it is insignificant that there is another lawyer who contributed to the memos, even if at the time, that lawyer was a young hire or assistant.

    I recall having serious debates with friends and law school colleagues about whether certain University of Toronto law students (Canadian law students of a few years back will remember this controversy) that had lied about their marks to obtain law jobs at (high paying) Bay Street corporate law firms, were of sufficient character to be members of the bar. Opinion was pretty split. Some felt these students should probably still get their degrees (and not be expelled) but should probably make a living in another profession. Others had more sympathy, citing the pressures, social and financial, of obtaining work in high powered law firms.

    But in either case, we all agreed that these "students" were, let's be honest, adults, with enough life experience to make responsible decisions about their careers and the work they were doing.

    So, how is this relevant? If it might be argued that a few law students who lied about marks to get a job may be seen as unfit for the profession, isn't contributing to these memos, even as a junior, if not worthy of professional sanction, than at least sufficient public scrutiny? I mean, she was a lawyer working for the OLC; it's not like she was a junior officer in the marine corps which abides, for survival, on a strict chain of command.

    I'm not saying I agree with this-- as i said these are tough issues-- but it certainly is a perspective that's out there, and I'd be interested in what you thought, Adam.

  4. Hm, so I've had to do a little bit more reading on this. It seems like Koester wasn't really a true co-author as the TPM story implies, but more like a research assistant, taking on this or that isolated legal task on the file. And where she did actually contributed a part of the memos, it sounds like she was just writing in what Yoo and Philbin wanted. That sounds pretty much like the dynamic of an articling clerk or junior associate working on a file with senior counsel... I'm never one for a witch hunt; so i see your point: is it really worth while going hard after those who offered lower-level contributions, with minimal decision-making authority? I mean, what's the next headline "The Man who Fixed the Printer that Would Ultimately Print Off the Torture Memos: Revealed"

  5. Right, Jon. I was going to response but then saw your second comment. Given her role, which wasn't that of co-author, I agree with what you're saying.


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