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Why Doesn’t Flanigan Provide the Details that Would Exonerate Yoo?

The most important ethical failure described in the OPR report pertains to how the Bybee One memo became a “Get Out of Jail Free” card.

On July 16, 2002, John Yoo went into a meeting at the White House having been told by Michael Chertoff that he couldn’t write a “Get Out of Jail Free” card. And Yoo had told his sidekick, Jennifer Koester, that they would not include sections on Commander-in-Chief power and potential defenses in torture prosecutions. Alberto Gonzales and (the OPR Report says) “possibly” David Addington and Tim Flanigan (who was then Associate White House Counsel) were at the meeting. Yoo left that meeting and–saying he had “a good idea about how we are going to do it now”–promptly started working on sections on Commander-in-Chief power and potential defenses in torture prosecutions–the sections that basically functioned as the “Get Out of Jail Free” card. When Patrick Philbin asked why he was putting those sections in the memo, Yoo explained, “They want it in there.”

All the evidence shows that someone at that meeting told Yoo not only how he could put the “Get Out of Jail Free” card back into the memo by including Commander-in-Chief ande defense sections, but that he should do so. And that shows that Yoo’s memo was not “advice,” but precisely what it appears to be: a “Get Out of Jail Free” card ordered up by the same guys who were ordering up the torture.

The trouble, however, is that OPR doesn’t know precisely what happened at that meeting.

Gonzales, in what would be hysterically typical if it weren’t so serious, did not recall much about how the sections got into the memo.

Gonzales told us that he did not recall ever discussing the two sections, or how they came to ‘be added to the Bybee Memo. He speculated that because David Addington had strong views on the Commander-in-Chief power, he may have played a role in developing that argument.

And Addington and Flanigan both refused to cooperate with OPR.

Finally, former Counsel to the Vice President David Addington and former Deputy White House Counsel Timothy Flanigan did not respond to our requests for interviews.

Addington did admit in a Congressional hearing that he attended a meeting with Gonzales at which the memo was discussed, though he claims that he simply responded to what Yoo offered up that he was going to include in the memo.

But assuming you and I are talking about the same opinion, my memory is of Professor Yoo coming over to see the counsel of the President and I was invited in the meeting, with the three of us, and he gave us an outline of here are the subjects I am going to address.

And I remember, when he was done, saying, ‘‘Here are the subjects I am going to address,’’ saying, ‘‘Good,’’ and he goes off and writes the opinion.

Addington’s version–assuming he’s talking about the same meeting–is utterly inconsistent with the evidence, which suggests he may have lied to Congress.

If only Tim Flanigan would have cooperated, we might be able to bring some clarity to what went on in that meeting.

Which is why Jay Bybee’s first response to the draft OPR Report is so funny: the response includes a three page declaration from Flanigan. And while there’s evidence that Maureen Mahoney, Bybee’s lawyer, spoke to Flanigan about the meeting, he says nothing about the July 16 meeting in his statement at all.

I’ve included Flanigan’s entire statement below. As you’ll see, it blathers on about how sure Flanigan is that Bybee and Yoo engaged in good faith analysis and, as far as he is aware, weren’t pressured by anyone at the White House and how it is OLC’s job to figure out how the White House can do what it wants under the law. It proved very useful to Mahoney; she cites it seven times.

But aside from general claims that no one pressured Yoo or Bybee, Flanigan makes no mention about the meeting.

Now, I say Mahoney had to have spoken to Flanigan about the meeting. That’s because Mahoney takes what–in the OPR Report–were statements exhibiting uncertainty about Flanigan and Addington’s attendance at an earlier July 12 meeting and the July 16 one (these statements appear in the second draft, which is what Mahoney would have had at this point) …

It is likely that Deputy White House Counsel Tim Flanigan and/or Counsel to the Vice President David Addington were also present, but [Koester] and Yoo were not certain if either attended this meeting.


The next day, Tuesday, July 16, 2002, Yoo and [Koester] met once again with Gonzales (and possibly Addington and Flanigan) at the White House.


On July 16, 2002, Yoo and [Koester] met at the White House with Gonzales, and possibly Addington and Flanigan, to discuss the memorandum.

And instead asserts that he was definitely at the July 12 meeting and (on one of two mentions) the July 16 meeting. And her certainty that Addington attended is even more solid.

On July 12,2002, Yoo and [Koester] met with White House Counsel Alberto Gonzales, White House Deputy Counsel Timothy Flanigan, and Counsel to the Vice President David Addington to review the memo.


On July 15, 2002, Y00 instructed [Koester] include a footnote in the memo explaining that OLC would not address defenses or the effect of the Commander-in-Chief power on the statute because OLC had not been asked about those issues. Later that day [Mahoney’s context suggests this is July 15, but she’s almost certainly referring to the July 16 meeting], Yoo met again with Gonzales, Addington, and possibly Flanigan. Addington confirmed that around this time he requested that Y00 include in the memo’s analysis a discussion of the Commander-in-Chief power and other possible defenses to a prosecution under the statute.


Although Y00 had previously made the decision not to include the sections, after a July 16, 2002 meeting with White House officials, including Gonzales, Addington, and Flanigan, Yoo did an about-face and asked [Koester] to begin drafting the two new sections. Furthermore, in response to a question from Philbin regarding inclusion of the sections, Y00 once stated that “they want it in there.” Draft Report at 155-56. [my emphasis]

Particularly given Mahoney’s complaints that she has not gotten TS/SCI clearance and therefore could not read additional documentation on this case, the only source of her seeming certainty that Flanigan and Addington attended that second meeting would be someone who was there. Like Flanigan.

Now, if Flanigan really wanted to prove that Yoo wasn’t pressured by anyone in the White House, the best way to do so would be to tell us what transpired at that meeting. But he chooses not to do so.

Which suggests that whatever Flanigan had to say would not be all that helpful to Yoo or (more importantly) Addington.

Declaration of Timothy E. Flanigan

I, Timothy E. Flanigan, declare as follows:

1. I received my Bachelor of Arts degree from Brigham Young University in 1976 and my Juris Doctor degree from the University of Virginia School of Law in 1981. I served in the United States Department of Justice (“DOJ”) as Assistant Attorney General for the Department’s Office of Legal Counsel (“OLC”) from 1992 until 1993, and was the Principal Deputy Assistant Attorney General for OLe from 1990 until 1992. I served as Deputy Counsel and Deputy Assistant to the President ofthe United States from 2001 until 2002.

2. I understand from press accounts that the DOJ’s Office ofProfessional Responsibility (“OPR”) has been conducting an investigation into whether the authors of an OLC memorandum dated August 1,2002 (“Standards of Conduct for Interrogation Under 18 U.S.c. §§ 2340~2340A”’), including Judge Jay S. Bybee, who was then Assistant Attorney General of OLC and signed the memorandum, and Professor John C. Yoo, who was then a Deputy Assistant Attorney General of OLC and assisted in drafting the memorandum, engaged in professional misconduct in the preparation of this memorandum. Recent press reports indicate that OPR may recommend professional sanctions.

3. I was very surprised to read these press accounts given my own personal knowledge and experience with respect to the matters in question. To be sure, reasonable attorneys can disagree about aspects of this memorandum. I have criticized the memorandum in part due to its reliance on certain arguments that I believed were not strictly necessary to support its conclusions. But I nonetheless believe that its essential analysis is sound. Further, I have no doubt that Judge Bybee, Professor Y00, Attorney General Ashcroft and the other senior DOJ attorneys who reviewed and contributed to it intended only to provide an honest, good faith assessment of these very difficult and challenging questions of law.

4. To be perfectly clear, any criticisms of the memorandum that I have made in the past were never intended to suggest in any way that the authors of the memo committed professional misconduct. Quite to the contrary, based on my own personal knowledge I very strongly believe that the authors of the memo acted in a manner consistent with their professional responsibilities.
5. I have also read press reports suggesting criticism of the August 2002 memorandum on the grounds, in effect, that it ‘”gave the answers the client wanted to hear.” This criticism reflects a misunderstanding of OLC’s role and is incorrect insofar as it implies that Judge Bybee or Professor Yoo succumbed to pressure to reach particular legal conclusions. Of course, OLC is an executive branch agency and, in crafting its legal advice, its attorneys are almost always aware of the course of action the client wishes to take. It is perfectly appropriate for OLC attorneys to determine whether there is a legal way for the client to undertake such actions and to address particular issues that the client requests be considered as long as the advice they render reflects their best professional judgment. I did not pressure or otherwise attempt to influence Judge Bybee or Professor Yoo to reach legal conclusions that were contrary to their best legal judgment, nor am I aware that anyone else in the White House did so.

6. OLC’s opinions interpreting the President’s powers under the Constitution and relevant statutes have tended to reflect a robust view of those powers. I believe that most who have led that office would agree (a) there are limited areas of authority that are committed solely to the Executive and (b) the President’s powers are particularly strong in certain aspects of his role as Commander-in-Chief and the area of foreign affairs.

7. OLC is not authorized to determine matters of policy, such as whether it is desirable, moral, or wise to use any particular interrogation techniques. In my view, Judge Bybee and Professor Yoo acted appropriately in leaving such matters to be decided by policymakers.

8. As I recall, Attorney General Ashcroft and other senior leaders in the department reviewed the memorandum prior to its issuance. In my view, this illustrates the lengths to which OLC and DOJ went to ensure that it provided responsible legal analysis of these important issues.

9. Finally, based on my experience as a former Assistant Attorney General for OLC, I believe that adverse action by OPR against Judge Bybee or Professor Yoo would have a longterm chilling effect on the willingness of OLC attorneys to render opinions on difficult and sensitive areas of law. Such an action will be seen as a strong signal to OLC attorneys to avoid any legal conclusion or analysis that, although a reasonable application of relevant authority, may be controversial This, in turn, will tend to artificially limit the range of legal options available to the President, the Attorney General and other officers of the Executive Branch in the exercise of their duties.

Executed this 2nd day of May, 2009, in Solebury, Pennsylvania.
By: Tim Flanigan

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Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.