A reader writes:
We've corresponded before (I authored your e-mail of the year for 2009 -- thanks again). As I think you may recall: I am an attorney with the Department of Justice, and a senior trial attorney and civil servant -- just as Jennifer Koester Hardy was. (And my opinions here are mine alone, and not the Department's). You wondered why Hardy's name was redacted from the torture memo, while Yoo's, Bybee's and others' were not. I think I understand why.
The Department recognizes the difference between a line trial attorney, who is a career civil servant, and political appointees such as Yoo et al. and other senior management. The Department has guidelines and rules that place more responsibility on managers and supervisors than on line trial attorneys, who are, I think, not deemed ultimately responsible for policy decisions or even significant trial strategies. This is unsurprising, and it is true of most of the legal profession (the rules of professional conduct, in fact, place additional responsibilities on partners than on associates they supervise in private law firms). I think within the Department (as in most agencies and in every law firm I have been associated with), there is a culture that seeks to protect the inexperienced attorney from the results of bad decisions that are the responsibility, at the end of the day, of someone else. So I think that is at the heart of it.
But your post made me question why I was outraged by your decision, some months ago, to "out" the name of the trial attorney who wrote the controversial DOMA brief, and why I am not outraged that Hardy's name was revealed by bloggers (and let us hope that whoever was responsible for redacting the OPR memo is not responsible for redacting national security information -- sloppy job, that).
There are two reasons. First, the trial attorney who drafted the DOMA brief relied on established legal precedents from numerous courts.
People may have shouted from the rafters that his arguments adopted every right-wing talking point and made arguments with too much, I don't know, advocacy, but no one ever said there wasn't legal support for the arguments he made. Second, it was, after all, a piece of advocacy -- an argument made within an adversarial system where both sides argue their sides zealously, and the decision is rendered by the judge or jury.
Hardy's case is different. As the OPR report points out, the legal research was bereft of sound judgment, sound analysis, or sound conclusions. The memos were also not advocacy -- OLC memos are intended to provide independent legal analysis. These memos, as OPR found, were heavily slanted towards a predetermined conclusion.
But there is also this, and this, more than anything, is the part people need to think about. The OPR memorandum states that Hardy was assigned the case, and in doing so implies that she is an involuntary fellow traveler with Yoo and Bybee, and thus worthy of redaction. I am skeptical about that.
It may have been that because of her background as a gifted Yale law graduate and because she had shown real talent, she was assigned this most politically important matter. After all, you pick your best and brightest. But it is also the case, as has been well documented, that the Department under Ashcroft and Gonzalez sometimes picked the best and brightest from an ideological perspective. See Goodling, Schlozman, etc.
I know that there are and were plenty of good, honorable, non-ideological people in OLC at the trial attorney level. Was it happenstance that this attorney -- active in the Federalist Society, someone who clearly matched up with Yoo in ideology (they worked together to produce a law review article after the torture memos were produced) -- was picked for this assignment? Or was it by design, taking into account her ideological perspective? I know how I come down on that (but it is certainly a question Senator Leahy should ask). And if she was picked because of an ideological perspective, isn't that indicative of Yoo's intention to produce, how shall we say, the most narrow of analyses (an intention David Margolis, who overruled the OPR's ultimate conclusion, said was lacking?).
Hardy was in the thick of it. She raised some doubts about some of the approach taken by Yoo (see the footnote at p. 50 of the OPR memo, regarding her conclusions of the "implausib[ility]" of certain defenses that could be raised), and yet she signed off on what can only charitably be called egregiously poor legal analysis. She handled briefing and fielded questions from senior White House officials. And she never said boo.
Hardy deserves her place in the sun, and in history. I would expect the same if I were in her shoes.
He later writes:
One more item about Koester. Check out the attached court document at page 6. It mentions Jennifer Koester, who served as counsel to the Department of Defense after leaving the Department of Justice. It mentions that she was working on instructions for the newly formed military commissions.