The Torture Memos will forever be known as the work of John Yoo, the former Office of Legal Counsel lawyer who took the lead in preparing them. But the internal Justice Department report on the memos, released Friday, reveals that a less experienced OLC attorney, working under Yoo, played a key role in the process — in some cases writing initial drafts of the opinions before getting feedback from Yoo and others.
The name of that lawyer is redacted throughout the report. But in what appears to be an oversight in the redaction process, a footnote identifies her as Jennifer Koester. (The Justice Department didn’t immediately respond to a request for comment about the reason for the redaction, and about the oversight.)
Koester, who was two years out of law school and around 28 years old at the time, was clearly a junior level attorney in the process. She appears to have had no authority to approve the final versions of the memos that went out from the department, and was tasked with working with Yoo on them in part because having just joined OLC, she “had some time available,” according to the report. But she did take the lead in developing the first drafts of the memos, and briefed the White House on their contents. And it’s perhaps surprising — given the intense level of scrutiny that Yoo has rightly received for his role in producing the memos — that Koester has until now remained almost entirely under the radar.
Call her the Torture Memo author you’ve never heard of.
In the “Introduction and Summary” section of the report, the authors write that, “in addition to [then OLC head Jay] Bybee, the following OLC lawyers worked on the Bybee Memo: former Deputy AAG John Yoo; former Deputy AAG Patrick Philbin; and former OLC Attorney REDACTED.” (The Bybee Memo was the first and highest profile of the various controversial OLC torture memos.)
But a footnote on page 50 gives away Koester’s identity. Referring to a section of the memo on possible legal defenses, which Yoo had asked Koester to prepare, it reads:
In her notes, REDACTED raised several problems with the defenses, including the comment that self-defense “seems to me wholly implausible” because of the requirement that threatened harm to be imminent. In her interview with OPR, Koester told us that she ultimately resolved all of her problems with the defense, and concluded that the defenses were applicable to the torture statute.
It’s clear from the context that Koester, who did not respond to a request for comment, is the OLC lawyer whose name is redacted earlier in that footnote and throughout the report.
The decision to give the assignment to Koester — now a partner at the powerhouse DC law firm Kirkland and Ellis, and known as Jennifer Hardy — doesn’t appear to have been based on her familiarity with the subject matter. According to the report, soon after Yoo was asked by the CIA to prepare a memo on interrogation techniques, he discussed with Bybee and Philbin who else at OLC should work with him on the project. “According to Yoo,” writes OPR, “they agreed that REDACTED was the best choice, probably because she had recently joined OLC and therefore had some time available” (p. 39).
Koester graduated from college in 1996, and from Yale Law School in 2000, according to her professional bio on the Kirkland site.
The final OPR report appears not to draw any conclusions about Koester’s performance. But a draft version of the report, released last week along with the final report, finds that “Koester, because of relative inexperience and subordinate position, did not commit misconduct,” but that “she appears to bear initial responsibility for a number of significant errors of scholarship and judgment (p. 188).”
Those errors don’t appear to have impeded Koester’s career. She left the Justice Deprtment in 2003 to work in the general counsel’s office at the Defense Department, then won a coveted Supreme Court clerkship, working for Clarence Thomas, and did a stint at the Department of Homeland Security, before joining Kirkland.
The report makes clear that, despite apparently having been given the assignment almost at random, Koester played a more active role in the process of producing the memos than perhaps anyone else at DOJ, with the possible exception of Yoo. In July 2002, when Yoo and Koester went to the White House to brief then White House counsel Alberto Gonzales, and perhaps David Addington, Dick Cheney’s top lawyer, on one memo, it was Koester, not Yoo, who orally summarized the memo’s conclusions (p. 46). (None of the attendees offered any feedback at the meeting, Yoo told OPR.)
At one point, according to a footnote, Koester complained to a friend via email that she was working 12 hour days without breaks, and wrote: “I have a number of large projects with different people. I would have said no but it didn’t seem like that was an option here.” She added that she liked the work but wanted “enough time to do a good job on it.”
The report describes a process in which Koester produced numerous drafts for Yoo, then, updated them based on his and other’s feedback. Koester appears to have accepted and agreed with Yoo’s notoriously aggressive general approach to the torture question. Indeed, according to the report, it was Koester who drafted perhaps the most controversial section of the memos: the discussion of the “commander in chief” power, in which OLC essentially advises the government that the president, as commander in chief, can disregard any law he wants during wartime. “Koester also told us that she thinks she ended up writing the Commander-in-Chief section, with ‘a lot of input’ from Yoo and Philbin,” writes OPR (p. 50).
On rare occasions, Koester very gently challenged Yoo around the margins. After Yoo had written in a July 2002 draft that pain would have to be “life-threatening” for it to qualify as torture, Koester responded:
I’m a little concerned about the use of the phrase “life threatening.” Did you mean for that [to] apply beyond the physical pain context? As drafted, I think it suggests that mental pain would somehow have to rise to that level as well (p.45).
Still, Koester opined, as applied to physical pain, it was “a wholly legitimate characterization.” (Nonetheless, “life-threatening” was removed from the next draft, according to the report.)
Yoo appears to have thought highly of Koester’s work. According to her bio, the two teamed up again in 2004, after both had left DOJ, to write a paper about federalism and environmental law for the University of Colorado Law Review.
Late Update: Perhaps unsurprisingly, Koester appears to be involved with (scroll down to photo 27) the Federalist Society, which famously aims to get ideologically conservative lawyers appointed to high-level posts in government and the judicial system. (h/t reader H.H.)