Not only do I think [Ecclesiastes] is right, there are a couple of other ways in which Bybee and Yoo (in all likelihood intentionally) mix apples and oranges. Every experienced lawyer knows the look and feel of another experienced lawyer attempting to provide plausible defense for something indefensible. That look and feel is all over this document.

[Ecclesiastes] - correctly IMHO - notes how Bybee conflates "specific intent" and "willfulness" by mis-citing Cheek (a "willfulness" case) as providing a "good faith belief" exception to a specific intent crime. He does something even more egregious, however - he mis-cites Ratzlaf v. United States, 510 U.S. 135 (1994). I remember Ratzlaf well, since it deals with currency reporting crimes, a frequent fallback of a prosecutor who can't prove something more serious (like money laundering). It created a stir when the Supreme Court decided it. In essence, Ratzlaf holds that (due to the willfulness requirement of the penalty provision, 31 USC 5322) the prosecution must prove that someone charged with currency reporting violations under 31 USC 5324 not only intended to violate them, but did so with knowledge that failure to report was unlawful - similar to Cheek.

Here's the point: Congress immediately (the same year) overruled Ratzlaf by amending 31 USC 5324 to give it its own penalty provision, one which does not require willfulness - but it still requires specific intent. From the House report on the amendment:

The Committee adopted an amendment to the bill to correct the recent Supreme Court holding in Ratzlaf v. U.S., U.S. Supreme Court No. 92-1196 (January 11, 1994). That case held that the government must prove not only that the defendant acted with the purpose of evading a financial institution's reporting requirement under 31 U.S.C. 5324, but also that the defendant knew his or her conduct to be unlawful. The reported legislation amends 31 U.S.C. 5324 by adding a criminal penalty and excepting section 5324 from the current criminal penalty provision found in section 5322 of title 31. Thus, a defendant is subject to the criminal penalty if he or she engages in the actions described in section 5324 for the purpose of the evading the reporting requirement of section 5313(a) or 5325 of title 31 or the regulations prescribed thereunder. This amendment restores the clear Congressional intent that a defendant need only have the intent to evade the reporting requirement as the sufficient mens rea for the offense. The prosecution would need to prove that there was an intent to evade the reporting requirement, but would not need to also prove that the defendant knew that structuring was illegal.

H.R. Rep. 103-438 (1994).

It can't be much clearer than that: the Ratzlaf requirement of knowledge of illegality was not due to any specific intent requirement, but rather the willfulness requirement. Since Bybee must justify lawless conduct under a statute which requires specific intent, he conveniently ignores the clear distinction and mumbles something about how his boys didn't know it was unlawful.

But, since Bybee is now a Circuit Judge, I must be reading it wrong.