Justice Department Clears Torture Memo Authors John Yoo, Jay Bybee of Misconduct
A long-awaited Department of Justice watchdog report that probed whether John Yoo and his former boss Jay Bybee violated professional standards when they provided the Bush White House with legal advice on torture has cleared both men of misconduct, according to Newsweek, citing unnamed sources who have seen the document.
An earlier version of the report, prepared by the Office of Professional Responsibility (OPR) and completed in December 2008, actually concluded that Yoo, a Berkeley law professor, and Bybee, now a federal appeals court judge on the 9th Circuit, violated professional standards when they drafted an August 2002 legal opinion that authorized CIA officers to use brutal methods when interrogating suspected terrorist detainees.
But as I reported last April, those previous conclusions were watered down after OPR received responses on the report's conclusions from Yoo and Bybee, who both worked in the Justice Department's Office of Legal Counsel (OLC):
Legal sources familiar with the internal debate about the draft report say OPR is in the process of "watering"- down the criticism of legal opinions by [OLC] lawyers John Yoo and Jay Bybee in 2002 and 2003 and by [OLC acting head Steven Bradbury], who in 2005 reinstated some of the Yoo-Bybee opinions after they had been withdrawn by Assistant Attorney General Jack Goldsmith when he headed the OLC in 2003 and 2004.
David Margolis, the 34-year career prosecutor at the DOJ charged with reviewing the final version of the report, was responsible for "softening" OPR's earlier finding of professional misconduct and instead determined that Yoo and Bybee "showed poor judgment" when they drafted an August 1, 2002 legal opinion authorizing the CIA to employ methods such as waterboarding against detainees during interrogations, according to Newsweek.
That means neither Yoo nor Bybee will be referred to state bar associations where they could have faced disciplinary action since poor judgment does not constitute professional misconduct, according to OPR's post-investigation procedures. For Bybee, such a referral could have also led to an impeachment inquiry before Congress.
Yoo and Bybee, however, are still under scrutiny. Legal advocacy groups have filed complaints against them, and others who worked on the Bush administration's so-called "enhanced interrogation" program, with state bar associations in hopes that their law licenses will be revoked.
When the report is released and if its conclusions match Newsweek's story, particularly the key finding that Yoo and Bybee did not violate professional standards and won't face disciplinary action, the Obama administration will face a swift backlash from those who say the president and his appointees have gone above and beyond to cover-up war crimes committed by the Bush administration.
Newsweek noted that the OPR report is "sharply critical" of the "legal reasoning used to justify waterboarding" and other methods of torture CIA interrogators used against detainees after 9/11 and that only, a critical conclusion that raises questions about the Obama Justice Department's reasons for not holding Yoo and Bybee accountable.
Moreover, the report, which is still under a declassification review "will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process, say two sources who have read the report but asked for anonymity to describe a sensitive document," Newsweek reported.
Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.
The OPR probe was launched in mid-2004 after a meeting in which Jack Goldsmith, then head of the OLC, got into a tense debate with White House lawyers, including Vice President Dick Cheney’s legal counsel David Addington.
That back-and-forth over the OLC’s judgments regarding President Bush’s powers rest at the heart of the Bush administration’s defense of its “enhanced interrogation” techniques that have been widely denounced as torture, such as waterboarding which subjects a person to the panicked gag reflex of drowning and which was used on at least three “high-value” detainees.
Bush officials insist that they were acting under the guidance of the Justice Department’s Office of Legal Counsel, which advises Presidents on the scope of their constitutional powers. For the OPR report to conclude that Yoo, Bybee and Bradbury violated their professional duties as lawyers and, in effect, gave Bush pre-cooked legal opinions to do what he already wanted to do would have shattered that line of defense.
Goldsmith ended up withdrawing some of the Yoo-Bybee opinions because he felt they were “legally flawed” and “sloppily written.”
He resigned shortly thereafter and was subsequently replaced on an acting basis by Bradbury, who restored some of the controversial Yoo-Bybee opinions in May 2005, again granting George W. Bush broad powers to inflict painful interrogations on detainees.
Last March, the Justice Department revealed that the OPR report underwent revisions after the initial draft was rejected by former Attorney General Michael Mukasey and his deputy, Mark Filip, both of who insisted that Yoo, Bybee and Bradbury be given an opportunity to respond to its conclusions.
“Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments [after the first draft was completed in December], and OPR revised the draft report to the extent it deemed appropriate based on those comments,” said acting Assistant Attorney General Faith Burton in a March 25, 2009 letter to Sens. Sheldon Whitehouse (D-Rhode Island) and Richard Durbin (D-Illinois) members of the Senate Judiciary Committee.
Burton also said at the time that the final OPR would likely undergo more revisions based on responses from the former OLC lawyers. Several months later, Durbin and Whitehouse received a letter from Assistant Attorney General Ronald Weich who disclosed the post investigation process.
Weich’s letter noted that if the appeals filed by Yoo, Bybee and Bradbury resulted in a rejection of OPR’s findings by the "career official" reviewing the document then no such referral would occur.
"Department policy usually requires referral of OPR's misconduct findings to the subject's state bar disciplinary authority, but if the appeal resulted in a rejection of OPR's misconduct findings, then no referral was made," said Weich’s May 4, 2008 letter to Durbin and Whitehouse. "This process afforded former employees roughly the same opportunity to contest OPR's findings that current employees were afforded through the disciplinary process."
Weich added that the initial draft of the report was also shared with the CIA for a "classification review," and the agency, having reviewed the findings, "requested an opportunity to provide substantive comment on the report."
Durbin and Whitehouse, in a statement last May, said they "will be interested in the scope of the ‘substantive comment' the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter."
As Truthout previously reported, Attorney General Eric Holder testified before Congress last year that the OPR report was expected be released by end of November. In interviews over the past month, two senior aides to Democratic lawmakers claimed the report was being held up in lieu of the passage of a health care bill.
But Tracy Schmaler, a DOJ spokeswoman, disputed the allegations.
"That is absolutely untrue," Schmaler said. "One thing has nothing to do with another."
Schmaler said the review "process is ongoing and we hope to have [the report] complete and released soon."
Two DOJ officials familiar with details of the report said a delay in releasing it in the time frame Holder had promised was due, in part, to the fact that Margolis was hospitalized in December for pneumonia.
In his testimony last November, Holder said the report had not been released sooner due to "the amount of time we gave to the lawyers who represented the people who are the subject of the report an opportunity to respond. And then [OPR] had to react to those responses."