Saturday, February 20, 2010

DOJ decision on Torture Memo: not misconduct

The Department of Justice has spent five years investigating and carrying on an internal debate over the torture memos: was it professional misconduct for John Yoo and Jay Bybee to write and sign the memos that permitted the CIA to conduct waterboarding and other torture at Abu Ghraib and other "black ops" interrogation sites? From today's article in the New York Times, by Eric Lichtblau and Scott Shane,

The ethics lawyers, in the Office of Professional Responsibility, concluded that two department lawyers involved in analyzing and justifying waterboarding and other interrogation tactics - Jay S. Bybee, now a federal judge, and John Yoo, now a professor at the University of California at Berkeley - had demonstrated “professional misconduct.’’ It said the lawyers had ignored legal precedents and provided slipshod legal advice to the White House in possible violation of international and federal laws on torture. That report was among the documents made public yesterday.

But David Margolis, a career lawyer at the Justice Department, rejected that conclusion in a report of his own released yesterday. He said the ethics lawyers, in condemning the lawyers’ actions, had given short shrift to the national climate of urgency in which Bybee and Yoo acted after the attacks of Sept. 11, 2001. “Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost,’’ Margolis said.

Indeed, the documents provide new details about the atmosphere in which Yoo and the Justice Department prepared their initial findings in August 2002, shortly after the capture of Abu Zubaydah, suspected of being an operative for Al Qaeda.

The report quotes Patrick Philbin, a senior Justice Department lawyer involved in the review, as saying that because of the urgency of the situation, he had advised Bybee to sign the memorandum, despite what he saw as Yoo’s aggressive and problematic interpretation of the president’s broad powers as commander in chief in trumping international and domestic law.

Philbin said that “given the situation and the time pressures, and they are telling us this has to be signed tonight - this was like 9 o’clock, 10 o’clock at night on the day it was signed - my conclusion’’ was that it was permissible for Bybee to sign the memorandum. “They’’ apparently referred to officials at the White House, but the report does not specify who demanded that the memorandum be signed that night.
The Times also provides a link to Margolis' report, which takes a very long time to open; it's 289 pages! Here is the link. The link include Jay Bybee and John Yoo's rebuttals which are mentioned in more some news reports:
The documents released also included rebuttals from Yoo and Bybee that challenged the findings of two draft reports from the Office of Professional Responsibility.

An Oct. 9, 2009 response from Yoo's attorney Miguel Estrada read, "Of course the attorneys at OLC knew what the CIA wanted, since they knew the agency was attempting to get information to thwart further terrorist attacks, and indeed OLC obviously was being asked to opine on specific interrogation techniques that it knew the CIA wished to use if it legally could do so.

"This perversion of the professional rules," the Estrada rebuttal said, "and myopic pursuit of Professor Yoo and Judge Bybee, can be explained only by a desire to settle a score over Bush administration policies in the war on terror. But policy disputes are for the ballot box, not for the bar. Professor Yoo and Judge Bybee did nothing more than provide a good-faith assessment of the legality of a program deemed vital to our national security."
(from story about a Congressional hearing scheduled on the report for next week)

Here are the original reports from the Office of Professional Responsibility (OPR) that Margolis overturned with that report.

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