DoJ ethics report clears Bush administration "torture memo" lawyers

Submitted by WW4 Report on Mon, 02/01/2010 - 23:53

Former US Department of Justice Office of Legal Counsel (OLC) lawyers John Yoo and Jay Bybee have been cleared of allegations of wrongdoing in relation to their memos asserting the legality of "enhanced interrogation techniques," Newsweek reported Jan. 29. The results of the Office of Professional Responsibility (OPR) investigation of the two former OLC attorneys have yet to be officially released, but the probe is reported to have concluded that the pair exercised poor judgment in crafting the 2002 memos—a finding that does not qualify as professional misconduct.

Originally, the OPR investigation had concluded that Yoo and Bybee had violated their professional obligations in crafting the memos, but this finding was softened by the reviewer. The implications of the original findings would have been far reaching, and could have led to significant sanctions against the former officials. Yoo, now a professor at the University of California Berkeley School of Law, could have faced disbarment. Bybee, now a judge on the United States Court of Appeals for the Ninth Circuit, could have faced impeachment proceedings.

A report prepared in the final months of the Bush administration came to similar conclusions, but was returned to the OPR for further investigation by then Attorney General Michael Mukasey. The five-year statute of limitations on Yoo's alleged misconduct lapsed shortly after. (Jurist, Jan. 31)

See our last post on the torture scandal

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DoJ clears John Yoo —again

Submitted by Bill Weinberg on Fri, 02/26/2010 - 01:15

The Department of Justice Feb. 20 overruled the findings of a report released the previous day concluding that two Bush administration lawyers committed professional misconduct when they wrote the so-called "torture memos." Instead, the DoJ said that John Yoo and Jay Bybee were only guilty of "poor judgment" in writing the memos. An internal ethics investigation by the OPR concluded that Yoo had committed "intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice." The report also found that Bybee had committed professional misconduct when he acted in "reckless disregard" of his duty to exercise independent legal advice. However, David Margolis, an associate deputy attorney general, released a separate memo overruling the OPR's report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct. (Jurist, Feb. 20)

Michael Isikoff in Newsweek Feb. 20 "that Yoo also "told Justice Department investigators that the president's war-making authority was so broad that he had the constitutional power to order a village to be 'massacred,' according to a report released Friday night by the Office of Professional Responsibility."

Pressed on his views in an interview with OPR investigators, Yoo was asked:

"What about ordering a village of resistants to be massacred? ... Is that a power that the president could legally -"

"Yeah," Yoo replied, according to a partial transcript included in the report. "Although, let me say this: So, certainly, that would fall within the commander-in-chief's power over tactical decisions."

"To order a village of civilians to be [exterminated]?" the OPR investigator asked again.

"Sure," said Yoo.

Isikoff reminds us that "Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department memo that narrowly defined torture and then added sections concluding that, in the end, it essentially didn't matter what the fine print of the congressionally passed law said: The president's authority superseded the law and CIA officers who might later be accused of torture could also argue that were acting in 'self defense' in order to save American lives."