“How not to torture” Memo Lawyers Cleared of “professional misconduct”

By 15 Comments 1,052 views

In reviewing Yoo’s new book, Mike wrote:

In a day when we confront an enemy that has no state, wears no uniform and can not be appeased or negotiated with using diplomatic or economic means a new challenge was met by President George W. Bush with renewed reliance on the historic and evolving use of executive power. We all remember the battles Bush had with Congress over the use of Executive authority to combat terrorism after September 11th. John Yoo was at the epicenter of those battles. From 2001-2003, he served as a deputy assistant attorney general in the Office of Legal Counsel of the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security, and the separation of powers.

In 2002, on the heels of 9/11, the Office of Legal Counsel determined that the interrogation practices of the CIA were lawful. This gave the CIA legal confidence on where the line was drawn so that they could carry out their duty of protecting the country without fear of criminal and professional prosecution down the road.

For the last 5 years, the Justice Department’s Office of Professional Responsibility has been conducting an investigation into the rulings held by Yoo and Bybee.

Last Friday, House Judiciary Committee Chairman John Conyers released their report:

(Washington, DC) – In connection with the committee’s oversight responsibilities and in anticipation of hearings on the issues raised, House Judiciary Committee Chairman John Conyers, Jr. (D-Mich.) today released a report by the Department’s Office of Professional Responsibility severely criticizing the judgment and legal work of the Bush administration lawyers who authorized waterboarding and other “enhanced interrogation techniques.” Chairman Conyers also released a group of related materials, including drafts of the report, comments from the attorneys under investigation, and the subsequent memorandum to the attorney general.

“For years, those who approved torture and abuse of detainees have hidden behind legal memos issued by the Department of Justice’s Office of Legal Counsel,” Conyers said. “The materials released today make plain that those memos were leglly flawed and fundamentally unsound, and may have been improperly influenced by a desire to tell the Bush White House and the CIA what it wanted to hear.”

“The Office of Legal Counsel has a proud tradition of providing independent, high-quality legal advice to the executive branch,” Conyers continued. “The materials released today make clear that the lawyers who wrote the torture memos did not live up that tradition. While the department ultimately concluded that the lawyers did not breach their minimum professional obligations, I certainly hold top lawyers at OLC to a higher standard that, as all Americans should.

“Given the serious nature of the issues raised in this report, the committee intends to hold hearings on these matters in the very near future.”

The CIA did not “hide behind” legal memos; nor did they “approve torture and abuse of detainees”. The CIA sought to know what was and wasn’t legally permissible. If anything, the OLC memos were about “how not to torture”.

Jack Goldsmith, who succeeded Yoo’s boss, Jay Bybee, disagreed with Yoo’s Standards Memo but left in place the Techniques Memo which he saw as having “elaborate safeguards”. When Daniel Levin succeeded Goldsmith, he and his superiors continued approving the techniques used in the CIA interrogation program, including the use of waterboarding.

Even though Goldsmith did not find fault with the Techniques Memo, his 2004 decision to withdraw the Standards Memo made a huge impact in the CIA, shaking their confidence in being able to do their work without worrying whether or not they will need lawyers down the road. They sought legal guidance from the Justice Department itself, and thought they had it.

Goldsmith himself admits in The Terror Presidency, pg 162-3,

I had changed the rules in the middle of the game in a way that potentially jeopardized national security and that certainly harmed an institution I had come to admire, the CIA.


The agency had been asked to go out on a limb in 2002, and it had demanded and received absolute legal assurances from the Department of Justice and the White House. I had done the unthinkable in withdrawing its golden shield. And i had done so at a time that George Tenet would later describe as one of the most threatening since 9/11.

Today, the threat of more future investigations and potential legal actions hangs over the head of the CIA and those who served in the previous administration. How is it that a self-avowed terrorist who tried to kill Americans is able to sue a Justice Department Official whose legal counsel undoubtedly saved American lives? Michael Gerson also made the following point last April (when details of the OLC memos were made public- to the delight of al Qaeda- by the Obama Administration):

I think it’s a real mistake to try to criminalize policy disagreements. You know, we can disagree with some of the things that the Clinton people did. You know, people disagree with things that people in the Bush administration did. But people were involved, for example, at the Justice Department, were making their best legal judgments. It’s very hard under those circumstances to try to impose a mindset, a kind of witch hunt mindset to people that thought they were doing their duty.

And as Scott wrote last August:

There are multiple problems with investigating closed cases from a previous Administration, but the core problem is that there is no statute of limitations on how far back such allegations can be re-opened and re-investigated. Using the exact same argument that’s being used to re-open these allegations of “torture,” the DOJ may be required to pursue standing orders, techniques, and policies that pre-date the Bush Administration. Moreover, if they are re-opening past allegations of “torture”, then when the same or similar tactics and techniques are used today by the Obama Administration, then the DOJ is even more compelled than usual to investigate the Obama Administration OR face a Special Prosecutor. The latter is not likely if Democrats hold control of Congress, but that’s not likely either. If Republicans take even one House of Congress in 14 months, then they very well could have a case for impeachment on their hands-impeachment of President Obama on charges that he authorized the same or similar “torture” and extraordinary rendition of prisoners to other countries FOR torture as did his predecessors Bush and Clinton.

Read John Woo’s gift to the Obama Presidency.

I wonder how the hundreds of people involved in the CIA interrogation program- the program that saved American lives!- feel, knowing that President Obama and Attorney General Eric Holder think that what they did was torture and are broadcasting it as such to the rest of the world?

Andrew Lebovich at Foreign Policy:

In a document dump last Friday evening, the Department of Justice released a report effectively clearing Bush administration “torture memo” lawyers John Yoo and Jay Bybee of professional misconduct.

The long-anticipated Office of Personnel Responsibility (OPR) report concludes that Yoo and Bybee did commit professional misconduct — Yoo “when he violated his duty to exercise independent legal judgment” and Bybee by “[acting] in reckless disregard” of the law.

But David Margolis, the career Justice Department lawyer heading the investigation, wrote in a separate, overriding memo that “misconduct depends on application of a known, unambiguous obligation or standard,” a legal standard that did not exist when Yoo and Bybee wrote the memos allowing for the “enhanced interrogation” of detainees. Margolis controversially cites the security atmosphere just after the 9/11 attacks as a mitigating factor, a defense other lawyers and the initial report authors have explicitly rejected.

The effect of the report: Yoo and Bybee will not be disbarred or otherwise disciplined. Bybee is currently a federal judge and Yoo a law professor at the University of California, Berkeley.

Memorandum for the Attorney General
OPR Final Report
OPR 1st Draft Report
OPR 2nd Draft Report
Yoo Response to OPR 2nd Draft
Yoo Response to OPR Final Draft
Bybee Response to OPR 2nd Draft
Bybee Response to OPR Final Draft
Letter from Mukasey and Filip to Jarrett
Letter from DOJ to Chairman Conyers

15 Responses to ““How not to torture” Memo Lawyers Cleared of “professional misconduct””

  1. 1

    Mr. Irons

    This witchhunt mentality of the current Congress and Whitehouse is rather disturbing as this echos of Rome’s inter-fighting between political groups while Attila The Hun (Bin Laden for today) laugh at our own incompetence and willingness to treat our own soliders and police forces as the true threat to security. Rome’s captial city was soaked in lavish spendings it couldn’t afford, the Roman army holding major contempt towards their surpreme commanders, the colonies and outlaying cities burning or defecting, and multiple front assaults by various “barbarian” tribes such as Attila’s forces. Seems like our political leaders of today have little understanding why studying history is critical for leadership roles…

  2. 3

    Mr. Irons

    If you reference to the usage of martial law by Honest Abe to prevent Confederate sympathizers in the Senate and Congress from defecting industrial states vital to Union military machine, then I don’t know…

    If you reference to Communist/Socialist/Imperialist “impressment” or conscripting the civilian population into some form of military service, then I don’t know.

    If you mean the recent New York town of Schenectady and the concept of disbanding its entire police force and use Martial Law “temporarilary” due to police corruption, then I don’t know.

  3. 5

    Mr. Irons

    Not exactly true there with the facts, as it was signed actually a month ago.

    What is awkward is the ammount of armor and supplies being relocated to the west coast, considering China’s more “colorful” comments about the USA in recent months. Martial Law might be inacted (not what I support) due to possible situations that deal with foreign manipulation. Remember, the Chinese Government is practicaly the USA’s “bank” due to all the borrowing the Federal Government has commenced with.

  4. 6


    maybe it was an older post from another blog that i visit today i did not check the date but i was wondering why he sign that law i did not understand i tough you could explain bye

  5. 7

    Mr. Irons

    Here is the order you speak of:


    And as I have said this reads more of a defense measure against external threats, as no way in hell is it possible for a mere 10 governors to reign in 350 million Americans. And the US Military would not even consider turning its guns on their own families on the orders of the Government, it would violate the oaths they have to take when entering their services.

  6. 9



    Vindicating John Yoo
    Bush lawyers are found to have acted ethically, unlike their accusers.

    So after five years of investigation, partisan accusations and unethical media leaks, the Justice Department’s senior ethicist has concluded that Bush Administration lawyers John Yoo and Jay Bybee committed no professional misconduct. The issue now is whether the protégés of Attorney General Eric Holder who led this exercise at Justice’s Office of Professional Responsibility (OPR) should themselves be in the dock.

    That’s our reading of the analysis by Associate Deputy Attorney General David Margolis, a career official who reviewed both the Bush-era legal memos on interrogating terror suspects and their review by the lawyers at OPR. Remarkably, his report is far more scathing about OPR than it is about Messrs. Yoo and Bybee, who he says made legal errors but did so in good faith, out of honest legal analysis, and in the ethical service of their clients in the executive branch at a time of war.

    Mr. Margolis’s review overrules both a draft OPR report whose contents were leaked to the media last year and a final OPR report that was released along with the Margolis review late Friday. Those OPR reports recommended disciplinary action and potential disbarment for Messrs. Bybee and Yoo for their advice while working in the Office of Legal Counsel in the frantic months after September 11. The leaks were themselves an unethical attempt to smear the reputations of the lawyers while they were under a gag order and unable to reply.

    House Judiciary Chairman John Conyers nonetheless leapt to praise Friday’s release of earlier drafts, touting them as evidence that the OLC memos were “legally flawed and fundamentally unsound.” Senate Judiciary Chairman Pat Leahy promptly called for Judge Bybee to resign from the federal bench. Both Democrats have scheduled more grandstanding, er, hearings, for the coming days.

    Justice is defending its pre-weekend document dump by saying that it had to release the entire record. But notably, Justice failed to release a 14-page January 19, 2009 letter from then-Attorney General Michael Mukasey and Deputy AG Mark Filip that eviscerated the first OPR draft. The Mukasey-Filip memo has since appeared on media Web sites, and its withering analysis clearly made an impression on Mr. Margolis. The selective disclosure by Mr. Holder suggests the political nature of this entire exercise.

    Readers can review the documents for themselves, but two OPR judgments deserve particular scorn. The first is the claim that Messrs. Yoo and Bybee were so close to their client, i.e., the White House, that they knew what the President and CIA wanted to hear. But it is perfectly appropriate for a lawyer to know what his client wants, and, by OPR’s standard, 99% of professional lawyers could be considered guilty of misconduct.

    The ethicists at OPR also claim the Bush attorneys were wrong to stick to a legal analysis of interrogation practices and should have also considered their moral and policy implications. But the duty of the Office of Legal Counsel is precisely to offer legal advice, not to render policy judgments. Interrogation policy was determined by the CIA and the White House, as it should have been. The last thing the country needs is for lawyers to tell the CIA how to get actionable intelligence from enemy combatants.

    What’s more, as Mr. Mukasey’s memo makes clear, the legal canons of Washington, D.C. and many states expressly prohibit lawyers from offering such policy advice to sophisticated clients such as the U.S. government. This is precisely so lawyers don’t muddy their legal counsel with policy bias.

    The rotten quality of the OPR efforts—and Mr. Margolis’s repudiation of them—raises real questions about the lawyers who produced this work. H. Marshall Jarrett, who supervised the first OPR draft, is a protégé of Mr. Holder who managed not to produce his draft report until the Bush Administration was preparing to leave office. After Mr. Mukasey “memorialized” his concerns, as his letter put it, the Jarrett draft was leaked without the Mukasey response. Mr. Holder reassigned Mr. Jarrett in April 2009 to lead the Executive Office for U.S. Attorneys, an arguably more powerful post. His OPR effort makes him unfit for such a job.

    Mr. Holder replaced Mr. Jarrett at OPR with Mary Patrice Brown, who tried to salvage OPR’s original conclusions with a new but equally deficient argument. After abandoning OPR’s earlier specific allegations that Messrs. Yoo and Bybee had violated D.C. Rule of Professional Conduct 1.1 to provide competent representation and rule 2.1 to exercise independent legal judgment, Mr. Margolis writes, Ms. Brown’s final report “did not specify the rule or rules of professional conduct that were violated.”

    Instead, she added consideration of a “best practices” memo and guiding principles. Mr. Margolis writes that these documents raise several concerns, not least that “neither of them existed at the time Yoo and Bybee worked at OLC.” Ms. Brown is reportedly in line for a judicial nomination, and Republicans ought to keep her embarrassing performance in mind when they vote on confirmation.

    Mr. Margolis deserves credit for his independent analysis, but we also can’t help but notice the striking change of tone in the last few pages of his report. Mr. Margolis’s only duty was determining whether the Bush attorneys had adhered to proper ethical standards. On that question, he is unequivocal in saying they did.

    However, at the end of his 68-page review he indulges in some superfluous commentary that Messrs. Yoo and Bybee exhibited “poor judgment” and that some of their legal analysis was mistaken. This is a matter of opinion—akin to writing an op-ed piece—unrelated to the question of whether they behaved unethically, and it is precisely the kind of judgment that Mr. Margolis says earlier in the report that he will not render.

    His change of tone is notable enough that it raises a question of whether Mr. Margolis decided to add this concluding rhetoric as a way to propitiate Mr. Holder and to save at least some face for the AG’s protégés. Republicans should ask Mr. Margolis about this if Democrats proceed with their hearings.

    The larger story here is the vindication of Mr. Yoo and the other Bush attorneys, who were pilloried unfairly over ethics in what was really a policy dispute in the war on terror. Democrats wanted to appease the anti-antiterror left, and they fixed on punishing mid-level officials as prominent enough to get public attention but not so prominent as to seem like a banana republic seeking revenge against a former President or Vice President. Their campaign has now been exposed as a partisan, and unethical, smear.

Leave a Reply

Your email address will not be published. Required fields are marked *