With a Friday night news dump, the Justice Department has released the Office of Professional Responsibility report on the conduct of Bush Administration lawyers in crafting terrorism policy. The House Judiciary Committee has put the report up on its website.
Marcy Wheeler has a working thread up; she and her commenters are well-equipped to do the spade work on every inch of the report. I want to note the Memorandum for the Attorney General, however, from career DoJ attorney David Margolis, who made some additional decisions on the draft report after its completion.
Margolis, as was expected based on news reports, essentially shielded Jay Bybee and John Yoo from any disciplinary action by absolving them from any professional misconduct in writing their justifications of waterboarding and other torture techniques. He gives his explanation here:
OPR concluded that former Office of Legal Counsel (OLC) attorneys John Yoo and Jay Bybee engaged in professional misconduct by failing to provide “thorough, candid and objective” analysis in memoranda regarding the interrogation of detained terrorist suspects [...]
For the reasons stated below, I do not adopt OPR’s findings of misconduct. This decision should not be viewed as an endorsement of the legal work that underlies those memoranda. However, OPR’s own analytical framework defines “professional misconduct” such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney’s conduct. I am unpersuaded that OPR has identified such a standard. For this reason and based on the additional analysis set forth below, I cannot adopt OPR’s findings of misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where Yoo and Bybee are licensed.
This is essentially getting away with murder, or if you like, torture. Margolis has saved Yoo and Bybee from any disciplinary action, relying on Yoo and Bybee’s own responses to the charges and what amounts to a generous reading of the law. Margolis basically took Yoo and Bybee’s side, that OPR did not apply the necessary framework, over OPR. It amounts to “we cannot know what was in the heads of Yoo and Bybee.”
That’s how it reads to me, anyway, maybe others will disagree. They can decide for themselves. But basically, another, and perhaps the last, opportunity for accountability and justice for the Bush torture regime, at least from inside the US government, has been squandered.
In releasing the report, John Conyers, the Chair of the House Judiciary Committee, said that “The materials released today make plain that those memos (written by Yoo and Bybee) were legally 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.” Conyers added that “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 than that, as all Americans should.” He vowed hearings on the matter in the near future.
Stern letters will surely ensue.
UPDATE: To be clear, some news reports made it sound like OPR would change its findings, per Margolis’ wishes. They did not. Margolis simply overruled them, and ordered OPR not to deliver its findings to state bar associations. More from Justin Elliott.
UPDATE II: The Senate Judiciary Committee already has a date for their hearings on the OPR report: Friday, February 26 at 10am. Patrick Leahy just released a statement:
“The report from the Office of Professional Responsibility is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo, on the treatment of detainees. The deeply flawed legal opinions proffered by these former OLC officials created a ‘golden shield’ that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in U.S. custody. In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country.
“I have serious concerns about the role each of these government lawyers played in the development of these policies. I have said before that if the Judiciary Committee, and the Senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment.
“As a United States Senator, as a former prosecutor, and as an American citizen, I am offended by the premeditated approach taken by former high-ranking officials in the Office of Legal Counsel in constructing the legal underpinnings of seriously flawed national security policies.”