Former Justice Department lawyer John Yoo argued that President George W. Bush’s commander-in-chief powers were so sweeping that he could willfully order the massacre of civilians, yet Yoo’s culpability in Bush administration abuses was deemed “poor judgment,” not a violation of “professional standards.”
That downgrading of criticism by the Justice Department – regarding the legal advice from Yoo and his boss at the Office of Legal Counsel, Jay Bybee, to Bush's White House and the CIA – means that the department will not refer them to state bar associations for possible disbarment as lawyers.
But an earlier version of the report by the Justice Department’s Office of Professional Responsibility concluded that the legal advice warranted the sterner conclusion and thus possible disbarment.
The judgment was softened by career prosecutor David Margolis, who was put in charge of the final recommendations and who said he was "unpersuaded" by OPR's "misconduct" conclusion, which faulted Yoo and Bybee for their approval of torture techniques that were used against terrorism suspects after the 9/11 attacks.
Legal opinions written by Yoo in 2002 and signed by Bybee cleared the way for the Bush administration to subject detainees to the near drowning of waterboarding and other brutal treatment at the hands of CIA interrogators.
Waterboarding and some of the other measures, such as slamming detainees against walls and depriving them of sleep, have long been considered acts of torture and have been treated as war crimes in other circumstances. However, Yoo – working closely with Bush administration officials – claimed that the techniques did not violate U.S. criminal laws and international treaties forbidding torture.
Further, Yoo asserted that Bush’s presidential powers were virtually unlimited in wartime, even a conflict as vaguely defined as the “war on terror.”
The OPR report included an exchange between an OPR investigator and Yoo regarding what he referred to as the "bad things opinion," what Yoo felt the President could do in wartime.
"What about ordering a village of [resistance] to be massacred?" an OPR investigator asked Yoo. "Is that a power that the president could legally—"
"Yeah," Yoo said. "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 questioner replied.
"Sure," Yoo said.
But Margolis, who suggested Yoo and Bybee's flawed legal work was due to efforts to prevent another 9/11, dropped OPR's "misconduct" conclusions.
Despite dozens of cases highlighted in the report that showed Yoo twisted the law in order to advance the Bush administration's torture policy, Margolis said he did "not believe the evidence establishes [that Yoo] set about to knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his actions." [Please see this report where former Vice President Dick Cheney admitted last week that he and other Bush administration officials ordered Justice Department lawyers to fix the law around the torture policy.]
Still, Margolis said Yoo had behaved as an advocate for an extreme theory of presidential power.
“While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client," Margolis added.
"These memos contained some significant flaws,” Margolis said. “But as all that glitters is not gold, all flaws do not constitute professional misconduct.” He left it to the bar associations in the District of Columbia and Pennsylvania to decide whether to take up the issue of further discipline.
Yoo is a law professor at UC Berkeley and Bybee is a 9th Circuit Appeals Court judge.
In the OPR report, Yoo was found to have "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" in five legal memoranda he prepared for the Bush administration.
Bybee was found to have "committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" in two legal memoranda he signed.
Former Justice Department Steven Bradbury also authored several torture memos and was another subject of the OPR probe. But the report did not accuse him of ethical violations.
Former Attorney General John Ashcroft and Michael Chertoff, who was head of the Justice Department's criminal division at the time the torture memos were prepared, were also criticized for not conducting a critical legal analysis of the memos, though neither was charged with misconduct. Ashcroft refused to cooperate with the investigation. Ashcroft had requested that Bush issue preemptive pardons for CIA interrogators who tortured detainees, according to the report, but was rebuffed.
Yoo's attorney, Miguel Estrada, said in an Oct. 9, 2009, rebuttal to the OPR report that "this perversion of the professional rules 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.”
“Policy disputes are for the ballot box, not for the bar," Estrada said. "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."
However, Estrada acknowledged that Yoo and Bybee were well aware of what the CIA hoped to do to the detainees.
"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," he said.
An earlier version of the OPR report rejected the argument that pressures associated with the 9/11 attacks justified the Yoo-Bybee opinions.
"Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear," said an earlier draft from OPR chief Mary Patrice Brown.
Her report was sharply critical of the legal work that went into the so-called torture memos and found that Yoo-Bybee analysis lacked "thoroughness, objectivity and candor."
OPR investigators also noted that during their four-and-a-half year probe, they were unable to obtain all of the evidence they needed. For example, they said "most" of Yoo's emails during the critical time period of August 2002 when the memos were drafted "had been deleted and were not recoverable."
House Judiciary Committee Chairman John Conyers, whose office released the report, said he will hold a hearing in the weeks ahead. In a statement accompanying the report, Conyers said the report makes clear that the torture memos "were legally flawed and fundamentally unsound."
"Even worse," Conyers said, "it reveals that the memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House. It is nothing short of a travesty that prisoners in U.S. custody were abused and mistreated based on legal work as shoddy as this."
Senate Judiciary Chairman Patrick Leahy also condemned the findings and announced that he will hold a hearing on the report's findings next Friday. In a statement, Leahy said the report "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,” Leahy said.
“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," Leahy added.
The Center for Constitutional Rights (CCR), which represents several detainees at Guantanamo and others who were tortured by military and CIA interrogators, called for Bybee to be impeached as a federal judge and for Holder to order a criminal probe headed by a special prosecutor.
CCR said the report makes it "makes it abundantly clear that the decisions about the torture program took place at the highest level, and the damning description of the program further show that the torture memos were written to order by the lawyers from the Office of Legal Counsel who played a key role in creating the program."
Jameel Jaffer, director of the ACLU's National Security Project, which is largely responsible for bringing to light many of the revelations about the torture program described in the report, said, “The OPR report confirms the central role that the Office of Legal Counsel played in developing the Bush administration’s torture program, and it underscores once again that the decision to endorse torture was made by the Bush administration’s most senior officials.”
“It also makes clear that the investigation initiated by the Justice Department last year, which focuses on ‘rogue’ interrogators, is too narrow," Jaffer added. "Interrogators should be held accountable where they violated the law, but the core problem was not one of rogue interrogators but one of senior government officials who knowingly authorized the gravest crimes.
“The Justice Department should immediately expand its investigation to encompass not just the interrogators who used torture but the senior Bush administration officials who authorized and facilitated it.”
The Office of Legal Counsel is a powerful agency in the Justice Department that advises presidents on the limits of their power.