Author’s Note: The last sentence of the first paragraph has been slightly edited for clarity.
Justin Elliott at TPMMuckraker has comprehensive details about yesterday’s exoneration of John Yoo and Jay Bybee, the Bush lawyers who crafted memos designed to give the C.I.A. and the White House legal cover for their torture program — euphemistically called “enhanced interrogation techniques” by most of the major media and by supporters of the program. The most important thing to know about this decision is that it’s even worse than it seems. That’s because the already-inadequate conclusion reached by the authors of the OPR (Office of Professional Responsibility) — that Yoo and Bybee engaged in “professional misconduct”– was downgraded by David Margolis, a high-level attorney who has worked in the Department of Justice under several administrations, including the previous one:
The Justice Department has released the long-awaited report on the torture memos and the conduct of Bush Administration lawyers including John Yoo.
While the final report by the department’s internal watchdog, the Office of Professional Responsibility, found that attorneys John Yoo and Jay Bybee engaged in professional misconduct, top DOJ official David Margolis overruled that finding in a memo to Attorney General Eric Holder.
Margolis, associate deputy attorney general, says in the 69-page memo that he did not find OPR’s definition of misconduct persuasive. And he blocks the agency from referring the matter to state bar disciplinary authorities where Yoo and Bybee are now licensed. Yoo is a Berkeley law professor and Bybee is a federal judge in the Ninth Circuit Court of Appeals.
Margolis, the most senior nonpolitical official in the Justice Department, has served for many years, including during the Bush Administration.
Marcy Wheeler spent Friday night reading the reams of paper, and comes up with some initial thoughts. Of course, Marcy’s initial thoughts (she calls it a “first draft“) are like anyone else’s completed dissertation. I won’t even attempt to quote.
Jack Balkin has an incisive commentary on Margolis’ decision that makes me think maybe I judged Margolis too harshly. Apparently, Margolis was both more constricted by the legal standard required for a charge of professional misconduct, and more aware of the seriousness of what Yoo and Bybee did, than I had thought:
In deciding not to refer charges to state bar committees, Margolis does not tell us that Yoo and Bybee behaved admirably or according to the high standards that we should expect from Justice Department lawyers. Indeed, he says the opposite. Yoo and Bybee exercised poor judgment and let the Justice Department down. But Margolis argues that the Office of Professional Responsibility chose too high a standard to judge the professional responsibility of Yoo and Bybee. The OPR argued that Yoo and Bybee had “a duty to exercise independent legal judgment and to render thorough, objective, and candid legal advice.” This standard, Margolis explained, is much too high a requirement and not one that Yoo and Bybee were previously warned was the standard to which they would be held.
I know what you are probably saying: shouldn’t every government lawyer have to live up to this standard? Of course, they should, but the point is that this is a disciplinary proceeding. It’s not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions.
Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.
[…]
To show misconduct, according to the standard that Margolis finds most relevant, one would have to show that Yoo or Bybee intentionally made arguments that they knew were wrong and false or did so not caring whether they were wrong or false. That standard could not be met for Jay Bybee, because Bybee was, to put it bluntly, an empty suit who relied on the advice of others and didn’t analyze the memos all that closely. He just signed the papers. This makes him pathetic, but not, in Margolis’s view, someone who unambiguously violated existing rules of professional responsibility.As for John Yoo, Margolis explains (although he puts it far more diplomatically) that Yoo was an ideologue who entered government service with a warped vision of the world in which he sincerely believed. Yoo had crazy ideas even before he entered government; which strongly suggests that he probably shouldn’t have been hired in the first place. Therefore it is hard to conclude that Yoo deliberately gave advice that he knew was wrong to the CIA. Yoo isn’t putting people on when he says the absurd things he says in these memos and elsewhere. He actually believes that the President is a dictator and that the President doesn’t have to obey statutes that make torture a crime. He actually believes that you should read the torture statute so narrowly that it lets the CIA torture people. John Yoo used every trick in the book to twist the law because he actually believes in a law that is twisted. … It is important to understand that Margolis reached this conclusion not because Yoo’s arguments were just or sensible, or even plausible, but because lawyers can make really really crazy arguments and still avoid professional sanction. This is less a defense of Yoo than an indictment of the doctrines of professional responsibility.
Of course, this is not how conservative bloggers are spinning Margolis’s overruling of the OPR report’s conclusion. To them, Margolis heroically exposed the shabby, shoddy mess that the OPR made of the report, and revealed them as incompetent hacks.
Nick Baumann at Mother Jones thinks that the Department of Justice caved in to “massive pushback from Yoo and Bybee” after the report came out. I’m certain there was enormous pressure from those two and their supporters; it’s not far-fetched to think it could have played a part.
Marc Ambinder provides additional backstory:
The OPR report presents a fairly compelling case that the White House and Yoo created a “golden shield” to provide prospective legal immunity for CIA interrogators and U.S. officials after the Justice Department declined to promise not to prosecute these cases after the fact. (Read the report here) The documentation that would provide this is missing — see footnote three — relevant e-mails from Yoo and a deputy could not be found.
The scenario is this. Yoo writes his memo analyzing the torture statutes. The CIA and the White House ask the head of the criminal division, Mike Chertoff, and the AG, John Ashcroft, for prospective immunity. Ashcroft flatly turns them down. So Yoo is summoned to the White House — Alberto Gonzales recalls that David Addington, Vice President Cheney’s top national security aide, did the summoning — and then, after a meeting, Yoo adds two paragraphs to his memo, — that President, in his capacity as commander in chief, is not bound by the torture statues, and then lists a series of other defenses that can be used. Yoo is asked by a colleague why he added those two paragraphs. Yoo responds: “They” — we don’t know who “they” are — told him to. The OPR concluded that Yoo’s reasoning here was incredibly flawed and that Yoo knew that the consequence of his actions would be to provide the declination that the Justice Department said it would not and could not provide.
That missing material, plus the fact that key personnel, such as David Addington, refused to cooperate with the OPR’s investigation, obviously raise questions that can’t be answered now, and also leave the door open for criminal investigations in the future. For now, Rep. John Conyers (D-MI) and Sen. Patrick Leahy (D-VT), chairs of the House and Senate Judiciary Committees, respectively, have called for hearings on the OPR report’s conclusions.
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