WASHINGTON — Two former high-level Bush administration officials who provided legal justification for harsh interrogations of overseas terror suspects are likely to escape any formal punishment now that the Justice Department has concluded they should not be held legally responsible.
In a long-awaited report released early Friday evening, Deputy Associate Attorney General David Margolis said that former department lawyers John Yoo and Jay Bybee should not have their law licenses revoked as a consequence of their legal advice to the Bush administration signing off on the controversial interrogation methods.
In a 69-page legal memo, Margolis concluded "that these memos contained significant flaws. But as all that glitters is not gold, all flaws do not constitute professional misconduct. I conclude that Yoo and Bybee exercised poor judgment by overstating the certainty of their conclusions and underexposing countervailing arguments.”
Democrats and civil liberties and human rights advocates had demanded that the lawyers face some legal sanction because their memos were used to justify the use of interrogation techniques such as waterboarding, widely condemned as a form of torture. The CIA has confirmed it waterboarded three captives. All three of them are now held at Guantánamo Bay
The Justice Department’s assessment reverses the recommendations of ethics officials within the department’s Office of Professional Responsibility, which had earlier concluded that state bar committees should determine whether Yoo’s and Bybee’s law licenses should be revoked.
After reviewing that recommendation, Margolis concluded that Yoo, currently a University of California, Berkeley law professor, and Bybee, now a federal appeals court judge, had demonstrated poor judgment rather than committed ethics violations.
Some Democrats in Congress pounced.
“The materials released today make plain that those memos were legally flawed and fundamentally unsound,” said House Judiciary Committee Chairman John Conyers, Jr. (D-Mich.). “While the Department ultimately concluded that the lawyers did not breach their minimum professional obligations, I certainly hold top lawyers at (the Justice Department) to a higher standard than that, as all Americans should.”
Republicans hailed the results as only fair for officials whom they say were just doing their jobs.
“In the wake of 9-11, attorneys at the Justice Department were faced with unprecedented challenges, not knowing whether other attacks were imminent,” said House Judiciary Committee Ranking Member Lamar Smith (R-Texas). “They did their best to follow the law.”
Ethics investigators had completed a draft of the report during the Bush administration. But it was kept secret and became the subject of criticism by Democratic senators because Attorney General Eric Holder's predecessor, Michael Mukasey, delayed the report after reading it.
In a break with tradition, the subjects of the investigation were permitted to read a draft of the results and comment on it. Margolis, who’s a career attorney of three decades, did not respond to a request for comment. Justice Department spokeswoman Tracy Schmaler said the department “followed the longstanding review process.”
“The findings of the longtime career attorney represent the final position of the department,” she said.
Friday evening, the Senate and House of Representatives Judiciary Committees posted drafts of the report and Bybee and Yoo’s responses.
The reports, written during the Bush administration, slammed Yoo for intentionally violating his “duty to exercise independent legal judgment and render thorough, objective and candid legal advice.”
Bybee, the ethics officials concluded, “recklessly disregarded” his duties as a Justice Department lawyer.
However, Margolis said he had to overturn those conclusions because he believed the ethics lawyers did not have a concrete standard for reaching them, although he added “this decision should not be viewed as an endorsement of the legal work that underlies those memoranda.”
In his response, Yoo called the original report an “outrageous violation of OPR’s own formal policies” and Bybee echoed that criticism, saying “OPR is not supposed to make up new standards” to punish lawyers.
The report doesn’t necessarily absolve the lawyers of all legal blame. Jose Padilla, the former enemy combatant later convicted of supporting terrorists, is suing Yoo, contending that his memos led to his abuse.
In addition, a prosecutor's examination of allegations of torture continues without word of whether he'll order a criminal investigation. Holder appointed special prosecutor John Durham to determine whether CIA officials or contractors should be criminally investigated for the alleged torture.
That probe is limited to determining whether interrogators used techniques that went beyond those authorized by the Bush administration, not aimed at those "who acted in good faith and within the scope of the legal guidance," Holder said.
Meanwhile, civil libertarians and human rights advocates who had hoped Obama would hold former Bush administration officials accountable continued to pressure the Obama White House to respond to revelations about interrogation practices.
Jameel Jaffer, director of the National Security Project for the American Civil Liberties Union, said the ACLU will call on the administration to expand the scope of the Justice Department’s investigation.
“As the OPR reports remind us, the core problem was not one of rogue interrogators but one of senior government officials who knowingly authorized the gravest crimes,” he said.
To see the Justice Department documents go here.