A series of Department of Justice investigative reports into the authorization of enhanced interrogation and waterboarding released on Friday found that Bush-era DOJ attorneys "exercised poor judgment" in formulating their legal guidance on the CIA's interrogation program.
The investigation focused on a controversial Aug. 1, 2002 memo issued under Jay Bybee, then head of the Justice Department's Office of Legal Counsel, and mostly written by John Yoo, one of Bybee's assistants. The memo concluded that a definition of torture "covers only extreme acts," opening the door to legal justification for certain harsh interrogation tactics.
The investigation was overseen by the Justice Department's Office of Professional Responsibility (OPR), an internal watchdog that monitors decisions and actions of the department's lawyers.
The final report was authorized and reviewed by long-time Assistant Deputy Attorney General David Margolis, who found that that Bybee and Yoo had not committed professional misconduct but instead "exercised poor judgement." Margolis signed off on his recommendations in a decision memorandum sent to Attorney General Eric Holder on Jan. 5, 2010.
A Justice Department letter sent from Assistant Attorney General Ronald Weich to the House Judiciary Committee on Friday noted, "After reviewing OPR's final report and the responses from the subjects, the ADAG [Margolis] declined to adopt OPR's findings of professional misconduct and concluded instead that Mr. Yoo and Bybee exercised poor judgment in connection with the drafting of the pertinent memoranda."
"This decision should not be viewed as an endorsement of the legal work that underlies those memoranda," Margolis noted in his memo sent to Holder.
Margolis' memo also contained sharp criticism of Yoo's work.
"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, views of executive power while speaking for an institutional client."
"I do not believe the evidence establishes however that he set about to knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his actions," Margolis noted.
The draft report by OPR chided Yoo, noting his "intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice pursuant to D.C. Rule of Professional Conduct 2.1"
The documents released also included rebuttals from Yoo and Bybee that challenged the findings of two draft reports from the Office of Professional Responsibility.
An Oct. 9, 2009 response from Yoo's attorney Miguel Estrada read, "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.