"This perversion of the professional rules," the Estrada rebuttal said, "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. But policy disputes are for the ballot box, not for the bar. 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."
The final report by Margolis noted that the Justice Department would not be referring the issue to the state bar associations for Yoo or Bybee. Yoo is a professor at the University of California at Berkeley and Bybee is a federal judge in Nevada.
"The bar associations in the District of Columbia or Pennsylvania can choose to take up this matter, but the department will make no referral," the Margolis report said.
The draft report, which ultimately was not approved, called for notification to the state bars and also included some criticism for former Attorney General John Ashcroft, noting, "John Ashcroft as attorney general, was ultimately responsible for the Bybee and Yoo memos and for the Department's approval of the CIA program. ... We cannot conclude that as a matter of professional responsibility, it was unreasonable for senior Department officials to rely on advice from OLC."
Noting that the Ashcroft supported Bybee's successor, Jack Goldsmith, and then-Deputy Attorney Gen. James Comey's decision to withdraw the Yoo memo, the report noted of Ashcroft, "We note that Ashcroft was at least consistent in his defense to OLC. When Goldsmith and Comey recommended that the Yoo memo be withdrawn, Ashcroft did not hesitate to support them."
In a statement issued on Friday evening, Yoo's attorney Estrada noted, "After a years-long investigation, the U.S. Justice Department today rejected a final report by the Office of Professional Responsibility purporting to find that Professor John C. Yoo, a distinguished legal scholar in one of our nation's finest universities, was guilty of professional misconduct during his tenure as deputy assistant attorney general in the Office of Legal Counsel. ... Professor Yoo served our nation well and honorably in times of great peril. OPR's work in this matter was shoddy and biased. The only thing that warrants an ethical investigation out of this entire sorry business is the number of malicious allegations against Professor Yoo and Judge Bybee that leaked out of the department during the last year."
Late Friday, there were calls by civil liberties groups to have federal prosecutor John Durham expand the scope of his investigation into abuses by interrogators. Durham has been investigating the destruction of the CIA waterboarding tapes and investigating whether CIA interrogators and contractors violated U.S. torture statutes.