Torture Investigation: Bush-DOJ Attorneys 'Exercised Poor Judgment'

Feb. 19, 2010— -- 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.

Justice Department Report on Torture Memo

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.

"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.

Jameel Jaffer, director of the ACLU National Security Project, said in a statement that the reports released today show, "the investigation initiated by the Justice Department last year, which focuses on 'rogue' interrogators, is too narrow. 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 Senate Judiciary Committee has also announced its intention to hold hearings on the memos next week.

In a statement, Senate Judiciary Chairman Sen. Patrick Leahy, D-Vt., said, "The report from the Office of Professional Responsibility 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. ... 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. I have serious concerns about the role each of these government lawyers played in the development of these policies."