Final OPR Report to Clear Yoo and Bybee on Torture Memos

The Justice Department's Office of Professional Responsibility report on whether the authors of the Bush era torture memos violated professional ethical standards is going to reverse course and absolve John Yoo and Jay Bybee of wrongdoing. Now, it will say they simply exercised poor judgment.

Newsweek broke the story. How the change came about: [More...]

Via the Washington Post:

A draft report prepared at the end of the Bush years recommended that Yoo, now a law professor at the University of California at Berkeley, and Bybee, now a federal appeals court judge based in Nevada, be referred to state disciplinary authorities for sanctions that could have included the revocation of their licenses to practice law.

But then-Attorney General Michael B. Mukasey and Deputy Mark Filip blasted the analysis in the draft and sent it back to the ethics office for more work. Meanwhile, the five-year statute of limitations on Yoo's alleged conduct expired, raising doubts about whether a disciplinary referral would have had any bite. The draft report did not recommend Bradbury face sanctions, three sources told The Washington Post last year.

More from Truthout:

David Margolis, the 34-year career prosecutor at the DOJ charged with reviewing the final version of the report, was responsible for "softening" OPR's earlier finding of professional misconduct and instead determined that Yoo and Bybee "showed poor judgment" when they drafted an August 1, 2002 legal opinion authorizing the CIA to employ methods such as waterboarding against detainees during interrogations, according to Newsweek.

That means neither Yoo nor Bybee will be referred to state bar associations where they could have faced disciplinary action since poor judgment does not constitute professional misconduct, according to OPR's post-investigation procedures. For Bybee, such a referral could have also led to an impeachment inquiry before Congress.

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    Sounds like a case of (5.00 / 3) (#3)
    by Anne on Sat Jan 30, 2010 at 02:14:23 PM EST
    "keep writing the report until it says what we want it to say, and take your time."

    It's hard to find the right words for how disgusted and sickened I am by the actions of high-ranking members of the DOJ.

    More steaming horsesh*t... (5.00 / 1) (#4)
    by Dadler on Sat Jan 30, 2010 at 02:59:56 PM EST
    ...from the DOJ. Seems it doesn't matter what party is "in charge", our gov't and those who ruin it will simply be above the law from now on.  

    Why rock the boat when it was already sinking just fine?

    Indeed, and really no surprise (none / 0) (#39)
    by Lora on Sun Jan 31, 2010 at 08:52:44 PM EST
    One sellout after another.  No break in the pattern as yet.

    Poor Judgement? (5.00 / 0) (#6)
    by Militarytracy on Sat Jan 30, 2010 at 03:10:09 PM EST
    We really have fallen a very long way.  Is this going to be this way so that it makes better torture judgement above questioning?  We are pretty sure that people were murdered at Gitmo, such poor judgement.

    Good luck with having hawkish (none / 0) (#7)
    by jondee on Sat Jan 30, 2010 at 03:20:47 PM EST
    abroad candidates in office, who, in some fantasied world, 'would never tolerate this kind of thing'.

    Once you get your saber rattling war on, it's not a matter anymore of whether torture should be allowed or not, but the degree a nation's willing to tolerate.


    In our past conflicts though (none / 0) (#10)
    by Militarytracy on Sat Jan 30, 2010 at 03:47:42 PM EST
    people were court martialed for doing what is done now, the President didn't hand them instructions to "interrogate" as we do now.

    Show trials complete with fall guys (none / 0) (#13)
    by jondee on Sat Jan 30, 2010 at 03:57:57 PM EST
    when the continuance of plausible deniability was no longer an option, imo.

    We've either perpetrated (none / 0) (#11)
    by jondee on Sat Jan 30, 2010 at 03:52:37 PM EST
    torture directly, through the auspices of the DEA and programs like Operation Phoenix, or given it our sanction through direct aid to nations high on the lists of human rights watchdog organizations, for fifty years at least.

    Why do people think the Yoos and the Addingtons were
    so comfortable with this?


    I acutally agree with you (none / 0) (#12)
    by jbindc on Sat Jan 30, 2010 at 03:55:34 PM EST
    Torture has been going on as long as we've been a country.  It was just never reported before, nor had the focus it does now.  

    This is not a new development in our history.


    I don't know much about the DEA (none / 0) (#14)
    by Militarytracy on Sat Jan 30, 2010 at 04:01:48 PM EST
    not a thimble's worth of what they have done or do.  I really do not know how we came to embrace all this.  Clinton did Rendition, after 9/11 it was done to excess.  Other countries that we consider an ally in fighting Fundy Islamic Terrorism torture freely...Jordan, Turkey, Saudi Arabia the list goes on and on....is that where we began to think making it legal wasn't selling our souls?  I was watching Maher one night talk about making it legal and I do agree with him that if the nation was truly at risk and we had someone who could tell, it would happen anyhow...I think that a decision would be made in an extreme situation like that.  We don't have to make it legal, an occurrance that could take place in any daily scenario.

    I know it's all anecdotal (none / 0) (#16)
    by jondee on Sat Jan 30, 2010 at 04:13:56 PM EST
    and hearsay, but years ago, I drove a DEA guy around in my cab for two hours while he waxed poetic about just returning from an excursion that involved training Mexican narcs in the fine art of pouring club soda down suspects noses (club soda boarding?) and administering beatings without leaving noticeable abrasions. I assume some higher ups were dimly aware of these activities.

    Sorry for the OT tangent.


    Wasn't there a movie (none / 0) (#25)
    by hairspray on Sat Jan 30, 2010 at 11:22:36 PM EST
    back in the 1970's about our federal agents going to South America to teach them how to torture their criminals and of course their revolutionaries?  I believe it was State of Siege and was written by Costa Gavras.

    my Dad's torturer (none / 0) (#27)
    by Jen M on Sun Jan 31, 2010 at 08:42:17 AM EST
    bragged on what he had learned at the School of the Americas

    Im not saying I think (none / 0) (#15)
    by jondee on Sat Jan 30, 2010 at 04:03:40 PM EST
    the use of torture should be something we countenance, btw. Im just a believer in getting all the dirty little secrets out in the open.

    On the other hand (5.00 / 1) (#34)
    by BackFromOhio on Sun Jan 31, 2010 at 01:34:19 PM EST
    during WWII, we used German refugees to question POWs; no torture, the refugees made "friends" with the POWs, even though the refugees probably had many friends & relatives who suffered at the hands of the Nazis, and by using proven methods, got valuable information from the POWs.  There is still NO proof that torture has provided any truthful info of value.

    Maybe (none / 0) (#35)
    by jbindc on Sun Jan 31, 2010 at 02:24:16 PM EST
    There is still NO proof that torture has provided any truthful info of value.

    But if the government ever did glean useful information from the use of torture, do you think we would have actually found out?


    The sick part is (none / 0) (#37)
    by jondee on Sun Jan 31, 2010 at 02:33:20 PM EST
    that there's probably a significant faction that would tell you that gleaning "useful information" out of one in thirty justifies torturing the other twenty nine.

    How about some useful information regarding how we scale down our global garrison state thats always cranking out fresh enemies?


    I kinew where you were coming from (none / 0) (#18)
    by Militarytracy on Sat Jan 30, 2010 at 05:23:35 PM EST
    We continue to march forward, (5.00 / 1) (#17)
    by KeysDan on Sat Jan 30, 2010 at 04:37:26 PM EST
    without those troubling backward glances.  In that other, recent criminal administration of Richard Nixon, the 'foot soldiers' suffered jail or other serious legal inconveniences, including cabinet/campaign/or WH officials, such as Attorney General Mitchell, Secretary of Commerce Maurice Stans, Counsel to the President John Dean and his assistant Colson, John Ehrlichman and Robert Halderman, top WH aides, not to mention the seven burglars and 'plumbers'.  However, Richard Nixon had to go.  As the late Howard Zinn noted, it was get rid of Nixon, but keep the system.  So all of the crimes were to be labeled personal and not institutional, by both parties. Get rid of all the bad apples, but keep the barrel. Suddenly, Gerald Ford, a conservative who supported all of Nixon's policies was the one to rally around.  The pardon of Nixon always seemed to be part of the deal, as much as it was denied.   Apparently, we have matured.  Now, the foot soldiers are just following orders, albeit using some poor judgment in so doing, and the decision-makers are senior statesman on the lucrative lecture circuit, replenishing the coffers.

    BIg Difference (none / 0) (#20)
    by BackFromOhio on Sat Jan 30, 2010 at 06:42:00 PM EST
    however, in that the whole nation watched the Watergate Hearings, and learned that the laws of the land were violated and how.  Nixon's pardon excused him from a jail sentence, but he was effectively removed from office, and he and his minions disgraced.  The nation understood that laws had been broken, and those who broke them were held to account -- perhaps not as much as you might have liked, but still did not go scott free and without blame.  The torture memos, their authors and those at whose behest they acted have gone free, and no one has yet been held to account.  

    Yes, (none / 0) (#22)
    by KeysDan on Sat Jan 30, 2010 at 07:47:20 PM EST
    and that was the point I was trying to make. Moreover, each successor administration becomes, in a sense, complicit.

    You make a good slippery (none / 0) (#26)
    by hairspray on Sat Jan 30, 2010 at 11:23:59 PM EST
    slope case here.

    I won't be voting Obama again! (5.00 / 1) (#23)
    by Doc Rock on Sat Jan 30, 2010 at 08:37:29 PM EST

    Wow (5.00 / 1) (#24)
    by lilburro on Sat Jan 30, 2010 at 09:17:53 PM EST
    I'm glad that watching Yoo on Stewart for 10 minutes brought you over to his side.

    Also BTW Congress did ratify a treaty against torture.  Did Yoo have anything to say about violating that?

    I don't think Yoo bravely faced "the terror and coercion" of everyday life as much as he did sweetly linger in it.  See this article for more.

    The lesson?  Perhaps this, that our DoJ's acquiescence to the crimes of Yoo and Cheney trickles all the way down to the average person, who apparently wants to enable the government to torture its citizens.

    Sorry (none / 0) (#2)
    by jbindc on Sat Jan 30, 2010 at 02:14:07 PM EST
    Just realized there's bad language in the quote that I forgot to change.

    can you repost without that language? (none / 0) (#5)
    by Jeralyn on Sat Jan 30, 2010 at 03:07:19 PM EST
    Here it is (none / 0) (#9)
    by jbindc on Sat Jan 30, 2010 at 03:45:16 PM EST
    Sorry again

    More on David Margolis from a 2007 dkos diary

    In theory the prosecutors could have appealed Margolis' decision to then-Deputy Attorney General Larry Thompson. But that would have meant taking on Margolis, one of the Justice Department's most respected officials, a lawyer with a sterling reputation earned over 42 years of service at the department. "Taking him on is a losing battle," says the source. "The guy is Yoda. Nobody [f's] with the guy."

    In many ways, comparing the 66-year-old Margolis to the quirky and ancient Jedi Master is apt. Margolis is widely described as the "institutional knowledge" of the Justice Department. A notorious straight shooter known more for his love of country music and outlaw garb than his politics, he's managed to navigate the shifting sands of Washington to retain a powerful voice under Attorney Generals Janet Reno, John Ashcroft, and now Alberto Gonzales. Though Margolis is technically outranked by more than a dozen political appointees at DOJ headquarters and all 94 U.S. attorneys scattered throughout the country, his influence on the department extends far beyond his title, say both current and former Justice officials.

    Margolis' bulletproof reputation and lack of partisan stripes also mean that the presidentially appointed attorneys general and deputy attorneys general at the top often turn to Margolis when Justice Department investigations venture into the swirl of national politics. From the investigation after former White House lawyer Vincent Foster's suicide to the ethics of Kenneth Starr's Lewinsky probe to the leak of Valerie Plame's identity, Margolis has played a major role in the DOJ's attempts to show that its law enforcement actions aren't motivated by political concerns.

    if there's any justice, (none / 0) (#8)
    by cpinva on Sat Jan 30, 2010 at 03:29:25 PM EST
    some enterprising criminal attorney will use that as the basis of their defense, for a client charged with a particularly heinous crime.

    if it's good enough for a guy who sanctioned crimes by the US, it should be good enough for someone who actually got their hands dirty.

    politics (none / 0) (#21)
    by diogenes on Sat Jan 30, 2010 at 07:43:55 PM EST
    If Scott Brown didn't win then this report would have gone the other way.  Prosecuting people for mistreating alleged terrorists just doesn't play well in Peoria.

    double-edged sword (none / 0) (#30)
    by diogenes on Sun Jan 31, 2010 at 10:21:32 AM EST
    We tell people in Yemen, Afghanistan, and Pakistan that we will be with them "for the long haul" if they put their necks on the line and oppose the Taliban/Al Qaida.  If we prosecute people for waterboarding then I don't think it will inspire much confidence among Afghan tribesmen WHO WANT TO OPPOSE THE TALIBAN that the US has the cajones to deal with such people.  People abroad are used to nasty battles but don't want to support Americans only to be left out to dry two years from now when the Americans get tired of helping them fight the Taliban.

    Why does he have a job? (none / 0) (#29)
    by mmc9431 on Sun Jan 31, 2010 at 09:33:54 AM EST
    Why would any university have someone as discredited as Yoo teaching law? Even this watered down report says he used poor judgement.

    (Not exactly the qualifications we should be looking for).

    Not only does he have a job, (5.00 / 1) (#33)
    by Zorba on Sun Jan 31, 2010 at 10:50:11 AM EST
    but the Dean of Boalt Hall School of Law is so solicitous of Yoo that, because the School doesn't want Yoo's class disrupted by protesters, as his Fall Semester class was, his Spring class is in a secret location.

    Josef Mengele (none / 0) (#31)
    by Andreas on Sun Jan 31, 2010 at 10:30:01 AM EST
    According to the Obama administration Josef Mengele likely also only exercised poor judgment.

    The "enemies of the U.S" (none / 0) (#36)
    by jondee on Sun Jan 31, 2010 at 02:26:33 PM EST
    are the people who decided to seek out enemies of the U.S in every corner of the globe post-WWII. And their rhetorical enablers.

    And yes, it's obvious that there's a significant number of people that "get off on it": witness the continual we're-number-one triumphal cacophony that issues from the Right in this country.

    The Role of David Margolis (none / 0) (#38)
    by jeffkaye on Sun Jan 31, 2010 at 04:03:37 PM EST
    I wrote an article at The Seminal/Firedoglake that examines the history of DoJ attorney David Margolis in reviewing the OPR report. He has been involved in various cover-ups for DoJ before.

    Read the story: David Margolis: Hatchet Man for Holder/Obama on OPR Torture Memos Report

    The story includes an incisive comment by Colleen Rowley in the comments thread.