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Obama's DOJ Clears Torture Memo Authors John Yoo, Jay Bybee of Professional Misconduct

Jason Leopold

t r u t h o u t, January 29, 2010

A long-awaited Department of Justice watchdog report that probed whether John Yoo and his former boss Jay Bybee violated professional standards when they provided the Bush White House with legal advice on torture has cleared both men of misconduct, according to Newsweek, citing unnamed sources who have seen the document.

An earlier version of the report, prepared by the Office of Professional Responsibility (OPR) and completed in December 2008, actually concluded that Yoo, a Berkeley law professor, and Bybee, now a federal appeals court judge on the 9th Circuit, violated professional standards when they drafted an August 2002 legal opinion that authorized CIA officers to use brutal methods when interrogating suspected terrorist detainees.

But as I reported last April, those earlier conclusions were watered down after OPR received responses on the report's conclusions from Yoo and Bybee, who both worked in the Justice Department's Office of Legal Counsel (OLC).

Legal sources familiar with the internal debate about the draft report say OPR is in the process of "watering"- down the criticism of legal opinions by [OLC] lawyers John Yoo and Jay Bybee in 2002 and 2003 and by [OLC acting head Steven Bradbury], who in 2005 reinstated some of the Yoo-Bybee opinions after they had been withdrawn by Assistant Attorney General Jack Goldsmith when he headed the OLC in 2003 and 2004.

David Margolis, the career prosecutor 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. 

That means neither Yoo nor Bybee will not be referred to state bar associations where they could have faced disciplinary action. For Bybee, such a referral could have also led to an impeachment inquiry before Congress.

Newsweek noted that the report is still "sharply critical" of the "legal reasoning used to justify waterboarding" and other methods of torture CIA interrogators used against detainees after 9/11. 

Moreover, the report, which is still under a declassification review "will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process, say two sources who have read the report but asked for anonymity to describe a sensitive document," Newsweek reported. 

Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in "self-defense" to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

The OPR probe was launched in mid-2004 after a meeting in which Jack Goldsmith, then head of the OLC, got into a tense debate with White House lawyers, including Vice President Dick Cheney’s legal counsel David Addington. Goldsmith had withdrawn some of the Yoo-Bybee opinions because he felt they were "legally flawed" and "sloppily written."

After the meeting, Goldsmith resigned and was subsequently replaced on an acting basis by Bradbury, who restored some of the controversial Yoo-Bybee opinions in May 2005, again granting George W. Bush broad powers to inflict painful interrogations on detainees.

As Truthout previously reported, Attorney General Eric Holder testified before Congress last year that the OPR report was expected be released by end of November. In interviews over the past month, two senior aides to Democratic lawmakers said the report was being held up in lieu of the passage of a health care bill. 

But Tracy Schmaler, a DOJ spokeswoman, disputed those claims.

"That is absolutely untrue," Schmaler said. "One thing has nothing to do with another."

Schmaler said the review "process is ongoing and we hope to have [the report] complete and released soon."

Two DOJ officials familiar with details of the report said a delay in releasing it in the time frame Holder had promised was due, in part, to the fact that Margolis was hospitalized in December for pneumonia.

In his testimony last November, Holder said the report had not been released sooner due to "the amount of time we gave to the lawyers who represented the people who are the subject of the report an opportunity to respond. And then [OPR] had to react to those responses."



:: Article nr. 62756 sent on 30-jan-2010 07:16 ECT

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