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Yoo, Bybee Get Pass on Torture Memo

By Jason Leopold
January 31, 2010

A long-awaited Justice Department watchdog report has backed off an earlier recommendation that two former senior officials – John Yoo and Jay Bybee – face disciplinary action for providing George W. Bush’s White House with legal advice that opened the door to torturing “war on terror” detainees, according to published reports.

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

However, in the final weeks of the Bush administration, that conclusion was blocked and then revised based on responses to the report's conclusions from Yoo and Bybee, who both worked in the Justice Department's Office of Legal Counsel. The OLC is a powerful agency that advises the President on the limits of his constitutional authority.

In a March 29, 2009, letter to two U.S. senators, the Justice Department said the changes to the OPR report followed comments from then-Attorney General Michael Mukasey, then-Deputy Attorney General Mark Filip and the Office of Legal Counsel, which was still run by Steven Bradbury, one of three lawyers who had been singled out for criticism in OPR's initial draft.

“Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments [after the first draft was completed in December], and OPR revised the draft report to the extent it deemed appropriate based on those comments,” said acting Assistant Attorney General Faith Burton in the letter to Sens. Sheldon Whitehouse, D-Rhode Island, and Richard Durbin, D-Illinois, members of the Senate Judiciary Committee.

In April 2009, legal sources familiar with the internal debate about the draft report said OPR was in the process of watering down the criticism of legal opinions issued by Yoo and Bybee in 2002 and 2003 and by Bradbury, who in 2005 reinstated some of the Yoo-Bybee opinions after they had been withdrawn by Assistant Attorney General Jack Goldsmith after he replaced Bybee at the OLC in 2003.

David Margolis, the 34-year career prosecutor at the Justice Department 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 a 2002 legal opinion authorizing the CIA to employ methods such as waterboarding against detainees during interrogations, according to Newsweek. On Sunday, the Washington Post confirmed that account.

The revised finding means that 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 Judge Bybee, such a referral could have led to an impeachment inquiry before Congress.

Yoo and Bybee, however, are still under scrutiny. With hopes that state bar associations still might revoke the pair’s law licenses, legal advocacy groups have filed complaints against Yoo, Bybee and others who worked on the Bush administration's so-called "enhanced interrogation" program.

When the OPR report is released – and if it does conclude that Yoo and Bybee did not violate professional standards and won't face disciplinary action – the Obama administration can expect a backlash from those who say the President and his appointees have bent over backwards to cover up war crimes committed by the Bush administration.

Newsweek noted that the OPR report is "sharply critical" of the "legal reasoning used to justify waterboarding" and other methods of torture that CIA interrogators used against detainees after the 9/11 attacks. That conclusion could raise questions about why the Obama Justice Department is not willing to hold Yoo and Bybee accountable.

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.

For instance, two of the most controversial sections of the Yoo-Bybee memo in 2002, including an assertion that the President, as commander in chief, could override a federal law banning torture, were not in the original draft of that memo, according to the sources.

Only after Michael Chertoff, then-chief of the Justice Department’s criminal division, refused to give the CIA a blanket pledge not to prosecute its officers for torture did Yoo go to the White House for a meeting with David Addington, Vice President Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales.

After that meeting, Yoo amended the memo by inserting a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing al-Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources said.

Both legal claims were later rejected by Justice officials as overly broad and unsupported by legal precedent, but the linkage between the meeting and the alteration of the OLC memo demonstrates how the White House manipulated Yoo to obtain precisely the legal justifications that President Bush wanted.

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 Addington, over Goldsmith’s decision to withdraw key aspects of the Yoo-Bybee memos as “legally flawed” and “sloppily written.”

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

The back-and-forth over the OLC’s judgments regarding Bush’s powers rest at the heart of the Bush administration’s defense of its “enhanced interrogation” techniques, such as waterboarding which subjects a person to the panicked gag reflex of drowning and which was used on at least three “high-value” detainees.

Bush officials insist that they were acting under the OLC’s guidance. For the OPR report to conclude that Yoo, Bybee and Bradbury violated their professional duties as lawyers and, in effect, gave Bush pre-cooked legal opinions to do what he already wanted to do would have shattered that line of defense.

Before leaving office, Bush’s last Attorney General Michael Mukasey and his deputy, Mark Filip, blocked release of the original OPR findings, insisting that Yoo, Bybee and Bradbury be given an opportunity to respond to its conclusions.

“Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments [after the first draft was completed in December], and OPR revised the draft report to the extent it deemed appropriate based on those comments,” said acting Assistant Attorney General Burton in the letter to Sens. Whitehouse and Durbin.

Durbin and Whitehouse received another letter from Assistant Attorney General Ronald Weich who further discussed the post-investigation process, noting that if the appeals filed by Yoo, Bybee and Bradbury resulted in a rejection of OPR’s findings by the "career official" reviewing the document then no misconduct referral would occur.

"Department policy usually requires referral of OPR's misconduct findings to the subject's state bar disciplinary authority, but if the appeal resulted in a rejection of OPR's misconduct findings, then no referral was made," said Weich. "This process afforded former employees roughly the same opportunity to contest OPR's findings that current employees were afforded through the disciplinary process."

Weich added that the initial draft of the OPR report was shared with the CIA for a "classification review," and the agency, having reviewed the findings, "requested an opportunity to provide substantive comment on the report."

Durbin and Whitehouse, in a statement last May, said they "will be interested in the scope of the ‘substantive comment' the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter."

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