Sparks from the Anvil: "How not to torture" Memo Lawyers Cleared of "professional misconduct"

In reviewing Yoo's new book, Mike wrote:

In a day when we confront an enemy that has no state, wears no uniform and can not be appeased or negotiated with using diplomatic or economic means a new challenge was met by President George W. Bush with renewed reliance on the historic and evolving use of executive power. We all remember the battles Bush had with Congress over the use of Executive authority to combat terrorism after September 11th. John Yoo was at the epicenter of those battles. From 2001-2003, he served as a deputy assistant attorney general in the Office of Legal Counsel of the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security, and the separation of powers.

In 2002, on the heels of 9/11, the Office of Legal Counsel determined that the interrogation practices of the CIA were lawful. This gave the CIA legal confidence on where the line was drawn so that they could carry out their duty of protecting the country without fear of criminal and professional prosecution down the road.

For the last 5 years, the Justice Department's Office of Professional Responsibility has been conducting an investigation into the rulings held by Yoo and Bybee.

Last Friday, House Judiciary Committee Chairman John Conyers released their report:

(Washington, DC) – In connection with the committee's oversight responsibilities and in anticipation of hearings on the issues raised, House Judiciary Committee Chairman John Conyers, Jr. (D-Mich.) today released a report by the Department's Office of Professional Responsibility severely criticizing the judgment and legal work of the Bush administration lawyers who authorized waterboarding and other "enhanced interrogation techniques." Chairman Conyers also released a group of related materials, including drafts of the report, comments from the attorneys under investigation, and the subsequent memorandum to the attorney general.

"For years, those who approved torture and abuse of detainees have hidden behind legal memos issued by the Department of Justice’s Office of Legal Counsel," Conyers said. "The materials released today make plain that those memos were leglly flawed and fundamentally unsound, and may have been improperly influenced by a desire to tell the Bush White House and the CIA what it wanted to hear."

"The Office of Legal Counsel has a proud tradition of providing independent, high-quality legal advice to the executive branch," Conyers continued. "The materials released today make clear that the lawyers who wrote the torture memos did not live up that tradition. While the department ultimately concluded that the lawyers did not breach their minimum professional obligations, I certainly hold top lawyers at OLC to a higher standard that, as all Americans should.

"Given the serious nature of the issues raised in this report, the committee intends to hold hearings on these matters in the very near future."

The CIA did not "hide behind" legal memos; nor did they "approve torture and abuse of detainees". The CIA sought to know what was and wasn't legally permissible. If anything, the OLC memos were about "how not to torture".

Jack Goldsmith, who succeeded Yoo's boss, Jay Bybee, disagreed with Yoo's Standards Memo but left in place the Techniques Memo which he saw as having "elaborate safeguards". When Daniel Levin succeeded Goldsmith, he and his superiors continued approving the techniques used in the CIA interrogation program, including the use of waterboarding.

Even though Goldsmith did not find fault with the Techniques Memo, his 2004 decision to withdraw the Standards Memo made a huge impact in the CIA, shaking their confidence in being able to do their work without worrying whether or not they will need lawyers down the road. They sought legal guidance from the Justice Department itself, and thought they had it.

Goldsmith himself admits in The Terror Presidency, pg 162-3,

I had changed the rules in the middle of the game in a way that potentially jeopardized national security and that certainly harmed an institution I had come to admire, the CIA.

~~~

The agency had been asked to go out on a limb in 2002, and it had demanded and received absolute legal assurances from the Department of Justice and the White House. I had done the unthinkable in withdrawing its golden shield. And i had done so at a time that George Tenet would later describe as one of the most threatening since 9/11.

Today, the threat of more future investigations and potential legal actions hangs over the head of the CIA and those who served in the previous administration. How is it that a self-avowed terrorist who tried to kill Americans is able to sue a Justice Department Official whose legal counsel undoubtedly saved American lives? Michael Gerson also made the following point last April (when details of the OLC memos were made public- to the delight of al Qaeda- by the Obama Administration):

I think it’s a real mistake to try to criminalize policy disagreements. You know, we can disagree with some of the things that the Clinton people did. You know, people disagree with things that people in the Bush administration did. But people were involved, for example, at the Justice Department, were making their best legal judgments. It’s very hard under those circumstances to try to impose a mindset, a kind of witch hunt mindset to people that thought they were doing their duty.

And as Scott wrote last August:

There are multiple problems with investigating closed cases from a previous Administration, but the core problem is that there is no statute of limitations on how far back such allegations can be re-opened and re-investigated. Using the exact same argument that’s being used to re-open these allegations of “torture,” the DOJ may be required to pursue standing orders, techniques, and policies that pre-date the Bush Administration. Moreover, if they are re-opening past allegations of “torture”, then when the same or similar tactics and techniques are used today by the Obama Administration, then the DOJ is even more compelled than usual to investigate the Obama Administration OR face a Special Prosecutor. The latter is not likely if Democrats hold control of Congress, but that’s not likely either. If Republicans take even one House of Congress in 14 months, then they very well could have a case for impeachment on their hands-impeachment of President Obama on charges that he authorized the same or similar “torture” and extraordinary rendition of prisoners to other countries FOR torture as did his predecessors Bush and Clinton.

Read John Woo's gift to the Obama Presidency.

I wonder how the hundreds of people involved in the CIA interrogation program- the program that saved American lives!- feel, knowing that President Obama and Attorney General Eric Holder think that what they did was torture and are broadcasting it as such to the rest of the world?

Andrew Lebovich at Foreign Policy:

In a document dump last Friday evening, the Department of Justice released a report effectively clearing Bush administration "torture memo" lawyers John Yoo and Jay Bybee of professional misconduct.

The long-anticipated Office of Personnel Responsibility (OPR) report concludes that Yoo and Bybee did commit professional misconduct -- Yoo "when he violated his duty to exercise independent legal judgment" and Bybee by "[acting] in reckless disregard" of the law.

But David Margolis, the career Justice Department lawyer heading the investigation, wrote in a separate, overriding memo that "misconduct depends on application of a known, unambiguous obligation or standard," a legal standard that did not exist when Yoo and Bybee wrote the memos allowing for the "enhanced interrogation" of detainees. Margolis controversially cites the security atmosphere just after the 9/11 attacks as a mitigating factor, a defense other lawyers and the initial report authors have explicitly rejected.

The effect of the report: Yoo and Bybee will not be disbarred or otherwise disciplined. Bybee is currently a federal judge and Yoo a law professor at the University of California, Berkeley.