"Poor judgment" -- but not guilty of professional misconduct. That's the verdict of the Justice Department's Office of Professional Review, which was asked to determine whether John Yoo and Jay Bybee acted improperly when they authorized the use of waterboarding and other tough interrogation techniques. Actually, no -- that's not the verdict. The first draft of the report did find the two guilty of misconduct, but David Margolis, the career official in charge of editing the report's conclusions, disagreed because, he said, it wasn't clear that the two lawyers did not misapply a "known, unambiguous" legal standard. It appears as if Margolis was persuaded by Yoo and Bybee's contention that the OPR staff ignored their own framework -- particularly the standard that requires that the attorneys had intentionally disregarded OPR rules -- scienter, in legal terminology.
The Margolis report does not exonerate Yoo or Bybee. And the OPR report contains plenty of suggestions of potential misconduct -- unrebutted by Margolis. (The OPR concluded that Yoo's misconduct was intentional where Bybee's was not.)
The OPR report presents a fairly compelling case that the White House and Yoo created a "golden shield" to provide prospective legal immunity for CIA interrogators and U.S. officials after the Justice Department declined to promise not to prosecute these cases after the fact. (Read the report here) The documentation that would provide this is missing -- see footnote three -- relevant e-mails from Yoo and a deputy could not be found.
The scenario is this. Yoo writes his memo analyzing the torture statutes. The CIA and the White House ask the head of the criminal division, Mike Chertoff, and the AG, John Ashcroft, for prospective immunity. Ashcroft flatly turns them down. So Yoo is summoned to the White House -- Alberto Gonzales recalls that David Addington, Vice President Cheney's top national security aide, did the summoning -- and then, after a meeting, Yoo adds two paragraphs to his memo, -- that President, in his capacity as commander in chief, is not bound by the torture statues, and then lists a series of other defenses that can be used. Yoo is asked by a colleague why he added those two paragraphs. Yoo responds: "They" -- we don't know who "they" are -- told him to. The OPR concluded that Yoo's reasoning here was incredibly flawed and that Yoo knew that the consequence of his actions would be to provide the declination that the Justice Department said it would not and could not provide.
"This decision should not be viewed as an endorsement of the legal work that underlies the memoranda," Margolis writes. He writes that torture is "illegal" and that the lawyers' analysis of the Constitution, of previous statues and laws was "flawed." But he found no evidence that they were indifferent to the consequences of their actions, or that they deliberately neglected counterarguments. (They "underexplored" them and "overstated" the confidence that their own arguments were correct.")
That's what the career official says. What it means, though, is that the torture debate will be re-litigated in a narrow sense: President Obama signed an executive order banning torture, but lawyers who authorized the techniques inhabit a universe in which there was a reasonable chance that torture could be legal.
Who is Margolis? He's the long-serving member of the senior executive service at the department. By rule, he's given the authority to review all OPR reports and decide whether to agree with the conclusions. He can't modify the report itself.
Rep. John Conyers, the chairman of the Judiciary Committee, has already announced hearings, as has Sen. Patrick Leahy, the chairman of the Judiciary Committee in the Senate. Sen. Jeff Sessions has already intoned that the report justifies enhanced interrogation techniques. No one ought to be fully satisfied: the report does not conclude that torture is legal -- only that there was a reasonable chance that lawyers, operating under certain assumptions, might have authorized those techniques -- even if their analysis was flawed. The report will anger those who hoped that the disbarment of Yoo and Bybee would be the first real step in holding the Bush administration accountable for sanctioning torture. It will also rekindle the debate about what the CIA and the military can and cannot do -- although the Obama administration's executive order is pretty clear on this. No one is vindicated here, and no one goes without blame -- even Jack Goldsmith, the OLC attorney who urged that the memo be rescinded, comes in for criticism.
The OPR report and the Margolis conclusion are not the products of decisions made by the Attorney General. The White House has no fingerprints on this. Had they tried to intervene, it would have amounted to the type of political interference that the Department is supposed to resist. What happens now? Expressions of outrage, and calls for Eric Holder to appoint a special prosecutor based on the OPR findings -- which -- as noted above -- Margolis cannot challenge. The OPR report is official; it is a weird quirk of our system that another official gets to decide whether the after-action report, as it were, reflects the action itself. Efforts to impeach Judge Jay Bybee and urge the California and DC bar associations to rescind Yoo and Bybee's status will no doubt be stepped up.