How John Yoo and Jay Bybee Got Away

Newsweek reports that a Department of Justice investigation will not charge the Bush lawyers who authorized torture

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Update: The Department of Justice has released the OPR report. As earlier reported, it condemns Yoo and Bybee of "poor judgment" and not professional misconduct. This post was originally published February 1, 2010.

In the months before taking office, President Obama deflected frequent calls for prosecuting John Yoo and Jay Bybee, the controversial Bush-era Department of Justice lawyers who helped authorize torture. His administration signaled that it would instead allow a report from the Department of Justice's Office of Professional Responsibility to come forward, which many expected to condemn Yoo and Bybee for ethical violations and professional misconduct. That could lead to disbarring Yoo and/or impeaching Bybee from his office as a judge. However, Newsweek reports that the long-delayed OPR report has been softened considerably. The report will only cite "poor judgment," which carries no formal punishment.

  • U.S. Establishment Always Embraces Radical Right  Salon's Glenn Greenwald argues, "our establishment had to pretend that they, too, found their policies to be distasteful and extreme. But that was clearly a pretense ... There is clearly a bipartisan and institutional craving for a revival (more accurately: ongoing preservation) of the core premise of Bush/Cheney radicalism: that because we're 'at war' with Terrorists, our standard precepts of justice and due process do not apply and, indeed, must be violated." He concludes, "The undeniable truth is that our establishment craves Bush/Cheney policies because it is as radical as they are."
  • White House Had Nothing To Do With This  The Atlantic's Marc Ambinder defends. "Either you want the [Attorney General] interfering in ongoing internal investigations to make sure the end result does X, or you let the OPR do its work independently. [Attorney General Eric] Holder chose former course. There is politics involved in every choice but in this case Holder critics seem to have forgotten his pledge to allow career staff to do their jobs without interference from political appointees." Ambinder argues that Holder kept his hands off and that report is the responsibility and conclusion of the DoJ's internal investigation.
  • Opens Obama to Pressure From Right  The American Prospect's Adam Serwer warns that this will lend credence to conservative criticism that Obama doesn't go far enough on torture. After all, by painting Bush-era torture as acceptable, his administration raises the question of why it doesn't follow suit itself. "And why not? Whatever their anti-torture rhetoric, the administration's actions have given the public the impression that no laws were broken, and no one did anything wrong or worth being punished for."
  • The Man Who Let John Yoo Go  Legal blogger Marcy Wheeler looks at David Margolis, the DoJ lawyer charged with the OPR report. "Margolis is nearly 70 years old and has a long career at DOJ and is fairly well though of ... the man has some bona fides," she writes. "Margolis is, however, also tied to the DOJ and its culture for over forty years, not to mention his service in upper management as Associate Attorney General during the Bush Administration when the overt acts of torture and justification by Margolis' contemporaries and friends were committed." Was he motivated by personal sympathy for Yoo and Bybee?
  • Obama Admin Abandons Accountability  The Atlantic's Andrew Sullivan seethes, "Just as the CIA will never allow its staffers to be held accountable for anything; just as the DHS and the intelligence services would never hold anyone in their ranks accountable for the undie-bomber plot; so the DOJ will never allow its past members be held accountable even for war crimes."
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