The DOJ's Office of Professional Responsibility found that former Deputy Assistant Attorney General John Yoo engaged in professional misconduct by failing to provide "thorough, objective, and candid" legal advice in creating memoranda regarding the "enhanced interrogation" of detained terrorist suspects, while his boss Assistant Attorney General Jay Bybee acted in "reckless disregard" for failing to provide "thorough, objective, and candid legal advice."
OPR said it wanted to refer its findings to state bar disciplinary authorities where Yoo and Bybee are licensed. However, a top DOJ official rejected those findings, after reviewing responses to the report by Yoo and Bybee. Yoo is currently teaching law, while Bybee is now a federal judge.
Sen. Patrick Leahy (D-VT), who chairs the Senate Judiciary Committee, announced the hearing on Friday, claiming the report should force Bybee to resign his lifetime judicial appointment.
“I have serious concerns about the role each of these government lawyers played in the development of these policies. I have said before that if the judiciary committee, and the senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment," said Leahy in a statement. “As a United States Senator, as a former prosecutor, and as an American citizen, I am offended by the premeditated approach taken by former high-ranking officials in the Office of Legal Counsel in constructing the legal underpinnings of seriously flawed national security policies."
Additionally, Vermont author and activist Charlotte Dennett, who had recently pressed the DOJ to release the report and other documents related to the probe of Yoo and Bybee, was pleasantly surprised by what was released, though less surprised about the DOJ's exoneration.
"What the Department of Justice released on Friday was frankly a greater show of transparency than many of us expected. David Margolis’ report came as no surprise as it had already been summarized to the press a few weeks ago, causing widespread condemnation and mounting concerns that the Obama administration was determined to cover up the crimes of the Bush administration," said Dennett, who has been trying to force the DOJ to release the results of their probe.
In January, Dennett and several other attorneys, activists and authors — as part of the Justice Robert Jackson Steering Committee — filed a Freedom of Information Act request to release many of the documents the DOJ willingly released on Friday. Dennett is part of the so-called "accountability movement" which is pushing the notion that some former Bush administration officials should be tried for war crimes.
The Robert Jackson Steering Committee, founded in September 2008, is named in honor of U.S. Supreme Court Justice Robert Jackson, who was the top U.S. prosecutor of Nazi war criminals at Nuremberg. "We must never forget," Jackson had said in his opening statement, "that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well."
Dennett documents the accountability movement in her new book The People v Bush: One Lawyer's Campaign to Bring the President to Justice and the National Grassroots Movement She Encounters Along the Way, published last month by Vermont-based Chelsea Green.
While Leahy and Dennett both believe, on balance, the OPR findings show that Yoo and Bybee acted recklessly and should be held accountable, a top DOJ official said they didn't rise to the level of disbarment.
"I do not adopt OPR's findings of misconduct. This decision should not be viewed as an endorsement of the legal work that underlies those memoranda," wrote David Margolis, associate deputy attorney general. "However, OPR's own analytical framework defines 'professional conduct' such that a finding of misconduct depends on application of known, unambiguous obligation or standard to the attorney's conduct. I am unpersuaded that OPR has identified such a standard."
With that, Margolis said he would not authorize OPR to refer its findings to the state bar disciplinary boards in the jurisdictions where Yoo and Bybee are licensed.
"While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power," wrote Margolis.
"But as all that glitters is not gold, all flaws do not constitute professional misconduct," Margolis added.
Though Yoo and Bybee's errors were "more than minor" Margolis said he did not believe their advice would have great impact, because "the memos were written for a limited audience and were but part of the dialogue with the CIA."
The OPR report claimed that the threat of terrorism after the attacks of September 11, 2001 did not justify Yoo and Bybee's actions.
"Situations of great stress, danger, and fear do not relieve Department attorneys of their duty to provide thorough, objective, and candid legal advice, even if that advice is not what the client wants to hear," the OPR report claimed. "Accordingly, we concluded that the extraordinary circumstances that surrounded the drafting of the Bybee and Yoo Memos did not excuse or justify the lack of thoroughness, objectivity, and candor reflected in those documents."
"The report from the Office of Professional Responsibility is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo, on the treatment of detainees," said Leahy. "The deeply flawed legal opinions proffered by these former OLC officials created a ‘golden shield’ that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in U.S. custody. In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country."
Dennett's January FOIA request sought the release of the original report, which was allegedly completed in December 2008, as well as additional emails, plus the final final report that has been held up for months by Attorney General Eric Holder.
Dennett said her group was surprised to discover among the DOJ’s releases a more critical independent assessment from the ethics lawyers in the Office of Professional Responsibility dated July 2009 calling for disciplinary action against Yoo and Bybee, as well as the original OPR report released in December 2008 which her group had requested through the Freedom of Information Act.
"These two OPR reports set forth clear evidence that pressure came down from the Bush White House and the CIA to authorize torture and after the torture took place, legally justify it," said Dennett. "Yoo and Bybee’s deference to the CIA’s concern about possible criminal prosecutions runs throughout these reports, and therefore merits a congressional investigation and renewed calls, not only for Bybee’s impeachment and Yoo’s dismissal as a law professor at Berekely, but their criminal prosecution."
Dennett, who ran for state attorney general as a Progressive in 2008, believes Bush should be held accountable for lying to Congress and the U.S. public about why it was necessary to invade Iraq. She and others also believe other officials need to be tried for torturing suspects in custody.
Her book chronicles the growth of this so-called "accountability movement" that believes public officials should be held accountable for crimes they commit while in office, such as committing torture. This movement began with efforts to impeach Pres. George Bush and more recently has rallied around prosecuting high level officials in the Bush administration — including Bush's lawyers who crafted the so-called torture memos in the Department of Justice — for war crimes.
Read the full OPR report (9.9MB PDF): Download OPRFinalReport090729
Read the Margolis memo to Attorney General Holder (3.4MB PDF):Download DAGMargolisMemo100105