Review finds no misconduct but cites Bush-era lawyers for poor judgment on interrogation memos
By Matt Apuzzo, APFriday, February 19, 2010
DOJ: No misconduct for Bush interrogation lawyers
WASHINGTON — Justice Department lawyers showed “poor judgment” but did not commit professional misconduct when they authorized CIA interrogators to use waterboarding and other harsh tactics at the height of the U.S. war on terrorism, an internal review released Friday found.
The decision closes the book on one of the major lingering investigations into the counterterrorism policies of George W. Bush’s administration. President Barack Obama campaigned on abolishing the simulated drowning technique of waterboarding and other tactics that he called torture, but he left open the question of whether anyone would be punished for authorizing such methods.
Liberal Democrats had pressed for action against the authors of the so-called torture memos, and they indicated they aren’t finished discussing the matter. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said he was “deeply offended” by the legal memos and planned to hold a hearing Feb. 26.
An initial review by the Justice Department’s internal affairs unit found that former government lawyers Jay Bybee and John Yoo had committed professional misconduct, a conclusion that could have cost them their law licenses. But, underscoring just how controversial and legally thorny the memos have become, the Justice Department’s top career lawyer reviewed the matter and disagreed.
“This decision should not be viewed as an endorsement of the legal work that underlies those memoranda,” Assistant Deputy Attorney General David Margolis wrote in a memo released Friday.
Margolis, the top nonpolitical Justice Department lawyer and a veteran of several administrations, called the legal memos “flawed” and said that, at every opportunity, they gave interrogators as much leeway as possible under U.S. torture laws. But he said Yoo and Bybee were not reckless and did not knowingly give incorrect advice, the standard for misconduct.
The Office of Professional Responsibility, led by another veteran career prosecutor, Mary Patrice Brown, disagreed.
“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,” her team wrote in a report that criticized the memos for a “lack of thoroughness, objectivity and candor.”
The internal report also faulted then-Attorney General John Ashcroft and then-Criminal Division chief Michael Chertoff for not scrutinizing the memos and recognizing their flaws, but the report did not cite them for misconduct.
Yoo is now a law professor at the University of California, Berkeley, and Bybee is a federal judge on the 9th U.S. Circuit Court of Appeals based in San Francisco. The decision spares them any immediate sanctions, though state bar associations could independently take up the matter.
The memos authorized CIA interrogators to use waterboarding, keep detainees naked, hold them in painful standing positions and keep them in the cold for long periods of time. Other techniques included depriving them of solid food and slapping them. Sleep deprivation, prolonged shackling and threats to a detainee’s family were also used.
The memos have been embroiled in national security politics for years. The memos laid out a broad interpretation of executive power, one the previous administration also used to authorize warrantless wiretapping and secret prisons. Democrats say the Bush administration used shoddy lawyering to legitimize such policies.
Republicans said the memos, authored by two well-respected attorneys, gave the CIA the authority it needed to keep America safe in the panic-filled months after the Sept. 11, 2001 terrorist attacks. The memos were hurriedly put together in days, and supporters of Yoo and Bybee note that investigators have had years to dissect them.
Many have criticized the Obama administration for trying to politicize legal advice.
“We can only hope that the department’s decision will establish once and for all that dedicated public officials may have honest disagreements on difficult matters of legal judgment without violating ethical standards,” Bybee’s lawyer, Maureen Mahoney, said Friday.
Yoo’s lawyer, Miguel Estrada, was more pointed. During the lengthy investigation, Estrada accused internal investigators of trying to be “Junior Varsity CIA” that second-guessed intelligence decisions. Friday, he said the two lawyers never deserved to be investigated in the first place.
“The only thing that warrants an ethical investigation out of this entire sorry business is the number of malicious allegations against Professor Yoo and Judge Bybee that leaked out of the department during the last year,” Estrada said.
Obama has said CIA interrogators who relied on the memos will not face charges for their behavior. A separate criminal inquiry is under way into whether a handful of CIA operatives crossed the line, leading to the death of detainees.
Associated Press writers Devlin Barrett and Pete Yost contributed to this report.
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