February 20, 2010
Report Faults 2 Authors of Bush Terror Memos
The report, rejecting harsher sanctions recommended by Justice Department ethics lawyers, brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.
The ethics lawyers, in the Office of Professional Responsibility, concluded that two department lawyers involved in analyzing and justifying waterboarding and other interrogation tactics — Jay S. Bybee, now a federal judge, and John C. Yoo, now a professor at the University of California, Berkeley — had demonstrated “professional misconduct.” It said the lawyers had ignored legal precedents and provided slipshod legal advice to the White House in possible violation of international and federal laws on torture. That report was among the documents made public Friday.
But David Margolis, a career lawyer at the Justice Department, rejected that conclusion in a report of his own released Friday. He said the ethics lawyers, in condemning the lawyers’ actions, had given short shrift to the national climate of urgency in which Mr. Bybee and Mr. Yoo acted after the attacks of Sept. 11, 2001. “Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost,” Mr. Margolis said.
Indeed, the documents released Friday provide new details about the atmosphere in which Mr. Yoo and the Justice Department prepared their initial findings in August 2002, shortly after the capture of Abu Zubaydah, suspected of being an operative for Al Qaeda.
The report quotes Patrick Philbin, a senior Justice Department lawyer involved in the review, as saying that because of the urgency of the situation, he had advised Mr. Bybee to sign the memorandum, despite what he saw as Mr. Yoo’s aggressive and problematic interpretation of the president’s broad commander-in-chief powers in trumping international and domestic law.
Mr. Philbin said that “given the situation and the time pressures, and they are telling us this has to be signed tonight — this was like 9 o’clock, 10 o’clock at night on the day it was signed — my conclusion” was that it was permissible for Mr. Bybee to sign the memorandum. “They” apparently referred to White House officials.
In a separate portion of the report, Mr. Yoo denied that the White House or the Central Intelligence Agency, which had requested the legal opinion, had exerted any pressure on him in his legal findings. “I don’t think of them as being particularly aggressive,” Mr. Yoo said, adding, “I had never felt that anybody was pushing us in one direction or another.”
The Office of Professional Responsibility, however, suggested in its report that the legal conclusions were in effect pre-ordained. It said that John Rizzo, the C.I.A. lawyer who requested the opinion, had “candidly admitted the agency was seeking maximum legal protection for its officers” against possible criminal prosecution. Mr. Rizzo objected to the way his remarks were characterized by the office.
Mr. Margolis said that in rejecting harsher sanctions, “this decision should not be viewed as an endorsement of the legal work that underlies those memoranda.” But he said the legal advice of Mr. Yoo and the other lawyers, while “flawed” and insufficient in some areas, did not rise to the level of “professional misconduct,” which could have resulted in bar reviews or other disciplinary action.
Indeed, Mr. Margolis’s 69-page report was often more critical of the ethics office than of the Bush administration lawyers themselves. Mr. Margolis, who has served at the Justice Department for more than three decades and handles many high-level disciplinary issues, saved some stinging criticism for Mr. Yoo.
“While I have declined to adopt O.P.R.’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, view of executive power while speaking for an institutional client,” Mr. Margolis said.
In their responses to the ethics office’s report, Mr. Yoo and Mr. Bybee adamantly denied that they had done anything but gave their honest and reasoned legal judgments on pressing matters of national security.
O.P.R. officials, however, were not persuaded.
The report said “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 clients want to hear.”
Representative John Conyers Jr., the Michigan Democrat who leads the House Judiciary Committee, said the ethics office report released Friday made clear that the authors of the interrogation memorandums “dishonored their office and the entire Department of Justice.”
Senator Richard J. Durbin, Democrat of Illinois, said, “Mr. Bybee and Mr. Yoo may keep their law licenses, but they will not escape the verdict of history.”
The ethics’ office findings also criticized Steven Bradbury, who wrote four memorandums in 2005 and 2007 also justifying the harsh interrogation tactics. It said “we had serious concerns about some of his analysis” but said the problems did not amount to misconduct.
The ethics report also criticized former Attorney General John Ashcroft and two of his senior aides, Michael Chertoff and Adam G. Ciongoli, saying they “should have looked beyond the surface complexity” of the legal memorandums and pressed harder to determine whether the legal foundations were solid or not. But it did not accuse them of wrongdoing, and other officials defended their work.
The ethics report is not the last word on the emotional national dispute about torture. In August, Attorney General Eric H. Holder Jr. opened a criminal investigation to determine whether the C.I.A. interrogation program broke the law, and that inquiry is expected to continue for months.
But the Justice Department’s findings about its own lawyers are a milestone in the long debate over the treatment of Qaeda prisoners. Interrogators were directed to use coercive methods in an effort to find out whether new terrorist attacks were planned. The interrogators’ bosses, from top C.I.A. officials to former President George W. Bush, have justified their policies by saying the Justice Department’s opinion was that the methods were legal.
So the political debate over interrogation often returned to the legal opinions Mr. Yoo, Mr. Bybee and other officials of the Justice Department’s Office of Legal Counsel had written declaring that none of the C.I.A.’s methods were illegal torture.
Some of the brutal interrogation methods that Mr. Yoo and Mr. Bybee approved for use on Qaeda prisoners, including wall-slamming and the near-drowning of waterboarding, had never before been authorized in American history, and the
Over less than a year starting in August 2002, according to intelligence officials, waterboarding was used on three Qaeda prisoners, including Khalid Shaikh Mohammed, the chief planner of the Sept. 11 attacks. The coercive methods set off a heated dispute inside the C.I.A., and their use was suspended after a damning inspector general’s report in 2004.
A scaled-back set of harsh methods was approved by the Justice Department and White House in 2007, but they were rarely if ever used before President Obama banned such methods shortly after taking office.
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