Bybee and Yoo were not "cleared"

The New York Times today has a more nuanced article on the release of the report from the Justice Department's own internal investigation into the so-called "torture memos" written by John Yoo and signed off on by John Bybee.

According to the Times article, the first draft from the ethics lawyers in the Office of Legal Council had concluded that Bybee and Yoo had demonstrated "professional misconduct" by ignoring legal precedents and providing slipshod legal advice to the White House, "in possible violation of international and federal laws on torture." Were that conclusion to have prevailed in the final report, they could possibly have lost their licenses to practice law. Despite the fact that the final report from the Justice Department softens that to "poor judgment," they were not "cleared" of wrong-doing. Read on:

But David Margolis, a career lawyer at the Justice Department, rejected that conclusion [professional misconduct] 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. . . .

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. . . .

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. . . .

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. . . .

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." . . .

The ethics report is not the last word on the emotional national dispute about torture. In August, Attorney Gener 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.

Of course our sound-bite-bedazzled media and conservative commentators will ignore the ethics lawyers' harsher conclusions and pounce on the misleading factoid that the Bybee and Yoo were "cleared," which is the way the AJC headlined its brief blurb on it today. And 90% of Americans are too busy or not engaged enough in the issues to care to find out more: so it will be widely believe, and trumpeted by the conservative crowd, that Bybee and Yoo were cleared and that all this investigation into the torture disaster is just so much liberal opposition to Bush/Cheney.

By releasing both the DoJ report and the Office of Legal Council's ethics lawyers' first draft, Conyers has assured that the fuller story will be known and recorded for history -- for those who care to know the truth.

Ralph