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Saturday, January 30, 2010

DOJ To Clear Yoo and Bybee?

The conspiracy to undermine the Constitution has taken an interesting turn.

A career prosecutor at the Justice Department's Office of Professional Responsibility (OPR) has determined that John Yoo and Jay Bybee did not violate their professional obligations in analyzing whether certain enhanced interrogation techniques constituted unlawful torture.

As reported in Newsweek:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry....

A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.

Needless to say, the claims of cover-up and conspiracy are starting to roll in (a little slowly at this time, but sure to pick up as the Newsweek piece was just posted a little after 8 last night):
Mike Isikoff and Dan Klaidman put up a post about an hour ago letting the first blood for the Obama Administration’s intentional tanking of the OPR (Office of Professional Responsibility) Report. In light of Obama’s focused determination to sweep the acts of the Bush Administration, no matter how malevolent, under the rug and “move forward” the report is not unexpected.
I'll have more to say on this as more outrage rises to the surface, but I'll repeat what I said before. The bringing of ethics charges against Yoo and Bybee was contrived and purely political. One could disagree vehemently with their analyses and conclusions without raising the matter to the level of legal ethics.

The politicized ethics charges were intended as a pretext to impeach Bybee (not sure it would have been legitimate grounds, but it would have been a pretext for hearings) and to drive Yoo from academia.

I hope the Newsweek report is correct. It remains to be seen whether the leak was part of a slow rollout of the decision (to temper left-wing howls) or to put political pressure on DOJ to rubber-stamp the lower-level finding of professional misconduct.

Update: There still are Bar complaints filed by liberal advocacy groups pending against Yoo, Bybee and other DOJ lawyers, including former AG's Ashcroft, Gonzales and Mukasey. A summary of the complaints with plenty of links is here.

These complaints are frivolous political gestures which will have a chilling effect, along with the already politicized DOJ proceedings, on the ability and willingness of government lawyers to provide legal advice which may not be politically correct from a leftist point of view.

And now it begins in earnest:
Related Posts:
No Prosecution Because No Crime
Maybe Jay Bybee and Jamie Gorelick Should Be In The Dock Together
Can We Also Impeach Law Professors For "Legal Distortions"?

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  1. I saw this on Red State and was so excited, but do you think Holder could still overrule/overturn it??

  2. @tammy - I think it would be hard politically for Holder to reverse the decision either way. Whether he has the power to do so, I don't know because I'm not sufficiently familiar with internal DOJ operating procedures; but I assume that the AG always has the last word. As with many leaks, it's hard to tell if it was intended to lock DOJ into a present position, or to put pressure before the position becomes final.

  3. I noticed the lefties always say that Yoo "approved" the enhanced interrogation techniques (actually, they call it "torture"). That notion, it seems to me, is part of what makes this unfair. As I understand it, Yoo was asked to opine on whether such techniques were legal. He didn't "approve" them. For all anyone knew, he could have thought waterboarding was immoral, ineffective, unnecessary, or just too distasteful to make it a feature of terrorist interrogations. As a low-level govt lawyer, his analysis was confined to the legal question.

  4. Professor, I do not see how you can call these complaints frivolous. These seem to be some serious complaints made by some serious professionals. You must have read some of the torture memos. The legal reasoning borders of malpractice/malfeasance and others relied on these misguided memos. I am not a legal scholar, but I had to laugh at some of the justifications, including the unfettered/unchecked presidential powers, unmentioned in the Constitution (for good reasons) I have no problems with any investigations and complaints, the more the better.

  5. Buck Johson,

    The Constitution does not mention any right to an abortion either. Are you suggesting that the Supreme Court justices who wrote Roe v. Wade should have ethics charges filed against them. Any honest constitutional scholar will tell you that the legal arguments in Roe v. Wade were far more dubious that the legal arguments used by Yoo & Bybee. Even many scholars who politically support abortion have mocked the reasoning in Roe. The legal malpractice in the Roe decision, has caused the unjust deaths of millions of innocent lives. That seems far more heinous and unethical to me than any interpretation of a statute allowing for harsh interrogation of terrorists.

    I'm guessing you wouldn't support ethics charges against lawyers arguing for a right to abortion. If not, ask yourself why not? I'm fairly confident the answer lies in the politics. You agree with the politics of abortion, but disagree with the politics of enhanced interrogation. You think it is morally justified to torture (pun intended)the language of the constitution to reach a politically preferred outcome on abortion, but it is not morally justified to interpret a federal statute to reach a conclusion that you personally disagree with. That is hypocrisy, fueled by ideology, not legal ethics.

    These charges are purely political and represent a frightening attempt by the left to suppress political discourse. If you don't like how an administration interprets the law, then challenge it in court. If you don't like the results then vote the administration out in the next election. But don't try to intimidate political opponents outside of the ballot box, with threats of criminal or civil sanctions for political disagreements. Unfortunately, the fact of the matter is that textual interpretation long ago become a political issue, mostly unbounded by legal ethics. And that is a development that the liberals have nobody but themselves to blame for.

  6. Professor, some people are never going to understand that sometimes you have to shake hands with the devil. Unfortunately, the left think that the world is peace and love, and we can solve everything with diplomacy. While I hope and pray for such a world too, I know that the decision these men made was the right one. Just as I know that the world needs a place like Gitmo or something similar for some people unless they get the guts to do what they need with those inside it.

    Idealism is a wonderful thing, but reality will slap the crap out of it everytime...lol

  7. Thanks for the link in your update, Professor Jacobson. I agree that the complaint filed by Mr. Zeese is not well-written - it might as well have been drafted in a first-year ethics/legal research class. I suggested to Mr. Zeese that he supplement his complaint with a draft complaint I authored but he was not receptive to the idea. I suspect he was more interested in the publicity generated by the filing of a complaint - any complaint, really - than he was in actually prevailing on the complaint, but you'd have to ask him.

    My (unfiled) complaint alleging ethical misconduct of Mr. Yoo can be found here: