The two lawyers accused on writing “torture memos” for the Bush administration have been cleared of professional misconduct but Democrats still want blood. Vermont’s Patrick Lehay, for instance, has scheduled a hearing next week. But according to this legal scholar, the real question is why the lawyers were ever pursued in the first place.
The Office of Professional Responsibility, as the Washington Post report notes, had doggedly pursued John Yoo and Jay Bybee, who as Justice Department lawyers authored memos providing advice and direction on enhanced interrrogation methods including waterboarding.
In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General.
Margolis’s report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer.
At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings ”do not identify violation of a specific bar rule.” ( p. 12) Margolis further notes that OPR’s analysis and legal standard shifted from draft to draft. (pp.13, 15-16)Margolis explains that OPR was counseled to consider “the conduct of Yoo and Bybee in light of circumstances that then existed.
Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when “American lives were particularly at risk at the time.” (p. 16) OPR didn’t do so. Bybee’s successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be ”exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard.”