Commentary Magazine


Topic: House Judiciary

Yoo and Bybee Cleared, Justice Department’s Shoddy Investigation Exposed

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. 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. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

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.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down. Read More

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. 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. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

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.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down.

UPDATE: Yoo’s attorney has released a statement. It concludes: “OPR’s work in this matter was shoddy and biased. 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. It is high time for Attorney General Holder to show that these leaks were not authorized or encouraged — for base partisan purposes — at the highest levels of his department. Mr. Holder can do so by identifying the culprits and referring them for prosecution or bar discipline, as appropriate.”

UPDATE II: Bybee’s attorney has released a statement as well: “After an investigation spanning more than five years, the U.S. Department of Justice has concluded that Judge Jay S. Bybee acted in good faith and did not engage in ethical or professional misconduct during his service in the Department’s Office of Legal Counsel.” The Department has also determined that the matter does not warrant further proceedings or referral to the District of Columbia Bar. Maureen E. Mahoney, Judge Bybee’s attorney, stated that “The Department correctly rejected all claims of ethical or professional misconduct by Judge Bybee. While this vindication was many years in the making, we are pleased that the matter has now been resolved in his favor. No public servant should have to endure the type of relentless, misinformed attacks that have been directed at Judge Bybee. 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.”

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Wolf Turns Up the Heat on Black Panther Case

Rep. Frank Wolf turned up the heat on the Justice Department yesterday, introducing a Resolution of Inquiry that recounts the degree to which the Justice Department has stonewalled on efforts to find out why a serious case of voter intimidation was dismissed. Wolf wants the attorney general to hand over to the House all information relating to the dismissal of the case United States v. New Black Panther Party, the egregious voter-intimidation case that was captured on videotape. Wolf ’s resolution explains:

This case was inexplicably dismissed earlier this year — over the ardent objections of the career attorneys overseeing the case as well as the department’s own appeal office.  I regret that Congress must resort to oversight resolutions as a means to receive information about the dismissal of this case, but the Congress and the American people have a right to know why this case was not prosecuted.

As ranking Republican member of the House Commerce-Justice-Science Appropriations Subcommittee that funds the Justice Department, I take oversight of the department very seriously. … Time and again over the last year, the department has stonewalled any effort to learn about the decision to dismiss this case. I have written Attorney General Holder on six occasions asking for an explanation for the dismissal of this case. To date, I have received no response from him.

Wolf recounts his efforts to get answers — from the DOJ inspector general, who passed the buck, to the Office of Professional Responsibility, supervised by the attorney general. He notes that he has written to OPR, but the office not only refused to share information but also provided an incomplete and inaccurate response from a legislative-affairs staff member. He also chides the inadequate congressional oversight of House Judiciary Chairman John Conyers and notes that the U.S. Commission on Civil Rights, also rebuffed, has been forced to resort to issuing subpoenas. Confirming press accounts, Wolf asserts that “the attorney general has instructed his department to ignore these subpoenas,” giving his employees the choice between obeying the law and complying with the attorney general’s obstruction, regardless of his standing as the nation’s chief law enforcer.

Wolf implores the House not to turn a “blind eye” to the attorney general’s obstruction. He also urges the attorney general to answer the commission’s inquiries. The resolution must be voted on by the Judiciary Committee and will likely be defeated in a party-line vote. But the issue is slowly and surely getting some visibility.

Perhaps more important, Wolf inserted in the appropriation bill for the Justice Department language that directs Justice to report back on the findings of the inquiry by the Office of Professional Responsibility and to advise Congress of its ensuing recommendations for action.

It seems as though the Obami’s plan to conceal the Black Panther case under the radar screen is being thwarted. As one Capitol Hill source told me of the Obama Justice Department, “They will HATE this … there is no dodging this now.” At the very least, we may find out why Obama political appointees subverted the efforts of career attorneys.

Rep. Frank Wolf turned up the heat on the Justice Department yesterday, introducing a Resolution of Inquiry that recounts the degree to which the Justice Department has stonewalled on efforts to find out why a serious case of voter intimidation was dismissed. Wolf wants the attorney general to hand over to the House all information relating to the dismissal of the case United States v. New Black Panther Party, the egregious voter-intimidation case that was captured on videotape. Wolf ’s resolution explains:

This case was inexplicably dismissed earlier this year — over the ardent objections of the career attorneys overseeing the case as well as the department’s own appeal office.  I regret that Congress must resort to oversight resolutions as a means to receive information about the dismissal of this case, but the Congress and the American people have a right to know why this case was not prosecuted.

As ranking Republican member of the House Commerce-Justice-Science Appropriations Subcommittee that funds the Justice Department, I take oversight of the department very seriously. … Time and again over the last year, the department has stonewalled any effort to learn about the decision to dismiss this case. I have written Attorney General Holder on six occasions asking for an explanation for the dismissal of this case. To date, I have received no response from him.

Wolf recounts his efforts to get answers — from the DOJ inspector general, who passed the buck, to the Office of Professional Responsibility, supervised by the attorney general. He notes that he has written to OPR, but the office not only refused to share information but also provided an incomplete and inaccurate response from a legislative-affairs staff member. He also chides the inadequate congressional oversight of House Judiciary Chairman John Conyers and notes that the U.S. Commission on Civil Rights, also rebuffed, has been forced to resort to issuing subpoenas. Confirming press accounts, Wolf asserts that “the attorney general has instructed his department to ignore these subpoenas,” giving his employees the choice between obeying the law and complying with the attorney general’s obstruction, regardless of his standing as the nation’s chief law enforcer.

Wolf implores the House not to turn a “blind eye” to the attorney general’s obstruction. He also urges the attorney general to answer the commission’s inquiries. The resolution must be voted on by the Judiciary Committee and will likely be defeated in a party-line vote. But the issue is slowly and surely getting some visibility.

Perhaps more important, Wolf inserted in the appropriation bill for the Justice Department language that directs Justice to report back on the findings of the inquiry by the Office of Professional Responsibility and to advise Congress of its ensuing recommendations for action.

It seems as though the Obami’s plan to conceal the Black Panther case under the radar screen is being thwarted. As one Capitol Hill source told me of the Obama Justice Department, “They will HATE this … there is no dodging this now.” At the very least, we may find out why Obama political appointees subverted the efforts of career attorneys.

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