Tribune Washington Bureau
WASHINGTON — An internal Justice Department report made public Friday concluded that two former Bush administration lawyers used “poor judgment” in issuing legal memos authorizing waterboarding and other harsh interrogation tactics against suspects in the post-Sept. 11 period.
But the report by the department’s Office of Professional Responsibility stopped short of charging the attorneys with committing professional misconduct or leveling any punishment against them, noting that they did not purposely give bad legal advice to CIA interrogators and others dealing with suspects captured after the terrorist attacks.
The two lawyers, Jay Bybee and John Yoo, had risked losing their law licenses or face other sanctions. Withstanding such punishment would have been difficult for Bybee, a federal judge, and Yoo, who teaches law at the University of California, Berkeley. However state bar associations still could address the allegations by taking action against the two men.
The memos by Bybee and Yoo gave the green light for captives to be stripped and held in stressful positions, kept for long periods in the cold, and strapped to waterboards to undergo a technique that involves pouring water down the nose and mouth to simulate drowning. According to a CIA report, Khalid Shaikh Mohammed, the self-professed Sept. 11 mastermind, was waterboarded at least 183 times. The memos further authorized detainees to be slapped and deprived of food.
David Margolis, associate deputy attorney general, said in his report that the Bybee and Yoo memos “contained some significant flaws.” But, he said, “as all that glitters is not gold, all flaws do not constitute professional misconduct.”
However Margolis, a 17-year veteran of several administrations, said that “it is a close question” as to whether Yoo intentionally or recklessly provided misleading advice to interrogators that cleared the path for harsh torture tactics.
“I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligations” to the give the interrogators correct legal advice, and “led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power.”
Margolis said that in the case of Bybee, there was no evidence that he “exhibited conscious indifference to the consequences of his behavior” in telling interrogators that torture was acceptable.
The decision not to level harsher punishment against the two lawyers prompted outrage on Capitol Hill, especially from the Democratic chairmen of the House and Senate judiciary committees. Sen. Patrick Leahy of Vermont and Rep. John Conyers Jr. of Michigan each said they would hold hearings on the matter.
“Those memos were legally flawed and fundamentally unsound,” Conyers said, “and may have been improperly influenced by a desire to tell the Bush White House and the CIA what it wanted to hear.”
He said the Office of Legal Counsel, where Bybee and Yoo worked, has a “proud tradition” of providing top quality legal advice. But in this case, Conyers said, “the lawyers who wrote the torture memos did not live up to that tradition.”
The Center for Constitutional Rights, which has closely monitored the legal fight over the treatment of terror captives at the U.S. Naval Base on Guantanamo Bay, Cuba, went further.
“Jay Bybee must be impeached, tried and removed from his seat as a federal judge on the 9th Circuit,” the group said after the report was released. “But he should have the decency to resign immediately.”
Bybee and Yoo’s attorneys have maintained that the men acted in good faith, and “honorably and ethically.”