Did the authors of the infamous "torture memos" get off scot-free? Recent news stories seem to suggest that attorneys John Yoo and Jay Bybee were exonerated when the Justice Department's Office of Professional Responsibility decided not to issue a finding of professional misconduct against them. But a close examination of the 69-page memo makes it clear that Yoo and Bybee's actions fall far short of what we would expect of a professor (Yoo) at one of the nation's premiere law schools or a sitting federal judge (Bybee).
David Margolis, an associate deputy attorney general and a career federal lawyer reviewed and ultimately reversed the original decision by the Justice Department's Office of Professional Responsibility that Bybee and Yoo had engaged in professional misconduct when they worked in the Office of Legal Counsel. Instead, Margolis limited the OPR to a conclusion that Yoo and Bybee exercised "poor judgment." Yoo is now a law professor at the University of California at Berkeley and Bybee is a judge on the federal 9th Circuit Court of Appeals.
Despite his decision to weaken the OPR's earlier condemnation of Yoo and Bybee, Margolis' decision — based almost entirely on his concern for the application of clear standards and consistency in OPR review practice - still emphasizes the absence of care and objective legal analysis that characterized the memos authored by Yoo and Bybee, giving legal cover to CIA officials engaged in the torture of detainees.
Perhaps nothing is more damning than Margolis' ultimate conclusion that:
These legal memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel. While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's ideology and loyalty to his own convictions clouded his view of his obligations 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. These memoranda suggest that he failed to appreciate the enormous responsibility that comes with the authority to issue institutional decisions that carried the authoritative weight of the Justice Department.
It's hard to understand, reading this indictment - one that would rattle the professional standing of any lawyer - why Yoo has been preening on various media outlets, including Tavis Smiley's radio show. He is plugging his new book, Crisis and Command: A History of Executive Power from George Washington to George W. Bush, and jauntily presenting himself as an authority on presidential wartime power. His "charming" performances on John Stewart's show and in radio interviews are considerably more chilling when viewed after reading the Margolis report. Yet Yoo seems to be given unmerited leeway simple because he actually believes - rather than just cynically advances - his views.
It's hard to understand why a law professor who as a government lawyer exercised such "poor judgment" as Margolis concludes, can return undisgraced (if he returns at all) to his teaching job. If, as Margolis concludes, Yoo's judgment is "clouded by ideology," shouldn't his expertise in writing a book about executive power be discredited? Why does Yoo's book tour continue, undaunted - in fact, it seems invigorated — by the release of the Margolis memo?
Likewise, Jay Bybee's status as a sitting federal judge seems curiously untouched by the conclusion that "the Bybee memo consistently took an expansive view of executive authority and narrowly construed the torture statute while often failing to mention (much less refute) countervailing arguments and overstating the certainty of its conclusions." This seems a devastating conclusion to draw about the work product of a sitting federal judge. Would Bybee accept a memo from one of his law clerks that failed to mention countervailing arguments? Moreover, does anyone believe that if this report had been available before his confirmation hearing in 2003, that Bybee would be a sitting federal district judge?
The story is not, as many commentators have reported, that Yoo and Bybee were somehow cleared by the OPR investigation. To the contrary, the Margolis memo is a depressing study in how the technicalities of a review process can cloud the most relevant facts and conclusions. Although Margolis refuses to find Yoo and Bybee guilty of professional misconduct, his review of the "torture memos" is perhaps the most detailed evidence of how far this nation strayed from the rule of law during the Bush years. This memo, demonstrates why today former Vice-President Dick Cheney can assert that waterboarding ought to "be on the table" for alleged Christmas Day bomber Umar Farouk Abdulmutallab.
Margolis' review of the Bybee/Yoo memos helps explain why today, the press is still loath to actually use the word "torture" to describe the actions of U.S. authorities who questioned detainees. Instead, the Justice Department's adoption of the term "enhanced interrogation techniques" and the collusion of the press in using it is a chilling concession, to a period when the highest legal authorities in the executive branch shredded the soul of our nation - giving legal cover to acts recognized around the world as violative of human rights and dignity.
The Bybee/Yoo memo explains why at his confirmation hearings, former Attorney General Michael Mukasey's response to the very simple question of whether waterboarding constitutes torture, answered repeatedly that he'd first need to determine whether U.S. officials had engaged in waterboarding. Then and only then, would he know if it was illegal.
When lawyers at the highest levels of government twist, obscure and ignore legal principles to reach the conclusions they want, when a legal analysis of detainee treatment is focused not on the prohibition against torture in both the United Nations Convention Against Torture and America's own domestic statutes , but on finding legal justification for inflicting the maximum mental and physical pain, a nation is well on the way to losing its soul.
The Office of Professional Responsibility may ultimately have decided not to issue a finding of professional misconduct against John Yoo and Jay Bybee. But the OPR memo is not an exoneration. Read in its entirety, it is an indictment. And the indictment is not just of Bybee and Yoo. It is an indictment of a nation that tragically and unquestionably lost its way.
Sherrilyn A. Ifill is a regular contributor to The Root.