by Julian Ku
After five years, the U.S. Department of Justice has finally released its report of its internal investigation into the legal advice provided by its attorneys that became known as the “Torture Memos.” The lead investigator was the Office of Professional Responsibility (OPR) which issued a report recommending referring John Yoo and Jay Bybee to their state bars for disciplinary proceedings. But this recommendation (which was not officially made until December 2008), has been soundly and completely rejected by David Margolis, the Associate Deputy Attorney General empowered by the DOJ to decide whether to accept the OPR recommendations. All of the relevant documents have been posted on the House Judiciary Committee website. I’ve only scanned them, but here is the bottom line: Yoo and Bybee’s work on the torture memos is called “poor judgment” and “flawed” but there is no evidence that this advice reflected any professional misconduct.
The decision memo by Margolis (who is a career attorney, not a political appointee) is tough on John Yoo’s work, but it is even tougher (and at times contemptuous) of the work done by the OPR. The OPR report is rejected in every single way possible. (Indeed, I wondered at times whether the OPR attorneys are going to be investigated for professional misconduct themselves).
Does this mean the end of the war over the “torture memos”? Uh, hardly. Congress is going to go over these memos again. But it is the beginning of the end. The chance of a criminal prosecution of the Bush attorneys in the U.S. is now, effectively, zero. (I argued this point in this essay here and I am glad that I will be proven right) Civil suits are going to face some serious problems, if the analysis in these documents is accepted. Even international prosecutions are going to have to take seriously the fairminded analysis in the Margolis memo, which drew tough but persuasive distinctions between good faith legal analysis and professional misconduct. It would be odd for something that wouldn’t even qualify as an ethics violation in the U.S. to be the basis for criminal liability under a theory of universal jurisdiction. But then again, I’m not Judge Garzon.