Professional Misconduct vs Poor Judgment

Via Nick Baumann at Mother Jones.

John Yoo and Jay Bybee, the Bush administration lawyers responsible for the bulk of the so-called "torture memos," were guilty of "professional misconduct," according to a June 2009 report by the Justice Department's in-house watchdog, the Office of Professional Responsibility (OPR).

But in the wake of massive pushback from Yoo and Bybee, the Justice Department refused to adopt the conclusions of that report, according to a January 5, 2010, memo released on Friday afternoon on the website of the House Judiciary Committee.

If the Justice Department had endorsed the OPR's conclusions, Yoo and Bybee could have faced potential disbarment. But David Margolis, the deputy associate attorney general responsible for reviewing the report, concluded in a 69-page memo explaining his decision that the authors of the torture memos had demonstrated "poor judgment" and produced seriously flawed legal analysis, but that this was not done in bad faith.

Newsweek finds this noteworthy.

The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder. Yoo and Bybee (through his lawyer) declined requests for comment.

Jeff Kaye at the Seminal has an interesting perspective of David Margolis.

The role of Margolis, and the man himself, deserve a closer look. It does not take long to see that 40+ year DoJ veteran David Margolis has some skeletons in his closet, and that his track record is not unblemished. [...]

Now this may all be a lot of smoke, but when one adds in the latest role played by Mr. Margolis in spiking the initial results of misconduct on behalf of Yoo, Bybee, Addington, et al. (if we can believe the Newsweek leak), his appearance in this role does not seem so remarkable. Margolis appears to have a long history of involvement in government frame-up and/or obfuscation of internal misconduct by the FBI or Justice Department prosecutors.

Will we see the intrepid U.S. press look more deeply into this? One could wish this were true.

Scott Horton at Harper's has an interesting article on the skeletons that are beginning to rattle.

Associate Deputy Attorney General David Margolis is the stuff of legends within the Department of Justice. He came to the institution in 1976, and is now the most senior career employee. In a glowing review published in the Legal Times, (sub. req’d) he is described as:

one of the Justice Department’s most respected officials, a lawyer with a sterling reputation earned over 42 years of service at the department. “Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.” [...]

But if Margolis really is Yoda, the powerful but diminutive figure from the “Star Wars” series, then the Force may no longer be with him. Indeed, maybe we should be wondering whether he has gone over to the Dark Side.

It is now up to Congress.

The department's experts in professional conduct saw this as a slam-dunk case. Yoo, they found, "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice." Bybee, they noted, acted in "reckless disregard" of his obligations to provide independent legal analysis. Yet because Margolis believes Yoo and Bybee committed these significant errors in good faith, he has given them a pass.

Congress plans hearings on the report, and the Center for Constitutional Rights has issued a statement saying that Bybee, who is currently serving as a federal appeals court judge, should be impeached.

The question that we are really left with is, "Why is the Obama administration once again protecting members of the Bush crime family?"

Impeach Federal Judge Jay Bybee

From Think Progress:

TAKE ACTION: Tell Congress To Hold Impeachment Hearings Against Judge Jay Bybee

Last week, President Obama released four Bush-era legal memos authorizing torture. The earliest one, from 2002, was signed by Jay Bybee, then an Assistant Attorney General and now a federal judge on the 9th Circuit Court of Appeals. In the memo, Bybee authorized CIA interrogators to, among other techniques:

-- Slam a detainee's head against a wall: "any pain experienced is not of the intensity associated with serious physical injury."

-- Slap a detainee's face: "The facial slap does not produce pain that is difficult to endure."

-- Place a detainee into stress positions: "They simply involve forcing the subject to remain in uncomfortable positions."

-- Waterboard a detainee: "The waterboard...inflicts no pain or actual harm whatsoever."

These techniques are illegal by U.S. statute and international treaty to which the U.S. is a signatory. Bybee attempted to give legal cover to illegal acts, and thus broke the ethical, professional, and legal standards that should govern lawyers. For this, Judge Jay Bybee should be impeached. Congress needs to assert some accountability for these heinous acts.

ThinkProgress is sending a petition to the members of the House Judiciary Committee -- where impeachment articles are drawn -- imploring them to act now to remove Bybee from public office. Please join our efforts by signing onto our campaign. Here's how it could work:

Step One: Hearings. The House Judiciary Committee holds hearings to examine charges against Bybee.

Step Two: Articles of Impeachment. The House Judiciary Committee draws up the articles of impeachment and presents them to the full House with a simple majority vote.

Step Three: Passes the House. The full House moves to impeach Bybee with a simple majority, and then passes a resolution notifying the Senate

Step Four: Moves to the Senate. The Senate passes a resolution indicating its readiness to receive the House "managers" -- in effect, the prosecutors -- and to hear the full articles of impeachment.

Step Five: Trial. 51 Senators must vote to continue with the impeachment trial, and 67, a full two-thirds majority, are required to convict.

An impeachment hearing would require full answers from Bybee -- and would give the American people the answers they deserve. When Bush nominated Bybee in 2003, Congress had no knowledge of the full scope of Bybee's legalese somersaults to make torture appear legal. When asked, he refused to comment, citing executive privilege. Now we know how integral Bybee was to initiating Bush's years-long torture program.

Today, Rep. Jerry Nadler (D-NY), a senior member on the House Judiciary Committee, endorsed impeaching Bybee. "He ought to be impeached," Nadler told the Huffington Post. "It was not an honest legal memo. It was an instruction manual on how to break the law."

Jay Bybee has neither the legal nor the moral authority to sit in judgment of others.

Please sign our petition.

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Update: Judiciary Committee Chairman John Conyers (D-MI) renewed his call for full investigations into Bush's torture policies today: "It is simply obvious that, if there is no accountability when wrongdoing is exposed, future violations will not be deterred."
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Update: Rep. Linda Sanchez (D-CA), a Judiciary subcommittee chair, said she is "not comfortable with the fact that [Bybee] will be on the federal bench for a lifetime appointment."

Bush's Police State

The foundation was laid for a police state....

Seven newly released memos from the Bush Justice Department reveal a concerted strategy to cloak the President with power to override the Constitution. The memos provide "legal" rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state.

Who wrote these memos? All but one were crafted in whole or in part by the infamous John Yoo and Jay Bybee, authors of the so-called "torture memos" that redefined torture much more narrowly than the U.S. definition of torture, and counseled the President how to torture and get away with it. In one memo, Yoo said the Justice Department would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

What does the federal maiming statute prohibit? It makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person." It further prohibits individuals from "throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance" with like intent.

The two torture memos were later withdrawn after they became public because their legal reasoning was clearly defective. But they remained in effect long enough to authorize the torture and abuse of many prisoners in U.S. custody.

The seven memos just made public were also eventually disavowed, several years after they were written. Steven Bradbury, the Principal Deputy Assistant Attorney General in Bush's Department of Justice, issued two disclaimer memos -- on October 6, 2008 and January 15, 2009 -- that said the assertions in those seven memos did "not reflect the current views of this Office." Why Bradbury waited until Bush was almost out of office to issue the disclaimers remains a mystery. Some speculate that Bradbury, knowing the new administration would likely release the memos, was trying to cover his backside.

Indeed, Yoo, Bybee and Bradbury are the three former Justice Department lawyers that the Office of Professional Responsibility singled out for criticism in its still unreleased report. The OPR could refer these lawyers for state bar discipline or even recommend criminal charges against them.

In his memos, Yoo justified giving unchecked authority to the President because the United States was in a "state of armed conflict." Yoo wrote, "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." Yoo made the preposterous argument that since deadly force could legitimately be used in self-defense in criminal cases, the President could suspend the Fourth Amendment because privacy rights are less serious than protection from the use of deadly force.

Bybee wrote in one of the memos that nothing can stop the President from sending al Qaeda and Taliban prisoners captured overseas to third countries, as long as he doesn't intend for them to be tortured. But the Convention Against Torture, to which the United States is a party, says that no country can expel, return or extradite a person to another country "where there are substantial grounds for believing that he would be in danger of being subjected to torture." Bybee claimed the Torture Convention didn't apply extraterritorially, a proposition roundly debunked by reputable scholars. The Bush administration reportedly engaged in this practice of extraordinary rendition 100 to 150 times as of March 2005.

The same day that Attorney General Eric Holder released the memos, the government revealed that the CIA had destroyed 92 videotapes of harsh interrogations of Abu Zubaida and Abd al Rahim al Nashiri, both of whom were subjected to waterboarding. The memo that authorized the CIA to waterboard, written the same day as one of Yoo/Bybee's torture memos, has not yet been released.

Bush insisted that Zubaida was a dangerous terrorist, in spite of the contention of one of the FBI's leading al Qaeda experts that Zubaida was schizophrenic, a bit player in the organization. Under torture, Zubaida admitted to everything under the sun -- his information was virtually worthless.

There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.

Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.