The End of the War Over the Torture Memos?

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.

7 Responses

  1. DAG Margolis wrote “While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation 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.

    He is scathing in his remarks that OPR did not abide by the DOJ’s norm that a standard must be clear and well-established, and that OPR constructed standards of conduct from the model rules, etc.  But I thought those are well established clear rules.

    Nor is the finding that Yoo was sincere an adequate foundation for Margolis’s conclusion.  The ethics rules, as Stephen Gillers observes, are strict liability rules.

    Competence, thoroughness, diligence, adherence to law, and independent judgment are the hallmarks of an attorney’s duty.  Margolis’s observation above is a finding that Yoo in particular failed in that regard.

    And Margolis has got the client wrong.  Yoo’s client was not an” institution”, not even the institution of the Presidency.  His client was the people of the United States who are the sovereign.  And his oath was to uphold the Constitution and laws of the United States – not to craft rationalizations for what we are bound by the 8th Amendment  to abjure – cruel and unusual punishment, and commanded  by the 1949 Geneva Convention to protect – prisoners of war  “particularly against acts of violence or intimidation”, who are, according to Article 14 are said to be “entitled in all circumstances to respect for their persons and honor””

    Such conduct by Yoo and Bybee certainly merits censure as the Office of Professional Responsibility concludes.   And even if Margolis were correct that existing standards do not clearly forbid such conduct, the Justice Department would be honor bound to correct that flaw.
    – GWC

  2. Thanks George. It’s refreshing and encouraging to hear that from a law professor and an esteemed member of the legal profession.

  3. It is important to note that Margolis says he is not recommending referral but he leaves it to the Bar associations to take it up.  And the report can not be whitewashed – the OPR is not spared and neither are Yoo and Bybee. 

    And the more stinging first and second drafts are included which normally would not be available under a FOIA request.  So we get to see how (to use a metaphor) the condemnatory swamp is turned into a mere muddy field in successive iterations.

    Oh no – it is wishful thinking to believe this is the beginning of the end.  This is just another step in a long process that is taking years.  But it is not even close to a beginning of an end.  The beginning of the end will be when the indictments come down for them.  Let a jury decide as it appears clear that whatever the administration – as it moves up the DOJ chain – there is just that classic DC game of misfeasance at the top/malfeasance at the bottom.  Please keep in mind Charlie Graner is in prison – one of those grunts.

    Oh no this is far from over.


  4. George,

    The idea that the client is “the people” just isn’t supported by any law at all.

    John Steele

  5. John –

    Ah, the hazards of the impulsive, angry post – here made after skimming the two reports before breakfast.  And that line worked so well at the editorial board meeting when the ex-Governor embraced it and the vote swung my way.

    In saying that Yoo’s client is the people as sovereign I had in mind the oath of office – to uphold the Constitution and law of the United States as the first source of his duty of care.

    I also had in mind  In Re Lindsey, 332 U.S. App. D.C. 357 (D.C. Cir. 1998), which declared that the White House Counsel does not have the duty of confidentiality to his` client’ the  President who had testified before a Grand Jury about his relationship with Monica Lewinsky.  The Deputy Counsel was found to be obliged to disclose any evidence of presidential wrongdoing to the Department of Justice. So Yoo was the people’s lawyer, not the President’s is what I draw from that case, thanks to Ken Starr.

    But rather than report executive misconduct, Yoo consciously authorized and immunized it by reasoning so unprofessional it is meretricious.

    That still seems to me to be actionable.

    – George

  6. You say: “[e]ven 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.” 

    Margolis’ memo as a source for deciding whether US lawyers should be prosecuted by Spain for enabling the torture of Spanish subjects?  Would you “take seriously” some career lawyer’s determination in a distant land finding that there should be no disbarment of any local lawyers who gave legal cover for the waterboarding, walling, sleep deprivation, and torture by insect of Americans in their custody?  I am afraid not.  And nor should you – a whitewash is a whitewash no matter where it occurs.

    Perhaps the most unfortunate effect of this American-exceptionalism-in-action is that it reduces the prosecutions of lawyers at the Neuremberg tribunals after WWII to a case of victor’s justice.  Fortunately, however, complementarity principles underlying Spanish universal jurisdiction suggest that the result of Margolis’ memo is exactly the opposite of what you suggest: now that the whitewash of high-level torture enablers is near complete, Spanish jurisdictional hurdles have been resolved and international & European arrest warrants may follow.  No more vacations on the French Riviera, London shopping trips, or cultural visits to Prague for this bunch of criminal defendants.

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