Blog on the Run: Reloaded

Sunday, February 21, 2010 12:38 am

Bad judgment and then some: Protecting the war criminals makes the lawyers criminals, too.

With all due respect to my friend and neighbor Fred’s high opinion of Justice Department official David Margolis, Margolis’ conclusion that legal memocraft by Bush officials John Yoo and Jay Bybee in 2002 constituted poor judgment but not professional misconduct basically means that there’s no longer any way any American can commit a war crime:

The chief author of the Bush administration’s “torture memo” told Justice Department investigators that the president’s war-making authority was so broad that he had the constitutional power to order a village to be “massacred,” according to a report by released Friday night by the Office of Professional Responsibility.

The views of former Justice lawyer John Yoo were deemed to be so extreme and out of step with legal precedents that they prompted the Justice Department’s internal watchdog office to conclude last year that he committed “intentional professional misconduct” when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects.

The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at the time, Jay Bybee, now a federal judge, should be referred to their state bar associations for possible disciplinary proceedings. But, as first reported by NEWSWEEK, another senior department lawyer, David Margolis, reviewed the report and last month overruled its findings on the grounds that there was no clear and “unambiguous” standard by which OPR was judging the lawyers. Instead, Margolis, who was the final decision-maker in the inquiry, found that they were guilty of only “poor judgment.”

The report, more than four years in the making, is filled with new details into how a small group of lawyers at the Justice Department, the CIA, and the White House crafted the legal arguments that gave the green light to some of the most controversial tactics in the Bush administration’s war on terror. They also describe how Bush administration officials were so worried about the prospect that CIA officers might be criminally prosecuted for torture that one senior official – Attorney General John Ashcroft – even suggested that President Bush issue “advance pardons” for those engaging in waterboarding, a proposal that he was quickly told was not possible.

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney’s legal counsel, that the president’s wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

“What about ordering a village of resistants to be massacred? … Is that a power that the president could legally -”

“Yeah,” Yoo replied, according to a partial transcript included in the report. “Although, let me say this: So, certainly, that would fall within the commander-in-chief’s power over tactical decisions.”

“To order a village of civilians to be [exterminated]?” the OPR investigator asked again.

“Sure,” said Yoo.

Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department memo that narrowly defined torture and then added sections concluding that, in the end, it essentially didn’t matter what the fine print of the congressionally passed law said:The president’s authority superseded the law and CIA officers who might later be accused of torture could also argue that were acting in “self defense” in order to save American lives.

This is the “I’m-putting-my-fingers-in-my-ears-and-chanting-nyah-nyah-nyah-I-can’t-hear-you” school of jurisprudence. John Yoo was arguing that the UN Convention Against Torture, the Geneva Conventions and related U.S. criminal statutes either didn’t exist or existed but don’t apply. (Moreover, he was doing it to cover for crimes that, by May 2002, had already happened, in particular the torture of Abu Zubaydah — a fact of which Yoo and Bybee were aware at the time and of which Margolis had to be aware by the time he began his review.)

Yoo’s legal thinking was so fundamentally flawed that career staffers in the Justice Department’s Office of Professional Responsibility had concluded that Yoo and Bybee’s actions constituted “intentional professional misconduct.” (Do you realize how bad their conduct had to be for other government lawyers to turn on them like that?) That designation could lead to disbarment proceedings; in the case of Bybee, who is now a federal judge, it also could be grounds for impeachment. Not only that, but John Ashcroft — John Ashcroft! — was so certain that what Justice was being asked to bless was wrong that he actually tried to get people pardoned in advance. If he thought there was any way to defend a legal opinion blessing the torture, why do you suppose he thought the torturers would need pardons?

But Margolis, apparently having concluded that “Don’t pretend you can commit crimes against humanity with impunity” is somehow less a self-evident standard than, say, “Don’t intentionally run over pedestrians,” is now overturning the sober consideration of career staff and claiming no harm, no foul. And we’re all just supposed to nod and say “OK” and move on to other things.

Well, hell, no.

As the New York Times observes, Margolis “said the ethics lawyers, in condemning the lawyers’ actions, had given short shrift to the national climate of urgency in which Mr. Bybee and Mr. Yoo acted after the attacks of Sept. 11, 2001.” Sorry, but that makes it even worse: It is precisely at the times of utmost stress that the nation’s most senior enforcers of laws must be most vigilant to see that the government follows the law. There’s no “But our buildings just got bombed!” or “But — but — but — we were all SKEEEEERED then!” exception to the U.N. Convention Against Torture. Part 1, Articles 2 and 3, specifically state:

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Mr. Margolis, Fred doesn’t bestow praise lightly, and I don’t take his regard for you lightly. But from where I sit, you’ve just made yourself an accessory to torture and murder as well as another candidate for disbarment. Sanctioning an argument that the president has the legal right to order another Lidice isn’t just poor judgment, it isn’t just intentional professional misconduct, it’s also criminal lunacy and its perpetrator is a menace to humanity.

And if all I can do about it is scream in outrage in the middle of the night, well, at least I’m going to do that.

UPDATE: Law prof Jonathan Turley rips Margolis a new one:

I mean, “bad judgment” is when you make unfortunate choices in dinner guests; it’s not when you support a torture program. And what we’re seeing right now is the dismantling of precedent that we created at Nuremberg, when we said that you can’t facilitate war crimes as lawyers and say that it was simply bad judgment. Everyone who commits war crimes often thinks about their own accountability. They often go to lawyers to facilitate them. That’s why they were so critical [of German lawyers] at Nuremberg. And what we’re seeing now is that we’re just treating it like just a bad day, and it’s more than that. What we’re losing in all of this is one of the core principles of Nuremberg. …

If you can’t be held accountable for facilitating war crimes, something that they don’t really discuss in this report, then when can you be held accountable? I mean, this is it. I mean, this is the worst-case scenario. And so what the Justice Department has done is carved out for itself a standard that it can never fail, that even supporting torture is just bad judgment. In this report, it’s astonishing what you read. With Bybee — who is a judge, who’s sitting in judgment on others right now — is accused in this report of leaving out critical cases, of — of leaving out weaknesses. In one case he said he just assumed that Gonzalez would know about the limitations of this type of executive claim, or the limitations on a good-faith defense. He just assumed he’d know that, and instead they produce this report, which was a roaring endorsement of torture. That’s being treated as, in the report, as, quote, incomplete legal analysis. It’s not incomplete. It’s, it’s willful blindness. It’s an attempt to defend a flawed legal theory to support a torture program. …

A lot of it will be particularly interesting to law professors and legal experts in the extent to which people like Bybee, who really comes off badly in this report, left out critical pieces of precedent, where he was aware of Supreme Court cases that go the other way and he just leaves them out of the memo. In one case they rely on language in the United Nations Convention Against Torture that was never ratified, and yet they treat it as if it were. I mean, that’s the degree of misrepresentation that is in this memo [that Yoo and Bybee wrote]. The Justice Department doesn’t really deal with that and it does certainly not deal with what they’re doing with the Nuremberg standards. Instead they just say that, you know, they’re wrong, they’re incomplete, they’re showing bad judgement, uh, but that’s not something that they should necessarily be punished for, even though people were tortured as a result of their advice. …

If this report [had] existed back in Nuremberg, it would have resulted in acquittals for all of the people that we sentenced. But this is a bloody nightmare for civil libertarians. We have an ex-vice president who’s proudly proclaiming how he’s supported torture. We have a current president who is preventing any serious investigation of torture. If torture is so bad, imagine what it’s like to try to protect alleged torturers, war criminals, and that’s the really dark period we’re finding, where we’re all wondering, “Where did our principles go?”

Former federal prosecutor Marcy Wheeler is doing a line-by-line analysis on the OPR report and Margolis’ work here.

(Revised and updated multiple times after initial posting)


  1. I sent this piece to you privately yesterday but here it is again.

    Jennifer Rubin..Yoo & Bybee Cleared

    Some pushback is offered along with thoughts about honest disagreements:

    UPDATE: Yoo’s attorney has released a statement. It concludes: “OPR’s work in this matter was shoddy and biased. The only thing that warrants an ethical investigation out of this entire sorry business is the number of malicious allegations against Professor Yoo and Judge Bybee that leaked out of the Department during the last year. It is high time for Attorney General Holder to show that these leaks were not authorized or encouraged — for base partisan purposes — at the highest levels of his department. Mr. Holder can do so by identifying the culprits and referring them for prosecution or bar discipline, as appropriate.”

    UPDATE II: Bybee’s attorney has released a statement as well: “After an investigation spanning more than five years, the U.S. Department of Justice has concluded that Judge Jay S. Bybee acted in good faith and did not engage in ethical or professional misconduct during his service in the Department’s Office of Legal Counsel.” The Department has also determined that the matter does not warrant further proceedings or referral to the District of Columbia Bar. Maureen E. Mahoney, Judge Bybee’s attorney, stated that “The Department correctly rejected all claims of ethical or professional misconduct by Judge Bybee. While this vindication was many years in the making, we are pleased that the matter has now been resolved in his favor. No public servant should have to endure the type of relentless, misinformed attacks that have been directed at Judge Bybee. We can only hope that the Department’s decision will establish once and for all that dedicated public officials may have honest disagreements on difficult matters of legal judgment without violating ethical standards.”

    Comment by Fred Gregory — Sunday, February 21, 2010 6:40 pm @ 6:40 pm

  2. […] I say “scrubbed” because the professional staff who prepared the report originally did conclude reach a misconduct conclusion, but a longtime Justice honcho, David Margolis, overruled them. (I examined the ridiculosity of Margolis’s action here.) […]

    Pingback by The OTHER report on John Yoo « Blog on the Run: Reloaded — Tuesday, April 13, 2010 11:11 pm @ 11:11 pm

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