Tuesday, February 23, 2010

IN THE NEWS: DOJ Concludes: No Accountability for Torture Memo Attorneys

Last Friday, the Department of Justice (“DOJ”) cleared Bush administration lawyers John Yoo and Jay Bybee of allegations of professional misconduct for their role in authorizing the use of "enhanced interrogation techniques, some of which are considered to be torture, both domestically and internationally.

In the now-infamous “torture memos,” Yoo and Bybee concluded that CIA interrogators could not be prosecuted for using certain interrogation tactics (some amounting to torture) unless they acted with the specific intent to inflict severe pain. Relying on a statute governing health benefits, they defined severe pain as that equivalent to “death, organ failure or serious impairment of bodily functions.” The authors of the memos also concluded that the president's war powers are practically unlimited, allowing him to, as Yoo told one OPR investigator, "order a village of civilians to be [exterminated]."

The long-awaited DOJ decision came from attorney David Margolis, a DOJ career veteran. Margolis was responsible for conducting a final review of DOJ Office of Professional Responsibility ("OPR") report. The report, issued on July 29, 2009, found that Yoo and Bybee wrote the legal memos with significant input from White House attorneys. The OPR report concluded that Yoo and Bybee had committed professional misconduct, and recommended that OPR's findings be referred to state bar authorities for disciplinary action and potential disbarment. For Bybee, a federal judge, the referral to state bar authorities could have also led to an impeachment inquiry.

After reviewing the OPR report, Margolis declined to adopt OPR's conclusions. Instead, he concluded that Yoo and Bybee merely exhibited "poor judgment" in providing legal authorization for the use of torture. Margolis's decision now means the DOJ will not refer Yoo or Bybee for possible disciplinary action before their respective state bar associations. It is now up to state bar disciplinary authorities to take up this issue on their own.

This about-face demonstrates why Attorney General Eric Holder must appoint an independent prosecutor -- someone unaffiliated with the DOJ, the department responsible for the legal authorization of detainee abuse policies -- to conduct a full and impartial investigation into the origins of those policies. Americans deserve to know whether, and to what extent, publicly-elected officials were involved in unlawful conduct.

The DOJ report and related documents are available here.

With assistance from International Justice Project intern Lindsey Ingraham.

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