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.

Accountability: It Could Happen to Yoo

Despite the U.S. government’s attempts to resist accountability for serious human rights abuses committed against terror suspects, a judge for the U.S. District Court for the Northern District of California ruled recently that John Yoo, a former lawyer for the Justice Department’s Office of Legal Counsel and author of the infamous “torture memos,” must testify in court about his role in designing the legal framework supporting such abuses. The court's ruling is a significant breakthrough for human rights organizations such as the World Organization for Human Rights USA, which have long advocated for accountability for detainee abuse.

The lawsuit, filed in January by Jose Padilla, a U.S. citizen currently serving a 17-year sentence on terrorism charges, alleges that Padilla was tortured while detained for nearly four years before he was charged by the U.S. government. In denying the government’s motion to dismiss the suit, Judge White, a Bush appointee, concluded that “government lawyers [like any other lawyers] are responsible for the foreseeable consequences of their conduct.” The order represents the first time that a U.S. government lawyer could be held potentially liable for the abuse of detainees.

In allowing the lawsuit to go forward, Judge White rejected the government’s argument that courts are precluded from reviewing top-level administrative decisions in wartime, or that allowing allegations of unconstitutional treatment could damage U.S. national security or foreign relations. Judge White ruled that Padilla may be able to prove that Yoo’s memos “set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.” According to the judge, the treatment alleged by Padilla violates the Constitution, “and John Yoo should have known that.”

This major decision demonstrates the importance of the rule of law. If John Yoo, or the U.S. government, is ordered to pay damages for their role in Padilla’s mistreatment, this case stands to advance the U.S. government's compliance with international human rights norms, which require states to afford justice and reparation to victims of state-sponsored human rights abuse.

While a civil remedy is an important first step, however, justice demands criminal investigations into human rights abuses committed by or at the direction of U.S. government officials, as well as prosecutions, where warranted. This case brings the United States one step closer to upholding its responsibility to investigate and punish human rights abusers, and to afford justice and reparation to victims of such abuse.

-Ari Levin, Human Rights & Anti-Terrorism Legal Intern

Yoo and Addington Obstruct Congressional Effort to Examine Bush Administration’s Authorization of Torture

In a contentious hearing before the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, last Thursday, two “architects” of the Bush administration’s torture policies refused to yield any information on the authorization of waterboarding and other harsh interrogation techniques. David Addington, Chief of Staff and Former Counsel to Vice-President Cheney, and John Yoo, former Deputy Assistant Attorney General, appeared before the Subcommittee on June 26, the 21^st anniversary of the adoption of the Convention Against Torture. Yoo appeared voluntarily, but a defiant Addington came only under subpoena, without submitting written testimony or offering an opening statement.

Yoo, author of the now infamous “Yoo memos,” which provided the legal analysis that led to the adoption of torture tactics in interrogation of detainees at Guantanamo and elsewhere, deflected the majority of questions from Committee members with the shield of a “professional obligation to the Department of Justice to obey their instructions.” Whatever those instructions may have been, they prevented Yoo from saying anything about his opinions and knowledge of the use of the memos he drafted. Upon the Chairman’s insistence that Yoo either assert a privilege or start answering questions, he claimed attorney-client privilege and the need to protect confidential or sensitive information.

Addington, on the other hand, claimed impaired recollection. When asked about his trips to Guantánamo, after which it is reported that officials started using harsher interrogation techniques, he could not recall whether he had discussed interrogation techniques while there. He also denied having advocated any particular position regarding interrogation techniques, claiming only to have requested Yoo’s legal analysis.

While seemingly futile, the testimony of Yoo and Addington is revealing. U.S. government agencies administered interrogation techniques in reliance on the Yoo memos. Yoo and Addington’s obstructionism and unwillingness to even acknowledge, let alone take responsibility for, the effect of their actions on the types of techniques used further demonstrates a severe lack of accountability within the Bush administration. Torture has been committed in violation of domestic and international law, and one by one, U.S. officials refuse to answer questions from the American people and their representatives. As Chairman Nadler asserted in his opening statement, “that is unacceptable.”

By Danielle Goldstone, Human Rights & Anti-Terrorism Legal Intern at Human Rights USA