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Waterboarding memo authors committed no misconduct, report says

An internal Justice Department finding says the two Bush administration lawyers used 'poor judgment' in authorizing harsh tactics on terrorism suspects, but it does not call for punishment.

February 20, 2010|By Richard A. Serrano

Reporting from Washington — An internal Justice Department report released Friday has concluded that although two former Bush administration lawyers used "poor judgment" in issuing legal memos authorizing waterboarding and other harsh interrogation tactics on terrorism suspects, they did not commit any professional misconduct.

The report by the department's Office of Professional Responsibility noted that the lawyers did not purposely give bad legal advice to CIA interrogators and others dealing with suspects captured after the Sept. 11 terrorist attacks.

The report brings to an end the long investigation of Jay S. Bybee and John C. Yoo, who had risked losing their law licenses or other sanctions because of their interrogation memos. Withstanding such punishment would have been difficult for both Bybee, a judge on the U.S. 9th Circuit Court of Appeals in San Francisco, and Yoo, who teaches law at UC Berkeley.

The report recommended no punishment, although state bar associations still could address the allegations by taking action against the two men.

The memos by Bybee and Yoo gave the green light for captives to be stripped and held in stressful positions, kept for long periods in the cold, and strapped to boards to undergo a technique that involves pouring water down the nose and mouth to simulate drowning. According to a CIA report, Khalid Shaikh Mohammed, the self-professed Sept. 11 mastermind, was waterboarded at least 183 times. The memos further authorized detainees to be slapped and deprived of food.

An initial report completed more than a year ago had found that Yoo and Bybee behaved in an ethically questionable manner in providing faulty advice to the CIA and administration officials on the legality of various interrogation methods. The initial report concluded that the men had violated a lawyer's duty to provide reasonable legal advice, according to one source familiar with the early report.

But in the final report released Friday, Associate Deputy Atty. Gen. David Margolis said that although the memos "contained some significant flaws . . . all that glitters is not gold, all flaws do not constitute professional misconduct."

Margolis, a 17-year veteran of several administrations, said that "it is a close question" as to whether Yoo intentionally or recklessly provided misleading advice to interrogators that cleared the path for harsh torture tactics.

"I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligations" to give the interrogators correct legal advice, and "led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power."

Margolis said that in the case of Bybee, there was no evidence that he "exhibited conscious indifference to the consequences of his behavior" in telling interrogators that torture was acceptable.

The decision not to level harsher punishment against the lawyers prompted outrage on Capitol Hill, especially from the Democratic chairmen of the House and Senate judiciary committees. Sen. Patrick J. Leahy of Vermont and Rep. John Conyers Jr. of Michigan each said they would hold hearings on the matter.

"Those memos were legally flawed and fundamentally unsound," Conyers said, "and may have been improperly influenced by a desire to tell the Bush White House and the CIA what it wanted to hear."

He said the Justice Department's Office of Legal Counsel, where Bybee and Yoo worked, has a "proud tradition" of providing top-quality legal advice. But in this case, Conyers said, "the lawyers who wrote the torture memos did not live up to that tradition."

The Center for Constitutional Rights, which has closely monitored the legal fight over the treatment of detainees at the U.S. naval base at Guantanamo Bay, Cuba, went further.

"Jay Bybee must be impeached, tried and removed from his seat as a federal judge on the 9{+t}{+h} Circuit," the group said in a statement released after the report. "But he should have the decency to resign immediately."

Neither Bybee nor Yoo responded to the Justice Department report. However, their attorneys have maintained that the men acted in good faith, and "honorably and ethically."


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