'Torture memos' authors: Rebuked but won't be disbarred

Bush administration lawyers who wrote the so-called "torture memos" exercised "poor judgment" in writing legal opinions that “contained significant flaws," according to the Justice Department. But they weren't guilty of professional misconduct that might have meant disbarment.

By , Staff Writer

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    John Yoo, a law professor at the University of California at Berkeley, testifies on Capitol Hill in Washington in 2008. Former Justice Department lawyers Yoo and Jay Bybee authorized CIA interrogators to use waterboarding and other harsh tactics, an internal review released Friday, Feb. 19, found.
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The infamous "torture memos" are back.

One of the most controversial aspects of the “war on terror” – especially at the height of the fighting in Iraq – was the way those captured by US and other allied forces were questioned.

Described variously as “torture” or merely “harsh,” these “enhanced interrogation techniques” included the infamous waterboarding – the near-drowning of captives – as well as “stress positions,” sleep deprivation, isolation, extremes in temperature, and other methods meant to elicit actionable intelligence.

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At the heart of the controversy among military professionals as well as elected officials (and Americans generally) were the so-called “torture memos” written by Justice Department officials in the Bush administration as a basis for justifying harsh interrogation.

Now, the Justice Department's ethics watchdog, the Office of Professional Responsibility, has determined that the memo’s authors – John Yoo and Jay Bybeeexercised “poor judgment” in writing legal opinions that “contained significant flaws.”

Office of Professional Responsibility investigators found that Yoo had "violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” And they determined that Bybee had "acted in reckless disregard" of ethical obligations for his actions regarding the memos.

Ideology trumped legal obligation

"I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client [President Bush] and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power," writes Associate Deputy Attorney General David Margolis.

At the same time, according to the report released Friday, Yoo and Bybee were not guilty of professional misconduct that might have led to their disbarment. Today, Mr. Yoo is a law professor at the University of California in Berkeley and Mr. Bybee is a federal judge.

A separate criminal investigation focuses on whether CIA contractors killed or severely injured detainees during interrogations.

The political fallout from the “torture memo” case continues, involving not only the treatment of those captured in wartime but the extent of executive authority.

House Judiciary Committee Chairman John Conyers, Jr. (D) of Michigan says he “intends to hold a hearing on these matters shortly."

How involved was the Bush White House?

"For years, Bush administration officials who approved torture and abuse of detainees have hidden behind legal memos issued by the Department of Justice’s Office of Legal Counsel,” Conyers said in a statement Friday. “Today’s report makes plain that those memos were legally flawed and fundamentally unsound. Even worse, it reveals that the memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House.”

Lamar Smith of Texas, the senior Republican on the committee, said that Yoo and Bybee "did their best to follow the law."

"In the wake of 9/11, attorneys at the Justice Department were faced with unprecedented challenges, not knowing whether other attacks were imminent," Smith said.

Human rights advocates are not so forgiving.

"Justice Department lawyers have an obligation to uphold the law, so when they write legal opinions that were designed to provide legal cover for torture, they need to be held accountable with more than a slap on the wrist,” said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "Despite failing to find the former Justice Department lawyers responsible for misconduct, the Justice Department report nevertheless provides strong evidence indicating that the authors of these legal opinions should be investigated for their role in facilitating torture.”

President Obama has banned torture but resisted pressure to prosecute former Bush administration officials involved in interrogation techniques that many experts consider to be torture.

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