DOJ Whitewashes “Torture Memo” Ethics Report

News leaked this weekend that the five-year old Office of Professional Responsibility report about the “torture memo” authors has been downgraded to clear John Yoo, Jay Bybee, and Steven Bradbury of any wrongdoing. An earlier draft of the report concluded that Yoo and Bybee violated their professional responsibilities in drafting the most infamous 2002 “torture memo,” but, as Newsweek first reported, Associate Deputy Attorney General David Margolis has softened the report to conclude only that they showed “poor judgment.”

Under DOJ rules, “poor judgment” does not amount to professional misconduct – and therefore does not trigger a referral to state bar associations for disciplinary review or, in the case of Judge Bybee, a recommendation for an impeachment inquiry. This news confirms suspicions that the Obama DOJ has not spent the last year simply processing the OPR report draft through the normal channels of declassification review but has been modifying the report to let the “torture memo” authors off the hook.

Newsweek also reported that the report contains new facts that will raise further questions about what led the OLC lawyers to write the “torture memos” and whether the White House unduly interfered with their legal decisions. According to Newsweek:

The report, which is still going through declassification, will provide many new
details about how waterboarding was adopted and the role that top White House
officials played in the process, say two sources who have read the report but
asked for anonymity to describe a sensitive document. Two of the most
controversial sections of the 2002 memo—including one contending that the
president, as commander in chief, can override a federal law banning
torture—were not in the original draft of the memo, say the sources. But when
Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s
request for a blanket pledge not to prosecute its officers for torture, Yoo met
at the White House with David Addington, Dick Cheney’s chief counsel, and
then–White House counsel Alberto Gonzales. After that, Yoo inserted a section
about the commander in chief’s wartime powers and another saying that agency
officers accused of torturing Qaeda suspects could claim they were acting in
“self-defense” to prevent future terror attacks, the sources say. Both
legal claims have long since been rejected by Justice officials as overly broad
and unsupported by legal precedent.

The OPR report will therefore add to the mounting evidence that calls for a full-scale investigation into what led our country to torture. For years, DOJ has hidden behind the phantom OPR report as a means of accountability for Yoo, Bybee, and Bradbury. Yet, regardless of the degree of their professional misconduct, our laws require Attorney General Holder to investigate all allegations of torture and enforce our laws to the fullest extent possible. If OPR lets the “torture memo” authors off the hook, it has proven itself to be as ineffective as its critics have claimed it to be – and provides all the more reason why AG Holder should appoint a special prosecutor, who is independent from the institutional interests of DOJ, to investigate allegations of torture.