Legal Commentary

Yoo-Bybee OPR Report Commentary

By Jonathan H. Adler

At the Legal Ethics Forum, John Steele has an incredibly useful post rounding up links to documents and commentary related to the Justice Department?s OPR report on the  ?torture memos? and AAG David Margolis? memo, including drafts of the OPR report, responses from John Yoo and Jay Bybee?s lawyers and then-AG Michael Mukasey, and loads of blog commentary.  How Appealing rounds up some news reports here.

Steele adds his own commentary as well. Among other things, Steele notes a ?striking irony? about the OPR report.

Once the Bybee Memorandum was made public, it was the focus of blistering attacks for allegedly blowing the legal analysis on obvious and subtle issues.  The memorandum was subjected to review and was withdrawn and rejected, and was replaced by the Levin Memorandum.  (Upon close inspection, the new Levin Memorandum bears some strong continuities to the Bybee Memorandum, even as it rejects that document.)Yet . . .  once the OPR?s December 2008 report was circulated within DOJ, it was the focus of blistering attacks for allegedly blowing the legal analysis on obvious and subtle issues?and also for procedural improprieties.  The report was revised and finalized in July 2009, but was then subjected to review by an Associate Deputy Attorney General (David Margolis) and was rejected.  (Upon close inspection, the new Margolis Memo bears some strong continuities to the OPR?s Final Report, even as it rejects that document.)

Indeed, some of the alleged deficiencies of the OPR?s Final Report are jaw-dropping.   In so many words, Margolis accuses the OPR of shifting its rationale in result-oriented ways, playing fast-and-loose with procedure, and twisting the legal standard.  It?s not pretty to read.  . . . But let?s all remember that even if the OPR Final Report is as shoddy as Yoo claims (and as Margolis occasionally suggests), that doesn?t mean that the torture memos were ethical!

I have yet to read all the relevant documents myself, but I found this comment quite interesting.

Full post as published by The Volokh Conspiracy on February 21, 2010 (boomark / email).