Legal Commentary

OPR Report ?Clears? Yoo and Bybee

By Jonathan H. Adler

Newsweek?s Michael Isikoff and Daniel Klaidman are reporting that the soon-to-be-released report from the Department of Justice?s Office of Professional Responsibility will ?clear? former OLC attorneys John Yoo and Jay Bybee of professional misconduct.  They report:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other ?enhanced? interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors?Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor?violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed ?poor judgment,? say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action?which, in Bybee?s case, could have led to an impeachment inquiry.

In addition, the OPR report ?will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process? and appear to support claims that some portions of the ?Torture Memos? were added to provide legal protection for CIA personnel who feared torture prosecutions.

Full post as published by The Volokh Conspiracy on January 30, 2010 (boomark / email).