DOJ Report: Torture Memo Author John Yoo Said Bush Could Order "Massacre" of Whole Villages
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Former Justice Department lawyer John Yoo argued that President George W. Bush's commander-in-chief powers were so sweeping that he could willfully order the massacre of civilians, yet Yoo’s culpability in Bush administration abuses was deemed "poor judgment," not a violation of "professional standards."
That downgrading of criticism by the Justice Department -- regarding the legal advice from Yoo and his boss at the Office of Legal Counsel, Jay Bybee, to Bush's White House and the CIA -- means that the department will not refer them to state bar associations for possible disbarment as lawyers.
But an earlier version of the report by the Justice Department's Office of Professional Responsibility concluded that the legal advice warranted the sterner conclusion and thus possible disbarment.
The judgment was softened by career prosecutor David Margolis, who was put in charge of the final recommendations and who said he was "unpersuaded" by OPR's "misconduct" conclusion, which faulted Yoo and Bybee for their approval of torture techniques that were used against terrorism suspects after the 9/11 attacks.
Legal opinions written by Yoo in 2002 and signed by Bybee cleared the way for the Bush administration to subject detainees to the near drowning of waterboarding and other brutal treatment at the hands of CIA interrogators.
Waterboarding and some of the other measures, such as slamming detainees against walls and depriving them of sleep, have long been considered acts of torture and have been treated as war crimes in other circumstances. However, Yoo -- working closely with Bush administration officials -- claimed that the techniques did not violate U.S. criminal laws and international treaties forbidding torture.
Further, Yoo asserted that Bush's presidential powers were virtually unlimited in wartime, even a conflict as vaguely defined as the "war on terror."
The OPR report included an exchange between an OPR investigator and Yoo regarding what he referred to as the "bad things opinion," what Yoo felt the President could do in wartime.
"What about ordering a village of [resistance] to be massacred?" an OPR investigator asked Yoo. "Is that a power that the president could legally --"
"Yeah," Yoo said.
"To order a village of civilians to be [exterminated]?" the questioner replied.
"Sure," Yoo said.
But Margolis, who suggested Yoo and Bybee's flawed legal work was due to efforts to prevent another 9/11, dropped OPR's "misconduct" conclusions.
Despite dozens of cases highlighted in the report that showed Yoo twisted the law in order to advance the Bush administration's torture policy, Margolis said he did "not believe the evidence establishes [that Yoo] set about to knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his actions." [Please see this report where former Vice President Dick Cheney admitted last week that he and other Bush administration officials ordered Justice Department lawyers to fix the law around the torture policy .]
Still, Margolis said Yoo had behaved as an advocate for an extreme theory of presidential power.
"While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client," Margolis added.
"These memos contained some significant flaws," Margolis said. "But as all that glitters is not gold, all flaws do not constitute professional misconduct." He left it to the bar associations in the District of Columbia and Pennsylvania to decide whether to take up the issue of further discipline.