DOJ Report: Torture Memo Author John Yoo Said Bush Could Order "Massacre" of Whole Villages
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Yoo is a law professor at UC Berkeley and Bybee is a 9th Circuit Appeals Court judge.
In the OPR report, Yoo was found to have "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" in five legal memoranda he prepared for the Bush administration.
Bybee was found to have "committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" in two legal memoranda he signed.
Former Justice Department Steven Bradbury also authored several torture memos and was another subject of the OPR probe. But the report did not accuse him of ethical violations.
Former Attorney General John Ashcroft and Michael Chertoff, who was head of the Justice Department's criminal division at the time the torture memos were prepared, were also criticized for not conducting a critical legal analysis of the memos, though neither was charged with misconduct. Ashcroft refused to cooperate with the investigation. Ashcroft had requested that Bush issue preemptive pardons for CIA interrogators who tortured detainees, according to the report, but was rebuffed.
Yoo's attorney, Miguel Estrada, said in an Oct. 9, 2009, rebuttal to the OPR report that "this perversion of the professional rules and myopic pursuit of Professor Yoo and Judge Bybee, can be explained only by a desire to settle a score over Bush administration policies in the war on terror."
"Policy disputes are for the ballot box, not for the bar," Estrada said. "Professor Yoo and Judge Bybee did nothing more than provide a good-faith assessment of the legality of a program deemed vital to our national security."
However, Estrada acknowledged that Yoo and Bybee were well aware of what the CIA hoped to do to the detainees.
"Of course the attorneys at OLC knew what the CIA wanted, since they knew the agency was attempting to get information to thwart further terrorist attacks, and indeed OLC obviously was being asked to opine on specific interrogation techniques that it knew the CIA wished to use if it legally could do so," he said.
An earlier version of the OPR report rejected the argument that pressures associated with the 9/11 attacks justified the Yoo-Bybee opinions.
"Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear," said an earlier draft from OPR chief Mary Patrice Brown.
Her report was sharply critical of the legal work that went into the so-called torture memos and found that Yoo-Bybee analysis lacked "thoroughness, objectivity and candor."
OPR investigators also noted that during their four-and-a-half year probe, they were unable to obtain all of the evidence they needed. For example, they said "most" of Yoo's emails during the critical time period of August 2002 when the memos were drafted "had been deleted and were not recoverable."
House Judiciary Committee Chairman John Conyers, whose office released the report, said he will hold a hearing in the weeks ahead. In a statement accompanying the report, Conyers said the report makes clear that the torture memos "were legally flawed and fundamentally unsound."
"Even worse," Conyers said, "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. It is nothing short of a travesty that prisoners in U.S. custody were abused and mistreated based on legal work as shoddy as this."