Friday night (the traditional time to bury news), the Department of Justice finally released the report clearing former Department of Justice counsel of wrongdoing on the much hyped "torture memos," in which shortly after 9/11 they described what interrogation conduct was permitted in obtaining much needed intelligence of ongoing attacks.
Jennifer Rubin has done an outstanding job of analyzing the 69 page memo clearing the two men and criticizing the very politicized work of the OPR counsel who dragged this investigation out for years and leaked stories about the besieged patriots. I cannot improve on her fine work, urge you to read her precise summary and point out only a few highlights of her work: Margolis's report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR's work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.
At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the "preponderance of evidence" rather than the more stringent clear and convincing evidence" standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR's findings "do not identify violation of a specific bar rule." ( p. 12) Margolis further notes that OPR's analysis and legal standard shifted from draft to draft. (pp.13, 15-16)
Margolis explains that OPR was counseled to consider "the conduct of Yoo and Bybee in light of circumstances that then existed. Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when "American lives were particularly at risk at the time." (p. 16) OPR didn't do so. Bybee's successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be "exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard." (pp. 19-20)
House Judiciary Chairman John Conyers, a partisan hack who'd clearly hoped for a public hanging, will be disappointed of course, along with most of the left. But I agree wholeheartedly with the comments of John Yoo's counsel, Miguel Estrada (a man also much maligned by the same forces)
Eric Holder has a lot to answer for.
OPR's work in this matter was shoddy and biased. The only thing that warrants an ethical investigation out of this entire sorry business is the number of malicious allegations against Professor Yoo and Judge Bybee that leaked out of the Department during the last year. It is high time for Attorney General Holder to show that these leaks were not authorized or encouraged-for base partisan purposes-at the highest levels of his department. Mr. Holder can do so by identifying the culprits and referring them for prosecution or bar discipline, as appropriate."