The persecution of Yoo and Bybee

Last week, in a late Friday information dump (the traditional way to release information you don’t want people to pay attention to), the Obama administration released a memorandum from David Margolis. Margolis is an associate deputy attorney general who was tasked with reviewing the DOJ’s Office of Professional Responsibility’s work investigating the so-called torture memos. (Margolis is a career lawyer who has had the job of reviewing OPR findings since the early in the Clinton administration.) The OPR’s draft reports and draft reports, which were leaked and widely splashed throughout the media, found that Yoo and Bybee engaged in professional misconduct and recommended that their findings be referred to the bar for disciplinary action.

Margolis’s 69-page memo absolutely shreds the OPR’s work. He finds numerous problem with the work, but perhaps this one is the most telling (p. 6):

In a departure from standard practice and without explanation, OPR in its initial two drafts analyzed the conduct of the attorneys without application of OPR’s own standard analytical framework. . . This departure was not insignificant. I have held my current position within the Department for nearly seventeen years. During that time, I have reviewed almost every OPR report of investigation. OPR developed its framework over a decade ago and to the best of my knowledge has applied it virtually without exception since that time.

Amazingly, the OPR admitted (p. 8) that it did not apply the framework “in an effort to facilitate public release of the report.” Margolis also notes (p. 8) that that the OPR’s use of the framework in its final report does not exonerate them. Indeed, he quotes approvingly Yoo’s response that by retrofitting the framework onto an existing finding, OPR engaged in exactly the sort of “ends-driven legal reasoning” that the OPR criticized in Yoo and Bybee’s work.

Apropos to that criticism, Margolis also rejects (p. 65) the OPR’s finding that Yoo deliberately tried “to accommodate the client”, which was central to the OPR’s finding of intentional misconduct on Yoo’s part.

This whole mess must be laid at the door of Attorney General Holder. It’s true that much of the OPR’s shoddy work was done during the Bush administration, but the OPR deliberately stalled its report in hopes that it would find a more receptive audience with the new administration (which, of course, it did). Consequently, on the last day of the Bush administration, Attorney General Mukasey sent a 14-page memo to the incoming administration noting significant problems with the OPR’s work. As Yoo now points out, it would have been easy for Holder to concur with the assessment of his predecessor, and doing so would have shown that DOJ was above politics. But Holder did the opposite, so he now owns the mess.

With the release of the Margolis memo, the books are now almost closed on the sorry mess. All that remains is to investigate the OPR’s own misconduct both in failing to observe proper procedure and — more importantly — in all the leaks. (Although it is possible that the leaks came not from the OPR but from Holder’s own office.) I’m sure that Holder will get right on that.

POSTSCRIPT: There’s a media failure angle to this story as well. The news reports I’ve seen or heard on this (e.g., in the Washington Post, and on NPR) omit any mention of the OPR’s misconduct. Instead they focus on the only aspect of Margolis’s memo not damaging to the Obama administration, which is his assessment that Yoo and Bybee “exercised poor judgement”. It’s barely true. Margolis did conclude that Yoo and Bybee should have foreseen that the torture memos would eventually be exposed to a broader audience, and so the memos should have contained more nuance than was necessary for the memos’ intended audience. That finding was in the penultimate paragraph of a 69-page report of which the first 67-1/2 pages were dedicated to the OPR’s shoddy work.

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