Posted by Tina
The Justice Department after five long years has exonerated the two lawyers who advised President Bush on the legality of interrogation techniques, including waterboarding. An investigation of legal advisors John Yoo and Jay Bybee resulted in a report issued by the Office of Professional Responsibility. Jennifer Rubin, reports on the recommendations of David Margolis, Associate Deputy Attorney General in Commentary Magazine :
In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General. ** 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)(emphasis mine)
The editors at The Corner, National Review, also report on this finding adding some extraordinary information:
The OPR draft report, after taking nearly five years to review the law, derided the Bush OLC lawyers for failing to cite Khanuja v. I.N.S., a Ninth Circuit case interpreting the UN Convention Against Torture. However, Khanuja is an unpublished opinion, and under Ninth Circuit rules (which are well known to Justice Department lawyers), the citation of unpublished opinions is prohibited and lawyers who disregard this rule may be sanctioned for ethical misconduct. ** Despite having had nearly five years to do its own legal analysis, OPR relied heavily on the work of academic critics of the Bush administration without (a) any explanation of why their work was somehow authoritative, and (b) balance in the form of views of other academics and commentators who had defended the professionalism of the OLC lawyers. For example, in critiquing the work of Bush OLC lawyers John Yoo (a legal scholar and tenured professor of law at the prestigious University of California Bolt School of Law) and Jay Bybee (an accomplished lawyer and now a federal appellate judge), OPR relied extensively on Professor David Luban. As Mukasey and Filip noted, though obviously a thoughtful and prolific scholar, Prof. Luban is not an attorney, has never practiced law (he is a trained philosopher), and is a vigorous critic of the Bush administration and the War on Terror generally. There was no mention of this background and Prof. Luban’s patent potential bias in OPR’s Draft Report. (emphasis mine)
Another excellent article by Andy McCarthy at The Corner sums the entire mess up nicely:
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.