Justice Department officials John Yoo and Jay Bybee were two of the main architects of the Bush administration’s torture program. As Bybee’s deputy, Yoo “was the author of much of the legal rationale for using waterboarding and other severe interrogation techniques.” He argued that interrogators who harm a prisoner would be protected “national and international version of the right to self-defense,” and illegal conduct must “shock the conscience.” Bybee headed the DOJ’s Office of Legal Counsel and signed off on the infamous 2002 torture memo. Newsweek now reports that a senior DOJ official has essentially cleared the two men of misconduct in an upcoming office of Professional Responsibility report:
While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors — Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor — violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action — which, in Bybee’s case, could have led to an impeachment inquiry.
A DOJ official said that Margolis “acted without input” from Attorney General Eric Holder. Emptywheel has more.