2-20-2010By Daphne Eviatar
Senior Associate, Law and Security
Cross-posted at Huffington Post.
In reporting on the Justice Department’s long-delayed ethics investigation of the work of lawyers who approved the Bush administration’s torture of detainees, The New York Times wrote on Saturday that the report’s release “brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.”
The Washington Post, meanwhile, said the report marked “the end of a 5-year internal battle” at the Justice Department.
In fact, the release of the Office of Professional Responsibility report marks the beginning of a bigger and more important battle. Legal ethics investigators concluded that former Office of Legal Counsel lawyers John Yoo and Jay Bybee committed “professional misconduct” in advising the Bush administration that it was not against the law to torture, humiliate and abuse detainees despite longstanding domestic and international prohibitions against doing so. The battle now will be over whether the U.S. government will meet its obligations to thoroughly investigate what happened and hold the perpetrators accountable.
The final OPR report chastises the two OLC lawyers for reaching bizarre legal conclusions that were wholly unsupported by the law. For example, one of their memos claimed that torture was legal so long as an interrogator’s goal was to obtain information rather than to inflict severe pain or suffering – even if he knew he would inflict severe pain or suffering in the process. As one OLC lawyer commented on the memo at the time: “The way it reads now makes you wonder whether this is just an anti-sadism statute.”
Meanwhile, the memo’s now-infamous definition of “severe pain” as necessarily “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death” not only relied on an irrelevant medical benefits statute for its definition, which the OPR report calls “illogical,” but actually misquoted the language of that statute so as “to add further support to their ‘aggressive’ interpretation of the torture statute,” the OPR report concludes. Ultimately, the definition could lead an interrogator to believe, the OPR found, “that pain could be inflicted as long as no injury resulted.” It’s the “leave no marks” theory of torture.
The list of twisted and inexplicable legal conclusions is long and impressive. In another instance, the lawyers relied on extremely narrow interpretations of the international Convention Against Torture proposed by the Reagan administration that the U.S. had never adopted. And they completely ignored far more relevant sources of law on torture, such as federal court cases interpreting the Torture Victims Protection Act, which found torture had occurred in situations far less severe than the brutal interrogation techniques being contemplated in these memos. In one case, for example, a federal court held that imprisonment for five days under bad conditions while being threatened with bodily harm, interrogated and held at gunpoint amounted to torture.
David Margolis, the Deputy Associate Attorney General, ultimately overrode the recommendations of the ethics office to refer the lawyers to state bar associations for disciplinary proceedings, because he decided that the OLC’s standards for referral were unclear. But the report of the investigators who actually read and analyzed the memos that authorized such brutal conduct as “waterboarding” (controlled drowning), slamming prisoners’ heads repeatedly against a wall (“walling”), weeks of sleep deprivation, stress positions, and confinement in a cramped box with insects provides an astonishing look at how the lawyers tasked with providing objective legal advice to the White House on its most sensitive policies completely contorted ordinary logic and legal reasoning to reach the conclusions desired.
Justice Department lawyer Patrick Philbin at one point asked John Yoo why he included a wholly unsubstantiated section in one of the memos that concluded that the president of the United States, as commander in chief, can completely ignore any law he wanted – such as the prohibition against torture. Yoo said it was in the memo because “they want it in there” — “they” presumably being whoever had requested the opinion. The memo never explained how the prohibition against torture could be construed in any reasonable way so as to conflict with the president’s authority as commander in chief.
Whether John Yoo and Jay Bybee face professional sanctions (that’s now up to their respective state bars) is far less important than whether we get to the bottom of what really happened at the Bush White House: who ordered these lawyers to come up with legal reasoning to justify torture? The OPR report suggests that David Addington, Chief of Staff to Vice President Dick Cheney, played a significant role. Who was he getting his orders from?
The OPR report is just another piece of the slowly-emerging puzzle of how the country plunged into what Dick Cheney has aptly called “the Dark Side,” abandoning its most basic belief in human dignity and the rule of law to zealously combat terrorism in a way that’s ultimately backfired; we’re now less safe, and mired in a vicious and protracted war.
In concluding that Yoo and Bybee exercised “poor judgment” rather than “professional misconduct”, Margolis emphasizes that “his decision should not be viewed as an endorsement of the legal work that underlies these memoranda,” which he notes were “seriously flawed” and represent “an unfortunate chapter in the history of the Office of Legal Counsel.” In Yoo’s case, his conclusions represented a “loyalty to his own ideology and convictions” which “clouded his view of his obligations to his client” and led him to author opinions reflecting “extreme” views of executive power.
Yoo was among the very small group of lawyers entrusted to write these opinions for the White House because he was already known to hold these extreme opinions. That he ignored or contorted opposing views should not have come as a surprise to his employers; that’s what he’d been doing all along as an academic.
It’s clear from the report, too, that that’s what Yoo was expected to do. As John Bellinger, the Bush administration’s legal advisor to the State Department told OPR: “Yoo was ‘under pretty significant pressure to come up with an answer that would justify [the program]’ and that, over time, there was significant pressure on the Department to conclude that the program was legal and could be continued, even after changes in the law in 2005 and 2006.”
Some of those memos were also being demanded under very tight time frames to justify particular interrogations.
So who asked Yoo and Bybee to write these memos, and what exactly were the instructions given? Were they pressured to reach a particular conclusion and provide a “golden shield” for illegal conduct that the White House had already chosen to undertake? The report points out that the OPR investigators were not able to access most of John Yoo’s e-mail messages from the time period: “most of Yoo’s e-mail records had been deleted and were not recoverable.” Why did Yoo delete those messages, and what did they say?
Even Jack Goldsmith, the former head of the Office of Legal Counsel under President Bush, read the memos to ultimately function as a “blank check” for the military to engage in illegal and unauthorized interrogation techniques. If that’s the case, then not only the lawyers but the officials who instructed them could be guilty of a criminal conspiracy.
The OPR report, then, hardly ends this chapter of history; it only begins to open the book. Before we can really reach the end of this sad saga and put it to rest, we need to know much more.
This post has been updated.