Report: Bybee used ‘poor judgment’ but ‘torture memos’ are not misconduct

WASHINGTON -- Las Vegan Jay Bybee "exercised poor judgment" but will not face discipline for producing memos that gave the Bush administration the green light to pursue waterboarding and other extreme forms of interrogation on terror suspects, according to a Justice Department report made public on Friday.

Legal opinions written in 2002 by Bybee and John Yoo, a Justice Department colleague, were "flawed" but did not rise to the level of professional misconduct, said a top Justice attorney who reviewed an initial investigation of the memos and scaled back its findings.

Assistant Deputy Attorney General David Margolis wrote that his review "leads me to conclude the same things that many others have concluded, to wit that these memos contained some significant flaws.

"But all that glitters is not gold, all flaws do not constitute professional misconduct."

The issue is likely to provoke further debate and bar associations still may choose to act against the attorneys, he said, "but the (Justice) Department will make no referral."

"With respect to Bybee ... I conclude the preponderance of the evidence does not support a finding that he knowingly or recklessly provided incorrect advice or that he exercised bad faith," Margolis wrote in a 69-page report.

The report appears to bring to an end a long-running probe into one of the defining issues of the Bush-era war against terrorism.

Memos produced by Bybee and Yoo led interrogators to employ rough tactics against detainees, such as sleep deprivation, banging them against walls and making them feel like they were drowning, a tactic known as waterboarding.

Critics said the memos provided the legal underpinning for U.S. interrogators to engage in torture and argued the legal reasoning behind them was weak. President Barack Obama signed an executive order shortly after his inauguration banning harsh interrogation methods.

Others have said the Justice attorneys were navigating a gray area, particularly in the months following the Sept. 11, 2001 terror attacks.

In a rare comment, Bybee in a note to the New York Times last year called the opinions "a good faith analysis of the law" that defined the line between harsh treatment and torture.

"I believed at the time, and continue to believe today, that the conclusions were legally correct," he said.

Bybee was a law professor at the Boyd School of Law at UNLV before 2001, when he was installed as head of the Office of Legal Counsel, an elite team of Justice Department lawyers who provide legal advice to the attorney general and the White House.

He was confirmed a judge on the 9th U.S. Court of Appeals in 2003, two years before his role in the interrogation memos became public.

Maureen Mahoney, Bybee's attorney in Washington, said Friday the report was "vindication" for Bybee, who remains a judge based in Las Vegas.

"The Department correctly rejected all claims of ethical or professional misconduct by Judge Bybee," Mahoney said. "While this vindication was many years in the making, we are pleased that the matter has now been resolved in his favor.

"No public servant should have to endure the type of relentless, misinformed attacks that have been directed at Judge Bybee. We can only hope that the Department's decision will establish once and for all that dedicated public officials may have honest disagreements on difficult matters of legal judgment without violating ethical standards."

One memo Bybee signed in August 2002 concluded waterboarding did not rise to the legal definition of torture, prompting liberal activists and some members of Congress to call for him to step down or be impeached as a judge.

A second memo Bybee signed that month opined that the president as commander in chief had broad authority to approve harsh interrogations and that tactics short of "organ failure, impairment of bodily function, or even death" might be defended as legally acceptable.

An initial probe by ethics investigators in the Justice Department's Office of Professional Responsibility concluded that state bar associations should decide whether to revoke the law licenses of Bybee and Yoo.

But Margolis walked that back. He said the attorneys "exercised poor judgment" in overstating their conclusions and understating opposing arguments in the memos. But he said there was no concrete standard to reach the conclusion that was an ethics violation.

Bybee and Yoo, now a professor at the University of California, Berkeley, were allowed to review the initial report and responded with vigor to the findings.

The Margolis memo, dated Jan. 5, was released Friday by Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee. Conyers posted the report along with earlier reports on the investigation and responses by Yoo and Bybee.

"Today's report makes it plain that those memos were legally flawed and fundamentally unsound," said Conyers. "While the report concludes that the lawyers did not breach their minimum professional obligations, I certainly hold top lawyers at (Office of Legal Counsel) to a higher standard that, as all Americans should."

Rep. Lamar Smith of Texas, the top Republican on the Judiciary Committee, said the Justice Department was right not to pursue sanctions against the attorneys.

"In the wake of 9-11, attorneys at the Justice Department were faced with unprecedented challenges, not knowing whether other attacks were imminent," Smith said. "They did their best to follow the law and provide intelligence officials with legal guidelines for the use of strong tactics to obtain actionable intelligence from terrorist suspects.

"It is important that future government lawyers know that their efforts to protect Americans will not be criminalized by future administrations. We know that the decision of these attorneys to approve enhanced interrogation tactics in the wake of 9-11 saved lives."

Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760.