Thursday, February 25, 2010

Bush Lawyers Vindicated, Very Quietly

It’s receiving very little coverage on cable news, but the two Bush administration lawyers who’ve been persecuted for years for providing legal analysis on interrogation methods permissible to the CIA finally have been vindicated. More specifically, John Yoo and Jay Bybee were the authors of two legal memoranda (routinely slandered by the self-righteous left as the “torture memos”), requested by top intelligence officials and the White House to clarify the state of the law regarding interrogation of unlawful combatants (e.g., Khalid Sheikh Mohammed). The memos were expressly intended to clarify for interrogators of captured al Qaeda killers what techniques complied with any applicable statutes forbidding torture, while still enabling them to compel cooperation from some tough, knowledgeable, and uncooperative sons of bitches. Marc Thiessen has done some noble work in his book, Courting Disaster, detailing the success of these techniques, including examples of thwarted al Qaeda plots and saved American lives.

Because Yoo included waterboarding as a technique that was allowable under American law, he has earned the undying enmity of the Left, who rank him with such bloodthirsty villains as Hitler, Torquemada, and Sarah Palin.

Characteristically, the Holder Justice Department released the report absolving the two lawyers of any professional misconduct just before the weekend, where it would receive as little media notice as possible.

The Wall Street Journal took notice anyway:

So after five years of investigation, partisan accusations and unethical media leaks, the Justice Department's senior ethicist has concluded that Bush Administration lawyers John Yoo and Jay Bybee committed no professional misconduct. The issue now is whether the protégés of Attorney General Eric Holder who led this exercise at Justice's Office of Professional Responsibility (OPR) should themselves be in the dock.

That's our reading of the analysis by Associate Deputy Attorney General David Margolis, a career official who reviewed both the Bush-era legal memos on interrogating terror suspects and their review by the lawyers at OPR. Remarkably, his report is far more scathing about OPR than it is about Messrs. Yoo and Bybee, who he says made legal errors but did so in good faith, out of honest legal analysis, and in the ethical service of their clients in the executive branch at a time of war.

Mr. Margolis's review overrules both a draft OPR report whose contents were leaked to the media last year and a final OPR report that was released along with the Margolis review late Friday. Those OPR reports recommended disciplinary action and potential disbarment for Messrs. Bybee and Yoo for their advice while working in the Office of Legal Counsel in the frantic months after September 11. The leaks were themselves an unethical attempt to smear the reputations of the lawyers while they were under a gag order and unable to reply.

House Judiciary Chairman John Conyers nonetheless leapt to praise Friday's release of earlier drafts, touting them as evidence that the OLC memos were "legally flawed and fundamentally unsound." Senate Judiciary Chairman Pat Leahy promptly called for Judge Bybee to resign from the federal bench. Both Democrats have scheduled more grandstanding, er, hearings, for the coming days.

Justice is defending its pre-weekend document dump by saying that it had to release the entire record. But notably, Justice failed to release a 14-page January 19, 2009 letter from then-Attorney General Michael Mukasey and Deputy AG Mark Filip that eviscerated the first OPR draft. The Mukasey-Filip memo has since appeared on media Web sites, and its withering analysis clearly made an impression on Mr. Margolis. The selective disclosure by Mr. Holder suggests the political nature of this entire exercise.
(“Vindicating John Yoo”).

Also, Hans A. von Spakovsky, himself former counsel to the assistant attorney general for civil rights, describes the OPR investigation as a “malicious, partisan witch hunt.” (“SPAKOVSKY: A vindication of interrogation”).
According to the Office of Professional Responsibility (OPR), Mr. Yoo and Mr. Bybee were guilty of "professional misconduct" for supposedly not providing "thorough, candid, and objective" advice. David Margolis, the department's most senior career official, flatly overruled the OPR.

Former Attorney General Michael Mukasey and Deputy Attorney General Mark R. Filip blasted OPR in a devastating letter not released by the department for attempting to deny basic due process to the targets of the investigation by denying them the opportunity to review the report. This injustice was corrected only after Mr. Mukasey and Mr. Filip personally intervened to demand that OPR follow its own well-established procedures. OPR successfully used the same ambush tactic in its investigations of the U.S. attorney firings and the faux "politicized" hiring probe of the Civil Rights Division.
John Yoo marked his victory by calling it his “gift” to the Obama presidency:

Barack Obama may not realize it, but I may have just helped save his presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe.

He sure didn't make it easy. When Mr. Obama took office a year ago, receiving help from one of the lawyers involved in the development of George W. Bush's counterterrorism policies was the furthest thing from his mind. Having won a great electoral victory, the new president promised a quick about-face. He rejected "as false the choice between our safety and our ideals" and moved to restore the law-enforcement system as the first line of defense against a hardened enemy devoted to killing Americans.

In office only one day, Mr. Obama ordered the shuttering of the detention facility at Guantanamo Bay, followed later by the announcement that he would bring terrorists to an Illinois prison. He terminated the Central Intelligence Agency's ability to use "enhanced interrogations techniques" to question al Qaeda operatives. He stayed the military trial, approved by Congress, of al Qaeda leaders. He ultimately decided to transfer Khalid Sheikh Mohammed, the planner of the 9/11 attacks, to a civilian court in New York City, and automatically treated Umar Farouk Abdulmutallab, who tried to blow up a Detroit-bound airliner on Christmas Day, as a criminal suspect (not an illegal enemy combatant). Nothing better could have symbolized the new president's determination to take us back to a Sept. 10, 2001, approach to terrorism.
(“My Gift to the Obama Presidency”).


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