Wall
Street Journal (Editorial) (2.22.10)
Vindicating
John Yoo
Bush lawyers
are found to have acted ethically, unlike their accusers.
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.
***
Readers can review the documents for themselves, but
two OPR judgments deserve particular scorn. The first is the claim that Messrs.
Yoo and Bybee were so close to their client, i.e., the White House, that they
knew what the President and CIA wanted to hear. But it is perfectly appropriate
for a lawyer to know what his client wants, and, by OPR's standard, 99% of
professional lawyers could be considered guilty of misconduct.
The
ethicists at OPR also claim the Bush attorneys were wrong to stick to a legal
analysis of interrogation practices and should have also considered their moral
and policy implications. But the duty of the Office of Legal Counsel is
precisely to offer legal advice, not to render policy judgments. Interrogation
policy was determined by the CIA and the White House, as it should have been.
The last thing the country needs is for lawyers to tell the CIA how to get
actionable intelligence from enemy combatants.
What's
more, as Mr. Mukasey's memo makes clear, the legal canons of Washington, D.C.
and many states expressly prohibit lawyers from offering such policy advice to
sophisticated clients such as the U.S. government. This is precisely so lawyers
don't muddy their legal counsel with policy bias.
The
rotten quality of the OPR efforts—and Mr. Margolis's repudiation of them—raises
real questions about the lawyers who produced this work. H. Marshall Jarrett,
who supervised the first OPR draft, is a protégé of Mr. Holder who managed not
to produce his draft report until the Bush Administration was preparing to
leave office. After Mr. Mukasey "memorialized" his concerns, as his
letter put it, the Jarrett draft was leaked without the Mukasey response. Mr.
Holder reassigned Mr. Jarrett in April 2009 to lead the Executive Office for
U.S. Attorneys, an arguably more powerful post. His OPR effort makes him unfit
for such a job.
Mr. Holder replaced Mr. Jarrett at OPR with Mary
Patrice Brown, who tried to salvage OPR's original conclusions with a new but
equally deficient argument. After abandoning OPR's earlier specific allegations
that Messrs. Yoo and Bybee had violated D.C. Rule of Professional Conduct 1.1 to
provide competent representation and rule 2.1 to exercise independent legal
judgment, Mr. Margolis writes, Ms. Brown's final report "did not specify
the rule or rules of professional conduct that were violated."
Instead, she added consideration of a "best
practices" memo and guiding principles. Mr. Margolis writes that these
documents raise several concerns, not least that "neither of them existed
at the time Yoo and Bybee worked at OLC." Ms. Brown is reportedly in line
for a judicial nomination, and Republicans ought to keep her embarrassing
performance in mind when they vote on confirmation.
***
Mr.
Margolis deserves credit for his independent analysis, but we also can't help
but notice the striking change of tone in the last few pages of his report. Mr.
Margolis's only duty was determining whether the Bush attorneys had adhered to
proper ethical standards. On that question, he is unequivocal in saying they
did.
However, at the end of his 68-page review he indulges
in some superfluous commentary that Messrs. Yoo and Bybee exhibited "poor
judgment" and that some of their legal analysis was mistaken. This is a
matter of opinion—akin to writing an op-ed piece—unrelated to the question of
whether they behaved unethically, and it is precisely the kind of judgment that
Mr. Margolis says earlier in the report that he will not render.
His change of tone is notable enough that it raises a
question of whether Mr. Margolis decided to add this concluding rhetoric as a
way to propitiate Mr. Holder and to save at least some face for the AG's
protégés. Republicans should ask Mr. Margolis about this if Democrats proceed
with their hearings.
The
larger story here is the vindication of Mr. Yoo and the other Bush attorneys,
who were pilloried unfairly over ethics in what was really a policy dispute in
the war on terror. Democrats wanted to appease the anti-antiterror left, and
they fixed on punishing mid-level officials as prominent enough to get public
attention but not so prominent as to seem like a banana republic seeking
revenge against a former President or Vice President. Their campaign has now
been exposed as a partisan, and unethical, smear.