Legal Ethics

DOJ Report Won’t Trigger Ethics Referral for Authors of Terrorism Memos

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Former Justice Department lawyers Jay Bybee and John Yoo are likely to be relieved by a forthcoming report that concludes they exercised “poor judgment” in legal memos authorizing harsh interrogation techniques.

The report by the Justice Department’s Office of Professional Responsibility has been rewritten to eliminate a finding that Bybee and Yoo had committed ethical misconduct, Newsweek magazine reports at its Declassified blog. Because of the change, the lawyers won’t be referred to state bar ethics bodies for investigation, the story says, relying on two anonymous Justice Department sources.

The report will provide more detail on how the memos were crafted, the Newsweek story says. Two controversial sections of a 2002 memo approving harsh tactics were added after Michael Chertoff, who was then in charge of Justice’s criminal division, refused to make a blanket promise that there would be no prosecution of CIA officers for torture, the story says. One new section inserted by Yoo said CIA officers could claim they acted in self-defense to prevent future terrorist attacks. Another said the president could override federal law banning torture in his role as commander in chief.

The decision against making a disciplinary recommendation was made by career Justice official David Margolis, without input from Attorney General Eric Holder, Newsweek says.

The Associated Press noted the Newsweek report. An anonymous legal source also confirmed the report to the Washington Post.

Bybee is now a federal appeals court judge on the San Francisco-based 9th U.S. Circuit Court of Appeals and Yoo is a law professor at the University of California at Berkeley.

In a speech last week to the Federalist Society, Yoo “couldn’t resist taking a victory lap over his recent performance on The Daily Show, where host Jon Stewart couldn’t land a punch on him,” the Legal Pad blog reports.

Yoo said he did well because of his practice facing off against students who haven’t done the reading. “Just a few seconds of the Socratic method, and he was mine,” Yoo said.

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