The Jury Talks Back


DOJ Clears Yoo and Bybee in “Torture” Memo Investigation — While Harshly Criticizing Professionalism of Internal Witch-Hunt Conducted Against Them

Filed under: Uncategorized — WLS @ 3:43 am

Posted by Shipwreckedcrew:

I’m pretty confident that you will not see a comprehensive analysis of the decision by Associate Deputy Attorney General David Margolis abrogating the proposed findings of intentional misconduct made by the Office of Professional Responsibility against former DOJ Office of Legal Counsel Members John Yoo and Jay Bybee.

It should tell you all you need to know about the Obama/Holder DOJ that this hugely important document was part of a Friday night document dump in order to bury it.   My hyperlinking is not any better than the last time I posted here, but here is the URL for the decision:

Associate DAG Margolis has issued a 56 page scathing rebuke of the Office of Professional Responsibility’s unprofessional witch-hunt of Yoo and Bybee related to their drafting of legal memoranda establishing the legal framework for the application of enhanced interrogation techniques by the CIA and Military Intelligence specialists.

It is beyond the format of one blog post to comprehensively summarize the findings of Margolis.  So I want to emphasize here a couple things about the process — the process that involved a review by Margolis of the proposed findings of OPR, and some of his criticisms of the bastardized procedures followed by OPR in a clearly biased and partisan attempt to “get” Yoo and Bybee.

First, a few important facts about David Margolis.  He occupies the position of Associate Deputy Attorney General.  This is the senior most career employee in DOJ.  I believe only two people appear in the organizational chart above him — the Attorney General and  Deputy Attorney General, both of whom are political appointees of the President.

Margolis has been with DOJ for more than 40 years, serving under 16 different Attorney Generals going back to the Johnson Administration.  He has been the Associate Deputy Attorney General for many many years — I’m not certain how many — and one of his principle responsibilities for many years in that position is to review proposed Final Reports of the Office of Professional Responsibility (OPR) regarding investigations into allegations of professional misconduct by DOJ attorneys.

The way the process works is that OPR conducts an investigation into allegations of professional misconduct, and drafts a report detailing its findings.  That report is presented to the subject of the investigation, who at that point has the right under DOJ policy to make objections to the reports findings and/or conclusions.  OPR can chose to modify its final report based on such objections, or not.  Consideration and resolution of any such objections not corrected by OPR is made by Margolis in his capacity as Associate Deputy AG, and his decision constitutes the official DOJ determination as to whether the findings of misconduct are to be adopted by the Department as its official findings in the matter.

So, the review that Margolis undertook following the issuance on July 29, 2009 by OPR of its Final Report on Yoo and Bybee followed the normal procedures employed by DOJ in reviewing and considering allegations of official misconduct.  As noted by Margolis in numerous places within his 56 page decision, his review of OPR’s findings might be the only part of the process that followed the normal procedures.

Margolis begins his critical review of OPR’s handling of this matter by considering what OPR proposed doing even prior to the matter being referred to him for review — on December 23, 2008, following the election of Obama, OPR rushed t0 c0mplete its 191 page first draft of its report, and advised then AG Mukasey and Dep. AG Filip of its intention to release that draft to the public on January 12, 2009, without giving Yoo and Bybee any opportunity to review and raise objections to the draft, and giving Mukasey and Filip only until January 2, 2009, to review and comment.

On Dec. 31, 2008, Mukasey and Filip met with OPR staff  and provided a limited substantive review invited by OPR on December 23, 2008, but also pointed out that a comprehensive review of the draft was impossible in the time period suggested for OPR’s public release given the complexity and length of the report, and questioned the propriety of a public release of the report prior to the subjects being given an opportunity to reveiw, object, and have their objections considered consistent with DOJ and OPR policy.  Subsequent to the December 31 meeting, and in light of the procedural and substantive objections raised by Mukasey and Filip, OPR determined that it “report will not be finalized before the end of the current Administration,” and the draft report would not be made public as previously suggested.

It was only by pulling back from the rush to publish the draft report that substantive criticisms of OPR’s work could be made by AG Mukasey, Dep. AG Filip, and OLC.  As a result of these substantive criticisms, OPR issued a second draft report of its findings.  Margolis’ opinion finds significant flaws in this Second Draft for many of the same reasons he found flaws in the first draft — principally the failure by OPR to apply OPR’s own standard analytical framework in reaching its conclusion whether professional misconduct was involved in the work of Yoo and Bybee.  More on that below.

But, unlike the first draft, the second draft was provided to Yoo and Bybee, and they were invited to respond to the findings and conclusions of the second draft within 60 days.  This was consistent with OPR’s normal practice in these cases — unlike the way it proposed publishing the first draft with no opportunity given to Yoo and Bybee to review.

Yoo and Bybee submitted timely comments and objections to the second draft on May 4, 2009.  Both raised as a primary complaint the fact that OPR’s finding of professional misconduct was made in violation of OPR’s own formal Policies and Procedures setting forth the standards for reaching such a conclusion.

The gist of this complaint, which Margolis in his opinion agrees with Yoo and Bybee, is that OPR’s own standards require that in order for there to be a finding of intentional misconduct, OPR must find that the attorney engaged in conduct with the purpose of obtaining a result that the professional standard or obligation unambiguously prohibits.

Such a finding requires a showing by OPR both that an unambiguous standard of conduct or responsibility exists, and that the attorney purposely violated a standard which he knew unambiguously applied.  The Second Draft made no mention of the application of this analytical framework in reviewing the drafting of the memos by Yoo and Bybee as an instance of intentional misconduct.

On July 29, 2009, OPR issued its Final Report.  Margolis notes that for the first time the Final Report seemed to address the need to identify an unambiguous standard that applied unambiguously, and evidence that Yoo and Bybee purposely violated that standard.  But rather than refer to an established standard based on published Rules of Professional Conduct or Rules of Ethics, OPR “gleaned a duty to exercise independent legal judgment and render thorough, objective, and candid legal service” from a variety of sources, both published and unpublished.  As noted caustically by Margolis:

In addition to gleaning its applied standard from the listed sources, OPR also delcared:  “Moreover, we looked at the circumstances surrounding these particular requests for legal advice, to assess whether the requirements of the applicable professional rules and Department regulations were met.  In doing so, we began with the premise that “the right to be free from offical torture is fundamental and universal, a right deserving the highest status under international law, a norm of jus cogens…. We thus determined that Department Attorneys considering the possible abrogation or derogation of a jus congens norm such as the prohibition against torture must be held to the highest standards of professional conduct.”

OPR may well have defined the standard to which the Department may decide (or perhaps even has decided) to hold OLC attorneys who author opinions about important matters, but the pertinent question is whether this standard is properly applied to determine whether OLC attorneys complied with the standards imposed on them by Rules of Professional Conduct.  If OPR has failed to identify properly a “known, unambiguous obligation imposed by law, rule of professional conduct, or Department rule or policy,” or has failed to establish that the obligation unambiguously  applied to  the attorneys’ conduct, then its misconduct analysis fails on that basis.

In other words, OPR simply made up a standard high enough that would warrant a finding of intentional misconduct by Yoo and Bybee even though OPR could point to no source that established such an unambiguous standard applied unambiguously to the work of Yoo and Bybee at the time they drafted the memos in question.   OPR ignored its own analytical framework in determining whether such a standard existed, and opted to include a “politically correct” view of the question in place of such an existing standard.

The “reverse engineering” of this “standard” into the July 29, 2009 Final Draft only after objections were raised to the absence of any such analytical framework in the first or second drafts which OPR had wanted to publish, struck Margolis as the exact type of “results-oriented” legal reasoning that OPR accused Yoo and Bybee of engaging in when they drafted the memos authorizing CIA and military personnel to use “enhanced interrogation techniques.”   Pretty much a “pot calling the kettle black” kind of thing.

The final upshot of the Margolis decision is that the OPR investigation and analysis is fatally flawed by its failure to establish that Yoo and Bybee intentionally violated a known unambiguous standard of professional conduct, due to the fact that OPR failed to even establish that such an unambiguous standard existed with respect to the legal analysis they offered in their memos.  As a result, DOJ rejects the Final Report of OPR on the issue of Yoo and Bybee, and the matter is now closed.

Margolis’ decision is, more than anything, a stinging rebuke to OPR for its sloppy, uneven, and likely partisan effort to hound Yoo and Bybee because OPR’s investigators disagreed on a policy basis with the substance of the memos.

I expect that this blog post might be the only place you find that being pointed out.

I’ll try to post more on this subject when I have more time to thoroughly review the Margolis decision.



  1. My ISP, a relatively small provider called Outdoors Unlimited, based in suburban Cincinnati, links to Fox News items in a column on the right margin of their home page.
    This news item led the column this morning.
    Since I don’t go there, I can’t say with 100% certainty, but I doubt this was displayed very prominently at the NYT.

    The question now arises:
    What repercussions will there be for the hack-job perpetrated by the drones (and leadership) at OPR?

    Comment by AD - RtR/OS! — 2/20/2010 @ 12:21 pm

  2. Thank you Shipwreckedcrew for your very helpful commentary, as always.

    It is encouraging to know that there are career employees (at least one) that can take a stand for truth rather than political expediency.

    If I’m not mistaken, isn’t this what some of the Congressional libs are threatening to bring to Congressional Committee, since they didn’t get what they wanted??

    Comment by MD in Philly — 2/23/2010 @ 9:16 pm

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