NEW YORK — The recent statement by the U.S. Justice Department’s Office of Professional Responsibility (OPR) that the two lawyers who wrote the so-called torture memos merely exercised “poor judgment” is a disservice to justice. This is a topic that should be properly addressed by a serious inquiry to establish whether there were any violations of law.
According to the Justice Department’s ethics watchdog, lawyers John Yoo and Jay Bybee’s written opinion on the subject “contained significant flaws.”
Specifically, investigators found that Yoo had “violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice,” and that Bybee had “acted in reckless disregard” of ethical obligations in his actions regarding the memos.
However, the report containing these conclusions stated that Yoo and Bybee were not guilty of professional misconduct amounting to grounds for their disbarment.
This is a puzzling statement if one considers that Yoo and Bybee’s actions led to serious violations of national and international law. It is even more puzzling if one considers that a cover letter accompanying the report stated that an earlier version of the report had found “professional misconduct” on the part of the two lawyers.
David Margolies, a senior OPR official in charge of reviewing the earlier version, had overruled its finding.
“Justice Department lawyers have an obligation to uphold the law, so when they write legal opinions that are designed to provide legal cover for torture, they need to be accountable with more than a slap on the wrist,” said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch.
She added that “Last-minute changes in the Justice Department’s findings should not discourage state bars from investigating whether these men violated their ethical obligations as lawyers.”
The “torture memos” were aimed at providing legal cover for U.S. interrogators to use abusive techniques such as sleep deprivation and waterboarding. Waterboarding has been prosecuted as a war crime by the United States. In 1947 the U.S. charged a Japanese officer, Yukio Asano, with war crimes for carrying out a form of waterboarding on a U.S. civilian. Asano was sentenced to 15 years of hard labor.
After the 9/11 terror attacks, CIA interrogators sought authority to use coercive means of interrogation against captured Taliban and al-Qaida operatives. These methods were cleared not only by the White House during the George W. Bush administration but also by the Justice Department, according to the Office of the Director of National Intelligence.
CIA officers used waterboarding at least 83 times against Abu Zubaydah and 183 times against Khalid Shaikh Mohammed, according to a 2005 Justice Department legal memorandum, even though the U.S. had historically treated waterboarding as torture.
“We prosecuted our own soldiers for using it in Vietnam,” Attorney General Eric H. Holder said.
Information obtained from waterboarding may not be reliable because a person under duress may admit to anything. “It is bad interrogation. I mean, you can get anyone to confess to anything if the torture is bad enough,” former CIA officer Bob Baer said.
In December 2008, then FBI Director Robert Muller said that, despite Bush administration claims that waterboarding had “disrupted a number of attacks, maybe dozens of attacks,” he didn’t believe that evidence obtained by the U.S. government through enhanced interrogation techniques such as waterboarding had disrupted any attack.
Despite numerous and serious abuses, not a single CIA official and only a few military personnel have faced meaningful punishment.
There are widespread demands that the Justice Department broaden its preliminary investigation of CIA abuses and of the role that Bush administration lawyers played in justifying these abuses.
Although former Vice President Dick Cheney has boasted of being a big supporter of waterboarding, President Barack Obama has said, “I believe waterboarding was torture and was a mistake.”
Cesar Chelala is a co-winner of an Overseas Press Club of America award for an article on human rights.