For weeks, the right has heckled Attorney General Eric Holder Jr. for his plans to try the alleged 9/11 conspirators in New York City and his handling of the Christmas bombing plot suspect. Now the left is going to be upset: an upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the "torture" memos of professional-misconduct allegations.
While the probe is sharply critical of the legal reasoning used to justify waterboarding and other "enhanced" interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors-Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor-violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed "poor judgment," say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action-which, in Bybee's case, could have led to an impeachment inquiry.
The report, which is still going through declassification, will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process, say two sources who have read the report but asked for anonymity to describe a sensitive document. Two of the most controversial sections of the 2002 memo-including one contending that the president, as commander in chief, can override a federal law banning torture-were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice's criminal division, refused the CIA's request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney's chief counsel, and then-White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief's wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in "self-defense" to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.
A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder. Yoo and Bybee (through his lawyer) declined requests for comment.