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About ICTJ
The International Center for Transitional Justice (ICTJ) works to redress and prevent the most severe violations of human rights by confronting legacies of mass abuse. ICTJ seeks holistic solutions to promote accountability and create just and peaceful societies. For more information visit www.ictj.org

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Lisa Magarrell, Director US Programs
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NEW YORK- The International Center for Transitional Justice (ICTJ) welcomed the long-awaited release on Friday, Feb. 19 of the lengthy report and accompanying decision of the Justice Department Office of Professional Responsibility (OPR) on the lawyering behind the now-infamous “torture memos.” Bluntly critical of the reasoning and conclusions of Bush-era legal advisors John Yoo and Jay Bybee, the report and decision are no vindication of these lawyers’ memoranda; rather, the information discussed in the report and decision suggest that a broader factual inquiry and criminal investigation are needed.

“A full accounting of US policy on torture following the attacks of September 11, 2001 is more important than ever,” said Hanny Megally, ICTJ’s Interim President. “The report is enlightening and chilling. It relates in detail how the lawyers tailored their memos to justify torture and to prevent accountability, marking a critical turning away from US respect for the rule of law. The United States will only manage to fully reverse this devastating policy and the actions it empowered by reaffirming accountability as an indispensable control on the abuse of power. This requires an independent investigation of the full story of US counterterrorism operations and abuses, prosecution of those most responsible for wrongdoing, continued reform of laws and institutions to prevent abuses in the future, and appropriate redress for victims of torture,” he concluded.

The director of ICTJ’s US Accountability Project, Lisa Magarrell, said that, “The OPR report conveys very clearly that the overriding concern of the White House at the time was not to ensure by careful, objective legal analysis that torture, cruel and degrading treatment of detainees were prevented and violators held to account, as both US and international law require. Rather, the authors of the torture memos went to great lengths to give the White House, CIA and others involved in counterterrorism operations advance legal cover and assurances that they could torture with impunity.”  

ICTJ’s November 2009 report Criminal Justice for Criminal Policy: Prosecuting Abuses of Detainees in US Counterterrorism Operations,urged the Attorney General to investigate those most responsible for US torture policy and ensure that they were brought to account before the law. The OPR has no jurisdiction to examine criminal responsibility, did not investigate that question and faced serious limitations of access to information that a prosecutor would not. Thus its report and the ensuing decision on ethics do not settle the question of whether Yoo, Bybee or others involved in the torture program committed crimes. They do not even finally settle the ethics question, as the relevant bar associations could still decide to review the lawyers’ conduct.

In addition to criminal investigations of those most responsible, ICTJ also supports a full, independent non-judicial inquiry into US abuses.

Background on the Report and Ruling

In its 260-page report, released to the public with some redaction on Feb. 19, 2010, the Office of Professional Responsibility detailed the facts and analysis underlying its reasoning for finding that John Yoo committed intentional professional misconduct by failing to “render thorough, objective, and candid legal advice,” and that Jay Bybee “acted in reckless disregard” of that same standard. The OPR also questioned “certain declinations of prosecution regarding incidents of detainee abuse” and recommended that those decisions be reviewed.

The latter recommendation stands, but challenges to the findings against them by Yoo and Bybee were resolved differently, but still critically, in a 70-page Memorandum of Decision by a reviewing official at the Department of Justice, Associate Deputy Attorney General David Margolis. He found that these attorneys did not meet the Justice Department’s “high expectation of its [Office of Legal Counsel] attorneys” and he disclaimed any implication that his decision was an endorsement of the lawyers’ work. He characterized their analysis—of intent requirements under a statute banning torture, the history of US ratification of the UN Convention Against Torture, US judicial interpretations, international case law and the defense of necessity—as “most susceptible to criticism because they slanted toward a narrow interpretation of the torture statute at every turn.” He went on to find that Bybee and Yoo “exercised poor judgment,” rather than committing intentional misconduct, when they “took an expansive view of executive authority and narrowly construed the torture statute while often failing to expose (much less refute) countervailing arguments and overstating the certainty of its conclusions.”

Margolis found that it was a “close question” whether Yoo intentionally or recklessly provided misleading advice to his client (the CIA and the White House). Margolis writes, “I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of this obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power….”  The OPR report found that both Yoo and Bybee were being pressed by the White House to ratify the CIA’s plans for “enhanced interrogation techniques” including waterboarding, and questioned the failure of the lawyers to discuss the fact that the United States has “historically condemned the use of various forms of water torture and has punished those who applied it.”

The OPR report notes that the inquiry faced substantial obstacles and limitations, including that Yoo’s emails were deleted, investigators could not subpoena documents outside of the Department of Justice, and they could only seek voluntary cooperation from anyone outside of DOJ. According to the report, in addition, investigators had “limited access to CIA records and witnesses (including almost all of the CIA attorneys and all witnesses from the White House…).”

The OPR report observes that, “situations of great stress, danger, and fear do not relieve [Justice] Department attorneys of their duty to provide thorough, objective, and candid legal advice, even if that advice is not what the client wants to hear.”