John Yoo and Jay Bybee shouldn't be home free.

The law, lawyers, and the court.
Feb. 22 2010 11:49 AM

David Margolis Is Wrong

The Justice Department's ethics investigation shouldn't leave John Yoo and Jay Bybee home free.

Also in Slate, Dahlia Lithwick writes that the overturning of the OPR report means there are no legal limits for torture.

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Now, the commander-in-chief override is the one argument in the torture memo we can be pretty sure John Yoo believes, based on his published scholarship. (Check out Page 64 of the OPR final report, where Yoo imperturbably testifies that if the president orders "a village of resistants to be massacred" it falls within his legal powers. The questioner repeats the question: "Q: To order a village to be [exterminated]? A: Sure.") But that is not the point. The question is whether the CIA was asking for changes to the memo. And Yoo's answer is that "it makes sense" to suppose they were. Another OLC lawyer recalled that Yoo told him the commander-in-chief sections were included because "they want them in there."

Margolis objects to OPR's inquiry into whether the OLC lawyers were being told what result their client wanted—after all, lawyers usually know what result their clients when they go to draft a legal opinion. Again, though, this misses the point. If the OLC lawyers were being pushed by the White House or CIA to reach a certain result, that would be evidence that the contorted lawyering in the memos was deliberate.

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Of course, the best evidence of what the lawyers were thinking, who they were talking to, and what pressures they faced, might be their e-mail traffic. But the OPR report informs us that "most of Yoo's emails had been deleted and were not recoverable." The same is true of the e-mail of Patrick Philbin, another OLC lawyer who had read the Yoo-Bybee memo and advised Bybee to sign it. (This itself is troubling; I have been told by government lawyers that their deleted e-mails are always stored and recoverable.)

Without the e-mails, it is harder to know John Yoo's state of mind as he composed the torture memos. And yet the other evidence amply justifies OPR's conclusions. What does Margolis' rejection of OPR's finding of professional misconduct mean? In practical terms, very little. DoJ will not refer Bybee and Yoo for bar discipline, but state bar authorities are badly equipped to take on an ethics investigation of this magnitude. They tend to be cautious and politically timid, and experts have told me that the probability of action from either the D.C. bar counsel or his Pennsylvania counterpart was close to zero. (The Pennsylvania bar has already refused once to investigate John Yoo.) Even if Margolis had followed OPR's recommendation, the cases would almost certainly have wound up in the dead letter box. Nonetheless, this is a bitter outcome for those who think that torture devised at the highest levels of government disgraces us as a nation.

At the same time, the outcome isn't entirely happy for Bybee and Yoo, whose handiwork OPR excoriates and even Margolis rejects. For the last year, newspapers reported that DoJ was withholding the OPR report so it could be weakened and watered down. In the end, Attorney General Eric Holder released all three versions of the report—redacted, to be sure—along with Margolis' memo. This helps, even as Margolis strikes a blow against accountability. Margolis gets a lot wrong in his memo, but he did get one thing right. "OPR's findings and my decision are less important than the public's ability to make its own judgments about these documents and to learn lessons for the future." One lesson from this sorry episode is that in America we don't do accountability for government officials who approve torture. But perhaps that won't be the only lesson we learn.

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David Luban is professor of law and philosophy at Georgetown University Law Center.