In the summer of 2002, when the Justice Department's now-infamous "torture memos" were being drafted, one DOJ lawyer told his boss, Assistant Attorney General Jay Bybee, to eliminate a section claiming broad commander-in-chief powers, according to a long-awaited departmental ethics report released Friday.
Bybee, who is now on the 9th U.S. Circuit Court of Appeals, had final decision-making authority over the memos. And Patrick Philbin, now a Kirkland & Ellis partner, told Bybee that the section on presidential authority "was aggressive and went beyond what OLC had previously said about executive power," according to the report.
When the torture memos eventually became public, that section -- drafted by Philbin's colleague at the time, John Yoo -- drew heated criticism from opponents of the Bush administration's interrogation policies. Now, eight years after Yoo and Bybee birthed the memos, the Justice Department has officially concluded that their actions did not constitute professional misconduct, according to the voluminous set of documents.
"With respect to Bybee, particularly in light of his supervisory role in the issuance of these memos, I conclude the preponderance of the evidence does not support a finding that he knowingly or recklessly provided incorrect advice or that he exercised bad faith," Associate Deputy Attorney General David Margolis wrote.
According to the ethics report, Philbin also thought Yoo's reference to a medical statute to define extreme pain to be "imprudent." But despite his criticisms, Philbin told Bybee at the time that "it's OK for you to sign it," the report says. Philbin recounted an atmosphere of fear because of an expected terrorist attack.
Even though Margolis believes Yoo did not "knowingly" provide inaccurate legal advice, he had stronger words for the Berkeley law professor than he did for Bybee.
"I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client," Margolis wrote.
The Justice Department's Office of Professional Responsibility has been investigating the torture memos since 2005. OPR produced two drafts, both of which recommended referring Yoo and Bybee to professional disciplinary authorities. But in crafting DOJ's final report, Margolis decided that OPR did not apply a clear standard to Yoo and Bybee's actions.
Margolis was clearly swayed by arguments submitted by Bybee's attorney, Latham & Watkins partner Maureen Mahoney, and Yoo's lawyer, Miguel Estrada, a Gibson Dunn & Crutcher partner. Both submitted lengthy rebuttals to OPR's drafts.
"As a matter of policy, OPR's analysis, if adopted, will prove to be a cancer within the Justice Department," Mahoney wrote. "Advice on the most difficult legal questions of our time will become watered down, equivocal, queasy, and useless."
Overall, Mahoney simultaneously portrayed Bybee as engaged in the process, but also a delegator. Philbin, she wrote, never told Bybee that the legal analysis was wrong.
"It is also undisputed that no one ever told Judge Bybee during the course of the three month review process that the advice was wrong or that he should not issue these memoranda," she wrote.
Mahoney also flaunted some language from the OPR report itself. Bybee "‘should not be held responsible for the accuracy and completeness of every ... argument' in these memos, which were researched and drafted by other OLC attorneys with established ‘expert[ise] in presidential war powers,'" she wrote.
Bybee also got some backup from Jack Goldsmith, the Harvard law professor who succeeded Bybee as chief of the Office of Legal Counsel. Although Goldsmith withdrew the torture memos and was harshly critical of some of its conclusions, he sent Margolis an unsolicited memo opining that Bybee had acted in good faith.
