) The US Department of Justice (DOJ) has overruled
the findings of a report released Friday 19 February concluding that two Bush administration lawyers committed professional misconduct when they wrote memos authorizing the use of certain interrogation techniques that critics have called torture. Instead, the DOJ said that John Yoo and Jay Bybee were only guilty of “poor judgment” in writing the memos.
An internal ethics investigation by the Office of Professional Responsibility (OPR) concluded that Yoo had committed “intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” The report also found that Bybee had committed professional misconduct when he acted in “reckless disregard” of his duty to exercise independent legal advice.
However, David Margolis, an associate deputy attorney general, released a separate memo overruling the OPR’s report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct. Margolis said:
This decision should not be viewed as an endorsement of the legal work that underlies those memoranda. However, OPR’s own analytical framework defines “professional misconduct” such that a finding of misconduct depends on application of an known or unambiguous obligation or standard to the attorney’s conduct. I am unpersuaded that OPR has identified such a standard.
Analysts divided bitterly on the decision. At issue are the sometimes vague standards for professional competence that lawyers must meet. Watchdogs generally focus on basic concepts, such as meeting deadlines and protecting clients’ money, four experts said.
Rarely, the experts said, are lawyers scrutinized for judgment calls, such as how broadly the constitution and legal precedent inhibit presidential authority, a question that was at the heart of the Yoo and Bybee memos.
The most controversial issue at stake of course is the definition of torture adopted in the Memos.
Stuart Taylor makes a sustained effort to defend Jay Bybee and John Yoo. He expresses his support for the “analytical approach” that Yoo pioneered in the memos, starting with the idea that while techniques like waterboarding may well be “torture” as the term is commonly used, it is not “torture” within the specific definition that Congress put forward.
David Luban replied to Taylor in a recent post:
The core definition of torture in both the U.S. torture statute and the Convention Against Torture is intentional infliction of “severe physical or mental pain or suffering.” That’s not a narrow or technical definition (although Congress went on to give a narrow definition to the mental pain or suffering part). In other words: the colloquial meaning of ‘torture’ is virtually the same as the legal definition. The OED definition, by the way, is so similar to the CAT definition that it seems likely that whoever drafted article 1 of CAT may have drawn on the OED.
The torture memo’s were an issue in a recent decision of the U.S military’s highest court on 16 February to review the conviction of an Army reservist who prosecutors said was the ringleader of detainee abuse at Abu Ghraib prison in Iraq.
The United States Court of Appeals for the Armed Forces said it would consider whether the trial judge erred by refusing to let jurors see memorandums approving “enhanced interrogation tactics” for detainees.