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Lawyers Cleared Over 9/11 Memos

Source: http://online.wsj.com/article/SB10001424052748703787304575076064250798340.html?mod=googlenews_wsj

FEBRUARY 19, 2010, 9:18 P.M. ET

Lawyers Cleared Over 9/11 Memos

By JESS BRAVIN

WASHINGTON—A senior Justice Department official cleared two Bush administration lawyers of professional-misconduct allegations in connection with memorandums the lawyers wrote authorizing harsh interrogations.

The decision by David Margolis, the deputy associate attorney general, overruled internal findings that the Bush officials committed professional misconduct and should be referred to their state bar associations for disciplinary proceedings.

The legal work was at the heart of the debate over Bush-era practices in the war on terror, with critics calling the practices approved in the memorandums torture. Mr. Margolis didn't endorse the legal work performed by the lawyers, John Yoo and Jay Bybee, who drafted the once-secret memorandums. But the men should not face punishment, Mr. Margolis decided, because the Sept. 11, 2001, terrorist attacks placed them under extraordinary pressure and it would be unfair to hold them to "best practices" after the fact.

"I am heartened that Mr. Margolis understood that our work in the immediate months after 9/11 was done in good faith, under demanding pressures, to protect our nation from more terrorist attacks," Mr. Yoo, a law professor at the University of California, Berkeley, said Friday.
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A lawyer for Mr. Bybee, whom President George W. Bush appointed to a federal appeals court before his legal memos were disclosed, said he had been vindicated. "No public servant should have to endure the type of relentless, misinformed attacks that have been directed at Judge Bybee," lawyer Maureen Mahoney said in a statement.

Mr. Bybee headed the Office of Legal Counsel, a unit of the Justice Department that advises the executive branch on its own powers. Mr. Yoo was a deputy in the office.

Congressional leaders had been pressing the Justice Department to release the results of the probe, which began in 2004 and repeatedly was held up over objections from Messrs. Yoo and Bybee and concern from former Attorney General Michael Mukasey that the two former officials were being treated unfairly.

On Friday, the Justice Department turned hundreds of pages over to Congress documenting its investigation, including three versions of the Office of Professional Responsibility report that recommended possible sanctions against the former officials.

The chairmen of the House and Senate Judiciary Committees said they would hold hearings on the matter.

"For years, those who approved torture and abuse of detainees have hidden behind legal memos issued by the Department of Justice's Office of Legal Counsel," said House Judiciary Committee Chairman John Conyers Jr. (D., Mich.). "The materials released today make plain that those memos were legally flawed and fundamentally unsound, and may have been improperly influenced by a desire to tell the Bush White House and the CIA what it wanted to hear."

Sen. Patrick Leahy (D., Vt.), chairman of the Senate Judiciary Committee, said: "In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country."

The controversy over the memos began in June 2004, when The Wall Street Journal reported that Defense and Justice department lawyers had concluded President Bush could set aside laws forbidding torture, authorize subordinates to torture prisoners and block prosecutions of such crimes.

The Bush administration maintained that it never authorized torture and that it treated all prisoners "humanely." However, the memorandums defined torture so narrowly as to exclude some brutal practices, such as waterboarding or simulated drowning, that many legal authorities consider to be torture. Much of the Justice Department investigation into the memos examined the analysis supporting such conclusions.

Legal scholars pointed to various flaws in the memorandums' analysis, including omission of relevant cases and unorthodox readings of legal text. Under such criticism, the Bush administration disavowed many of the memorandums, and President Barack Obama later instructed officials not to rely on them for guidance.

The Office of Professional Responsibility found that Mr. Yoo intentionally violated his "duty to exercise independent legal judgment and render thorough, objective and candid legal advice" in five documents, and that Mr. Bybee recklessly disregarded that same duty in two documents.

While the materials in question in some instances amounted to "a performance deficiency," they didn't fall below the minimal standards of professional conduct, Mr. Margolis found.
—Jean Spencer contributed to this article.

Write to Jess Bravin at jess.bravin@wsj.com