Justice Department Finds “Torture Memo” Authors Exercised “Poor Judgment”
February 20, 2010
Justice Department lawyers have an obligation to uphold the law, so when they write legal opinions that were designed to provide legal cover for torture, they need to be held accountable with more than a slap on the wrist.
Andrea Prasow, senior counterterrorism counsel

(New York) - The long-awaited US Justice Department report on the conduct of Bush administration lawyers who provided a legal rationale for torture and other abusive interrogation techniques underscores the need for a full-scale investigation into post-9/11 detainee abuse, Human Rights Watch said today.

The report, conducted by the Justice Department's Office of Professional Responsibility, concludes that top lawyers in the Office of Legal Counsel of the Bush-era Justice Department did not violate legal ethics rules when they wrote memos authorizing the so-called enhanced interrogation techniques, but rather, "exercised poor judgment."

However, a cover letter accompanying the report said that an earlier version of the report found "professional misconduct" by two of the lawyers, but that the senior career official at the Office of Professional Responsibility responsible for reviewing the report, David Margolis, overruled that finding.

"Justice Department lawyers have an obligation to uphold the law, so when they write legal opinions that were designed to provide legal cover for torture, they need to be held accountable with more than a slap on the wrist," said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch.

The detailed report is hundreds of pages long and includes a number of email exchanges between Justice Department lawyers, senior White House officials, and Central Intelligence Agency lawyers that provide evidence that Justice Department lawyers did not exercise objective legal judgment in drafting memos authorizing abusive interrogations, but rather deliberately drafted opinions to facilitate abuses.

"Despite failing to find the former Justice Department lawyers responsible for misconduct, the Justice Department report nevertheless provides strong evidence indicating that the authors of these legal opinions should be investigated for their role in facilitating torture," Prasow said. "Last minute changes in the Justice Department's findings should not stop state bars from investigating whether these men violated their ethical obligations as lawyers."

The report singles out John Yoo and Jay Bybee, who were responsible for the notorious "torture memos" that sought to provide legal cover for US interrogators to use abusive interrogation techniques such as slamming detainees against walls, long-term sleep deprivation, stress positions and waterboarding. The latter practice has been prosecuted as a war crime in the United States for more than 100 years.

The "torture memos" not only served as the legal rationale for an illegal interrogation policy, they are now being used by the Obama administration to limit accountability for serious crimes, Human Rights Watch said. Attorney General Eric Holder has stated that in investigating post-9/11 detainee abuse, the Justice Department will not prosecute those who "acted in good faith" according to the legal guidance they received.  At the same time, Human Rights Watch noted that the Bush administration's authorization of abusive techniques such as waterboarding began before the issuance of the so-called "torture memos" and can still be investigated and prosecuted even within the limited scope of the Justice Department's current inquiry.

Human Rights Watch has long cautioned that any criminal investigation that focused only on interrogators who employed techniques that went beyond those authorized by the Justice Department would lack credibility because it would inevitably result in the punishment of so-called "rogue interrogators" rather than those who planned and authorized abusive interrogations. Human Rights Watch urged the Obama administration to avoid setting a precedent that would allow any future president to immunize himself from prosecution for unlawful actions simply by persuading a politically appointed lawyer to draft a secret opinion authorizing those actions.

Human Rights Watch also called for a full and public accounting of post-9/11 abuses via a non-partisan commission of inquiry. Despite Justice Department reports and several congressional inquiries and military reports that have looked into detainee abuse, there has never been a comprehensive public inquiry into the abuses, and investigations have either lacked independence from the executive branch or access to necessary documentary and testimonial evidence. Even this long-awaited report was delayed for months as the Obama administration allowed the former Justice Department attorneys' own lawyers the opportunity to review and comment on the report a second time.

To date, the US record on accountability for detainee abuse has been abysmal. Human Rights Watch has collected information regarding some 350 cases of abuse involving more than 600 US personnel. Despite numerous and systematic abuses, not a single CIA official has been held to account, and few military personnel have faced meaningful punishment.

The administration has taken the position that people who were abused based on the flawed authorization to commit torture by Justice Department lawyers are not even entitled to have their claims heard in court. In a lawsuit filed by Jose Padilla, an American citizen who alleges he was subjected to torture based on Justice Department policies, the Department filed a brief claiming that holding lawyers accountable for their conduct would prevent Justice Department lawyers from giving unbiased legal advice.

"The Justice Department report shows that Bush administration lawyers played a central role in the commission of brutal violence in America's name," Prasow said. "The Justice Department should broaden its preliminary investigation of CIA abuses to find out how this happened, and should support other efforts to hold people accountable for abuse."