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When the Justice Department finally released the report of its Office of Professional Responsibility on the “torture memos,” recommending that the initial torture memo’s authors, John Yoo and Jay Bybee, be referred for bar discipline, John Yoo declared victory in op-eds in the Wall Street Journal and Philadelphia Inquirer. The report itself concluded that Yoo and Bybee had acted unethically, and quoted many of Yoo’s successors in office as condemning the memos as, among other things “slovenly,” “riddled with error,” and “insane.” But Yoo claimed victory because Associate Deputy Attorney General David Margolis vetoed its recommendation that he be referred for discipline; he, too, condemned Yoo, but considered it more a matter of poor judgment than unethical behavior.

This essay critically reviews the OPR Report and Margolis’s report, and maintains that both the report and Margolis committed two fundamental errors. First, neither considered the ultimate illegality of what the memos authorized – torture and cruel, inhuman, and degrading treatment of human beings within United States custody and control. They focused merely on method, not end result; but of course, it is the end result that makes what Yoo and Bybee did so unethical. Second, and relatedly, both reports spared Yoo and Bybee’s successors from the analysis afforded to Yoo and Bybee. Yoo and Bybee’s successors were very quick to condemn the initial report, but what is perhaps most damning about the entire story is that these same successors consistently reached the same bottom line as Yoo and Bybee, and authorized the same criminal behavior. In many ways, the actions of Yoo and Bybee’s successors are more deeply disturbing, moreover, as they persisted in giving a green light to the CIA in secret even as the law in public grew ever explicit in underscoring that what they were authorizing was illegal. Moreover, these later memos, written by Jack Goldsmith, Daniel Levin, and Steven Bradbury – all of whom harshly criticized Yoo’s work after the fact – were drafted not in the heat of the moment, but many years after 9/11, after seeing the public condemnation of the initial Yoo-Bybee memo, and after the CIA’s Inspector General had reported that there was no evidence that the CIA’s “enhanced” interrogation tactics were obtaining evidence not obtainable through noncoercive tactics.

The OPR and Margolis were unwilling to address the ultimate legal wrong committed by Yoo and Bybee, I argue, precisely doing so would necessarily have implicated too many in the Justice Department (and beyond). Thus, the focus on John Yoo was a convenient ploy to avoid confronting the full extent of systemic illegality perpetrated by a whole series of Justice Department lawyers and high-level officials in the Bush administration, up to and including President Bush himself, over a six-year period.

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4 J. Nat'l Security L. & Pol'y 455-464 (2010)