Over at Slate, David Luban takes a close look at Associate Deputy Attorney General David Margolis’s 69-page memorandum in which he downgraded the Office of Professional Responsibility’s finding that Jay Bybee and John Yoo committed professional misconduct.
For more than a decade, Margolis has been the career official in the DAG’s office who handles disciplinary matters. His portfolio is broad, and he cuts a big figure at the department, as the top career official with more than 40 years’ experience. (He’s also the official who signs off on prosecutor requests to subpoena reporters, helps select U.S. Attorneys and vets top FBI officials, among other duties.)
Margolis has described himself as the department’s “cleaner” — as in the guy who cleans up the department’s messes. In the weeks to come, many legal experts will debate whether Margolis took out the trash or made a bigger mess of things. We know where Luban, a Georgetown Law professor, stands:
Margolis rejects OPR’s analysis and concludes that “poor judgment” rather than professional misconduct “accounts for the entirety of Yoo’s work” on the torture memos.
But that’s not the right characterization for memos that used extravagant legal reasoning to approve torture. It’s like saying that Iago’s advice to Othello showed poor judgment. OPR made a powerful case against Bybee and Yoo. In response, Margolis went after OPR like a defense lawyer, upped the burden of proof beyond what the ethics rules require, and minimized the liberties that Yoo and Bybee had taken with the law.
To continue reading Luban’s analysis, click here.
I agree with David Luban.
You really think that you are going to get information from someone who really hates you, by torturing them? Only fools would think that torturing someone who already is willing to blow themselves up in the name of their ideology, would be fruitful.
Also, retroactive warranting is all that is necessary and FISA covers that perfectly. Data mining all phone calls in and out the US is like looking for something in a haystack that might be there. If you already know who you want to listen to then getting the warrant is of no consequence once you justify it though evidence. You can’t run the mining program all the time, you have to pick and choose where to look and have a rough idea about when too. Thinking your enemy is dumb enough to get caught telling you the plan on the phone is really naïve. Naïve is also a good word for the people controlling the opinions of those in the power of our Executive Branch at the time. The military uses code words, but you don’t think our enemies would too?
The John Woo opinions are all about legacy. This is just hacks retroactively covering their asses; with Osama Bin Laden still at large and 2 trillion tax dollars up in smoke in Iraq? Please! The Executive Branch of our government from 2000 to 2008 displayed many instances of incompetence, so in my mind it would be safe to say that 9/11 could have been disrupted or ameliorated with just about anyone else in the office.
The towers were bombed during Clinton and the Fed building was blown up under Bush Sr. but you didn’t see their offices suspend indefinitely the rights of Americans, justified by trumped up legal opinion. You torture me John Woo. I don’t want to hear or see of this man ever again. Doesn’t matter what he wants me to think about his intentions.
LIKE I SAID ON THE OTHER POST, MARGOLIS IS WAY PAST HIS PRIME, AND THE ODAG WILL ACT ALWAYS. ALWAYS! IN THE MOST POLITICAL MANNER POSSIBLE, WHEN THE CASE IS HIGH PROFILE AND POLITICAL.
I THINK IT WOULD BEHOOVE AG HOLDER TO HAVE A FRESH PAIR OF EYES IN THE ODAG REVIEWING OPR’S FINDINGS-CLEARLY, MARGOLIS IS BIASED, HE BOWS TO PRESSURE, AND HE GIVES THE APPEARANCE, IN MORE THAN ONE HIGHLY CHARGED CASE (I.E., THE MOUSSAOUI SENTENCING CASE-WHERE HE VERY MUCH BOWED TO POLITICAL PRESSURE FROM THE USAO, EDVA IN THE CASE OF DAVID J. NOVAK IN DOWNGRADING HIS MISCONDUCT SANCTIONS) OF NOT ACTING IN THE INTERESTS OF JUSTICE-IT IS OPR, NOT MARGOLIS, WHO HAS DONE THE ACTUAL LEGWORK, TAKEN TESTIMONY, REVIEWED THE DOCUMENTARY EVIDENCE- MARGOLIS ONLY SEES THE FINAL REPORT-AND THAT IS SIMPLY NOT GOOD ENOUGH, NOR IS IT FAIR THAT ONLY ONE PERSON GETS TO DECIDE WHETHER OR NOT THE FACT-FINDER IS CORRECT. THERE OUGHT TO BE A PANEL WITHIN ODAG MAKING SUCH IMPORTANT DECISIONS IN HIGHLY CHARGED POLITICAL CASES, IF IN FACT, DOJ IS SERIOUS ABOUT WANTING JUSTICE TO BE SERVED, THAT IS!
Luban isn’t a lawyer. He’s a philosopher. There are many others who have criticized the Margolis decision who are lawyers and able to address teh legal issues rather than just the philosophical issues, which are tangential to the question before OPR and Margolis
David Margolis who under a great deal of pressure made a just and objective decision should be congratulated, nor excorirated. Margolis scathing indictment of office of Professional Responsibility also provides additional evidence for OPR irresponsibility and ethical problems, and perhaps corruption.
OPR’s draft report relied heavily on Luban’s work, as noted by AG Mukasey and DAG Filip in their Jan. 2009 letter to Marshall Jarrett — something they note was also confirmed in a prior meeting with Jarrett. So is it any wonder that Luban is critical of Margolis’s memo?
A careful reporter would have mentioned the obvious bias in Luban’s analysis. If Luban is not a lawyer — as a previous commenter suggested — then that should have been mentioned, as well.
I THINK SCOTTD AND ANTONIO ARE FRIENDS/RELATIVES OF MARGOLIS- MARGOLIS HAS FANNED OUT ACROSS THE INTERNET CALLING ON HIS FAMILY MEMBERS AND FRIENDS TO DEFEND HIS ACTIONS.
EXCEPT THAT MARGOLIS HAS BOWED TO PRESSURE-IN THE MOUSSAOUI SANCTIONS CASE OF DAVID J. NOVAK, WHERE HE DOWNGRADED THOSE VERY SERIOUS SANCTIONS, AND IN THE TORTURE MEMO SANCTIONS AS WELL.
LIKE I SAID, AND WILL REPEAT AGAIN: THE ODAG IS INHERENTLY POLITICAL, AND WHEN CALLED UPON TO BE A DECISIONMAKER IN A HIGHLY POLITICALLY CHARGED CASE, THE ODAG WILL ALWAYS CHOOSE THE PATH OF LEAST RESISTANCE-THE DECISION THAT WILL BE THE MOST INNOCUOUS-WHICH IS ABSOLUTELY NOT THE SAME AS THE DECISION THAT SERVES JUSTICE.-
MARGOLIS IS PART OF THE PROBLEM, HE SHOULD BE REPLACED-BY A PANEL WITHIN THE ODAG-YOU CANNOT HAVE ONE PERSON PLAYING DECISIONMAKER OVER OPR’S FINDINGS-THAT SIMPLY BEGS INJUSTICE, AND UNJUST, BIASED DECISIONS, WHICH MARGOLIS CLEARLY HAS EFFECTUATED HERE.
GET RID OF MARGOLIS IN THE ROLE OF ODAG DECISIONMAKER OVER OPR. HE IS PAST HIS PRIME-ENGAGE A PANEL AND THEN YOU’LL CONVINCE US, DOJ, THAT YOU ARE SERIOUS ABOUT DOING JUSTICE IN THESE VITALLY IMPORTANT OPR CASES.
VITALLY IMPORTANT.