Reaction to OPR Report Falls Along Party Lines
By Hsiang-Ching Tseng | February 22, 2022 5:12 pm

On Friday, the Department of Justice released a report by the Office of Professional Responsibility on the production of memos written by John Yoo and Jay Bybee during the Bush administration that justified the legality of torture. The report said Yoo and Bybee exhibited “poor judgment” but their actions did not constitute professional misconduct.

Here are some of the reaction to the OPR report on the Web:

Bybee should resign. In a statement, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) called for Bybee to resign his federal judgeship.

“The deeply flawed legal opinions proffered by these former OLC officials created a ‘golden shield’ that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in U.S. custody,” Leahy 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.”

“If the Judiciary Committee, and the Senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment,” Leahy said.

Leahy plans to hold a hearing on the OPR memo Friday.

Let a Jury Decide. Benjamin Davis, a law professor at the University of Toledo and a guest columnist at JURIST, said the guilt or innocence of Yoo and Bybee should be determined in by a jury rather than by the Office of Professional Responsibility. “I trust in twelve American jurors weighing the evidence competently presented by a US Attorney, and Yoo and Bybee being represented by competent defense attorneys in 1) an Article III court based on a federal prosecution by a special prosecutor or a state prosecutor pursuant to a federal officer removal act proceeding from state court or 2) in a state court to be able to examine whether these persons have the requisite mens rea and actus reus to have violated federal law and/or state law with regard to torture.”

Vindicated. The Wall Street Journal praised Margolis’ decision, saying it unequivocally vindicated Yoo. “Mr. Margolis deserves credit for his independent analysis, but we also can’t help but notice the striking change of tone in the last few pages of his report. Mr. Margolis’s only duty was determining whether the Bush attorneys had adhered to proper ethical standards. On that question, he is unequivocal in saying they did.”

A brave decision. In a column for National Review Online, Bill Burck and Dana Perino said Margolis did the right thing in rejecting the OPR’s initial recommendation. “We don’t mean to be insulting, but the plain fact is that OPR is not, and has never been, equipped to second-guess OLC. The office’s role is a limited one focused on ethical violations; it is not staffed with experts on constitutional law or national security. It would be preposterous to rely on OPR’s judgment about hard questions of constitutional and statutory law over that of OLC or the Solicitor General’s Office.”

“The fact that OPR almost succeeded — and was stopped only because Margolis did the right thing and brought the curtain down on this farce — should remind everyone that partisan politics are alive and well at the Justice Department.”

Complicity. Ira Glasser at Huffington Post said “Margolis’ tolerance for what Yoo and Bybee did strikes me as outrageous as their misconduct. Tolerating what they did — calling it merely “poor judgment” — is in my view a form of complicity.”

“Yoo and Bybee claimed, and still claim, that the President has the constitutional power to override all laws, all legal limits on his authority. If that were so, the entire Bill of Rights could be nullified at the will of the President. Everyone, left and right, conservative and liberal, Tea Party types and ACLUers, should be chilled by and afraid of that prospect.”

Most lawyers are scum anyway. Blogger Jack Balkin criticized the result of the OPR report, saying it is “not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions.”

“Whether or not the DOJ refers Yoo and Bybee for professional discipline, no one should think that either man behaved according to the high standards we should expect of government attorneys. They, and the government officials who worked with them, shamed this nation. They dragged America’s reputation in the dirt. They severely damaged our good name in the eyes of the world. They undermined the values this country stands for and that the legal profession should stand for. Nothing the DOJ does now-or fails to do-will change that.”


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