On Friday, the Department of Justice’s Office of Professional Responsibility (OPR) released a long-awaited report investigating whether the legal advice in crucial Bush administration memos authorizing torture “was consistent with the professional standards that apply to Department of Justice attorneys.” The report found that attorneys John Yoo and Jay Bybee “had committed professional misconduct in writing the legal opinions that authorized torture.” The report was softened, however, by Associate Deputy Attorney General David Margolis, the top career attorney at the department, who “overruled OPR’s finding of misconduct” in an accompanying memo, concluding only that that Yoo and Bybee exercised poor judgment and made bad legal arguments. While stating that his “decision should not be viewed as an endorsement of the legal work that underlies” the torture memos, Margolis also “barred OPR from referring the matter to state bar disciplinary authorities where Yoo and Bybee are licensed.” What’s troubling, Margolis’ memo indicated that Yoo and Bybee’s legal decisions were understood as having occurred in the heat of the post-9/11 moment, (even though they were written in 2002) implying that “being under pressure” is an excuse for ignoring laws against torture.

PRESSURE FROM BUSH OFFICIALS?: OPR is the Justice Department’s “internal watchdog” and “has the authority to recommend referring errant DoJ lawyers for professional discipline or even criminal prosecution.” The OPR’s investigation of Yoo and Bybee began after Jack Goldsmith — who succeeded Bybee as head of the Office of Legal Counsel (OLC) in 2003 — “protested the legal arguments made in the memos.” In a highly irregular move indicating how poorly reasoned the memos were, Goldsmith withdrew them. Goldsmith resigned the following year, and later wrote that he was “astonished” by the memos’ “deeply flawed” and “sloppily reasoned” legal analysis. OPR’s report was originally submitted in the final weeks of the Bush administration and sharply criticized the legal work of Bybee and Yoo, “as well as that of Steven Bradbury, who was chief of the OLC at the time.” In February 2009, Newsweek’s Michael Isikoff reported that a draft of OPR’s report was “causing anxiety among former Bush administration officials.” The Washington Post reported that, at the urging of representatives of Yoo and Bybee, former Bush administration officials were “lobbying behind the scenes to push Justice Department leaders to water down” the final report.

NO VINDICATION: Seizing on the fact that the Justice Department will not recommend any further disciplinary action against them, Bybee and Yoo’s defenders have attempted to present the report as a victory. Writing in National Review, former Bush administration officials Dana Perino and Bill Burck claimed that the Justice Department had “officially exonerated“ Yoo and Bybee. Yoo, who is now a law professor at the University of California Berkeley, was quick to claim vindication. In the Wall Street Journal, Yoo wrote “Barack Obama may not realize it, but I may have just helped save his presidency” by having devised a legal rationale for unfettered executive national security authority, and “winning a drawn-out fight to protect his powers as commander in chief.” Yoo’s lawyer Miguel Estrada went so far as to suggest that Attorney General Eric Holder should identify those in the Justice Department who had leaked previous findings and “refer them for prosecution or bar discipline.” But an editorial in the Los Angeles Times stated that the report “is far from a vindication” for Yoo and Bybee’s “shamefully narrow interpretations of laws against torture.” The editorial worried that Margolis’ “measured verdict will be misrepresented as an exoneration of two lawyers,” noting, “They may not be disbarred, but they are disgraced.” An editorial in the New York Times asked incredulously, “Is this really the state of ethics in the American legal profession? Government lawyers who abused their offices to give the president license to get away with torture did nothing that merits a review by the bar?”

DO LAWS AGAINST TORTURE HAVE ANY MEANING?: Though the Justice Department’s own internal investigation into the matter is now officially closed, Washington Independent legal analyst Daphne Eviatar writes, “The battle now will be over whether the U.S. government will meet its obligations to thoroughly investigate what happened and hold the perpetrators accountable.” Last year, The Progress Report led an effort to demand that either Bybee voluntarily step aside from his perch on 9th Circuit Court of Appeals, or if not, Congress should impeach him. Even though President Obama announced shortly after taking office that his administration would no longer use the “enhanced interrogation techniques” enabled by the torture memos, there are real questions as to whether future abuses can be deterred if there is no accountability for those who authorized and engaged in such abuses in the past. Appearing on ABC’s This Week on Feb. 14, former Vice President Cheney openly admitted that he had approved of waterboarding — a practice that is acknowledged as torture by an overwhelming international legal consensus, including Holder. If there’s no accountability, asked attorney and blogger Glenn Greenwald asked, “What would stop a future President (or even the current one) from re-authorizing waterboarding and the other Bush/Cheney torture techniques if he decided he wanted to?”