They Did Authorize Torture, But…

Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of 'Enhanced Interrogation Techniques' on Suspected Terrorists

a report by the Office of Professional Responsibility, Department of Justice
289 pp. (July 29, 2009; released February 19, 2010)

Memorandum for the Attorney General

by Deputy Attorney General David Margolis
69 pp. (January 5, 2010; released February 19, 2010)
Chris Greenberg/Bloomberg/Getty Images
CIA Director Michael Hayden (left) and Acting Assistant Attorney General Steven Bradbury during a Senate Judiciary Committee hearing on the Foreign Intelligence Surveillance Act, July 2006. According to the report by the Justice Department’s Office of Professional Responsibility on John Yoo’s 2002 memos authorizing torture, Bradbury said of Yoo’s arguments about presidential power that ‘somebody should have exercised some adult leadership.’

Whatever else you might say about John Yoo, the former Justice Department lawyer who drafted several memos in 2002 authorizing the CIA to commit torture, you have to admit that he’s not in the least embarrassed by the condemnation of his peers. The Justice Department on February 19 released a set of previously confidential reports by its Office of Professional Responsibility (OPR) excoriating Yoo’s legal work—but stopped short of referring him for professional discipline by his state bar association. Since then Yoo has written Op-Eds for The Wall Street Journal and The Philadelphia Inquirer trumpeting his “victory.” In the Wall Street Journal piece, entitled “My Gift to the Obama Presidency,” Yoo argued that President Obama owes him a debt of gratitude for “winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe.” Four days later, in The Philadelphia Inquirer, Yoo called the decision not to refer him for bar discipline “a victory for the people fighting the war on terror.”

This is a bit like a child coming home with an F on his report card and telling his parents that they should congratulate him for not getting suspended, or President Clinton proclaiming to Hillary that Congress’s failure to impeach him was a vindication of his affair with Monica Lewinsky. The one thing practically everyone interviewed by the OPR agreed about was that Yoo’s legal work on the torture memos was atrocious. Bush’s Attorney General Michael Mukasey called it “slovenly.” Jack Goldsmith, another Republican who headed the Office of Legal Counsel from 2003 to 2004, said that Yoo’s August 2002 memo justifying torture by the CIA was “riddled with error” and a “one-sided effort to eliminate any hurdles posed by the torture law.”

Daniel Levin, who headed the Office of Legal Counsel after Goldsmith left and, like Yoo, was a former clerk to Justice Clarence Thomas, described his reaction upon reading Yoo’s memo as “This is insane, who wrote this?” And Steven Bradbury, who became acting head of the OLC after Levin’s departure, also under President Bush, and who wrote several memos authorizing torture himself, said of Yoo’s arguments about presidential power, “Somebody should have exercised some adult leadership” and deleted his arguments altogether. These are the assessments not of human rights advocates or left-wing critics but of Yoo’s Republican colleagues at the Justice Department.

The OPR itself, which is comprised of career civil servants charged with monitoring ethics violations by department lawyers and is not…

This is exclusive content for subscribers only.
Get unlimited access to The New York Review for just $1 an issue!

View Offer

Continue reading this article, and thousands more from our archive, for the low introductory rate of just $1 an issue. Choose a Print, Digital, or All Access subscription.

If you are already a subscriber, please be sure you are logged in to your account.