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DOJ official reportedly clears torture architects John Yoo and Jay Bybee.

Posted in Main Blog (All Posts) on January 31st, 2010 5:36 am by HL

DOJ official reportedly clears torture architects John Yoo and Jay Bybee.
Justice Department officials John Yoo and Jay Bybee were two of the main architects of the Bush administration’s torture program. As Bybee’s deputy, Yoo “was the author of much of the legal rationale for using waterboarding and other severe interrogation techniques.” He argued that interrogators who harm a prisoner would be protected “national and international […]

Justice Department officials John Yoo and Jay Bybee were two of the main architects of the Bush administration’s torture program. As Bybee’s deputy, Yoo “was the author of much of the legal rationale for using waterboarding and other severe interrogation techniques.” He argued that interrogators who harm a prisoner would be protected “national and international version of the right to self-defense,” and illegal conduct must “shock the conscience.” Bybee headed the DOJ’s Office of Legal Counsel and signed off on the infamous 2002 torture memo. Newsweek now reports that a senior DOJ official has essentially cleared the two men of misconduct in an upcoming office of Professional Responsibility report:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors — Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor — violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action — which, in Bybee’s case, could have led to an impeachment inquiry.

A DOJ official said that Margolis “acted without input” from Attorney General Eric Holder. Emptywheel has more.

Cornyn Hypocritically Accuses Democrats Of ?Hysterical? Reaction To Right-Wing Judicial Activism
Last week, the Supreme Court’s five conservative justices joined together to invalidate a 63-year-old ban on corporate money in federal elections and in the process overruled a 20-year-old precedent permitting such bans on corporate electioneering. “There were principled, narrower paths that a court that was serious about judicial restraint could have taken,” Justice John Paul […]

Sen. John Cornyn (R-TX)Last week, the Supreme Court’s five conservative justices joined together to invalidate a 63-year-old ban on corporate money in federal elections and in the process overruled a 20-year-old precedent permitting such bans on corporate electioneering. “There were principled, narrower paths that a court that was serious about judicial restraint could have taken,” Justice John Paul Stevens wrote in dissent, essentially “accusing his colleagues of judicial activism,” in the words of the New York Times’ Adam Liptak.

Indeed, though “judicial activism” is a common scare phrase invoked by conservatives, the Roberts Court has “demonstrated that decades of conservative criticism of judicial activism was nonsense” because “conservative justices are happy to be activists when it serves their ideological agenda.” Politico reports that Democratic senators are saying that Justices “Roberts and Alito misled them during their confirmation hearings when they represented themselves as jurists who would respect precedent”:

Referring to the memorable analogy in which Roberts compared himself to a baseball umpire, Sen. Dianne Feinstein (D-Calif.) told POLITICO this week, “He’s not somebody who just measures balls and strikes. It’s been the most activist court that I’ve seen in my 17 years in the committee.” […]

Conservatives regularly attack Democratic judges as “judicial activists,” but Judiciary Committee member Sheldon Whitehouse (D-R.I.) said, “It’s well past time” to call out conservative justices for their own brand of judicial activism. He said that making such arguments now could help the president if he has another chance to nominate a justice to the court.

Sen. John Cornyn (R-TX), a former judge and current Judiciary Committee member, called such complaints “hysterical.” He thinks the court’s decision last week was simply an effort to “to protect the Constitution’s First Amendment rights of free speech and association.” But his charge that Democrats are “hysterical” over right-wing judicial activism is odd considering he mused in 2005 that there might be a connection between violent attacks against judges and judges “making political decisions“:

CORNYN: I don’t know if there is a cause-and-effect connection but we have seen some recent episodes of courthouse violence in this country. Certainly nothing new, but we seem to have run through a spate of courthouse violence recently that’s been on the news and I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in — engage in violence.

Cornyn refused to apologize for or repudiate his remarks, saying that they had been “taken out of context to create a wrong impression.” But even conservatives thought he had crossed the line. Charles Krauthammer wrote in the Washington Post that Cornyn had “wandered somewhere off the Pacific Coast Highway” with his outrageous — and yes — “hysterical” attack on judicial activism.

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