No Comment — February 1, 2010, 11:14 am

Margolis Moves to Exonerate Yoo and Bybee, as Criminal Investigation Opens in Spain

Three developments last week show the growing gap between the Obama Administration and its NATO allies with respect to the legacy of torture from the Bush era. They also demonstrate that, contrary to Obama’s promises faithfully to uphold the Convention Against Torture and Geneva Conventions, his Justice Department has no intention of doing so when crimes from the Bush era are in question. This attitude is not going over well with key allies.

In Ottawa, the Supreme Court issued a decision concerning the treatment of child-warrior Omar Khadr, a Canadian citizen held and facing charges in Guantánamo. The Court found that his treatment “offends the most basic Canadian standards about the treatment of detained youth suspects” and concluded that the Canadian Government had violated his rights by colluding with U.S. authorities at Guantánamo. However, the Court overturned the ruling of lower courts that had ordered the Canadian Government to seek Khadr’s immediate release and return to Canada. The Court was unsparing in its criticism of what had transpired in Guantánamo, and its ruling put a solid barrier in the way of Canadian cooperation with the United States in similar detention arrangements.

In Madrid, the Spanish Audiencia Nacional, dealing with allegations concerning the torture of Ahmed Abderraman Hamed, a Spanish subject held at Guantánamo, issued a decision opening formal criminal investigations. Six Bush Administration lawyers—John Yoo, Jay Bybee, Alberto Gonzales, Jim Haynes, Doug Feith, and David Addington—were described as the “intellectual authors” of a program of torture to which the Spaniard and four of his fellow prisoners were subjected. In its decision, the Spanish court concluded that the American Justice Department was not involved in any credible effort to investigate or prosecute torture cases connected with Guantánamo. It also announced that the Justice Department had defaulted in response to letters rogatory seeking clarification of issues surrounding the incidents of torture in which the Justice Department itself was directly involved. (So much for Eric Holder’s pledge of cooperation with European counterterrorism investigators.) The taking of testimony in these proceedings is set to begin next week.

Meanwhile, in Washington, deep in Eric Holder’s Justice Department, a struggle continues over what to do with the ethics report of the Office of Professional Responsibility, reviewing the role of senior Justice Department lawyers in authorizing and implementing an extensive torture program. Five years in the making, the document was the subject of persistent political infighting as Bush-era officials sought to shut down or direct the investigation from which it arose. OPR concluded that Yoo and Bybee engaged in serious professional misconduct and recommended that their cases be referred to bar associations for appropriate disciplinary actions—a considerably softer punishment than the Spanish criminal investigators now have in mind. But David Margolis, the senior career official at Justice during the Bush years, sought to suppress or reverse the report. Eric Holder told the Senate Judiciary Committee that the report would be out in November; he acknowledged giving it to Margolis for final review and clearance. Now, two months later, it’s still nowhere in sight. But Newsweek’s Michael Isikoff and Dan Klaidman report Margolis’s efforts to gut the OPR report have proceeded:

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 few words of caution: we need to get the report to see what it says. I am told that it addresses a large number of questions and builds a detailed, comprehensive factual narrative. It will be ultimately more important for the factual research than for the opinions of David Margolis. It will be critical to know what the OPR itself concluded before Margolis got his hands on it and to see exactly how Bush-era officials like Margolis attempted to spin it. Still, it will be interesting to see exactly how Margolis concludes that the role played by Yoo and Bybee in creating a comprehensive system for torturing prisoners–now linked to several dozen homicides and a far larger number of lesser crimes–really merits only a slap on the wrist. It’s noteworthy that he reaches this conclusion at the same time as a criminal court concludes it’s worthy of a formal criminal investigation.

By way of background, it’s worth noting Margolis’s past track record in burying evidence of political skullduggery in the Department.

Margolis is held in very high regard by many of his Justice Department colleagues. One recently described him to me as the Justice Department’s “institutional memory.” A glowing Legal Times piece described him as

one of the Justice Department’s most respected officials, a lawyer with a sterling reputation earned over 42 years of service at the department. “Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.”

But “Yoda” Margolis also knows the “dark side” of political intrigue. He was long the man to whom political appointees could turn for protection and guidance when the going got rough, in both Democratic and Republican administrations. For instance, Bloomberg reported that both Kyle Sampson and Monica Goodling turned instinctively to Margolis for protection and support when the U.S. attorney’s scandal erupted.

What this means in practice can be seen in dozens of cases involving seriously unethical conduct by political appointees. Margolis has a one-size-fits-all solution for these cases: sweep them under the carpet.

In “Prosecutorial Ethics Lite,” I reviewed what Margolis did when confronted with a case in which a U.S. attorney used all the powers she could assemble to destroy an insurance executive who had commenced a law suit against her husband. Ethics rules clearly required her recusal. But in the face of a compelling mass of evidence, Margolis concluded that everything was just fine. He allowed the U.S. attorney to pass nominal control of the matter to the head of her criminal division. The abuse of office pressed forward, with Margolis’s blessing.

Justice Department insiders also note that Margolis single-handedly blocked efforts to secure a meaningful review of the prosecution of former Alabama Governor Don E. Siegelman, after more than 90 attorneys general from around the country advised the Justice Department of a series of gross irregularities. Instead, with Margolis’s apparent knowledge, the Department fired a member of the prosecution team who had blown the whistle on some of the misconduct. (“What the Justice Department is Hiding.”)

Jeff Kaye collects a number of other occasions on which Margolis’s machinations have made their way into the media.

In a July 6, 2008, Los Angeles Times story, Margolis is cited as leading an effort to avoid publication of the Department’s internal ethics reviews. Margolis told the Times that his opposition to publication of OPR reports was driven by concerns about “unnecessarily or gratuitously… publicly humiliating our line attorneys as individuals.” But it may well be that Margolis’s desire to keep his own role in those cases secret was a more pressing concern.

There is little mistaking Margolis’s brief in all these matters. None of his critics fault Margolis’s own conduct as a lawyer. But they express concern that he is too quick to let political appointees off the hook and note that this has severely damaged the culture of the Justice Department. Ironically, Margolis is clearly driven by a desire to protect the Department’s reputation.

However, in the current age, it is the Department’s failure to discipline itself that has raised the far greater worry. At a remarkable conference recently held at Arizona State University, a group of Bush-era U.S. attorneys discussed the current malaise at the Department. Carol Lam, the former U.S. attorney in San Diego and now general counsel of Qualcomm, said that the Bush Justice Department essentially rid itself of people who behaved professionally and were determined simply to do the right thing. It was instead dominated by those who were motivated by politics and oblivious to ethics. David Margolis was supposed to have been a watchdog against this process. Instead, he facilitated it. The failings he seeks to cover up in the OPR report were made possible by the ethics-free culture that he promoted at the Justice Department.

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