Book closed on BYU grad for torture memos, but Demos protest

Published: Friday, Feb. 26 2010 11:01 a.m. MST

WASHINGTON — The Justice Department told Congress Friday that it has closed the book on and will pursue no action against Jay Bybee, a BYU law graduate and current federal appeals court judge, for signing as a Bush administration lawyer memos allowing harsh treatment of suspected terrorists.

But Senate Democrats had a hard time swallowing that and called for wider investigation anyway.

They also stressed that while Justice Department probes cleared Bybee and John Yoo of professional misconduct related to torture memos they prepared, their reports still criticize the memos as flawed and poorly reasoned.

"Focusing on whether these lawyers failed to meet legal ethics standards misses the fundamental point," Senate Judiciary Committee Patrick Leahy, D-Vt., complained in a hearing Friday.

"The real concern is that lawyers who were supposed to be giving independent advice regarding the rule of law and what it prohibits were instead focused on excusing what the Bush-Cheney administration wanted to do," he said.

The memos authorized the CIA to do such things as waterboard detainees in Guantanamo Bay, slam them into a wall, hit them, lock them in small boxes with insects and deprive them of sleep for up to 11 days.

Leahy vowed to pursue more hearings seeking more documents into how the Bush administration allowed torture, and renewed his earlier calls for nonpartisan commission to study the matter.

But Gary G. Grindler, acting attorney general, told the hearing that the Justice Department and the Obama administration now consider the matter closed.

While an initial review by Justice's internal affairs unit found that Bybee and Yoo committed misconduct, the pair appealed to Assistant Deputy Attorney General David Margolis, who made the final ruling that no misconduct occurred.

Grindler told the Senate that the ruling by Margolis, a career attorney with 45 years of experience, and not a political appointee, represents the department's final decision, and that Margolis reached it "independently and without political influence. That is how it should be."

He added, "The department stands behind that decision, including the decision not to refer the matter to the bar associations where Mr. Bybee and Mr. Yoo are members."

Grindler added, however, that there is "one common thread" among all the probes by the Justice department into memos by Bybee and Yoo. "They reflect the shared conclusion that the OLC (Office of Legal Counsel) memos were flawed."

Grindler said Justice attorneys merely disagreed "whether the legal errors at issue here were so flawed as to amount to professional misconduct. In the end, Mr. Margolis concluded that the authors of the memos exercised poor judgment," meaning their conclusions were outside what the department would reasonably expect an attorney exercising good judgment to make.

However, Margolis ruled that Bybee and Yoo were not reckless and did not knowingly give incorrect advice, the standard for misconduct.

Committee Republicans said the ruling by the Obama administration's Justice Department should end the matter. Sen. John Cornyn, R-Texas, even said it means that Americans should thank Bybee and Yoo for making difficult decisions in an attempt to protect Americans after 9/11.

Bybee is now a judge for the 9th Circuit Court of Appeals. Yoo is a law professor at the University of California at Berkeley.

This story was reported from Salt Lake City.

e-mail: lee@desnews.com

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