The ethics lawyers, in the Office of Professional Responsibility, concluded that two department lawyers involved in analyzing and justifying waterboarding and other interrogation tactics — Jay S. Bybee, now a federal judge, and John C. Yoo, now a professor at the University of California, Berkeley — had demonstrated “professional misconduct.” It said the lawyers had ignored legal precedents and provided slipshod legal advice to the White House in possible violation of international and federal laws on torture. That report was among the documents made public Friday.
But David Margolis, a career lawyer at the Justice Department, rejected that conclusion in a report of his own released Friday. He said the ethics lawyers, in condemning the lawyers’ actions, had given short shrift to the national climate of urgency in which Mr. Bybee and Mr. Yoo acted after the attacks of Sept. 11, 2001. “Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost,” Mr. Margolis said.
So apparently the law is fungible, susceptible to circumstance and the political climate of the times. This is good to know.
The report quotes Patrick Philbin, a senior Justice Department lawyer involved in the review, as saying that because of the urgency of the situation, he had advised Mr. Bybee to sign the memorandum, despite what he saw as Mr. Yoo’s aggressive and problematic interpretation of the president’s broad commander-in-chief powers in trumping international and domestic law.
Mr. Philbin said that “given the situation and the time pressures, and they are telling us this has to be signed tonight — this was like 9 o’clock, 10 o’clock at night on the day it was signed — my conclusion” was that it was permissible for Mr. Bybee to sign the memorandum. “They” apparently referred to White House officials.
So this was the "climate of urgency" Margolis was referring to. Apparently a really urgent deadline, and someone yammering at you that they need this thing right now goddammit! and it being past someone’s bedtime, are also more important than what the document actually says and the specious legal arguments to which it lays claim.
I would say there are some rather obvious flaws to David Margolis’ conclusion. The whole idea that you can commit professional misconduct if the situation is really really urgent is absurd. But I’m sure if anyone were so impolite as to point that out he would just say he was on a really tight deadline, and it was like 9 o’clock or 10 o’clock and his boss was yammering at him to turn the goddamn report in already, and also he was really scared that Liz Cheney would be mean to him on Meet The Press.
Although I just read the piece in yesterday’s New York Times, news of the Margolis report was leaked at the end of January. Jeff Kaye looked into the David Margolis memory hole at the time and found some pretty interesting “skeletons,” including a possible connection to the government’s persecution of Leonard Peltier.
He also may have covered up alleged misconduct by FBI interrogators:
More speculatively, and intriguing, given the claims involved, is Margolis’s involvement in the investigation of a forgotten FBI sting operation against NASA contractors in the early 1990s. Operation Lightning Strike was, according to a Washington Post article at the time, a "20-month Justice Department sting operation focusing on NASA’s Johnson Space Center in Houston… [resulting] in criminal fraud and bribery charges against nine men and one contractor."
Later, in 1996, a defense committee was formed to support the "NASA-13". The committee, in a petition to the U.S. House of Representatives Government Reform and Oversight Committee claimed that the men caught up in the Operation Lightning Strike, some of whom were victims of "’frame-ups’ and torture, to obtain prosecutions." David Margolis was mentioned as admitting that an OPR investigation into the case was begun in 1994 to look into "investigative and prosecutive misconduct." However, no results from that report were ever made public. The involvement of Margolis in this case deserves further scrutiny, given it involved serious allegations about coercive interrogations and torture.
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.
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.”)
As Kaye observed:
Margolis appears to have a long history of involvement in government frame-up and/or obfuscation of internal misconduct by the FBI or Justice Department prosecutors.
It would not surprise me in the least to learn that the FBI and DoJ have a “fixer” at the Justice Department.
Surprises me even less to learn that we’ve possibly been torturing people (and covering it up) for decades.
During the Clinton years I seem to recall an Independent Counsel being appointed for the most ridiculous fauxtroversies, from the death of Vincent Foster to Monica Lewinsky to "Whitewater." But the Independent Counsel Act was allowed to expire in 1999, which in retrospect seems unfortunate.