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The Office of Professional Responsibility (OPR) report on the torture memos is expected this week, and Newsweek's Michael Isikoff and Daniel Klaidman apparently have the initial leak, reporting not only that the report clears Yoo and Bybee of misconduct, but was "softened" from an earlier finding.

[A]n upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the “torture” memos of professional-misconduct allegations.

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....

Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

It's almost enough to make one respect Chertoff, however grudgingly, right along with Ashcroft and Comey who refused to sign off on recertifying the massive warrantless wiretapping program. Apparently Chertoff had enough respect for the rule of law to at least resist providing blanket immunity to CIA torturers. Predictably, as with the NSA spying program, Addington, Yoo, Bybee, and Gonzales found yet another use for the imperial presidency.

The sound you're about to hear, when the final report is finally released, will be an administration trying to slam a door shut on a monster in our nation's collective closet. But now that declaring the president is above the law now officially just shows "poor judgment," don't expect the monster to stay caged.

Originally posted to Daily Kos on Mon Feb 01, 2010 at 06:32 PM PST.

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