By Carrie Johnson
Washington Post
Sunday, January 31, 2010; A06

Bush administration lawyers who paved the way for sleep deprivation and
waterboarding of terrorism suspects exercised poor judgment but will
not be referred to authorities for possible sanctions, according to a
forthcoming ethics report, a legal source confirmed.

The work of John C. Yoo and Jay S. Bybee, officials in the Bush Justice
Department's Office of Legal Counsel, provided the basis for
controversial interrogation strategies that critics likened to torture
in the years after al-Qaeda's 2001 terrorist strikes on American soil.
The men and their OLC colleague, Steven G. Bradbury, became focal
points of anger from Senate Democrats and civil liberties groups
because their memos essentially insulated CIA interrogators and
contractors from legal consequences for their roles in harsh
questioning.

The reasoning, set out in a series of secret memos only months after
Sept. 11, 2001, prompted a multi-year investigation by the department's
Office of Professional Responsibility, which reviews the ethics of
Justice lawyers. The legal source was not authorized to discuss the
report's conclusions and described them on the condition of anonymity.

A draft report prepared at the end of the Bush years recommended that
Yoo, now a law professor at the University of California at Berkeley,
and Bybee, now a federal appeals court judge in Nevada, be referred to
state disciplinary authorities for sanctions that could have included
the revocation of their licenses to practice.

But then-Attorney General Michael B. Mukasey and Deputy Attorney
General Mark R. Filip blasted the analysis in the draft and sent it
back to the ethics office for more work. Meanwhile, the five-year
statute of limitations on Yoo's alleged conduct expired, raising doubts
about whether a disciplinary referral would have had any bite. The
draft report did not recommend Bradbury face sanctions, three sources
told The Washington Post last year.

Upon taking office in 2009, Obama's Attorney General Eric H. Holder Jr.
assigned the hot-potato project to his new leader of the professional
responsibility office, veteran D.C. prosecutor Mary Patrice Brown.
Brown took months to carefully review and revise the lengthy report,
and her conclusions eventually went to a senior career lawyer in the
department, according to a source with knowledge of the process.

The source said the decision to stop short of disciplinary
recommendations for Yoo and Bybee fell to David Margolis, who has spent
more than three decades at the center of some of the most sensitive
issues at the Justice Department. Margolis's decision was first
reported by Newsweek's Web site.

Representatives for Bybee and Bradbury declined to comment Saturday, as
did a Justice Department spokeswoman. Miguel Estrada, an attorney for
Yoo, said he had not seen the findings and thus could not remark on
them.

The conclusion is likely to unsettle interest groups that have sought a
reckoning for lawyers who made possible brutal interrogation,
warrantless wiretapping and other Bush counterterrorism strategies. It
could have the strongest effect on Bybee, a sitting judge whose allies
had established a legal defense fund in the event that he had to fend
off a lengthy state discipline and impeachment fight.