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.
In short: "You're really crappy lawyers, but you did nothing that was actually wrong."
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... 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.
This is pretty damn clear evidence of legal misconduct- ruling not on the actual law, but on what those in power want to be legal.
But Margolis- and almost certainly his bosses Holder and Obama, given this White House's acts thus far on torture- is deliberately ignoring this evidence. Instead he- and Holder, and Obama- have decided to protect those who ordered torture from any possible legal sanction. No jail time, no disqualification from public office, no impeachment in Bybee's case- not even disbarment for being crappy lawyers.
It is just barely possible that Margolis is covering his own ass in some fashion; he was an assistant attorney general under George W. Bush, and almost certainly the torture argument came across his desk long before this.
It's much more probable, though- especially considering how many times Eric Holder himself has delayed the release of this OPR report- that orders came from the top to ensure that, whatever came out in the report, those responsible for the torture of prisoners in American custody would be whitewashed.
These orders have been coming down since the very beginning of Obama's presidency, and there is no sign of any change of heart now.