When reading through the major papers’ coverage of the release of a series of documents surrounding the department’s investigation into the Bush era Office of Legal Counsel’s drafting of memos allowing torture, I was surprised to see the varying degrees of clarity with which they reported the key facts of the day.
Translating bureaucratese into newspaper copy can be a challenge, especially on deadline. But if you strip away too much technical language in an attempt to make a story readable, you run the risk of confusing the underlying facts, obscuring the truth, and misleading readers. That, to varying degrees, is what happened here.
Before getting into this, keep in mind these two salient facts. First, the Justice Department’s internal ethics watchdog, the Office of Professional Responsibility, concluded in a 289 page report that Jay Bybee and John Yoo were guilty of professional misconduct and recommended, as is standard procedure, that the matters be officially referred to their respective state bar associations for potential discipline. Second, David Margolis, who as the department’s highest-ranking career official oversees OPR and has the final say, wrote a sixty-nine-page memorandum overruling the report’s conclusions, vacating the standard referrals.
My gold star for explaining this goes to Jess Bravin of The Wall Street Journal for a precise two paragraph lede.
WASHINGTON—A senior Justice Department official cleared two Bush administration lawyers of professional-misconduct allegations in connection with memorandums the lawyers wrote authorizing harsh interrogations.
The decision by David Margolis, the deputy associate attorney general, overruled internal findings that the Bush officials committed professional misconduct and should be referred to their state bar associations for disciplinary proceedings.
Yep. That’s exactly what happened.
Compare that to the New York Times effort, penned by Eric Lichtblau and Scott Shane:
WASHINGTON — After five years of often bitter internal debate, the Justice Department concluded in a report released Friday that the lawyers who gave legal justification to the Bush administration’s brutal interrogation tactics for terrorism suspects used flawed legal reasoning but were not guilty of professional misconduct.
The report, rejecting harsher sanctions recommended by Justice Department ethics lawyers, brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.
Huh? For this telling to be accurate, you’d have to think that Margolis’s overruling memo is the “report” itself. And indeed, on the Times site, the words “The report” at the start of the second sentence link to the Margolis memo.
That’s a weird decision, considering that Margolis’s sixty-nine-pager is labeled as a “Memorandum of Decision,” and repeatedly refers to the OPR’s work as the “final report.” Yes, Margolis’s memo is the Department’s final word on the matter, but the OPR report says the exact opposite of what a straight reading of the article’s first sentence, with its mention of a “report,” implies.
Moving on to the Los Angeles Times’s take, written by Richard Serrano:
Reporting from Washington — An internal Justice Department report released Friday has concluded that although two former Bush administration lawyers used “poor judgment” in issuing legal memos authorizing waterboarding and other harsh interrogation tactics on terrorism suspects, they did not commit any professional misconduct.
The report by the department’s Office of Professional Responsibility noted that the lawyers did not purposely give bad legal advice to CIA interrogators and others dealing with suspects captured after the Sept. 11 terrorist attacks…
The report recommended no punishment, although state bar associations still could address the allegations by taking action against the two men.
Uh, no. An attempted defense of this lede would plead that the word report has merely been substituted for memo, just like The New York Times. But that line of defense is rendered inoperative by the opening words of the second graf, which, you’ll see, clearly define the word report as the OPR’s work product. And then that sentence veers very wrong, very quick: The report “by the department’s Office of Professional Responsibility” actually did conclude, in the OPR report’s words, that Yoo “committed intentional professional misconduct” in the rendering of legal advice. (Bybee’s “professional misconduct” was not labeled intentional in the OPR report. So maybe they get half credit on that?)
The Associated Press and The Washington Post avoided these big errors through different phrasing. And while both those efforts touched on the report-then-overruled dynamic, neither outlet did so as well as the Journal, which made it clear that the department’s ethics investigators were overruled by a more analytical boss.
Losing that texture is too bad, and not only because the disagreement not only highlights internal drama: it also highlights what a close call Yoo and Bybee endured.
Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.