Last month, Attorney General Eric Holder told lawmakers in testimony before Congress that a long-awaited Justice Department watchdog report that is said to be highly critical of the legal work three attorneys who worked at the agency's powerful Office of Legal Counsel (OLC) conducted for the Bush administration on torture will be released at the end of the November.
"The report is completed. It is being reviewed now and it's in its last stages," Holder said during his November 18 testimony in response to a question by Sen. Sheldon Whitehouse, (D-Rhode Island), who queried the attorney general about the status of the report, prepared by the agency’s Office of Professional Responsibility (OPR). "There is a career prosecutor who has to review the report. We expect that process should be done by the end of the month. At that point, the report should be issued."
Well, November has come and gone and the report still has not surfaced. So we contacted the Justice Department Friday to inquire about the delay.
In an e-mail, Tracy Schmaler, a spokeswoman for the Justice Department, told Truthout the “review process is almost complete” and the report would be released soon.
But people familiar with the contents of the report said the Justice Department shared the final version of the document with the subjects of OPR’s investigation: former OLC attorneys John Yoo, Jay Bybee and Steven Bradbury.
These people said Yoo, through his lawyer, Miguel Estrada, recently fired off another response to the report’s conclusions and the Justice Department is now incorporating Yoo’s responses into the report, which lead the agency to delay its release.
Estrada told Truthout Monday he is bound by a confidentiality agreement he entered into with the Justice Department and cannot comment on whether he, on behalf of Yoo, did in fact submit additional responses to the report’s findings in recent weeks.
It is unknown whether Bradbury and Bybee also weighed in on the final version of the report. Their attorneys did not return phone calls or e-mails seeking comment.
Schmaler would not respond to specific questions about whether the former OLC attorneys issued responses and, if they did, whether it has lead the Justice Department to delay releasing the report.
“Sorry. As a general matter [we] don’t comment on ongoing OPR matters,” Schmaler said. Bus she refuted claims that the OPR report has been delayed.
Holder told Whitehouse during his testimony last month that the report had not yet been released because "we gave to the lawyers who represented the people who are the subject of the report an opportunity to respond. And then OPR had to react to those responses."
Yoo, Bybee and Bradbury have already responded to an original draft of the report, which OPR completed last December, the Justice Department disclosed in a letter sent last March to Whitehouse and Sen. Richard Durbin, (D-Illinois).
As I previously noted, the OPR report is said to have reached "damning" conclusions about numerous cases of "professional misconduct" in the legal advice former OLC attorneys John Yoo, Jay Bybee and Steven Bradbury provided to the White House about the use of "enhanced interrogation techniques."
OPR investigators pored over thousands of pages of internal Justice Department e-mails and White House memos over the past four years and built a disturbing narrative that focuses heavily on Yoo's work, the sources said, adding that OPR investigators also examined Yoo's book for further evidence that he had fixed the law around the administration's policy interests.
An early draft of the report, as I first reported, said OPR investigators determined that Yoo, Bybee and Bradbury blurred the lines between attorneys charged with providing independent legal advice to the White House and policy advocates working to advance the administration's goals. The report recommended disciplinary action by state bar associations, according to people who read the early draft of the report and spoke on condition of anonymity because the contents of the document are secret.
According to OPR “post investigation” procedures, “At the conclusion of the investigation, OPR makes findings of fact and reaches conclusions as to whether professional misconduct has occurred."
OPR may find professional misconduct in two types of circumstances: (1) where an attorney intentionally violated an obligation or standard imposed by law, applicable rule of professional conduct, or Department regulation or policy, or (2) where an attorney acted in reckless disregard of his or her obligation to comply with that obligation or standard. OPR may also find that the attorney used poor judgment or made a mistake; such findings do not constitute findings of professional misconduct.
If OPR determines that no misconduct or poor judgment occurred, the attorney who was investigated, the complainant, and other appropriate parties are notified of that result.
If OPR determines that professional misconduct or poor judgment occurred, it prepares a report containing its findings and conclusions, and provides that report to the Deputy Attorney General as well as the appropriate Assistant Attorney General, the Director of [Executive Office of US Attorneys], or other appropriate component head.
...In cases in which it finds professional misconduct (either intentional misconduct or conduct in reckless disregard of an applicable standard or obligation), OPR ordinarily advises bar disciplinary authorities in the jurisdiction where the attorney is licensed of its finding. Such a referral is not made if OPR determines that the matter involves purely federal or Department concerns and no bar disciplinary rule appears to be implicated. OPR’s investigative information may be disseminated to assist state bar disciplinary authorities to meet their responsibilities.
The OPR probe was launched in mid-2004 after a meeting in which Jack Goldsmith, then head of the OLC, got into a tense debate with then-White House counsel Alberto Gonzales about two August 2002 torture memos written by Yoo and signed by Bybee. Those memos opened the door to torture tactics such as waterboarding, which subjects a detainee to the sensation that he is drowning. Following the meeting with Gonzales, Goldsmith, who had rescinded two memos in 2003, resigned.
Goldsmith later described the torture memos as "legally flawed" and "sloppily written."