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 will be released at the end of the month, Attorney General Eric Holder said Wednesday during testimony before a Senate committee.
"The report is completed. It is being reviewed now and it's in its last stages," Holder said in response to a question by Sen. Sheldon Whitehouse, (D-Rhode Island), who queried the attorney general about the status of the report. "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."
As I previously noted, the report, prepared by the Justice Department's Office of Professional Responsibility (OPR), 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."
Holder testified before the Senate Judiciary Committee Wednesday about his announcement last week that self-professed 9/11 mastermind Khalid Sheikh Mohammed and other suspected terrorists held at Guantanamo would be prosecuted in federal court in New York.
OPR completed the report last December, but then-Attorney General Michael Mukasey and his deputy, Mark Filip, who commented on the findings, demanded Yoo, Bybee and Bradbury be given the opportunity to respond to OPR's conclusions, the Justice Department disclosed in a letter sent earlier this year to Whitehouse and Sen. Richard Durbin, (D-Illinois).
Holder told Whitehouse Wednesday the delay in releasing the report, which has since been revised, was due to "the amount of time 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."
Whitehouse and Durbin had raised questions last spring about the extent to which the Justice Department allowed Bradbury to respond to the report’s findings. Bradbury was still the acting head of the OLC when the report was completed last December and he was also the author of three May 2005 legal opinions that reinstated torture policies rescinded by his predecessor.
Three months before Bush exited the White House, Bradbury, in a "memorandum for the files," renounced several legal opinions drafted by Yoo and Bybee, who is now an appeals court judge.
Bradbury attempted to justify or forgive Yoo's controversial opinion by explaining that it was "the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11."
Bradbury wrote another memo five days before Bush left office in January in which he once again repudiated Yoo's legal opinions. It would appear that this memo was in response to the OPR report. Bradbury said in the January 15 memo that the flawed theories by Yoo in no way should be interpreted to mean that Justice Department lawyers did not "satisfy" professional standards.
Rather, Bradbury wrote, "In the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation."
Durbin and Whitehouse said in a letter they sent to the Justice Department last March that Bradbury's "memorandum for the files" would make it a "conflict of interest" for him, as the former acting head of OLC, to respond to OPR's findings.
"Mr. Bradbury ... is reportedly a subject of the OPR investigation," the senators wrote. "As such, it would appear to be a conflict of interest for Mr. Bradbury to review and comment on the OPR report on OLC's behalf ... If Mr. Bradbury did review the OPR report, this could have improperly influenced the opinions he expressed on OLC's behalf ... Particularly his decision to emphasize that the authors of discredited OLC opinions on detainee issues had not necessarily violated their professional responsibilities."
It's unknown how the DOJ responded to the senators' concerns.
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.
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."
One part of the OPR report criticized Yoo's use of an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding and other acts that have historically been regarded as torture under US law, people familiar with an early draft of the report said.
"The health benefits statute's use of 'severe pain' had no relationship whatsoever to the torture statute." Goldsmith wrote in his book, "The Terror Presidency." "And even if it did, the health benefit statute did not define 'severe pain.' Rather it used the term 'severe pain' as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like." He added, "OLC's clumsily definitional arbitrage didn't seem even in the ballpark."
Failure to Cite Legal Precedent
OPR also concluded that Yoo failed to cite legal precedent and existing case law in numerous legal opinions written for the Bush White House.
Most notably, the August 1, 2002 "torture memo" Yoo wrote and Bybee signed that authorized CIA interrogators to subject "war on terror" detainees to waterboarding and stated that doing so would not violate the Convention Against Torture Yoo failed to cite the case of a Texas sheriff who, along with three deputies, was prosecuted in 1983 for subjecting prisoners to "water torture."
The Convention Against Torture was not in existence when the Texas sheriff, James Parker, and his deputies were prosecuted and sentenced in the 1980s. But Bybee, Bradbury and Yoo had a duty to their legal profession to cite the case as it would have changed the substance of their legal opinions, said Scott Horton, a human rights attorney and constitutional expert.
"Any competent legal adviser would, among other things, have looked at the techniques themselves and checked to see how they have been treated in prior cases," Horton said in an email interview last April. "Obviously the Anti-Torture Statute itself is a very recent invention and it has no enforcement history, so saying that and then suggesting on this basis that the situation is tabula rasa is highly disingenuous."
Horton suspected that Bybee, Yoo and Bradbury were well aware of the case law, but simply chose to ignore it in order to give the Bush administration what it had asked for.
Moreover, anothe August 2002 legal opinion said then-President George W. Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force.
"As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," says the 50-page August 1, 2002, memo prepared for Alberto Gonzales titled "Standards of Conduct for Interrogation" that was signed by Bybee.
But OPR investigators believed Yoo should have cited and applied Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry S. Truman's effort to seize steel mills shut down in a labor dispute during the Korean War. Truman believed the strike would threaten national defense. According to the 1952 Supreme Court opinion, Truman "issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills."
"The Order was not based upon any specific statutory authority but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces," the Supreme Court brief says. "The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions."
The Supreme Court overturned Truman's order saying, "the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Although Truman did alert Congress about his plans Congress did not delegate authority to Truman nor did it specifically provide Truman with approval to seize the steel mills. Therefore, the Supreme Court found, Truman's actions were unconstitutional.
Justice Robert Jackson wrote a well-known concurring legal opinion in the case on the separation-of-powers often cited by constitutional scholars as defining presidential powers during wartime.
Yoo, however, has already offered up a defense to his failure to cite Youngstown, the OPR probe in general, and the overall criticisms about his legal work while working at OLC.
In his 2006 book, "War By Other Means," Yoo said "we didn't cite [Justice Robert] Jackson's individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the president's conduct of foreign affairs and national security."
"Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes," Yoo wrote. "It does not address the scope of commander-in-chief power involving military strategy or intelligence tactics in war? Detention and interrogation policy are at the heart of the President's commander-in-chief power to wage war, and long constitutional history supports the President's leading role on such matters. This is why all administrations have refused to acknowledge the legality of the War Powers Resolution, and have regularly started and continued military conflicts without Congressional approval."
In his book, Yoo then goes on to criticize the OPR investigation, saying DOJ officials who launched the "ethics" probe "responded reflexively to political controversy" and that members of the legal community who blasted his work were former Clinton officials "who overlooked their administration's own legal views, which, on the matter of executive authority in war and national security, were nearly identical" to the Bush administration's views.
The DOJ officials "certainly did not check the bona fides of the critics who first made the accusation that not citing Youngstown amounted to a failure of professional responsibility."
"I cannot help but think that Justice Department officials panicked when the Abu Ghraib scandal erupted, and then were misled by the charges about ethics," Yoo wrote. "Claims about 'ethics' always emerge as a weapon, both on the left and on the right, when the party in power cannot be budged on policy specifics. Justice officials surely did not consider the long-run implications of what they were doing. If [the Justice Department] were to accept that Youngstown controlled the executive branch in war, the President's powers would be crippled."
Yoo also placed some of the responsibility on Congress for forcing him to rely upon the health benefits statute to narrow the definition of torture in a way that permitted techniques such as waterboarding.
In passing an anti-torture law, Congress only prohibited "severe physical or mental pain or suffering," Yoo wrote. "The ban on torture does not prohibit any pain or suffering whether physical or mental, only severe acts. Congress did not define severe. OLC interpreted "severe" as a level of pain "equivalent in intensity to the pain accompanying serious physical injury, such as death, organ failure, or serious impairment of body functions.
"OLC's first 2002 definition did not make up this definition out of thin air. It applied a standard technique used to interpret ambiguous phrases in law. When Congress does not define its terms, courts commonly look in the United States Code for the use of similar language. The only other place where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including 'severe pain' where an individual's health is placed 'in serious jeopardy,' 'serious impairment to bodily functions,' or 'serious dysfunction of any bodily organ or part.'"
Whether the OPR will recommend punishment beyond the disciplinary action by state bars associations - that is, if OPR still recommends it - is unknown.
In an apparent response to criticism of the quality of his legal opinions that gave President George W. Bush virtually unchecked power, Yoo said working for the federal government gave him "very little time to make very important decisions.... You don't have the luxury to research every single thing and that's accelerated in war time.
"You really have decisions to make, which you could spend years on," Yoo told the Orange County Register in an interview March 3. "Sometimes what we forget as private citizens, or scholars, or students or journalists for sure [he laughs], is that in hindsight, it's easier to say, 'Here's what I would have done.' But when you're in the government, at the time you make the decision, you don't have that kind of luxury."
In response to a question about the OPR investigation, Yoo said he wished "they weren't doing it."
"But I understand why they are," Yoo told the OC Register. "It is something one would expect. You have to make these kinds of decisions in an unprecedented kind of war with legal questions we've never had to think about before.
"We didn't seek out those questions. 9/11 kind of thrust them on us. No matter what you do, there's going to be a lot of people who are upset with your decision. If Bush had done nothing, there would be a lot of people upset with his decision, too.
"I understood that while we were doing it, there were going to be people who were critical. I can't go further into it, because it's still going on right now. I'm not trying to escape responsibility for my decisions. I have to wait and see what they say."