An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.
The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.
The conclusions of the 220-page draft report are not final and have not yet been approved by Attorney General Eric H. Holder Jr. The officials said it is possible the final report might be subject to revision, but they did not expect major alterations in its main findings or recommendations.
The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency. Among the questions it is expected to consider is whether the memos reflected the lawyers’ independent judgments of the limits of the federal anti-torture statute or were skewed deliberately to justify what the C.I.A. proposed.
At issue are whether the Justice Department lawyers acted ethically in writing a series of legal opinions from 2002 to 2007. The main targets of criticism are John Yoo, Jay S. Bybee, and Steven G. Bradbury, who as senior officials in the department’s Office of Legal Counsel were the principal authors of the memos.
The opinions permitted the C.I.A. to use a number of interrogation methods that human rights groups have condemned as torture, including waterboarding, wall-slamming, head-slapping and other techniques. The opinions allowed many of these practices to be used repeatedly and in combination.
Several legal scholars have remarked that in approving waterboarding — the near-drowning method that President Obama and his aides have described as torture — the Justice Department lawyers did not cite cases in which the United States government had prosecuted American law enforcement officials and Japanese interrogators in World War II for using the procedure.
In a letter made public on Monday, the Justice Department advised two Democratic senators on the Judiciary committee, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, that the former department lawyers who wrote the opinions had until Sunday to submit written appeals to the findings.
The draft report on the interrogation opinions was completed in December and has provoked controversy within counterterrorism circles, which has intensified since last month when the Obama administration disclosed four previously secret opinions written from 2002 and 2005, which for the first time detailed the approved procedures.
Full article: http://www.nytimes.com/2009/05/06/us/politics/06inquire.html?hp
Bush Officials Try to Alter Ethics Report
Former Bush administration officials have launched a behind-the-scenes campaign to urge Justice Department leaders to soften an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics, according to two sources familiar with the efforts.
Representatives for John C. Yoo and Jay S. Bybee, subjects of the ethics probe, have encouraged former Justice Department and White House officials to contact new officials at the department to point out the troubling precedent of imposing sanctions on legal advisers, said the sources, who spoke on the condition of anonymity because the process is not complete.
The effort began in recent weeks, the sources said, and it could not be determined how many former officials had reached out to their new counterparts.
A draft report of more than 200 pages, prepared in January before Bush’s departure, recommends disciplinary action, rather than criminal prosecution, by state bar associations against Yoo and Bybee, former attorneys in the department’s Office of Legal Counsel, for their work in preparing and signing the interrogation memos. State bar associations have the power to suspend a lawyer’s license to practice or impose other penalties.
The memos offered support for waterboarding, slamming prisoners against a flexible wall and other techniques that critics have likened to torture. The documents were drafted between 2002 and 2005.
The investigation, now in its fifth year, could shed new light on the origins of the memos. Investigators rely in part on e-mail exchanges among Justice Department lawyers and attorneys at the CIA who sought advice about the legality of interrogation practices since been abandoned by the Obama administration.
Two of the authors, Bybee, now a federal appeals court judge, and Yoo, now a law professor in California, had a Monday deadline to respond to investigators.
Miguel Estrada, an attorney for Yoo, said, “As a condition of permitting me to represent Professor Yoo in this matter, the Department of Justice required me to sign a confidentiality agreement. As a result of that agreement, there’s nothing I can say.”
Maureen Mahoney, an attorney for Bybee, also cited the confidentiality requirement in declining to comment.
The legal analysis on interrogation prepared by a third former chief of the Office of Legal Counsel, Steven G. Bradbury, also was a subject of the ethics probe. But in an early draft, investigators did not make disciplinary recommendations about Bradbury.
In a separate effort to counterbalance the draft report, Attorney General Michael B. Mukasey and Deputy Attorney General Mark R. Filip wrote a 14-page letter before they left office this year. They described the context surrounding the origins of the memos, written at a time when officials feared another terrorist strike on American soil.
Both Mukasey and Filip were dissatisfied with the quality of the legal analysis in the wide-ranging draft report, sources said. Among other things, the draft report cited passages from a 2004 CIA inspector general’s investigation and cast doubt on the effectiveness of the questioning techniques, which sources characterized as far afield from the narrow legal questions surrounding the lawyers’ activities. The letter from Mukasey and Filip has not been publicly released, but it may emerge when the investigative report is issued.
A person who has spoken with both Mukasey and Filip said yesterday that neither had been solicited to approach new department leaders about the ethics report.
Late Monday, Assistant Attorney General Ronald W. Weich wrote senior congressional Democrats to offer an update about the status of the ethics investigation, which is being conducted by the Justice Department’s Office of Professional Responsibility. Weich told Sens. Richard J. Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) that Attorney General Eric H. Holder Jr. and Deputy Attorney General David W. Ogden “will have access to whatever information they need to evaluate the final report and make determinations about appropriate next steps.”
Authorities did not signal in the letter when or in what form the report will be released. The biggest holdup had been that the content of the interrogation memos was classified, but the documents were released last month by the Justice Department. Sources said the highly anticipated report could emerge as soon as this summer.
Mary Patrice Brown, new chief of the Justice Department ethics office, told an audience of lawyers last night that her preference is toward “transparency” and releasing investigative reports on a case-by-case basis, depending on the “severity” of the misconduct and the public’s interest.
Any disciplinary findings about the former Justice lawyers could energize calls within Congress and among left-leaning interest groups for criminal prosecution of Bush administration officials who authorized the interrogations and for an independent congressional inquiry into the origins of the practices.
In an interview yesterday, Durbin said it was too early to call for a special prosecutor or another congressional probe.
But, he said, many important questions remained unanswered. “It’s a question of responsibility. In this chain of command, how far up did it go?”
Full article: http://www.washingtonpost.com/wp-dyn/content/article/2009/05/05/AR2009050502219.html?hpid=topnews