The Justice Department’s Office of Professional Responsibility has completed a 220-page report looking into possible ethics violations by Jay S. Bybee, John C. Yoo, and Steven G. Bradbury—the three principal authors of the Bush administration’s legal memoranda that gave a green light to the use of classic torture techniques such as waterboarding, sleep deprivation of up to 11 days, hypothermia, and “walling,” (slamming a prisoner’s head against a wall). The completed report was circulated to Bybee, Yoo, and Bradbury for comment, and was also provided to CIA Acting General Counsel John Rizzo, the addressee of some of the memos. According to one Justice source who has read the report, its conclusions are “devastating” and raise grave doubts about the memo writers’ claims to have given the issues presented their best legal analysis. The report sharply criticizes the quality of the legal work contained in the memoranda, and suggests that the lawyers who wrote these memos failed to exercise the independent judgment and professionalism that they owed their clients. The report suggests that some of the memos may have been created as part of an after-the-fact attempt to provide legal cover for conduct that was recognized as potentially criminal. The report also recommends that at least two of the memo writers be referred to bar associations for disciplinary measures—which might include a reprimand, suspension, or disbarment. Bar disciplinary panels rarely mete out severe sanctions to lawyers for mistakes made in connection with legal opinions, but they also tend to give deference to conclusions made by the Justice Department when it is reviewing its own personnel.
If the Justice Department’s own internal probe concludes that the memos were not created in good faith, then the last roadblock to a criminal investigation would be removed.
The New York Times reports that the OPR report recommends against criminal charges, but Justice sources with whom I spoke disputed the accuracy of the Times' report on this point. They noted that while it might be literally true that the OPR report did not recommend criminal action, that follows from OPR’s jurisdiction, which covers only ethics matters and a fairly narrow area of criminal law directly associated with professional ethics. The ethics office would therefore not be expected to make recommendations about criminal charges. They note that the OPR report’s factual conclusions and recommendations will be passed to Attorney General Eric Holder and will be weighed by him in connection with pending requests for a criminal investigation. At present, Holder has three options: to assign the matter to a U.S. attorney, to appoint a special counsel (as Congressmen John Conyers and Jerrold Nadler and Senators Patrick Leahy and Carl Levin have requested), or to decide that no criminal probe is appropriate. If Holder elects to open a criminal investigation, then the OPR report and underlying investigative materials would be provided to the prosecutor handling the matter. The prosecutor would be free to pursue the case as appropriate—possibly including the development of criminal charges involving the OLC lawyers. If the factual account is as described, it will add to the pressure on Holder to appoint a special counsel to address the matter.
Meanwhile, The Washington Post reports that Yoo and Bybee were both busy urging former Bush administration Justice Department officials to intervene on their behalf with Obama administration Justice officials in an effort to soften the reports' conclusions. A recommendation of bar disciplinary action could have severe repercussions for each of them—Yoo could loose his tenured professorship at the University of California, Berkeley and Bybee may also face the institution of impeachment proceedings in Congress. Attorney General Michael B. Mukasey and Deputy Attorney General Mark Filip authored a 14-page letter in which they purport to describe the circumstances in which the memoranda were authored, according to the Post. Neither Mukasey nor Filip were present in the administration at the time the most controversial memoranda were authored, and Mukasey gave remarks on several occasions strongly defending the memo writers while the investigation was open.
The OPR report’s conclusions could also have broader consequences for a possible criminal investigation into the torture program. Former Attorney General Mukasey had blocked any criminal probe on the grounds the OLC memoranda were written in good faith and those who introduced and implemented the torture program were entitled to reply upon them. If the Justice Department’s own internal probe concludes that the memos were not created in good faith, then the last roadblock to a criminal investigation would be removed. No decision would be made as to criminal charges until such a probe is completed.
The report is the highest profile review ever undertaken by OPR, an office which has come under heavy criticism in recent years for its slowness (this probe consumed five years) and its consistent failure to recommend serious disciplinary measures against DOJ lawyers. Several initiatives have been brought in Congress to shut down OPR or to fold its responsibilities into the Inspector General’s office. Holder has responded by appointing a new head to run the office, Mary Patrice Brown. At a private meeting with federal judges on April 21 in Washington, Holder is said to have been surprised when judges expressed their lack of confidence in OPR and particularly in its failure to recommend disciplinary measures for Justice lawyers engaged in serious misconduct. Holder defended the office, and asked the judges to show patience as new leadership took over. The OPR report is likely to reignite debate over the quality and independence of the office's work.
Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine and The American Lawyer, among other publications.