A Torture Report Could Spell Big Trouble For Bush Lawyers
An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials. H. Marshall Jarrett, chief of the department's ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys." According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)
But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. "The matter is under review," said Justice spokesman Matthew Miller.
If Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action. But some former Bush officials are furious about the OPR's initial findings and question the premise of the probe. "OPR is not competent to judge [the opinions by Justice attorneys]. They're not constitutional scholars," said the former Bush lawyer. Mukasey, in speeches before he left, decried the second-guessing of Justice lawyers who, acting under "almost unimaginable pressure" after 9/11, offered "their best judgment of what the law required."
But the OPR probe began after Jack Goldsmith, a Bush appointee who took over OLC in 2003, protested the legal arguments made in the memos. Goldsmith resigned the following year after withdrawing the memos, and later wrote that he was "astonished" by the "deeply flawed" and "sloppily reasoned" legal analysis in the memos by Yoo and Bybee, including their assertion (challenged by many scholars) that the president could unilaterally disregard a law passed by Congress banning torture.
OPR investigators focused on whether the memo's authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted. In a departure from the norm, Jarrett also told members of the Senate Judiciary Committee last year he would inform them of his findings and would "consider" releasing a public version. If he does, it could be the most revealing public glimpse yet at how some of the major decisions of Bush-era counterterrorism policy were made.
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Michael Isikoff has been an award-winning investigative correspondent for Newsweek since 2004. He has written extensively on the U.S. government's war on terrorism, the conflicts in Iraq and Afghanistan, presidential politics and other national issues. His book, "Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War," co-written with David Corn, was an instant New York Times best-seller when it was published in September, 2006. The book was hailed by the New York Times Book Review as "fascinating reading" and "the most comprehensive account of the White House's political machinations" in the run up to the war in Iraq. Since January 2009, Isikoff has been an MSNBC contributor, making regular appearances on the Rachel Maddow Show and Hardball w/ Chris Matthews.
Ever since the events of September 11, Isikoff has broken repeated stories about the U.S. government's war on terror and won numerous journalism awards. His blog "DeClassified: Investigative Reporting in Real Time," which appears regularly on Newsweek's Web site and is written with MarkHosenball, has become a must-read for senior U.S. intelligence officials. Isikoff and Hosenball won the 2005 award from the Society of Professional Journalists for best investigative reporting online.
Isikoff's June 2002 Newsweek cover story on U.S. intelligence failures that preceded the 9-11 terror attacks, along with a series of related articles, was honored with the Investigative Reporters and Editors top prize for investigative reporting in magazine journalism. He was honored, along with a team of Newsweek reporters, by the Society of Professional Journalists for coverage of the Abu Ghraib scandal. For that coverage, Isikoff obtained exclusive internal White House, Justice Department and State Department memos showing how decisions made at the highest levels of the Bush administration led to abuses in the interrogation of terror suspects. Isikoff was also part of a reporting team that earned Newsweek the National Magazine Award for General Excellence in 2002, the highest award in magazine journalism, for their coverage of the aftermath of the September 11 terror attacks.
Isikoff's exclusive reporting on the Monica Lewinsky scandal gained him national attention in 1998, including profiles in The New York Times and The Washington Post and a guest appearance on "Late Show with David Letterman." His coverage of the events that lead to President Bill Clinton's impeachment earned Newsweek the prestigious National Magazine Award in the Reporting category in 1999. Isikoff's reporting also won the National Headliner Award, the Edgar A. Poe Award presented by the White House Correspondents Association and the Gerald R. Ford Journalism Prize for Reporting on the Presidency. In 2001, Isikoff was named on a list of "most influential journalists" in the nation's capital by Washingtonian magazine.
Isikoff is the author of "Uncovering Clinton: A Reporter's Story," a book that chronicled his own reporting of the Lewinsky story and was hailed by a critic for The Washington Post-Los Angeles Times news service as "the absolutely essential narrative of the scandal with revelations that no one would have thought possible." The book, also a New York Times bestseller, was named Best Non-Fiction Book of 1999 by the Book of the Month Club.
Isikoff came to Newsweek from The Washington Post, where he had been a reporter since September 1981. There he covered the Justice Department and the Persian Gulf War, reported on international drug operations in Latin America and worked on the Post's financial news desk. Isikoff graduated from Washington University with a B.A. in 1974 and received a Masters in Journalism from Northwestern University's Medill School of Journalism in 1976.
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