Senators Question DAG on OPR Report
By Joe Palazzolo | February 26, 2010 12:57 pm

Members of the Senate Judiciary Committee questioned the Justice Department’s No. 2 official Friday about a recently released report on the conduct of lawyers who authorized enhanced interrogation techniques, with Republicans criticizing the process and Democrats taking the opportunity to bash Bush administration national security policies.

Acting Deputy Attorney General Gary G. Grindler at a Senate Judiciary hearing on Friday (photo by Ryan J. Reilly / Main Justice).

Acting Deputy Attorney General Gary Grindler said he and Attorney General Eric Holder stood behind the findings of David Margolis, the ranking career department official, who ruled that the lawyers’ exhibited poor judgment but did not commit professional misconduct.

“Mr. Margolis decided the matter without interference from the Attorney General, the Deputy Attorney General or any other department official, and his decision represents the department’s final action on the matter,” Grindler said.

The department’s ethics unit, the Office of Professional Responsibility, spent five years investigating the matter and found that former Office of Legal Counsel lawyers Jay Bybee and John Yoo violated professional standards by espousing a fringe view of presidential power and providing one-sided analysis.

Friday’s hearing, a week after the department released OPR’s report and Margolis’ finding, was not a large draw. Only four senators attended, including Chairman Patrick Leahy (D-Vt.) and Sen. Jeff Sessions (R-Ala.), ranking member.

Sen. Patrick Leahy, D-Vt., questions a witness at a Feb. 26 hearing on the Office of Professional Responsibility report. (photos Ryan J. Reilly / Main Justice)

Rather than challenge the conclusions of the department’s top career official, Leahy pushed for a broader investigation of the previous administration’s policies.

“Focusing on whether these lawyers failed to meet legal ethics standards misses the fundamental point,” Leahy said. “The real concern is that lawyers who were supposed to be giving independent advice regarding the rule of law and what it prohibits were instead focused on excusing what the Bush-Cheney administration wanted to do.”

He also expressed concern that e-mail records from Yoo and another former OLC lawyer, Patrick Philbin, had been deleted and could not be recovered by OPR investigators. Grindler said he had enlisted officials in the department’s Justice Management Divisions to determine what happened.

The New York Times editorial board and several advocacy organizations, including Citizens for Ethics and Responsibility in Washington, a group that also sued the Bush administration over millions of missing White House e-mail records, have called for an investigation into the e-mails.

(UPDATE 1:18 p.m.: Newsweek and TPMMuckraker have the latest on the e-mail issue: click here and here. The National Archives sent a letter to the department on Wednesday asking it to investigate “possible unauthorized destruction of e-mail and other records” in OLC.)

Sessions praised Margolis, a 40-plus year veteran of the Justice Department whose portfolio includes oversight of OPR, but slammed the ethics unit, blaming it for leaks that damaged Yoo and Byee while the investigation was still ongoing.

Sen. Jeff Sessions, R-Ala., criticized the leak of early drafts of an Office of Professional Responsibility report concerning the professional conduct of Bush-era lawyers. (photo by Ryan J. Reilly / Main Justice)

He echoed Margolis decision, saying the office used shifting and incoherent standards in its analysis. He also suggested that OPR lawyers were ill-equipped to sit in judgment of the Office of Legal Counsel, the department’s constitutional authority.

“I don’t want to say they’re pedestrian, but they’re at a different level of legal analysis” than OLC, Sessions said.

Grindler said the department “continues to believe that OPR is the appropriate entity” to conduct professional misconduct investigations.

Additional reporting by Ryan J. Reilly and Andrew Ramonas.

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