UPDATE Feb. 21 – Former Office of Legal Counsel chief Walter Dellinger, one of the signatories to the “Principles to Guide the Office of Legal Counsel,” wrote to correct what he said are mischaracterizations in this article. Read his response here.

Dawn Johnsen hasn’t been confirmed as head of the Office of Legal Counsel. But her views became part of the behind-the-scenes battle to shape the final Justice Department ethics report into the Bush administration lawyers who authorized harsh interrogation tactics against terrorism suspects, documents released on Friday show.

Dawn Johnsen (Image via CAP Action Fund)

In concluding that the Bush administration OLC lawyers Jay Bybee and John Yoo had committed misconduct – an assertion later softened by career DOJ official David Margolis to “poor judgment” – the DOJ’s Office of Professional Responsibility relied on a 2004 manifesto prepared by Johnson and 18 other former Clinton administration Justice Department officials.

The Dec. 21, 2004 manifesto was written in response to media revelations of the now-withdrawn legal memos authorizing techniques that critics have called torture.

Titled “Principles to Guide the Office of Legal Counsel,” the document was signed by Johnsen and 18 other former Clinton-era Justice Department officials, many of whom now hold key positions in the OLC and Obama administration.

The Dec. 21, 2004, document asserted, among other things, that OLC “should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.”

It also said: “The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.”

Jay Bybee (doj)

While intended to be a ringing condemnation of the Bush-era legal decision making process, the lawyer for former OLC Assistant Attorney General Jay Bybee, a subject of the OPR investigation and now a federal appeals court judge, used the liberal leaning document instead to buttress his defense.

In a May 2009 response to OPR’s first draft of its ethics report, Latham & Watkins’s Maureen Mahoney cited the Guiding Principles to support Bybee’s argument that OLC lawyers are within bounds to consider the desired policy outcome of their White House political bosses.

“[T]here is nothing wrong with OLC having such knowledge of its clients’ interests. In fact, according to the “Principles to Guide the Office of Legal Counsel,” dated December 21, 2004, ‘OLC must take account of the administration’s goals and assist their accomplishment within the law,’” Mahoney wrote, adding her own emphasis to the word “must.”

Mahoney also wrote: “Should Dawn Johnsen’s independence be called into question because she shares the views of the President and Attorney General on important issues?”

The back-and-forth over the Guiding Principles is significant because it shines a light into the partisan battles continuing within the Department of Justice. Since the Sept. 11, 2001 terrorist attacks, the Department has struggled with the tensions inherent in its dual role as an impartial law enforcement agency and as a facilitator of the policy wishes of the administration in power.

In a Jan. 5, 2010 memo to Attorney General Eric Holder, Margolis wrote that he believed OPR had made the correct decision in its final report to abandon the argument that the Bush-era OLC lawyers committed misconduct by crafting legal analysis to fit the desired policy outcome of an administration.

Margolis also criticized OPR for its late decision to cite the Guiding Princples and a 2005  Best Practices memo written by then-OLC Principal Deputy Assistant Attorney General Steven Bradbury, after making no reference to those documents in earlier drafts of its report.

“The consideration of these documents raised several concerns,” Margolis wrote. “First and foremost, neither of them existed at the time Yoo and Bybee worked at OLC.”

The Guiding Principles were published by the American Constitution Society, a liberal legal society that has produced many Obama administration officials. ACS is the left-leaning counterpart to the conservative Federalist Society, to which Yoo and other Bush administration lawyers belonged.

David Barron (harvard.edu)

Two of the signatories of the Guiding Principles document are currently running the Office of Legal Counsel – David Barron, who has guided the office in an acting capacity while Johnsen’s nomination has been stalled for the last year by Republican opposition in the Senate; and Martin Lederman, one of Barron’s deputies.

Another signatory of the Guiding Principles was Christopher Schroeder, a Duke University law professor whose own nomination to head the DOJ’s Office of Legal Policy, which oversees judicial nominations, has been similarly stalled.

Lisa Brown, former executive director of ACS and now the White House staff secretary, also signed the document, as did Neil Kinkopf, a former OLC lawyer in the Clinton administration who now works in the Office of Legal Policy.

This story was corrected to say the “Guiding Principles” were published by, not prepared under the auspices of, the American Constitution Society.

Below is a timeline of significant events in the more than five-year gestation of the Department of Justice’s Office of Professional Responsibility report on the professional conduct of former Office of Legal Counsel officials Jay Bybee and John Yoo.

This timeline is based on a memo to Attorney General Eric Holder by Associate Deputy Attorney General David Margolis, explaining his decision to downgrade OPR’s finding of misconduct to a finding of poor judgment. Margolis is a career DOJ official who has held his current position for 17 years.

2001

Sept. 11, 2001: Al-Qaeda operatives hijack four passenger jets and crash them into the World Trade Center in New York, the Pentagon, and — after a struggle with passengers – in a field in Pennsylvania.

Sept. 20, 2001: President George W. Bush addresses a joint session of Congress and declares a “war on terror.” The U.S. prepares to attack Al-Qaeda and Taliban strongholds in Afghanistan.

2002

Aug. 1, 2002: OLC issues unclassified memo to the White House and classified memo to the CIA on interrogations of suspected terrorists. Both are signed by then-Assistant Attorney General Jay Bybee.

2003

March 14, 2003: OLC issues another interrogation memo to the Defense Department. This one is signed by then-Deputy Assistant Attorney General John Yoo.

2004

Oct. 25, 2004: OPR launches a full investigation of circumstances surrounding the drafting of the memos.

2008

Dec. 23, 2008: OPR provides Attorney General Michael Mukasey with 191-page draft report, advising of its intent to release a redacted, unclassified version of the report to the public on Jan. 12, 2009. An accompanying memorandum invites Mukasey to conduct a “sensitivity” review, requesting response by Jan. 2, 2009. OPR also requests a meeting with Mukasey to discuss any concerns he may have with the report. The draft makes no mention of soliciting responses from the subjects or their lawyers.

Dec. 31, 2008: Mukasey, Deputy Attorney General Mark Filip and their staffs meet with OPR attorneys. They are harshly critical of the report. After the meeting, OPR advises Mukasey that, given his and Filip’s concerns, issues raised by OLC in a Jan. 7, 2009 letter to OPR, and time needed for the subjects and their lawyers to respond to the report, the report will not be finalized by the end of the Bush administration.

2009

Jan. 19, 2009: Mukasey and Filip sent a letter to OPR memorializing substantive and procedural concerns about the draft report. The proposed time for their review was “unrealistically and, with respect, unacceptably short,” they say. They also voice “strong disagreement and surprise that the Draft Report proceeds seemingly without any consideration of the context in which the OLC opinions were prepared and, equally important, the time available to prepare them.”

Sometime in March, 2009: OPR submits its second draft to Yoo and Bybee, inviting them to respond within 60 days. Accompanying the draft were transcripts of OPR interviews with Yoo and Bybee but not documents OPR obtained or generated during its investigation.

April 8, 2009: Attorney General Eric Holder announces the appointment of Mary Patrice Brown, a federal prosecutor in Washington, to head OPR. She replaces H. Marshall Jarrett, who is reassigned to the Executive Office for U.S. Attorneys. The move is unrelated to the OPR report.

May 4, 2009: Yoo and Bybee respond to the second draft, criticizing OPR for failing to apply its traditional analytical framework. OPR ignored standards requiring that it show that Yoo and Bybee knowingly engaged in wrongdoing, Yoo writes. Bybee agrees: “OPR is not supposed to make up new standards to govern particular cases.”

May 20, 2009: Holder tells reporters he expects the final report to be on his desk “soon.”

June 17, 2009: Holder tells the Senate Judiciary Committee the OPR report will be completed in a “matter of weeks.

July 29, 2009: OPR issues its final report. It concludes that Yoo intentionally violated his “duty to exercise independent legal judgement and render thorough, objective and candid legal advice” with respect to five documents: the unclassified Bybee memo, the classified Bybee memo, the Yoo memo, a July 13, 2009 letter from Yoo to Acting CIA General Counsel John Rizzo, and an Aug. 1, 2002 letter from Yoo to then White House Counsel Alberto Gonzales. The report finds that Bybee recklessly disregarded that same duty by signing and issuing the unclassified Bybee memo and the classified Bybee memo.

Oct.9, 2009: Yoo and Bybee submit their responses to final report to Associate Deputy Attorney General David Margolis, who is tasked with reviewing OPR’s conclusions.

Nov. 18, 2009: Holder tells the Senate Judiciary Committee the report is complete and “should be ready by the end of the month.”

2010

Jan. 5, 2010: Margolis sends a memo to Holder, explaining his decision to downgrade OPR’s finding of misconduct to a finding of poor judgment.

Tuesday marked one year since Sens. Richard Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) sent a letter to the Justice Department asking about the status of DOJ’s Office of Professional Responsibility’s investigation into the conduct of Justice Department lawyers who authorized the so-called “torture memos,” writes Human Rights First, which describes itself as a nonpartisan international human rights organization.

The report has not been officially released, but there have been news stories about its purported contents that have not pleased a number of organizations. They have expressed disappointment over the reported outcome of the OPR report, which, according to Newsweek, says the lawyers did not violate their professional obligations as lawyers. The DOJ reviewer of the report, career veteran David Margolis, downgraded an earlier draft of the report to say they showed “poor judgment,” sources told Newsweek.

Most recently, a Justice Department spokeswoman told Main Justice that the report would be released “soon,” but declined to offer a time frame or comment on the Newsweek report.

“[A] year to the day after Senators Durbin and Whitehouse sent their [letter], we still have no idea when the OPR report will be released, or what is now holding it up,” writes Daphne Eviatar, of Human Rights First.

“The longer the administration hems and haws and tinkers with the ethics report before releasing it, the more the stain of the past administration’s transgressions becomes its own. It’s high time for the Justice Department to come clean,” Eviatar writes.

On Jan. 22, the American Civil Liberties Union filed suit against the Justice Department, seeking a copy of the report which looks into the work of three DOJ attorneys — Steven Bradbury, John Yoo and Jay Bybee.

Last June, Attorney General Eric Holder said the OPR report would be available within a matter of weeks, and in November he said it would be available by the end of the month. When the report still had not been released in December, the ACLU filed a Freedom of Information Act Request.

“It’s now been another six weeks about since we filed the request, and we’ve seen no progress from the Justice Department on the release of that report, so we’re filing suit,” Alex Abdo of the ACLU told Main Justice in January.

Meanwhile, one of the lawyers — John Yoo — is leading a seminar on how to best overhaul the California state constitution, reports The New York Times.

“Yoo built a seminar that encourages students to think about how a constitutional convention could play out and to research and write about the issues that might be at the heart of the debate,” reports The Times.

According to the Times:

When Mr. Yoo first heard last fall about the idea for a state conclave, he said, he immediately saw it as a teachable moment. The idea that hundreds of citizens chosen like a jury might rewrite the state’s Constitution inspired Mr. Yoo to get involved.

“We’ve got to help them,” he said in an interview this month, a conversation in which he declined to discuss his record in Washington. “We really ought not have an uneducated jury making these decisions.”

Eric Holder is facing political criticism on both sides of the aisle over his handling of terrorism detainees (file photo by Ryan J. Reilly).

Attorney General Eric Holder, who marked the anniversary of his first year in office last week, is facing a mountain of Republican criticism over his handling of terrorism issues. But at the same time, liberal organizations say they are not satisfied with the Justice Department because it has continued many of the policies of the George W. Bush administration.

On the one-year date of his Feb. 3, 2009, installation as Attorney General, Holder fought back against criticism from GOP senators, penning a letter defending the DOJ’s handling of the Christmas Day airline bomber by comparing his actions to those of the Bush Justice Department.

Meanwhile, he leads a Justice Department that has overshot its original deadline to close the Guantánamo Bay terrorism detainee facility, that has decided to detain a large chunk of the prisoners held there indefinitely and is expected, in an upcoming report, to clear the former Office of Legal Counsel lawyers who authored the so-called “torture memos.”

Late last month, the American Civil Liberties Union issued a report titled “America Unrestored” that highlighted several areas in which it said the Justice Department had not made progress in the goals it set out when President Obama took office. The report said the Obama administration had acted on only a third of the specific goals the ACLU had issued last year, many of which required action from the Justice Department.

The same talking point the Obama administration has used to push back at conservative critics of its terrorism policies — that it is continuing some of the same policies that the Bush administration put in place — points to the biggest concerns liberal organizations have with some of Holder’s decisions.

Main Justice contacted representatives and people affiliated with liberal-leaning human rights and civil liberties organizations to get their take on the biggest unresolved issues during Holder’s first year in office and to highlight a few of the biggest disagreements they have with his decisions so far:

Closing ‘Gitmo,’ but ‘Enshrining’ Indefinite Detention

While the brick-and-mortar issue of closing Guantánamo has dominated the political debate over the handling of terrorism suspects, civil liberties organizations are more upset that the Obama administration has decided to continue holding suspects without charging them in court.

Shortly after the Sept. 11, 2001, attacks, Holder told CNN that the government could hold detainees indefinitely. “It seems to me you can think of these people as combatants and we are in the middle of a war,” Holder said in a CNN interview in January 2002. “And it seems to me that you could probably say, looking at precedent, that you are going to detain these people until war is over, if that is ultimately what we wanted to do.”

His view evolved by the time Obama took office. “A great nation should not detain people, military or civilian, in dark places beyond the reach of law,” Holder said of Guantánamo in 2008 while advising the Obama transition, reported The New Yorker.

In his Senate confirmation hearing last year, Holder made clear he knew of the stakes for holding people indefinitely. “How we resolve that issue,” he said, “will say more about us as a nation than almost anything.”

But once he took office, it became clear that the government decided it could not pursue cases against some of the suspects for a variety of reasons.

President Obama, in a speech at the National Archives in May, acknowledged for the first time the need for indefinite detention. While Obama said he would “work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution,” his administration began claiming in September that Congress authorized such powers when it approved the 2001 authorization to use force against Al Qaeda and the Taliban

Holder tried to assure people he still opposed indefinite detention. During a November meeting with retired generals who advocate the closure of the prison facility in Cuba, Holder said he shared their goal — he, too, wanted to bring the number of prisoners being held indefinitely as enemy combatants down to zero.

“He didn’t initially say that their objective was to get the number to zero, and we felt strongly that the longer we keep people with no charges indefinitely confined, it is not in our interest,” retired Gen. David Maddox told Main Justice. “He came back and said very clearly and said that was their goal, too.”

Retired Gen. David M. Maddox (photo by Ryan J. Reilly).

But a government task force studying the matter of the detainees recently finished its work and concluded, according to a Justice Department official, that 47 detainees will be held as enemy combatants, seemingly contradicting Holder’s assurance. In addition, a larger group of prisoners fall into a classification that amounts to indefinite detention, in which the government has said they can be repatriated but lacks the diplomatic ability to do so, say human rights groups.

Asked whether that reflected a change of thinking, a Justice Department spokesman said he wasn’t familiar with the Attorney General’s comments to the group of retired generals, and said that the plan to detain individuals had been laid out by the president in his May speech at the National Archives.

The indefinite detention issue has been one of the biggest disappointments to human rights organizations, but the conclusion reached by the task force, created by President Obama on his second day in office, should not come as a shock, according to Brooking Institution scholar Benjamin Wittes.

“I don’t start with the point of view that this was a surprising event or that this was something that wasn’t knowable to people who looked at the problem prospectively,” Wittes told Main Justice.

But in the political back-and-forth about Guantánamo, Witte says much of the media coverage has missed the forest for the trees — focusing on the physical facility rather than the policy of indefinite detention that it served as a symbol of.

“It’s sort of the tail wagging the dog, because if you closed it, you’d just have to rebuild it somewhere else,” said Wittes. “The issue is detention, the issue is not the choice of facility at which you do the detention.”

James P. Cullen (photo by Ryan J. Reilly)

A retired military officer just said that holding suspects without trial is generally a bad idea, and could serve as a recruitment tool for terrorists. He said there were several preferable solutions to holding detainees indefinitely, including sending them through rehabilitation programs such as the program run by Saudi Arabia.

“If we continue indefinite detention and we cannot articulate to the world why we’re doing it, then we’re simply going to move Guantánamo to Illinois or someplace else, and we’ll have a new Guantánamo North, in effect,” said retired Brigadier Gen. James P. Cullen, who advocates the closure of Guantánamo Bay through the organization Human Rights First. “We really need to be able to explain in a credible way, in a way that comports with international law and with common sense, why we’re doing it and for how long.”

Asked if he believed the president had set up the expectation that he would get rid of indefinite detention during the campaign and moved away from that position due to political pressure, an ACLU lawyer said that was really beside the point.

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union (photo by Ryan J. Reilly).

“For me and all of us at the ACLU, the important question isn’t what was said in the campaign, it’s what was said in the Constitution,” said Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union.

“There’s no question that the Obama administration inherited a legal and moral mess in Guantánamo,” said Wizner. But, he said, “it’s not accomplishing much to close the prison but enshrine the principle.”

Habeas Corpus Trials

Asked about Holder’s views on holding terrorism suspects without charges, a Justice Department spokesman objected to the use of the term “indefinite detention.”

The spokesman said that Guantánamo detainees who were too dangerous, or whose trial would require the government to use evidence that was too sensitive, would continue to be able to challenge their detention in court.

“The Task Force consulted closely with the Department of Justice in conducting a legal evaluation for every detainee approved for continued detention, addressing both the legal basis for holding the detainee under the AUMF [authorized use of military force] and the government’s case for defending the detention in any habeas litigation,” said the spokesperson. “We’re confident in our ability to demonstrate to the courts that these individuals are being lawfully held under the AUMF.”

But critics say that the results of those habeas corpus trials have been scattered, chiefly because Congress has never put firm rules in place to govern prolonged detention.

In July, the chairman of the Senate Judiciary Committee called for the administration to offer details about how a prolonged detention system would operate.

Sen. Patrick Leahy (photo by Ryan J. Reilly).

“I want to understand the scope of the judicial review contemplated under this proposal before determining for myself whether it meets our standards of fair treatment under law,” said Sen. Patrick Leahy (D-Vt.) “I want to ensure that a system established by this administration is grounded in constitutional protections so that it cannot be exploited by future administrations.”

“As Justice Kennedy said in a Supreme Court decision restoring the great writ of habeas corpus, the Constitution is not something an administration is able ‘to switch on and off at will.’ I believe strongly that we can ensure our safety and security, and bring terrorists to justice, in ways that are consistent with our laws and values. I am committed to working with the president to ensure we accomplish that goal,” said Leahy.

But the Justice Department and the administration have yet to develop such a system. Given the decision of the task force last month, representatives are hopeful that such a system can be developed.

“Maybe now that the Obama administration has confessed this fact, that everybody has really known for a long time, it’s not really been a secret that there was going to be a residual population, but maybe now that they’ve said it out loud, they’ll be able to have that conversation about what the rules should be,” said Wittes, one of the authors, along with Robert M. Chesney and Rabea Benhalim, of a new report (PDF) from the Brookings Institute on indefinite detention.  They write that “for good or for ill, judges must write the rules governing military detention of terrorist suspects.”

“You have this remarkable delegation of rule-making power to the lower federal courts in the first instance to kind of say who we’re going to be detaining, under what circumstances and using what procedures,” Wittes told Main Justice.

The government is arguing to keep terrorism suspects imprisoned under a legal classification that liberals, including Leahy had previously called a “legal black hole.”

“The basic outlines are still very much in flux and very much in play,” said Wittes. “There’s an enormous range of disagreement among the judges as to a large number of different issues that would be the basic building blocks of any detention system.”

Torture Memos

Critics of Bush-era detention and interrogation policies say they are disturbed by media reports that the Justice Department has watered down an ethics report about the lawyers who wrote the legal memorandums justifying enhanced interrogation methods.

Newsweek reported that the long-awaited report from the Justice Department’s Office of Professional Responsibility on the authors of the so-called “torture memos” have been cleared of professional wrongdoing.

The report, currently undergoing the process of declassification, is critical of the legal reasoning used to justify waterboarding and other enhanced interrogation techniques. But unlike a previous draft of the report, the finalized version does not conclude that the lawyers violated their professional obligations as lawyers. The reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” sources told Newsweek.

Justice Department spokeswoman Tracy Schmaler said a redacted version of the report would be released “soon.” She declined to comment on the Newsweek article. Department policy prevents spokesman from discussing reports before they are released.

Critics of the Bush administration’s policies on the handling of terrorism suspects are now speaking out. While he hasn’t seen the investigation or the conclusion, Gen. Cullen said he was “mystified because the law and the history of the law on waterboarding is fairly clear. We have condemned that practice and we have characterized it as torture.”

Former Deputy Assistant Attorney General John Yoo helped provide the legal justification for some of the Bush administration's most controversial national security policies. (photo by Ryan J. Reilly).

“The people in the Justice Department — Jay Bybee and John Yoo and a bunch of others at the Office of Legal Counsel — were willing implementers of these policies,” Cullen told Main Justice. “They knew what the law was, they had tremendous resources and research capability. We know that ignorance of the law is no excuse, but these guys knew what the law was, they chose the violate it, and they chose to put our soldiers at significant increased risk because of what they had implemented.”

Yoo and a lawyer for Bybee did not respond to requests for comment.

Mark Filip, former Deputy Attorney General in the Bush administration, also declined to comment on the report because it had not yet been officially released.

Meanwhile, Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, when told about the conclusion of the report by a blogger for FireDogLake, said, “It’s very upsetting to hear that. I should hold hearings on that. I’m interested in why a career employee would think his judgment would be better or worse” than the lawyers in the OPR who administered the initial report, he said.

The White House and the Justice Department are vetting the head of the Office of Professional Responsibility, Mary Patrice Brown, for a federal judgeship, according to two people familiar with the matter.

Brown, a well-regarded career prosecutor, is expected to secure a nomination to the U.S. District Court for the District of Columbia, assuming she clears her FBI background check and American Bar Association review, the people said.

Brown was tapped to lead the Justice Department’s ethics unit in April, amid a high-profile probe of former Office of Legal Counsel lawyers whose legal opinions paved the way for waterboarding of terrorism detainees. Her office reportedly determined that the lawyers — John Yoo, now a law professor, and Jay Bybee, now a federal judge — violated professional standards in blessing some of the Bush administration’s most controversial national security policies.

The Justice Department official who oversees OPR in the Deputy Attorney General’s office, David Margolis, softened the report to say the lawyers were guilty of “poor judgment” but not of professional misconduct — a finding that would have warranted referrals to state bar associations, Newsweek reported.

The issue would almost certainly be raised in Brown’s Senate confirmation hearings. Many Republicans strongly oppose disciplining Yoo or Bybee for their work during the Bush administration in the aftermath of the 9/11 attacks, while many Democrats have called for them to account for approving an interrogation method that Attorney General Eric Holder and others have equated with torture.

Brown, just the third OPR counsel since the office was created in 1975, came from the U.S. Attorney’s Office for the District of Columbia, where she was chief of the Criminal Division. The Justice Department announced the move the day after a federal judge criticized OPR for dragging its feet in an investigation of possible misconduct in the botched prosecution of former Alaska Sen. Ted Stevens. The events were unrelated.

The judge, Emmet Sullivan, took the extraordinary step of appointing a special prosecutor to investigate government lawyers for possible criminal contempt. Sullivan’s actions also set in motion a series of reforms designed to ensure that prosecutors meet their obligations to turn over evidence to defendants. (Brown would be Sullivan’s colleague on D.C.’s federal trial court, among the most prestigious in the country.)

The OPR investigations of the Stevens prosecutors and of the former OLC lawyers elevated the profile of Brown’s office. Rarely do OPR findings see the light of day, much less become the subject of congressional inquiries, as the OLC probe has. As a result, the office has received more complaints, Brown has said.

Delegate Eleanor Holmes Norton sent Brown’s name to the White House, along with eight others, for three vacancies on the court. (The names were generated by Norton’s nominating commission, the same group that interviewed candidates for U.S. Attorney in the District.) The White House appears to have pared the list down to three names, and the Justice Department’s Office of Legal Policy has been assisting with the vetting since December, the people said.

The lawyers being considered for the other two vacancies are Venable LLP partner Robert Wilkins, former special litigation chief for the D.C. Public Defender Service, and D.C. Superior Judge James “Jeb” Boasberg, who was an Assistant U.S. Attorney in District before his confirmation in 2002, the people said.

Brown could not be reached for comment. Wilkins and Boasberg declined to comment.

The court has a fourth vacancy as of late December, when U.S. District Judge Paul Friedman took senior status. It’s unclear whether the White House will select a nominee from Norton’s list, ask for more names or conduct its own search.

The Obama administration wants to expand the staff of the Office of Professional Responsibility, the Justice Department’s internal disciplinarians, to handle an “increasing number of special investigations.”

The president’s budget proposal asks for $488,000 to add five positions, including three attorneys, and notes that “several investigations were opened at the request of congressional oversight committees or members of Congress.”

In a well-publicized example, the top Republican on the House Judiciary Committee, Virginia Rep. Frank Wolf, asked Justice Department Inspector General Glenn Fine to probe the circumstances surrounding dismissal of voter intimidation charges against members of the New Black Panther Party. Fine referred the case to OPR. That inquiry is ongoing.

OPR currently has 29 positions, including 21 attorneys. The office, which is led by veteran prosecutor Mary Patrice Brown, saw an increase in the pace of complaints filed in 2009. As of May, the office had received nearly 700 complaints, while about 800 complaints were filed in all of 2008.

In a meeting with representatives of the National Association of Assistant U.S. Attorneys, Brown attributed the uptick to OPR’s increased visibility. She cited its investigations of high-profile matters, such as the conduct of prosecutors in the botched Ted Stevens trial and of the Bush administration Office of Legal Counsel lawyers whose legal opinions paved the way for waterboarding.

The OPR report on the Office of Legal Counsel is going through declassification now, in preparation for public release. It was more than four years in the making.

Newsweek reported last week that OPR originally found the former Office of Legal Counsel lawyers had failed to to meet professional standards in crafting a 2002 memo blessing the use of harsh interrogation techniques. Those lawyers were Jay Bybee, now a federal appellate judge, and John Yoo, now a law professor.

But Associate Deputy Attorney General David Margolis, who conducted the final review, softened the report to say they showed “poor judgement,” Newsweek said.

An upcoming report by the Office of Professional Responsibility clears the key authors of a legal memorandum justifying waterboarding of allegations that they violated professional standards, Newsweek reports.

An earlier draft of the report concluded that former Office of Legal Counsel lawyers Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor, failed to meet their professional obligations when crafting a 2002 memo blessing the use of harsh interrogation techniques.

Associate Deputy Attorney General David Margolis, a career lawyer, “downgraded that assessment to say they showed ‘poor judgment,’” during a final review of the report, according to Newsweek. Under department rules, poor judgement does not rise to the level of professional misconduct — which means no referrals to state bar associations for potential disciplinary action.

It’s unclear why Margolis softened the initial findings. A Justice Department official told Newsweek he acted without input from Holder.

The report, which has been expected for months, is undergoing declassification. The final version will provide fresh details about how waterboarding was adopted and the role top White House officials played in the process, Newsweek reports. For instance:

Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

We’ll have more throughout the day.

Eric Holder (Photo by Ryan J. Reilly / Main Justice).

It’s awards season at the Justice Department, and the boss isn’t walking away empty-handed.

On Tuesday, Attorney General Eric Holder received the Henry E. Petersen Award, the Criminal Division’s highest honor, Justice officials said.

Petersen, a legendary career lawyer, presided over the Criminal Division during the Watergate years, protecting its integrity against political forces, and he is credited with mounting the department’s long and successful campaign against organized crime.

The department created the award shortly after Petersen’s death in 1991. Deputy Assistant Attorney General John Keeney, who revered Petersen (and is likewise revered ), was the first to receive the honor in 1992. Other recipients include Associate Deputy Attorney General David Margolis and FBI Director Robert Mueller III.

It’s unusual for a sitting Attorney General to receive kudos from his subordinates — and unprecedented in the history of the Petersen award — but Holder has deep roots in the Criminal Division. He joined the Public Integrity Section from law school, and crisscrossed the country for the next 12 years prosecuting corrupt officials. He also oversaw the Criminal Division as Deputy Attorney General.

Don Siegelman

The Office of Special Counsel says in a new report it found no evidence to support a whistle-blower’s claims that the U.S. Attorney’s office for Middle District of Alabama acted inappropriately in its public corruption prosecution of former Gov. Donald E. Siegelman (D) and former HealthSouth CEO Richard Scrushy.

The OSC launched the investigation following allegations by Tamarah Grimes, a former paralegal in the office, who alleged officials in the district did not report improper jury communications, among other things. The OSC is an independent agency with jurisdiction only to look into Grimes’s claims that she was retaliated against as a whistle-blower. She was fired in July, which she said was due to her attempt to expose the misconduct – a claim the DOJ denied.

Grimes also claimed the Middle District caused the government to incur unnecessary costs due to gross mismanagement. She said victim impact funds were misused and that U.S. Attorney Leura Canary abused her authority by obstructing an Office of Personal Responsibility investigation into the conduct of Assistant U.S. Attorney Randolph Neely. She also said officials launched a DOJ Office of Inspector General investigation into her conduct following her whistle-blowing.

Tamarah Grimes

Then-Attorney General Michael B. Mukasey ordered an investigation, which was headed by Associate Deputy Attorney General David Margolis and conducted by Assistant U.S. Attorneys Ronald R. Gallegos of Arizona and Steven K. Mullins of the Western District of Oklahoma. After DOJ determined Grimes’ claims were unfounded, House Judiciary Committee Chairman John Conyers (D-Mich.) and House Judiciary commercial and administration law subcommittee  Steve Cohen (D-Tenn.) requested an additional investigation.

The second investigation by OSC “confirmed DOJ’s initial investigation findings that no improper communication with the jury occurred,” according to this analysis of disclosures, agency investigations and reports, by William E. Reukauf, associate special counsel at OSC.  The report is broken into eight parts: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7 and Part 8. Reukauf signed off on the second investigation in a letter to President Obama.

Siegelman argues he was targeted for prosecution for political reasons. He has appealed his conviction to the Supreme Court.

The path to becoming one of the nation’s 93 U.S. Attorneys is long and arduous, replete with reams of paperwork, background investigations, and the usual jockeying for a place in line.

There’s an art to positioning yourself on the shortlist, and it varies by state and often by district. But there is one constant in the process — the all-important Washington interview, held in an airy conference room on the second floor of the Main Justice building.

The Justice Department has asked candidates not to discuss the process. A spokeswoman told us revealing the details of the interviews would be akin to handing out the answers to a test before it’s administered. If that’s the case, we’ve cobbled together a cheat sheet below, based on interviews with several people who agreed to discuss their experiences on the condition that they not be named. No need to thanks us.

First, let’s set the scene.

You are escorted through the Main Justice building to a waiting room, where you are asked to plug holes in your paperwork or add clarity — gaps in employment, places you’ve lived, and so on — and to fill out additional forms, if necessary. By and by, you are led into the conference room, a gaping space bisected by a long boardroom table.

H. Marshall Jarrett (usdoj)

Then come the introductions.

Associate Deputy Attorney General David Margolis is very much in charge, as he was during the previous administration. He’s been questioning would-be U.S. attorneys for more than a decade. Margolis is supported by H. Marshall Jarrett, the new director of EOUSA; White House liaison Margaret Richardson; and a roster of other political and career officials from EOUSA, the Office of Legal Policy, and the White House counsel’s office. The names and offices varied slightly during the course of our reporting, so we’ll leave it at that.

There are seven or eight of them, your interviewers, and they announce themselves quickly. (You’ll probably forget one or two of their names.) You are planted at the head, in the hot seat. Margolis and the others cluster around you, leaving a large, empty stretch of table.

The questions begin. Here they are, in no particular order — and definitely paraphrased:

• Why do you want to be U.S. attorney?
• Who is your favorite lawyer and why?
• Who is your favorite non-lawyer, someone who isn’t famous, and why?
• What’s your view of the press, and how would you approach the media as U.S. attorney?
• Tell us about your district. What are the problem areas and delineate your priorities, were you to be confirmed as U.S. attorney?
• What type of management style would you bring to the job? How would you deal with problem employees?
• If you live outside your district, how quickly could you up and move?

That’s the first part, more or less. As you can see, the questions are rather open-ended, and the interviewers let you prattle, rarely asking any follow-ups, we’re told. One person told us an official in the room, a young woman, fell asleep at the table during their interview. Tough crowd.

J. Edgar Hoover (usdoj)

After the first series of questions, most of the people in the room stand up and leave. Three or so remain, including Margolis and Jarrett. Then begins the “J. Edgar Hoover” segment of the interview, as one person put it.

Tom Daschle (gov)

In the more intimate setting, they ask you the Tom Daschle question. (Do you always pay them on time? Do you have any unpaid taxes?) The Zoë Baird question. (Do you have a nanny, and if so, do you pay your nanny taxes?) The dope question. (Do you use any illegal drugs, have you in the past?) The catchall question. (Have you done anything that might embarass the president?) Finally, the plastic question. (Do you pay off your credit card bill in full each month, or do you carry a balance?)

All told, the interview runs somewhere between 45 minutes to an hour and a half, the people said. If you make the cut, you’ll be called back to Washington to meet with Deputy Attorney General David Ogden and Attorney General Eric Holder.