The Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against the Justice Department Tuesday related to missing e-mails from former DOJ official John Yoo, the author of the so-called “torture memos.”
Yoo served in the Office of Legal Counsel from 2001 to 2003. Earlier this year, the DOJ’s Office of Professional Responsibility cleared Yoo and fellow OLC lawyer Jay Bybee of any wrongdoing in connection with the memos, which authorized harsh interrogations of terrorism suspects. In the report, OPR investigators said they could not recover some of Yoo’s e-mails from the time the memos were written.
In February, CREW filed a Freedom of Information Act request with the DOJ asking for any information the OLC provided to employees on e-mail preservation. The group also filed a FOIA request in March asking for all e-mails sent to or received by Yoo.
According to CREW, the DOJ has so far only provided two documents related to the request.
“Given that millions of emails disappeared from Bush White House servers, no one should be surprised to find that emails disappeared from the Bush Justice Department as well. What’s violating federal records laws compared with avoiding accountability?” CREW’s Executive Director Melanie Sloan said in a statement. “The public deserves to know the truth behind the OLC torture memos and the Obama administration faces a choice: it can cover-up the Bush administration’s misdeeds or allow the truth to come out and help the country confront and move past this shameful episode.”
CREW is no stranger to lawsuits over FOIA requests. Last year, the group settled a lawsuit against the White House and the National Archives and Records Administration over missing e-mails from Bush administration White House staffers.
Former Justice Department Office of Legal Counsel official John Yoo told The Los Angeles Times in a report published Monday that he relishes being a conservative law professor in “the People’s Republic of Berkeley.”
Yoo, who is a tenured professor at University of California, Berkeley, teaches a constitutional law course and seminar at the predominantly liberal university. He has often been the target of protests around campus for his role in drafting the George W. Bush administration’s so-called “torture memos,” which authorized harsh interrogation methods against terrorism suspects.
“I think of myself as being West Berlin during the Cold War, a shining beacon of capitalism and democracy surrounded by a sea of Marxism,” Yoo told the newspaper.
A Justice Department report released last month cleared Yoo of any misconduct in authoring the memos. DOJ veteran David Margolis said in the report that Yoo only showed “poor judgment.”
Christopher Edley, the law school’s dean, has faced pressure from Yoo’s critics to fire the tenured professor ever since the memos were released last year. The dean dismissed the possibility of taking action against Yoo after the DOJ report was released last month.
“I hope these new developments will end the arguments about faculty sanctions, but we should and will continue to argue about what is right or wrong, legal or illegal, in combating terrorism. That’s why we are here,” Edley said in a statement, according to the L.A. Times.
Although Yoo told the newspaper he might be tempted to return to public service if a Republican becomes president, he said he likes working at a college campus and bringing a new perspective into the discussion.
“Then [my law students] can always say, ‘I’ve met a conservative.’ They can tell their family and friends,” Yoo told the L.A. Times.
In a commentary for Foreign Policy published Thursday, David Kaye, executive director of the UCLA School of Law International Human Rights Program and an attorney-advisor in the State Department from 1995 to 2005, argued that the United States needs a torture commission to look at the policy during the George W. Bush administration.
“The story of that period is a cautionary one for any administration: Presidents and their most senior officials get advice from a system prone to politicized and occasionally ideologically-driven legal advice,” Kaye wrote. “Lawyers, for their part, must constantly guard against politicization and improper influence from the “client” — the administration.”
Noting that the Office of Professional Responsibility report about former Justice Department lawyers John Yoo and Jay Bybee was “softened” to “poor judgment” by a senior Justice Department official, Kaye argued that the focus shouldn’t be on individuals.
“But even if Justice had come down hard on Yoo and Bybee, the focus on them, while appropriate for ethics purposes, encourages the public to see the torture scandal as a failure of particular lawyers,” Kaye wrote. “It was that, but it was also much more. It was the failure of an entire structure of government decision-making. There was a deliberate attempt to thwart the normal process of government legal advice. Quite apart from the substance of the advice, the process itself suggests that government officials conspired to commit torture.”
Read his full piece here.
New York Democratic Rep. Jerrold Nadler plans to renew a push for legislation that would change the way the Justice Department handles allegations of misconduct.
The measure championed by Nadler would allow the Office of the Inspector General the right of first refusal to investigate misconduct claims. Under the current structure, the Justice Department’s internal review board, the Office of Professional Responsibility, investigates all attorney misconduct allegations.
Supporters of the change say the Inspector General has much more autonomy given his unlimited term, greater resources and the fact that he reports to both Congress and the Attorney General, whereas OPR is much more susceptible to interference from political leaders.
Defenders of OPR, including Attorney General Eric Holder, counter that the specialized office is necessary because it has developed an expertise in applying complicated ethical and legal standards to DOJ employees and that allegations of misconduct, many of which are frivolous, should be handled out of the public realm.
Some members of Congress have tried and failed to give more power to the Inspector General before. The renewed interest is the result of a recent OPR investigation into the Bush administration’s interrogation policies. In a long-awaited report, OPR found that Bush-era Office of Legal Counsel lawyers Jay Bybee and John Yoo committed professional misconduct by authoring memos that approved the use of enhanced interrogation techniques. But that finding was overruled by David Margolis, a career employee serving as Associate Deputy Attorney General, the highest ranking non-political position in the Justice Department. In a memo overturning the finding, Margolis said he agreed that the authors’ work was slipshod and that they demonstrated “poor judgment” but not misconduct.
Nadler said the recent OPR report highlighted the need for change because of how easily a report can be overruled by just one man.
“I met with my staff … and said why don’t we introduce that bill?” Nadler told Main Justice.
Such a bill, Nadler’s staff told him, was actually quietly introduced by House Judiciary Committee Chairman John Conyers (D-Mich.) in October. HR 3847 was referred to the House Committee on Oversight and Reform on Oct. 20, and has sat there since. Now Nadler plans to make a new push. Nadler does not serve on the Oversight panel.
“We’re going to pursue that,” said Nadler.
Long Running Disagreement
The tussle between OPR and the Inspector General is not new.
The Inspector General’s office is an independent entity within the department that publishes public audits and reports on DOJ programs. Congress and the executive branch have limited oversight over the DOJ’s Inspector General; the head of the office is selected by the president and confirmed by the Senate, and can be removed only by the president himself. The office has the authority to issue subpoenas to compel testimony or documents for investigations, but it is specifically prohibited from investigating the department’s lawyers for misconduct related to their official duties.
Only OPR — which answers to the Justice Department’s political leaders — can investigate Justice attorneys or other DOJ employees for misconduct. OPR does not have the ability to issue subpoenas and the results of investigations are not usually made public.
Much of the office’s workload remains a mystery.
While OPR is required by law to provide an annual report, the last one available is from fiscal 2007. The report is scrubbed of any identities.
In 2007, OPR received 906 complaints. The office determined that 207 of the matters, about 23 percent, warranted further review. OPR opened full investigations in 71 of those; the remaining 136, which are called “inquiries,” were resolved with no findings of professional misconduct.
Of the 75 investigations that were closed in fiscal 2007 — some of which took the investigators more than a year to finish — OPR found professional misconduct in only 23.
The report gives little to no detail on the subject of investigations.
“The matters opened as inquiries during fiscal year 2007 were remarkably diverse,” the report states. “Many of those matters did not involve a complaint against a department attorney. For example, some inquiries were based on allegations of whistleblower retaliation made by FBI employees. Others involved abuse of prosecutive or investigative authority by agents or unauthorized leaks to the media.”
OPR’s Toughest Critics
Some of OPR’s biggest detractors are federal judges.
Judge Mark L. Wolf, the chief judge of the District of Massachusetts, was forced to let two mob figures out of prison in 2003 after discovering that a federal prosecutor never told defense attorneys that the star witness in the murder trial had recanted his testimony.
An OPR investigation found the prosecutor’s conduct reckless but not intentional, and the attorney was privately reprimanded by the Massachusetts U.S. Attorney. But Wolf did not learn of the OPR finding until two years later and was highly displeased with the result.
Wolf wrote to the state bar disciplinary counsel and publicly released a letter to then-Attorney General Alberto Gonzales.
“In my view, a mere secret written reprimand by the United States attorney would not ordinarily be a sufficient sanction for the serious, repeated and consequential misconduct,” Wolf wrote in the 2007 letter.
In a more recent case, U.S. District Judge Emmet G. Sullivan decided to open his own investigation into the botched prosecution of former Sen. Ted Stevens (R-Alaska) rather than rely on an OPR investigation.
Stevens was accused of failing to disclose gifts he received on his Senate Ethics form. He was convicted in October 2008, but after the trial a FBI whistleblower and many others accused the prosecution of mishandling evidence. Holder moved to dismiss the case, concluding that prosecutors improperly withheld evidence favorable to Stevens.
At an April 2009 hearing voiding Stevens’ conviction, Sullivan called the prosecution’s mistakes the worst mishandling and misconduct he had seen in his 25 years on the bench. Although the Justice Department had opened an internal OPR investigation, Sullivan said it was not enough. He appointed attorney Henry F. Shuelke III as an independent prosecutor to look into the matter.
“The court looks forward to receiving the results of the OPR investigation whenever that investigation concludes,” Sullivan said at the hearing. “But the events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no outside accountability.”
Holder Opposed Similar Bill
Efforts by Nadler or other lawmakers to press for enactment of Conyers’ bill will undoubtedly face opposition from the leadership of the Justice Department. A department spokeswoman declined to comment for this story.
Conyers’ legislation is similar to a 2007 measure introduced in the wake of the U.S. Attorney firing scandal.
That legislation, which dealt with inspectors general at all federal agencies, would have given Justice Department’s inspector general the authority to conduct legal ethics reviews.
But the legislation changed during Senate floor consideration, when the provision related to OPR was removed by Sen. Jon Kyl (R-Ariz.).
“I find it dubious that an OPR lawyer would be in any position to assess whether an Office of Legal Counsel opinion is legally correct or not,” said Kyl at the time. “I fear that OPR’s actions are influenced more by the toxic style of opposition attacks on the Justice Department in recent years, in which legitimate policy and legal disputes are recast as ethical lapses, rather than by a sound concern for the integrity of the Department.”
Kyl’s intervention came after the Justice Department and supporters from previous administrations raised objections to a stronger role for the Inspector General.
During the debate in 2007 on the inspector general legislation, Attorney General Eric Holder, then in private practice at Covington & Burling, wrote Sen. Joe Lieberman, one of the bill’s co-sponsors, in support of OPR. (A copy of the letter is embedded below.)
“I believe strongly that, far from curing the problems now under investigation, authorizing an IG to investigate the sensitive issues historically investigated by OPR would create additional opportunities for improper political concerns to influence law enforcement decisions,” Holder wrote.
“OPR has been recognized consistently as a strong, independent entity within the Department since its creation in 1975,” he continued. “Over the years, Attorneys General of both parties have considered proposal that OPR’s jurisdiction be given to the OIG, and have concluded that allegations OPR investigates, such as exercise of prosecutive discretion and legal judgment, should remain the mission of a dedicated staff of specialists responsible directly to the Attorney General.”
Margolis, who has overseen OPR as part of his role in the Deputy Attorney General’s office, is one of OPR’s biggest supporters.
In 2000, he testified along with other department officials that a bill to change the way misconduct cases were handled would be “profoundly unwise” and potentially unconstitutional. In his testimony he noted that OPR was subject to the “general supervision” of the Attorney General, and noted that the Attorney General has the final say regarding the release of information about the results of investigations.
After years of promoting the independence of OPR attorneys, his memo on the Bybee-Yoo report highlights what critics say is its major flaw — that it takes just one person to overrule OPR’s findings.
Inspectors General Want Change
There are several people within the DOJ who support a stronger role for the Office of the Inspector General, including the inspector general himself.
Inspector General Glenn Fine declined to comment directly on the recent OPR report, but said that his views about the need for an independent inspector general are very public.
“I think this should be a bipartisan issue, and it’s something we have talked about for awhile. My views on this are well known. We’ll see what happens,” Fine told Main Justice last month. “I expect that when I’m asked about this, I’ll continue to state my position on this.”
The previous Inspector General agrees.
“The existence of OPR gives the Attorney General more control over internal investigations because it reports solely to the AG; by contrast, the Inspector General reports jointly to both the Attorney General and to Congress. In theory and in fact, the AG controls the OIG far less than he controls OPR,” said Michael Bromwich, who served as Inspector General during most of the Clinton administration and is now a partner at Fried Frank.
When he took on the role, Bromwich was promised that the Office of the Inspector General would absorb the Office of Professional Responsibility. That transition never happened because of internal opposition.
For 22 years Michael E. Shaheen served as chief counsel in the Office of Professional Responsibility, investigating big cases across the department including cases that took on the FBI and even the attorney general.
Shaheen, wrote Jim McGee and Brian Duffy in their book “Main Justice,” gained the reputation of a dragon slayer, and kept his independence because of his allies on Capitol Hill, including now-Vice President Joe Biden during his stint as chairman of the Senate Judiciary Committee and his Republican successor, Orrin Hatch of Utah.
So it was surprising when in 2007 Shaheen called for his former office to be abolished, telling NPR its functions should be merged with the Office of the Inspector General.
It pained him to say so, he said, but the Office of Professional Responsibility has been “plagued by a history of delays and bureaucratic layers imposed on it,” he said.
Shaheen died that same year. But Bromwich said Shaheen’s comments on OPR after so many years leading the office “sent a pretty powerful statement” about the need for change.
Joe Palazzolo and Leah Nylen contributed to this story.
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Keep America Safe’s video on the Justice Department lawyers who previously worked on behalf of detained terrorism suspects has prompted quite a discussion, but John C. Yoo didn’t think the debate was necessary, reported the New York Times.
“What’s the big whoop?” said Yoo, the former DOJ Office of Legal Counsel official whose memorandums on torture and presidential power were used to justify controversial interrogation policies of the George W. Bush administration.
“The Constitution makes the president the chief law enforcement officer. We had an election. President Obama has softer policies on terror than his predecessor.
“He can and should put people into office who share his views,” Yoo told The Times. Once the American people know who the policy makers are, Yoo said, “they can decide whether they agree with him or not.”
The video aroused not only liberal outrage directed at the producers of the short film, but also division among conservative legal scholars, according to The Times. The video was produced by Keep America Safe, a conservative interest group in Washington, D.C., run by Liz Cheney, the daughter of the former vice president.
Conservative members of the Federalist Society, the 25-year-old policy group devoted to conservative and libertarian legal ideals, have criticized the video, and said it violated the American legal principle that even unpopular defendants deserve a lawyer.
A letter issued by the Brookings Institution criticizing the “shameful series of attacks” on government lawyers was signed by several former Republican administration officials and conservative legal figures, including Kenneth W. Starr, the former special prosecutor, Charles D. Stimson, who resigned from the second Bush administration after suggesting that businesses might think twice before hiring law firms that had represented detainees, Peter D. Keisler, a former acting attorney general, and Larry D. Thompson, a former deputy attorney general.
Richard A. Epstein, a law professor at the University of Chicago who once taught Liz Cheney, said he found it “appalling” to see people equating work on detainee cases with a dearth of patriotism.
“You don’t want to give the impression that because you oppose the government on this thing, that means you’re just one of those lefties — which I am not,” he told The Times.
David M. McIntosh, a former member of Congress and a founder of the Federalist Society, agreed that a lawyer should not be judged by his clients, but he said it was legitimate to examine the agenda of the lawyers.
“Was the person acting merely as an attorney doing their best to represent a client’s case, or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?” he said.
If the commitment to the cases is ideological, McIntosh said, it is reasonable to ask, “Is that the best attorney for the Justice Department?”
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A bipartisan group of former Attorneys General and Deputy Attorneys General have come to the aid of the Justice Department’s highest-ranking career official, David Margolis, who is under the microscope for his decision to overturn a finding of professional misconduct against former Office of Legal Counsel lawyers Jay Bybee and John Yoo.
Seventeen former officials — including every AG and DAG in the past 17 years, excepting Eric Holder — signed a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking Republican Jeff Sessions of Alabama extolling Margolis’ impartiality and wisdom.
“We all benefited during our tenures from the wise counsel and good judgment of David Margolis,” the March 4 letter states. “His advice is informed by his long experience and delivered with utter lack of partisan bias or any other distorting prejudice.”
As Associate Deputy Attorney General and a 45-year veteran of the department, one of Margolis’ duties is to oversee the Office of Professional Responsibility, which determined that Bybee and Yoo committed professional misconduct in authoring legal memos blessing brutal interrogation techniques, including waterboarding.
In a memo overturning the finding, Margolis said he agreed that the authors’ work was slipshod and that they demonstrated “poor judgment” but not misconduct. He also took aim at OPR for using what he described as shifting and incoherent standards against which Yoo and Bybee’s conduct was measured.
The letter makes no comment about the merits of his decision but concludes that it was reached “conscientiously and wholly without partisan purposes.”
Margolis’ decision has drawn sharp rebukes, and in some cases personal attacks, from the left, and praise, generally, from the right. The Senate Judiciary Committee held a hearing last week on the report, though it did not live up to the ferocity of the debate unfolding on editorial pages and blogs. Only four senators attended.
See the letter below.
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Former Justice Department Office of Legal Counsel lawyer John Yoo said in a column in Sunday’s Philadelphia Inquirer that he didn’t know why the DOJ’s Office of Professional Responsibility couldn’t find e-mails he exchanged with a colleague during the period in which Yoo was working on memos detailing the legal basis for interrogating terrorism detainees.
Acting Deputy Attorney General Gary Grindler told members of the Senate Judiciary Committee Friday that the DOJ is trying to retrieve the Yoo e-mails, which could not be recovered during the OPR investigation of potential misconduct by Yoo in the authorization of harsh interrogation methods for terrorism suspects. Yoo, who served in the OLC from 2001 to 2003, was recently cleared of misconduct stemming from the “torture” memos.
“During my interviews, OPR lawyers showed me several printouts of my e-mails,” Yoo wrote. “If they need more they should look in the files of the other lawyers on the network.”
He added that there couldn’t be any e-mails discussing interrogation methods to his ex-colleague, former OLC lawyer Patrick Philbin, because the Justice Department’s e-mail system is unclassified and could not be used to discuss interrogation techniques, which were “classified at the highest levels of secrecy.”
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) chastised Grindler on Friday for the missing e-mails. He said their disappearance raised “serious concerns” about government transparency.
Grindler said the OPR report on the authorization of the harsh interrogation methods does “not suggest that there was anything nefarious” about deletion of e-mails. But the National Archives sent a letter to the DOJ on Wednesday asking it to investigate “possible unauthorized destruction of e-mail and other records” in OLC.
Yoo said in his op-ed column that the OPR’s handling of the investigation is the “gift that keeps on giving,” adding that the OPR investigators are “incompetent.” He said that “Leahy’s outrage displays how little he and OPR understand the basics of intelligence.”
At the conclusion of Friday’s Senate Judiciary hearing on the Office of Professional Responsibility’s look into the authors of the so-called “torture memos,” two protester from Code Pink asked pointed questions to Sen. Patrick Leahy (D-Vt.) — which he ignored — about why key witnesses were not called to testify.
“There’s no accountability,” said one protester. “There’s so many unanswered questions that we could use the power of subpoena to get the answers to. I think the American people are demanding accountability, the American people feel lost out here.”
She also asked why David Margolis was not forced to testify at the hearing.
Medea Benjamin, co-founder of Code Pink, said her organization wanted to see John Yoo and Jay Bybee in jail.
Earlier in the hearing, Leahy asked Benjamin to lower her sign, which was positioned to be within the frame of the C-SPAN camera broadcasting the hearing.
Video of the conclusion of the hearing is below.
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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 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.
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.
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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Statement of U.S. Senator Russ Feingold
Hearing on “The Office of Professional Responsibility Investigation into the Office of Legal Counsel Memoranda”
Senate Judiciary Committee
As Submitted to the Record
“The Office of Professional Responsibility (OPR) report reminds us in no uncertain terms that John Yoo and Jay Bybee engaged in disgraceful conduct by writing and signing legal memos authorizing torture.
“While much of the information in the OPR report has previously been declassified and discussed in various places, the report is stunning in its recounting of the history of these torture memos. The Department of Justice deserves credit for making available so many documents relating to this report. The report reminds us of the pressure coming from the White House, and particularly the Office of the Vice President, on the CIA’s interrogation program; the extreme legal theories and one-sided presentation of the law that Yoo provided in response; and the extraordinary secrecy with which these issues were handled. Even after the memos signed by Bybee and Yoo in 2002 and 2003 were withdrawn in 2004, subsequent memos went on to authorize what can only be described as acts of torture, including one drafted in 2005 by Steven Bradbury over the objection of Deputy Attorney General James Comey, who also raised concerns that Bradbury was susceptible to pressure because he was hoping to be nominated by the President to be an Assistant Attorney General.
“Those later memos have now been withdrawn, although it’s worth nothing that other controversial memos governing wiretapping remain in effect. The job of reversing the mistaken Bush Administration-era theories of executive power is still not complete.
“As we suspected all along, the OPR report also confirms that the administration pushed to include certain provisions in the Military Commissions Act of 2006 precisely to ‘remove the legal barriers to the CIA program that had been created by the DTA [Detainee Treatment Act of 2005] and Hamdan [v. Rumsfeld, 548 U.S. 557 (2006)].’ OPR Final Report at 154. Indeed, in 2007, Bradbury issued yet another OLC memo concluding that six ‘enhanced’ interrogation techniques the CIA still wanted to use did not violate domestic or international law. It took a new President and a new Attorney General to repudiate both the use of torture and the tortured legal reasoning justifying it.
“I am deeply troubled that one of the architects of this perversion of the law is now sitting on the federal bench. I agree with you that Jay Bybee should step down from his lifetime appointment. I do not see how he can serve as a credible federal judge – someone who is supposed to be an independent decision-maker whose judgment and integrity are beyond question – under these circumstances. His name is now synonymous with an extreme legal analysis that has been repudiated by almost everyone except the few people involved in writing it. I opposed Judge Bybee’s nomination in 2003 because the administration refused to make his OLC opinions available to the committee. He claimed he would uphold the law and follow Supreme Court precedent, but legal memos that would have given this committee a very good window into whether he would fulfill that commitment were withheld. Little did I know at the time what a difference it would have made to see those memos. I have no doubt that had this committee been given access to the OLC opinions it asked for when Judge Bybee was nominated to the Ninth Circuit, he would never have been confirmed.
“I ask that a copy of my floor statement in opposition to Judge Bybee’s nomination dated March 13, 2003, be included in the record of this hearing.
“That brings me to the other issue the OPR report raises: the ongoing problem of secret law. The legal theories in the Bybee and Yoo memos offered the most extreme possible interpretation of presidential power, and failed to present more mainstream views or conflicting arguments. Tragically, there was no judicial or congressional oversight of these interpretations. This is an ongoing problem. We have an executive branch office writing binding legal opinions on issues that often are never adjudicated by any court. Not only that, but that same office treats its own decisions as precedent that can then be cited in future opinions. And many of these decisions remain not only outside the public eye, but also unavailable to congressional oversight committees. When you have an executive branch institution with an inherent bias in favor of executive power and authority to issue binding legal opinions, and little if any opportunity for congressional, judicial or public oversight of its opinions, is it surprising that something like the Bybee and Yoo memos were the result?
“This is exactly why I have pushed for more congressional reporting to Congress on OLC opinions, including the bill that Senator Feinstein and I introduced last Congress, the OLC Reporting Act.
“I want to make one final point. The history of what happened in the Office of Legal Counsel during the Bush Administration is exactly why we need to confirm Dawn Johnsen to head that office. She understands the crucial role of the OLC in upholding the rule of law and has championed institutional reforms to make sure that nothing like the Bybee/Yoo memos ever happens again.”