Attorney General Eric Holder named Robin C. Ashton on Thursday to serve as head of the Office of Professional Responsibility (OPR).
OPR’s mission is to investigate attorneys employed by the Justice Department who have been accused of misconduct or crimes in their professional functions.
Ashton has worked in the U.S. Attorney’s office for the District of Columbia since 1991. She currently serves as the Executive Assistant U.S. Attorney for Management. From 2001 to 2005, she served as Deputy Director in the Executive Office for U.S. Attorneys (EOUSA). She began her DOJ career in the litigation section of the Antitrust Division.
This year, Ashton received the United States Attorney’s Award for Meritorious Service 2010 Award Recipients. In 2004, she was given the EOUSA’s Director’s Award for Executive Achievement.
“As a veteran career prosecutor, Robin is uniquely qualified to serve as Counsel for Professional Responsibility, and I am confident she will lead the office with the highest standards of professionalism, integrity and dedication,” Holder said in a prepared statement.
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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The Office of Professional Responsibility report on conduct of the authors of the so-called torture memos shows that the Justice Department’s internal ethics office is broken, according to panelists at a Wednesday forum hosted by the Alliance for Justice.
Panelists David Cole, a Georgetown law professor, Michael S. Frisch, ethics counsel to the Georgetown University Law Center, Scott Horton a lawyer and contributor to Harper’s magazine and Bill Yeomans, a fellow in law and government at American University’s Washington College of Law, all criticized the result of the investigation into the authors of the so-called “torture memos” that authorized harsh interrogation methods for use on terrorism suspects.
While OPR found in its investigation that Jay Bybee and John Yoo had been guilty of professional misconduct, 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.
OPR is simply not independent, said Yeomans, who spent 23 years in the Civil Rights Division before leaving the department in 2005.
He said there is an ongoing battle within the Justice Department between OPR and the department’s Inspector General.
Yeomans added that the report shows how broken the Justice Department’s internal ethics department has become. He said that OPR did not even obtain Yoo’s e-mails, saying that it believed they had been destroyed.
“Most of us have been trained to believe that e-mails never actually disappear, they are always somewhere,” said Yeomans. Without the e-mails, there is a “gaping hole in the investigation,” said Yeomans.
Cole said that the result of the report is that torture has became professionalized and regularized.
“We tortured people, we tortured many people, and we’re arguing about whether two lawyers should get bar discipline?” said Cole. He said discussion about the memos is greatly important, and that’s why the report “was released on a Friday night at 5 p.m.”
Horton said it was important to remember what the memos were really about.
“Is this really about ethics, or is this about crimes? The answer is very clear, it is about crimes,” said Horton. “Self regulation is a fraud,” Horton said of OPR. “This is not just a U.S. crime, it is a universal crime,” said Horton. The Bush White House and the CIA “wanted a get out of jail free card,” he said.
Video of the event is available on the Alliance for Justice Web site.
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A former Justice Department lawyer who was disciplined for leaking confidential information on the “American Taliban” John Walker Lindh case called the DOJ’s Office of Professional Responsibility report on John Yoo and Jay Bybee a “white-wash” and a “joke.”
“This gives me the dubious distinction of being the only Justice Department attorney that OPR referred for bar disciplinary action stemming from advice I gave in a torture case–and my advice was to permit an American terrorism suspect to have counsel,” wrote Jesselyn Radack on her Daily Kos blog.
“If the Holder Justice Department had any inclination to rehabilitate OPR’s lofty mission of ‘ensuring that Department of Justice attorneys perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency,’ they’ve blown it,” she added.
Radack, a former ethics adviser in the Justice Department’s Professional Responsibility and Advisory Office, provided information to Newsweek on the unlawful interrogation of Lindh, an American Muslim convert who was captured in Afghanistan in 2001 while fighting with the Taliban. Radack is currently homeland security director at the Government Accountability Project.
In an interview with Main Justice, Radack criticized the conclusions in the OPR report. Associate Deputy Attorney General David Margolis downgraded 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.
“This was kind of one of the last bastions of anything with a whiff of accountability that remained at play,” said Radack. “Pretty much everybody has been given a walk, and so here was the last chance of accountability – some sort of accountability, not that it would have effected John Yoo or Judge Bybee that much… But it would have been at least symbolic.”
While at the Justice Department, Radack received an inquiry from the FBI about the advisability of questioning Lindh without his lawyer present, according to an account in Jane Mayer’s book, “The Dark Side.” Radack responded that the questioning was not permitted because Lindh’s father had retained a lawyer for his son. Despite her advice, the FBI interrogated Lindh without his lawyer. Radack later advised DOJ lawyers that Lindh’s confession could not be used in a criminal case. But prosecutors ignored her advice. They also did not include her e-mails when a judge requested copies of all internal DOJ correspondence. In 2002, Lindh plead guilty to one count of supplying services to the Taliban and was sentenced to 20 years in prison.
Radak said she was given a negative performance evaluation and told to find a new job, which she did at a law firm. After Radack released her e-mails to Newsweek, DOJ opened a criminal investigation into the origin of the e-mail leak. Because of the investigation, her job offer was rescinded and OPR recommended the D.C. bar investigate her for violating rules of professional conduct.
Radack’s case before D.C. bar is still pending. She is being represented by Michael Frisch of Georgetown University Law Center.
“Basically I was accused of the same thing that John Yoo has done with impunity,” Radack told Main Justice. “He was making public legal advice, except mine was not classified, given to the government. He’s made a whole career off of that, written books and law review articles on the torture memos – which by the way were secret and classified – yet they didn’t appear to investigate him for [that] violation.”
Radack said the conclusion of the investigation makes it seem like “okay, you have license to be a bad lawyer if you’re scared and in a rush, if you’re scared and in a hurry.” She said she is planning to attend a Senate Judiciary hearing on the OPR report scheduled for Friday.
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Newsweek’s Michael Isikoff highlights an exchange in the Office of Professional Responsibility report released Friday night between an OPR investigator and former Deputy Assistant Attorney General John Yoo, principal author of a 2002 Office of Legal Counsel memo authorizing harsh interrogation techniques against terrorism suspects.
Pressed to explain his expansive view of executive power, the OPR investigator asked, according to a partial transcript:
“What about ordering a village of resistants to be massacred? … Is that a power that the president could legally—”
“Yeah,” Yoo replied. “Although, let me say this: So, certainly, that would fall within the commander-in-chief’s power over tactical decisions.”
“To order a village of civilians to be [exterminated]?” the OPR investigator asked again.
“Sure,” Yoo answered.
Read Isikoff’s report here.
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.”
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The Justice Department’s Office of Professional Responsiblity has recommended that Attorney General Eric Holder reopen nearly a dozen CIA prisoner-abuse cases, a person briefed on the matter told The New York Times. Read the NYT story here.
The revelation arrives at the confluence of several events that mark a further break with the Bush administration on the hot-button issue of interrogations.
The Washington Post reported in today’s paper that President Obama has approved a special terrorism interrogation team that would be housed at the FBI but report directly to the National Security Council, shifting oversight from the CIA to the White House. The special interrogation team, named the High-Value Detainee Interrogation Group, or HIG, will comprise experts from several intelligence and law enforcement agencies and likely be headed by an FBI official, a senior administration official told the Post.
Also, the Obama administration is set to release today a 2004 CIA inspector general’s report detailing prisoner abuse.
But it is the long-awaited OPR report that is likely to have the most consequences. According to the Times, it is now all but certain that Holder will appoint a special prosecutor to investigate the alleged CIA abuses, despite Obama’s stated preference to move on.
The OPR report also examined the legal reasoning of the Bush-era Office of Legal Counsel lawyers who authorized interrogation techniques that Holder himself has called torture. It has already been reported that OPR recommended referrals to local bar associations for possible discipline against the OLC lawyers, but further information on the report’s conclusions about the OLC lawyers isn’t known yet.
According to the Times, the part of the OPR report focusing on detainee abuse will be made public after classified information is deleted. The allegations center on incidents reported mainly in Iraq and Afghanistan, the Times said.
Said the Times:
“The cases represent about half of those that were initially investigated and referred to the Justice Department by the C.I.A.’s inspector general, but were later closed. It is not known which cases might be reopened.”
The news of the OPR recommendations follows reports of CIA abuses, including officers carrying out mock executions and threatening at least one prisoner with a gun and a power drill. Under anti-torture statutes, it’s a violation of federal law to threaten a prisoner with imminent death, the Times said.