Assistant United States Attorney John Durham is close to completing a preliminary review of whether there is evidence that CIA agents or contractors violated the law when they used brutal methods to interrogate terror detainees, Attorney General Eric Holder said in speech Thursday night.
Holder, speaking in a question and answer session after his remarks at the University of the District of Columbia Law School, said Durham is ”close to the end of the time that he needs and will be making some recommendations to me.”
Holder’s comments were his fullest status report to date on the one of the Justice Department’s most politically sensitive inquiries. On Friday, several Justice officials cautioned that although Durham is nearing completion, it may take weeks or months to absorb his findings and decide what steps, if any, to pursue next.
Holder said the investigation would determine whether any intelligence officers or contractors went beyond the restrictions, outlined by the Office of Legal Counsel in a series of classified legal opinions which were written during the George W. Bush administration and which have since been disavowed.
The preliminary inquiry has created tensions between the Justice Department and the CIA, key partners in the government’s effort against international terrorism. Leon Panetta, the CIA Director, opposed Holder’s decision to open the inquiry in to the agents’ conduct, and in November 2009, seven former CIA directors wrote to President Barack Obama asking him to halt the investigation.
The interrogation opinions permitted harsh techniques like waterboarding that Holder has said amounted to torture. The opinions also directed that the interrogations, using so called “enhanced techniques,” be carried under rules intended to prevent serious injury or death, though human rights groups have condemned the methods.
“What I made clear is that for those people who acted in conformity with Justice Department opinions from the Office of Legal Counsel that said you could do certain things… people who acted in good faith in line with the Department of Justice guidance, will not be the people we are looking at or interested in,” Holder said Thursday.
“It’s a question of whether people went beyond those pretty far-out OLC opinions, people who went beyond that,” Holder said. “That’s what we’re looking at.”
Durham was appointed in August 2009 to look into the treatment of prisoners at so-called “black sites” overseas. In 2008, Durham had been appointed by then-Attorney General Michael Mukasey to investigate the destruction of dozens of CIA videotapes of detainee interrogations. Holder made no mention of the status of that aspect of Durham’s inquiry.
At the appointment in August, Holder said “neither the opening of a preliminary review nor, if evidence warrants it, the commencement of a full investigation, means that charges will necessarily follow.”
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As it debated legislation to reauthorize U.S. intelligence programs, the House Friday morning at the last minute stripped language from a wide-ranging amendment that would have prohibited U.S. intelligence operatives from engaging in cruel, inhuman or degrading treatment.
The torture prohibition had been included Thursday in a package of amendments offered by House Intelligence Committee Chairman Silvestre Reyes (D-Texas) that was debated on the House floor. The section of the amendment was titled, “Cruel, Inhuman, and Degrading Treatment in Interrogations Prohibited.”
According to Politico, the language was drafted by liberal Washington Democratic Rep. Jim McDermott, and included in Reyes’ package of amendments at the insistence of Rules Committee Chairwoman Louise Slaughter (D-N.Y.) .
The torture language drew immediate criticism from key House Republicans and conservative opinion leaders off Capitol Hill. Peter Hoekstra (R-Mich.), the ranking minority member of the Intelligence Committee, complained, “Republicans brought this to the attention of the American people, who were rightly outraged that Democrats would try to target those we ask to serve in harm’s way. … The annual intelligence bill should be about protecting and defending our nation, not targeting those we ask to do that deed and giving greater protections to terrorists.”
Before the House voted on the amendment, leaders decided that the provision should be removed, judging that its inclusion could put passage of the entire bill at risk. That required a hurriedly scheduled Rules Committee meeting Thursday evening to approve a rule that modified the Reyes amendment, to take out the torture provision. All of that delayed further action on the amendment, and the bill, until Friday.
When the House finally voted on the Reyes amendment Friday morning, it was on the modified version — sans the torture language, which would have specifically prohibited waterboarding, inducing hypothermia or heat injury, forcing a person to be naked or to perform a sex act, or conducting mock executions. The amendment also would have banned interrogators from forcing a prisoner to maintain stress positions or to desecrate a religious object.
Under the original language U.S. intelligence members could face up to 15 years in prison for committing an act of cruel, inhuman or degrading treatment or up to life in prison if a detainee died during an interrogation in which such treatment occurred. The amendment also would have applied to medical professionals who take part in interrogations.
The modified Reyes amendment was approved, 246-166, and the House went on to pass the intelligence authorization by a tally of 235-168.
In action on Thursday, the House gave its voice-vote approval to an amendment that would require the inspector general of the intelligence community to review available intelligence to determine if there is any credible evidence of a connection between a foreign entity and the anthrax attacks in the United States in the fall of 2001.
The amendment was sponsored by Rush Holt (D-N.J.) and Roscoe Bartlett (R-Md.). Holt said that the FBI, which announced just last week the completion of its lengthy probe into the anthrax attacks, had been too hasty in concluding that a single man – scientist Bruce Ivins — who worked in Frederick, Md., in Bartlett’s congressional district — was responsible.
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Bob Barr, who said at a Conservative Political Action Conference panel today that waterboarding is torture, told Main Justice that it is appropriate for the Justice Department to open investigations into CIA agents who used waterboarding.
“Is it appropriate to look into those who violated the law? Sure!” Barr told Main Justice as he left the stage after the panel.
Barr is a former federal prosecutor (U.S. Attorney for the Northern District of Georgia from 1986-90) who also served as a member of the House of Representatives from Georgia from 1995-2003. He was the Libertarian Party candidate for president in 2008.
Separately, conservative commentator Ann Coulter told Main Justice that Attorney General Eric Holder’s first year in office is “about what I expected.”
Once the target of numerous protesters, “torture” memo author John Yoo doesn’t seem to attract them like he used to.
Yoo, who helped craft the legal authorization for waterboarding and other harsh interrogation methods, was bothered by only about eight protesters yesterday outside a Rotary Club meeting in San Mateo, Calif., the San Francisco Bay area’s Daily News reported. At a January speaking engagement at the American Enterprise Institute in Washington, D.C., there were no protesters present, according to Main Justice’s Ryan J. Reilly.
But back in August, a group of protesters descended on University of California Berkeley’s Boalt Hall School of Law in order to make it difficult for Yoo, a professor at the university, to make it to his first civil law class of the semester. Campus police arrested at least four people who didn’t vacate the law school building.
Although few in number, the protesters in San Mateo tried to compensate with costumes, including orange prison jumpsuits and a giant head resembling Yoo’s, according to the newspaper.
According to The Daily News: “Yoo joked that the event had been run so efficiently that the protesters showed up in prison garb ready to go to jail. But the people on the outside felt that Yoo should be the one in prison — for life.”
“We’re here because he’s a war criminal and should not be honored in any way,” Susan Harman told the newspaper.
Last month, it was reported that an upcoming report from the Justice Department’s Office of Professional Responsibility will clear Yoo of wrongdoing for the his role in writing the memos.
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.
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A legal fund has been launched on behalf of appeals court Judge Jay S. Bybee, the former head of the Justice Department’s Office of Legal Counsel who co-authored the so-called torture memos.
The fund, according to supporters who established it, would pay “for costs and expenses he is incurring or may incur” related to his service with the Justice Department or on the U.S. Court of Appeals for the Ninth Circuit, where Bybee has sat since 2003. The legal fund was first reported by Newsweek.
Bybee is one of the subjects of long-awaited ethics report by the Office of Professional Responsibility regarding the conduct of former DOJ lawyers who authorized the use of harsh interrogation tactics against suspected terrorists . The report is expected to be released this month, Attorney General Eric Holder told the Senate Judiciary Committee on Wednesday.
Because Bybee is now a judge, he could be subject to impeachment proceeding based on the memos, according to Talking Points Memo. Earlier this year, a special prosecutor was appointed to determine whether government officials or Central Intelligence Agency personnel violated the law by developing, authorizing and implementing the torture program early in the administration of President George W. Bush.
The Opinion of Committee on Codes of Conduct of the Judicial Conference of the United Statesestimates that Bybee’s legal expenses will be “in excess of $500,000 — a figure beyond [Bybee's] resources.”
According to the Bybee fund’s Declaration of Trust, its trustees are:
- James M. Spears, a lobbyist at Ropes & Gray, former general counsel at the Federal Trade Commission and former Deputy Assistant Attorney General from 1983 to 1988.
- Carolyn Colton, a vice president and assistant general counsel for Marriott International, Inc.
- Bruce Nielson, a partner at K&L Gates LLP.
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Attorney General Eric Holder told senators today that a long-awaited ethics report on the conduct of former Justice Department lawyers who authorized the use of harsh interrogation “should be ready at the end of the month.”
Holder, speaking at a Senate Judiciary Committee hearing, said a career prosecutor is looking over the Office of Professional Responsibility report for the last time.
“The report is complete and being reviewed now and is in its last stages,” Holder said in response to a question from Sen. Sheldon Whitehouse (D-R.I.).
In June, the Attorney General said the report, now more than four years in the making, would be ready in a “matter of weeks.” Today, Holder said the effort took longer than anticipated because the Justice Department afforded lawyers representing the subjects of the report time to respond to its conclusions.
The report looks at whether legal advice in the memos that authorize harsh interrogation techniques met professional standards required of Justice Department lawyers. The Office of Professional Responsibility’s findings are said to be harshly critical of Jay Bybee, the former head of the Office of Legal Counsel, and John Yoo, a former deputy.
It is still unclear when and to what extent the report will be made public.
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A former head of the Office of Legal Counsel said on Tuesday he does not oppose a criminal investigation of the office, though he defended the motives of two lawyers who were at the center of the Bush administration’s controversial interrogation program, reports The BLT.
“I personally am not opposed to criminal investigations of myself and others from our time there,” Daniel Levin, who served as acting head of OLC from July 2004 to February 2005, said at a forum at American University’s Washington College of Law.
Levin, now a partner at White & Case, said that such an investigation amounted to a “blunt instrument” but that it could be worthwhile, according to The BLT.
Levin also said he could support the formation of a “truth commission” proposed by Senate Judiciary Chairman Patrick Leahy (D-Vt.) and others, but he had doubts about whether it could be effective.
At the same time, he said believed that former OLC officials Jay Bybee and John Yoo, who have drawn criticism for authoring the so-called “torture memos,” acted in good faith. “I genuinely believe, for what it’s worth, that they genuinely believed the advice they were giving was correct,” Levin said.
Bybee and Yoo are the subjects of a long-awaited Office of Professional Report examining whether the lawyers violated professional standards in their work at OLC. Attorney General Eric Holder said recently the report was near completion.
In August, Holder tapped a career prosecutor, John Durham, to conduct a preliminary inquiry into possible criminal conduct by CIA interrogators. He has not ordered a probe of the OLC lawyers.
While at OLC, Levin was not among the advocates for the use of waterboarding and other harsh interrogation techniques on suspected terrorists. After subjecting himself to water boarding at a military base near Washington, Levin concluded that technique constituted torture unless performed with tight restrictions.
Levin reportedly was pushed out the Justice Department before he could complete a memo imposing more controls on the use of waterboarding and other methods.
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Michael Isikoff and Mark Hosenball at Newsweek offer an interesting analysis of Sen. Kit Bond’s (R-Mo.) announcement last week that he was pulling the entire GOP staff off a Senate Intelligence Committee investigation into Central Intelligence Agency interrogation practices.
The move appears to be part of a broader campaign by congressional Republicans and the U.S. intelligence community to pressure [Attorney General Eric] Holder to rescind his recent appointment of a special counsel to investigate allegations of torture during the Bush administration.
The flare-up is significant because, whatever the results of Holder’s criminal probe, the Senate panel’s investigation offered perhaps the only opportunity for a full public accounting of the U.S. intelligence community’s conduct in the aftermath of September 11 attacks.
The result, Isikoff and Hosenball write, is the interrogations inquiry has become “hopelessly politicized.”
Bond, the ranking Republican on the intelligence panel, said he objects to Holder’s decision to empower a special prosecutor, John Durham, to examine whether criminal laws were broken during interrogations. Among the methods the CIA used against terrorism suspects is waterboarding, a method both Holder and President Obama have described as torture.
According to the Washington Times:
“Had Mr. Holder honored the pledge made by the president to look forward, not backwards, we would still be active participants in the committee’s review,” said Sen. Christopher S. Bond of Missouri, the panel’s vice chairman. “Instead, DOJ sent a loud and clear message that previous decisions to decline prosecution mean nothing and old criminal charges can be brought anytime against anyone — against these odds, what current or former CIA employee would be willing to gamble his freedom by answering the committee’s questions?”
Senator Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, said she regretted Bond’s decision to boycott the investigation.
Bond’s move came after seven former CIA directors wrote Obama, urging him to overturn Holder’s decision. The Sept. 18 letter reads:
Attorney General Holder’s decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute. Moreover, there is no reason to expect that the re-opened criminal investigation will remain narrowly focused.
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The Justice Department in a Monday court filing said it can’t find 10 documents that are supposed to be released as part of a Freedom of Information Act request filed by the American Civil Liberties Union, Al Kamen reported in The Washington Post.
The ACLU’s five-year FOIA battle seeks to illuminate the process that led to a policy of harsh interrogations of terrorism suspects during the Bush administration. One of the 10 missing documents is a 59-page exchange in 2002 between the Office of Legal Counsel and the Pentagon on the eve of a decision to increase the intensity of the interrogations, Kamen reported.
The Justice Department was able to find an additional 224 documents relevant to the ACLU’s 2005 request, Kamen said. They were found in three safes and in “the back of a third drawer” inside OLC’s room for highly classified documents. The documents were located by two visiting Assistant U.S. Attorneys from New York and one DOJ attorney.
Acting Assistant Attorney General for the OLC David J. Barron had to explain the loss to a federal judge in New York. He wrote: “Due to their extreme sensitivity at the time,” the relevant document set was not copied and its contents were “intermingled” with other files in the room. The documents then took the scenic tour of Washington, D.C., first going to another special room at DOJ, then to the CIA in 2007 and stopping at the Office of Professional Responsibility until March.
Kamen reported there is no word on if or when the documents might be made public.