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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Newsweek’s Danny Klaidman has a nice profile of Attorney General Eric Holder this week. Here’s the news:
Four knowledgeable sources tell NEWSWEEK that he is now leaning toward appointing a prosecutor to investigate the Bush administration’s brutal interrogation practices, something the president has been reluctant to do. While no final decision has been made, an announcement could come in a matter of weeks, say these sources, who decline to be identified discussing a sensitive law-enforcement matter. Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama’s domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. “I hope that whatever decision I make would not have a negative impact on the president’s agenda,” he says. “But that can’t be a part of my decision.”
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Only three Justice Department lawyers, including then-Deputy Attorney General John Yoo, were privy to the details of the Bush administration’s warantless eavesdropping program, according to a report released today by inspectors general from various intelligence and law enforcement agencies. Click here for The Washington Post story.
The watchdogs — from the CIA, the Defense Department, the Justice Department, the Office of the Director for National Intelligence, and the National Security Agency — could not determine how Yoo “came to deal directly with the White House on legal issues related to the TSP.”
Only Yoo, then-Attorney General John Ashcroft and intelligence policy lawyer James Baker were aware of the program initially. The watchdogs called the arrangement ”extraordinary and inappropriate” and concluded that the secrecy hindered the Justice Department’s ability to render legal advice.
From the WaPo:
One former department lawyer, Jay S. Bybee, told investigators that he was Yoo’s superior in the Office of Legal Counsel but was never read into the program and “could shed no further light” on how Yoo became the point man on memos that confirmed its legality. By following this route, the memos avoided a rigorous peer review process.
Yoo prepared hypothetical documents in in the fall of 2001 before writing a formal legal memo in November. By then, Bush had already authorized the initiative.
In that memo, Yoo concluded that the FISA law could not “restrict the president’s ability to engage in warrantless searches that protect the national security” and that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not- then the statute must be construed to avoid such a reading,” according to the report.
Once higher-level DOJ officials read his analysis in late 2003 and 2004, they questioned the program’s legality. The report is scant on details of the program, but the watchdogs said Yoo failed to “accurately describe the scope” of the other activities — the ones not disclosed by The New York Times in 2005 — which created “a serious impediment to recertification of the program.”
After Yoo left the department, OLC lawyers Patrick Philbin and Jack Goldsmith were briefed on the program and began meeting with Alberto Gonzales, then White House Counsel, and Vice President Dick Cheney’s chief of staff, David Addington. The White House lawyers said they would terminate the program if became a serious problem, but they continued to lobby the Justice Department to support it while the legal problems were sorted out.
On March 9, 2004, intelligence officials and Cheney met to discuss the issue without inviting Justice Department leaders. Cheney suggested that the president “may have to reauthorize without [the] blessing of DOJ,” according to previously unreported notes taken by Mueller described in today’s report. Mueller told the investigators he would have a problem with that approach.
After the now-infamous hospital rush, in which Gonzales and Andy Card tried to prevail on an ailing Ashcroft to reauthorize the program, Deputy Attorney General James Comey threatened to resign, and with him FBI Director Robert Mueller III, among other Justice officials.
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The New York Times has a terrific story today about the battles between the Justice Department and the White House in 2005 over legal authorization of torture. Reporters Scott Shane and David Johnston give a contrarian take on the roles of two of the “heroes” of that bitter internal debate - then-Deputy Attorney General James Comey and Acting Office of Legal Counsel head Dan Levin, who protested the methods — and puts one of the “villains, “Office of Legal Counsel head Steven Bradbury, in a more sympathetic light. The Times says Comey and Levin agreed the techniques were legal even though they strongly protested their use. Read the story here
What we found the most interesting, though, were the internal emails the Times obtained from Comey to his then-chief of staff, Chuck Rosenberg. (It’s our guess the leak has something to do with the long-delayed release of the Office of Professional Responsibility inquiry into the DOJ lawyers who authorized torture). The emails showed Comey warning repeatedly that while certain interrogation methods might be technically legal, they were wrong and disastrous as policy. Comey fretted about the terrible hit the DOJ as an institution could take as well.
In an April 27, 2022 email to Rosenberg, Comey referred to a favorite tactic of the Bush DOJ — keeping top officials in an “acting” capacity so they’d feel more vulnerable and thus be more pliable. At the time, there was immense pressure on Bradbury from then-White House Counsel Harriet Miers and David Addington, Vice President Dick Cheney’s top lawyer, for the OLC to approve a reauthorization of certain torture techniques in 2005. Comey wrote:
“I have previously expressed my worry that having Steve as “Acting”- and wanting the job — would make him susceptible to just this kind of pressure.”
In an April 28 email to Rosenberg, Comey said he strongly warned Ted Ullyot, a former White House lawyer then serving as Gonzales’s chief of staff, about the political dangers the AG faced if he succumbed to the pressure from the Vice President and White House.
“I told him the people who were applying pressure now would not be there when the [expletive] hit the fan. It would be Alberto Gonzales in the bull’s-eye. I told him it was my job to protect the department and the A.G. and that I could not agree to this because it was wrong. I told him it could be made right in a week, which was a blink of an eye, and that nobody would understand at a hearing three years from now why we didn’t take that week.”
Comey also relayed a conversation he’d had with Patrick Philbin, an OLC lawyer who was part of the “principled conservative” group that tried to block the flawed legal analysis. Comey said he’d lamented to Philbin that it was fruitless to try speaking directly again to Gonzales, and expressed dismay that Ullyot had no interest in protecting Gonzales the way former Attorney General John Ashcroft’s long-time loyal chief of staff, David Ayers, would have protected Ashcroft.
“I told him I didn’t see a need, given that I had just said things to his chief of staff [Ullyot] that would have lit the prior AG’s COS’s hair on fire. He pointed out that [David] Ayers would never allow this and never allow the AG to be in such jeopardy.” Comey added that the whole mess ”leaves me feeling sad for the Department and the AG.”
“Once again, Patrick Philbin has been the voice of intellectual honesty, and rigor and principle. The world will never know what a hero that young man is. ….. People may think it strange to hear me say I miss John Ashcroft, but as intimidated as he could be by the WH, when it came to crunch time, he stood up, even from an intensive care hospital bed. That backbone is gone.” …
“Please stay in touch with Pat on this. He has been very strong and principled, as usual, but they will put a lot of pressure on him in my absence.”