Michael Isikoff writes that a DoJ report from the Office of Professional Responsibility is making lawyers who worked in the Bush administration's Office of Legal Counsel a bit nervous:
An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials. H. Marshall Jarrett, chief of the department's ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys." According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)
Isikoff writes that former Attorney General Michael Mukasey objected to the report, and insisted that they include responses from the lawyers the OFP was investigating.
If Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action. But some former Bush officials are furious about the OPR's initial findings and question the premise of the probe. "OPR is not competent to judge [the opinions by Justice attorneys]. They're not constitutional scholars," said the former Bush lawyer. Mukasey, in speeches before he left, decried the second-guessing of Justice lawyers who, acting under "almost unimaginable pressure" after 9/11, offered "their best judgment of what the law required."I'm sure the lawyers being investigated would love for everyone to believe that the issue was the "unimaginable pressure" in the aftermath of 9/11. But it isn't, it's about whether the office "deliberately slanted their legal advice to provide the White House with the conclusions it wanted," which is the complete opposite of what the Office of Legal Counsel is supposed to do. We're not talking about Constitutional interpretation here, we're talking about intent, which wouldn't be in the OLC opinions themselves but in all the background information Jarrett is collecting. Hard to argue duress if you knew what you were doing when you did it, and you've spent the last several years arguing that you were right.
According to Isikoff, they're considering releasing a public version of the report. I think that would be a very good idea. While it doesn't sound like there would be any criminal liability as a result of this investigation, I would sleep better knowing that law students at Berkeley aren't being taught about the President's "inherent power" to crush children's genitals.
-- A. Serwer
