DOJ Revising John Yoo's Legal Work on Torture

A Justice Department watchdog report that is said to be highly critical of the legal work conducted for the Bush administration by three attorneys who worked at the agency's powerful Office of Legal Counsel, is in the process of being revised after the agency received responses on the report's conclusions from the attorneys under scrutiny, according to a letter sent to two Democratic senators by a Justice Department's acting assistant attorney general.

The Justice Department's Office of Professional Responsibility (OPR) is apparently "watering" down some of the more critical conclusions related to legal opinions on "enhanced interrogation" policies based on responses from John Yoo, Steven Bradbury and Jay Bybee. It's now unknown, the DOJ said, when the revised version of its report would be complete.

In a March 25 letter sent to Democratic Senators Sheldon Whitehouse and Richard Durbin, the lawmakers who wrote OPR last year requesting a probe to determine whether the attorneys legal work violated "professional standards," Faith Burton, the DOJ's Acting Assistant Attorney General, confirmed that the report was completed in late December 2008, and that former Attorney General Michael Mukasey and Deputy Attorney General Mark Filip reviewed it and demanded that Bradbury, Yoo and Bybee be given an opportunity to respond.

Moreover, "Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments, and OPR revised the draft report to the extent it deemed appropriate based on those comments," Burton said. "During the course of the investigation, counsel for the former Department attorneys asked OPR for an opportunity to review and comment on the report prior to any disclosure of its results to Congress or the public."

"Attorney General Filip likewise requested that OPR provide the former Department attorneys with such an opportunity," Burton added. "For these reasons, OPR is now in the process of sharing the revised draft report with them. When the review and comment period is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions.

"OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the Department will determine what disclosures should be made. Due to the complexity and classification level of the draft report, the review process described above likely will require substantial time and effort."

Burton, however, said she could not make any promises that the report would be publicly released, nor could she predict if and when Durbin and Whitehouse would get an opportunity to review the report.

"While we appreciate your request for a disclosure commitment, we can only fully evaluate the scope of appropriate disclosures once the review process is completed," Burton said. "We trust you understand that those decisions depend in part on the content and conclusions of the OPR final report and the outcome of any further Departmental review."

The OPR probe was launched in mid-2004 after a meeting in which Jack Goldsmith, then head of the OLC, got into a tense debate with then-White House counsel Alberto Gonzales about two August 2002 torture memos written by Yoo and signed by Bybee, which opened the door to abusive tactics such as waterboarding, which subjects a detainee to the sensation that he is drowning. Following the meeting with Gonzales, Goldsmith, who had rescinded two memos in 2003, resigned.

Goldsmith later described the torture memos as "legally flawed" and "sloppily written."

H. Marshall Jarrett, who heads OPR, conducted the investigation. Sources familiar with the draft version of the report said it reached "damning" conclusions about numerous cases of "misconduct" in the advice from Yoo, Bybee and Bradbury provided to the White House about interrogations and domestic surveillance.

OPR investigators determined that all three blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration's goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.

One part of the OPR report criticized Yoo's use of an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding and other acts that have historically been regarded as torture under US law, the sources said.

On Tuesday, Durbin and Whitehouse responded to Burton with a two-page letter.

The senators zeroed in on Bradbury, the former head of OLC who was the author of three May 2005 legal opinions that reinstated brutal interrogation policies Goldsmith had rescinded.

Durbin and Whitehouse asked whether Bradbury was permitted to comment on the draft report's conclusions since he was acting head of OLC, which was permitted to comment on the report's conclusions, according to Burton.

Three months before Bush exited the White House, Bradbury, in a "memorandum for the files," renounced several legal opinions drafted by Yoo and Bybee.

Bradbury attempted to justify or forgive Yoo's controversial opinion by explaining that it was "the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11."

Bradbury wrote another memo five days before Bush left office in January in which he once again repudiated Yoo's legal opinions. It would appear that this memo was in response to the OPR report. Bradbury said in the January 15 memo that the flawed theories by Yoo in no way should be interpreted to mean that Justice Department lawyers did not "satisfy" professional standards.

Rather, Bradbury wrote, "In the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation."

Durbin and Whitehouse said that Bradbury's "memorandum for the files" would make it a "conflict of interest" for him, as acting head of OLC, to respond to OPR's findings.

"Mr. Bradbury ... is reportedly a subject of the OPR investigation," the senators wrote. "As such, it would appear to be a conflict of interest for Mr. Bradbury to review and comment on the OPR report on OLC's behalf ... If Mr. Bradbury did review the OPR report, this could have improperly influenced the opinions he expressed on OLC's behalf ... Particularly his decision to emphasize that the authors of discredited OLC opinions on detainee issues had not necessarily violated their professional responsibilities."

Durbin and Whitehouse added that they are "concerned" that the final report shared with Attorney General Eric Holder, his deputy, and "ultimately Congress," will have "undergone significant revisions at the behest of the subjects of the investigation without the benefit of reviewing OPR's initial draft report."

The senators requested responses to five questions from DOJ, including whether OPR intends to share the original draft of its report with Holder in order to ascertain "what revisions have been made to the report."

Additionally, Durbin and Whitehouse said OPR's decision to share the original draft report with Yoo, Bybee and Bradbury "appears" to be a "departure from normal OPR practice to provide an opportunity for the attorney to review and comment on the report."

However, according to OPR protocol, if an investigation "involves alleged illegality, the attorney alleged to have committed misconduct is entitled to have counsel present to assist him or her.

"An attorney alleged to have engaged in misconduct is interviewed alone unless counsel is permitted to attend. At the conclusion of the interview, the attorney will be given an opportunity, subject to a confidentiality agreement, to review the transcript and to provide a supplemental written response and additional documents relevant to the investigation.

"In the interview, the attorney alleged to have committed misconduct would be asked to address each of the outstanding issues and allegations. In some cases, OPR determines that further information is needed to resolve the matter. The first step is usually to request a written response from the attorney involved in the allegation.

"If OPR determines that professional misconduct or poor judgment occurred, it prepares a report containing its findings and conclusions, and provides that report to the Deputy Attorney General as well as the appropriate Assistant Attorney General, the Director of [Executive Office of U.S. Attorneys], or other appropriate component head."

In an apparent response to criticism of the quality of his legal opinions that gave President George W. Bush virtually unchecked power, Yoo said working for the federal government gave him "very little time to make very important decisions.... You don't have the luxury to research every single thing and that's accelerated in war time."

"You really have decisions to make, which you could spend years on," Yoo told the Orange County Register in an interview published March 3. "Sometimes what we forget as private citizens, or scholars, or students or journalists for sure [he laughs], is that in hindsight, it's easier to say, 'Here's what I would have done.' But when you're in the government, at the time you make the decision, you don't have that kind of luxury."

In response to a question about the OPR investigation, Yoo said he wished "they weren't doing it."

"But I understand why they are," Yoo told the OC Register. "It is something one would expect. You have to make these kinds of decisions in an unprecedented kind of war with legal questions we've never had to think about before.

"We didn't seek out those questions. 9/11 kind of thrust them on us. No matter what you do, there's going to be a lot of people who are upset with your decision. If Bush had done nothing, there would be a lot of people upset with his decision, too.

"I understood that while we were doing it, there were going to be people who were critical. I can't go farther into it, because it's still going on right now. I'm not trying to escape responsibility for my decisions. I have to wait and see what they say."

Jason Leopold is editor in chief of The Public Record.

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