A Bush administration attorney who approved harsh interrogation techniques of terror suspects advocated in 2006 that President Bush set aside recommendations by his own Justice Department to bring prosecutions for such practices, that the President should consider pardoning anyone convicted of such offenses, and even that jurors hearing criminal cases about such matters engage in jury nullification.
That advice came from John Yoo, a former attorney with the Justice Department's Office of Legal Counsel and author of memos that served as a legal rationale for the Bush administration's interrogation techniques. Yoo's recommendations constitute one of the most compelling pieces of a body of evidence that Yoo and other government attorneys improperly skewed legal advice to allow such practices, according to sources familiar with a still-confidential Justice Department report.
A Justice Department internal watchdog agency, the Office of Professional Responsibility, has concluded that Yoo and a second former Justice Department attorney, Jay Bybee, breached their professional legal ethics by skewing their legal advisory opinion to provide a legal rationale for allowing the harsh interrogation techniques, including waterboarding, according to a senior Department attorney who has reviewed a draft of the report. President Obama has said that the use of some of the interrogation techniques constituted torture.
The OPR recommends in the draft report that state bar associations consider taking disciplinary action against Yoo and Bybee, according to the same sources. The state bar associations could reject the OPR's findings or it could reprimand the attorneys, sanction them in some other fashion, or even hold disbarment proceedings. The draft report does not recommend that the Bush administration lawyers face criminal charges.
Yoo, Bybee, and a third attorney, Stephen Bradbury, as senior attorneys in the Justice Department's Office of Legal Counsel (OLC), were the primary authors of four memos providing the legal rationale for the Bush administration's controversial interrogation practices. The current draft of the report is critical of Bradbury's conduct as well, but did not consider his behavior serious enough to warrant potential action by his state bar association.
Central to the OPR investigation, according to two attorneys involved, has been whether the three administration lawyers engaged in only crafting deficient legal opinions, or whether the they purposely and improperly skewed their advisory opinions to provide a legal rationale for Bush administration policies.
"Intent is everything," said a Justice Department official who was involved in overseeing the probe. "What their mindset was, whether they were writing legal opinions tailored to meet the desires of their client -- that is key to whether this was just shoddy legal work or them not meeting their professional obligations."
The motivations of both Yoo and Bybee will almost certainly be central to whatever action state bar associations take in deciding whether to investigate or discipline the two attorneys.
In Bybee's case, the stakes are quite high in that he is currently a federal judge. The New York Times' op-ed page, Rep. Jerry Nadler (D-N.Y.) and John Podesta, a former chief of staff to President Bill Clinton who currently heads the Center for American Progress, have all called for Bybee's impeachment.
The new disclosures about Yoo's 2006 comments and recommendations in the OPR report are likely to fuel further demands for a House impeachment inquiry. Yesterday, on Amy Goodman's syndicated radio show, Democracy Now!, Sen. Russ Feingold (D-Wi.), when asked whether Bybee should be impeached, replied: "I don't believe he should be in the office he's in. I'd prefer to see him resign. I would not rule out impeachment. As a senator, my job is to review an impeachment by the House as a juror, just as I did in the case of President Clinton. So I'm not going to prejudge a situation. But on the face of it, I certainly would understand why any member of the House would say, `Wait a minute. Maybe we ought to consider articles of impeachment if he does not resign.' What he did here was truly against American law and against American values."
In attempting to discern the attorneys' motives, investigators have reviewed emails traded between the three men as they drafted the legal controversial legal opinions, as well as emails between the three OLC attorneys and other Bush administration attorneys, according to sources close to the case.
Additionally, the investigators closely tracked drafts of the four legal opinions until they reached final form.
In some instances, the drafts changed progressively over time to afford those who wanted to engage in aggressive interrogation techniques additional legal cover, according to people who have read the draft OPR report.
One source indicated that at least two of the earlier drafts were "equivocal" and "nuanced" -- but noted over time they became "more advocative" of the views of then-Vice President Dick Cheney and others in the Bush administration that aggressive interrogation techniques were necessary to prevent new terror attacks.
Extraordinarily, however, the most compelling evidence that Yoo skewed his legal advice to facilitate the use of aggressive interrogation techniques is a public statement that Yoo made in 2006 after he retired from government service. One investigator said that a state bar association is likely to consider Yoo's comments perhaps the most "damning evidence" in considering his intentions while coauthoring his OLC memos.
In a 2006 memoir of his government service, entitled "War by Other Means," Yoo advocated that a president could take a number of steps so that people criminally charged with allegedly torturing prisoners would go free.
Yoo wrote: "There are ways that the legal system could develop effective approaches toward coercive interrogation. A president could decline to prosecute an officer whom he believed properly acted in self-defense or in an emergency, or out of necessity. A President could pardon those involved. Even if a prosecution occurs, a jury must find that that the defense is not met, and convict the agents and his superiors of violating the law. It would require the only juror to agree that it was reasonable for the defendants to believe the coercive interrogation would yield information that would save lives, and that it would be necessary under the circumstances, to prevent the conviction."
Yoo made the references in respect to the so-called McCain amendment, sponsored by Sen. John McCain (R-Ariz.), which prohibited the use of cruel, inhumane, and degrading treatment by military and intelligence officials of detainees or terror suspects. Yoo complained that the McCain amendment and similar laws "unduly restrict the flexibility of the people who must make good decisions among the shifting complexities" in interrogating terror suspects.
In an interview, Stephen Gillers, a professor of legal ethics at New York University, referring to the first statement by Yoo that the Justice Department should not pursue prosecutions of those suspected of torture told me: "Withholding criminal prosecution because the person's conduct advances the president's political or policy agenda undermines the administration of criminal justice, which is supposed to be neutral in application."
Regarding Yoo's advocacy of the use of presidential pardons, Gillers noted that although presidents have the constitutional right to pardon whomever he wants, and the decision to do so is often a political, it is ethically wrong for attorneys giving advice to Presidents to suggest ahead of time pardons for "entire particular categories of crimes."
Gillers added: "The pardon power is abused if the president decides in advance of the commission of a crime if he will forgive it because it serves his political agenda or policy agenda... That subverts the criminal justice system and the constitution. It literally sends the signal ahead of time that it is all right to violate the law."
And regarding Yoo's comments regarding perspective jurors, who might hear cases against alleged torturers, Gillers told me: "Those comments are unbecoming a Justice Department lawyer. The laws should not be administered and adopted in the hope or expectation that there might not be a conviction because of a hung jury."
Collectively, Yoo's recommendations, Gillers said, has the effect of saying to presidential aides and government officials that "you can go ahead and do what we want even if it is a crime," if it is in the furtherance of a policy or activity supported by the President.
As to the forthcoming OPR report, Gillers said, "It should be interesting to see if they were just bad lawyers. That would be one thing. But if they falsified or soft pedaled their opinions because the vice president or the president wanted a particular opinion that would be shameful."
In the meantime supporters of Yoo, Bybee, and the Bush administration's program mounted an effort to blunt the impact of the OPR report and even discredit its author. The Bush administration's outgoing attorney general, Michael Mukasey, and his deputy his deputy, Mark Filip, wrote a fourteen page critique of a draft o the report, after it was submitted to them shortly before they left office.
In a speech that Mukasey gave just prior to his leaving his office, he said administration attorneys were facing "almost unimaginable pressure" just right after the Sept. 11th terror attacks and complained that those criticizing them were engaged in second guessing under different circumstances. To may career officials, Mukasey's remarks appeared to them to be an attempt to interfere or discredit their investigation.
In a preemptive attempt to discredit the OPR report, Bush administration lawyers sympathetic to Yoo and Bybee not only leaked word to Newsweek not only of Mukasey's and Filip's disapproval of it, but also quoted an administration attorney--anonymously--complaining: "OPR is not competent to judge [the OLC opinions]. They're not constitutional scholars."
One prominent conservative political activist also recently told me that he was approached by backers of Yoo who said that they wanted to attack the credibility of the report by painting it as a partisan probe conducted by President Barack Obama's Justice Department. The investigation, however, begun during the Bush administration -- more than five years ago.
In a further effort to discredit the report, conservative backers of Yoo have also attempted to portray its primary author, H. Marshall Jarrett, the head of OPR, as a Democratic partisan. But Jarrett is a lifetime Justice Department employee and career prosecutor who has never been accused of having a partisan agenda in the past. During a long career, Jarrett has served as either or prosecutor or supervisor in U.S. attorney offices in West Virginia and the District of Columbia and Justice's Public Integrity Section, before being appointed to head OPR. During the Reagan administration, Jarrett oversaw the prosecution and conviction of one of the most powerful Democrats in Congress--Rep. Dan Rostenkowski (D-Ill.)--hardly the actions of an anti-Republican partisan prosecutor.
In any case, that strategy is also likely to fail, in that Attorney General Eric Holder recently reassigned Jarrett from his position as head of OPR to head the executive office of U.S. attorneys, where he will oversee the nation's 94 U.S. attorneys. It will be left to Jarrett's successor at OPR, Mary Patrice Brown, herself a career prosecutor, who oversaw the criminal division of the U.S. attorney's office for the District of Columbia, to supervise any last minute changes to the release and the release of the report.
In the meantime, sources caution that the draft report by OPR is subject to revision, and also has not formally been approved by Attorney General Eric Holder or other senior Justice Department officials who must still sign off on its findings. The report is expected to be made public by the end of this month.
Yoo, Bybee, and Bradbury, the three authors of the contested OLC memos, were either unavailable or declined comment for this post.
In April, however, Yoo defended his actions during a public forum on the aggressive interrogation technique issue, saying: "Three thousand of our fellow citizens had been killed in a deliberate attack by a foreign enemy. That forced us in the government to have to consider measures to gain information using presidential constitutional provisions to protect the country from further attack."
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Dan Froomkin, "A Compelling Story," the Washington Post, March 31, 2006.
Paul Krugman, "Demons and Demonization," the New York Times, March 17, 2010.
Liz Halloran, "A Muckraker's Day in the Sun," U.S. News & World Report, May 15, 2006.
Jim Boyd, "Editorial Pages: Why Courage is Hard to Find," Nieman Reports, Spring, 2006.
Paul Krugman, "Yes He Would," New York Times, April 10, 2006.
Eric Alterman and Dannile Ivory, "Blogosphere to Mainstream Media: Get Off the Bus," Center for Amercan Progress, Mary 4, 2009.
Ryan Chuttum, "Reuters is Excellent in Digging of A Health Insurer's Tactics," Columbia Journalism Review, March 10, 2010.
Glenn Greenwald, "Salon Radio: Murray Waas," Salon.com, Sept. 26, 2008.
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