Attorney General Eric Holder will have the final decision on prosecution. (Photo: Susan Walsh / AP)
An ethics report prepared by H. Marshall Jarrett, head of the Justice Department's Office of Professional Responsibility (OPR), reached "damning" conclusions about numerous cases of "misconduct" in the advice attorneys John Yoo and Jay Bybee provided the Bush administration, according to legal and Congressional sources familiar with the findings and news reports.
The report, which also may be critical of legal opinions authorizing domestic surveillance activities, recommends state bar associations conduct a review of Yoo and Bybee's legal work to determine whether they should face disciplinary action, including disbarment.
Bybee, now an appeals court judge in San Francisco, signed the so-called August 1, 2002 torture memo and other controversial legal opinions that Yoo helped to draft. Bybee was head of the Justice Department's Office of Legal Counsel (OLC) and Yoo was a deputy assistant attorney general.
Steven Bradbury, the former acting head of OLC, was also a subject of Jarrett's probe and authored three legal opinions in May 2005, reinstating torture against alleged "high-level" terrorist detainees, but it's unknown exactly what the report has recommended Bradbury's punishment, if anything, should be. Bradbury, as it turns out, participated in a final review of the report while he was still acting head of OLC.
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 White House lawyers, including Vice President Dick Cheney's legal counsel David Addington. Goldsmith had withdrawn some of the Yoo-Bybee opinions because he felt they were "legally flawed" and "sloppily written."
After the meeting, Goldsmith resigned and was subsequently replaced on an acting basis by Bradbury, who restored some of the controversial Yoo-Bybee opinions in May 2005, again granting Bush broad powers to torture detainees.
News reports published on Tuesday, describing details of Jarrett's report, said it specifically states that neither Yoo nor Bybee, should be prosecuted for drafting the legal memoranda that sanctioned torture.
But it would be unusual for an ethics report to make a definitive statement against prosecutions as that is usually left to the attorney general.
Indeed, according to OPR policies and procedures, "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 US Attorneys], or other appropriate component head.
"In addition, if OPR finds professional misconduct, it will also recommend an appropriate range of disciplinary actions for consideration by the attorney's supervisors," the office's policies and procedures state. "In cases of poor judgment, the attorney's supervisors may consider training, reassignment, or disciplinary action.
"While OPR recommends an appropriate range of discipline in cases of professional misconduct, the decision whether to propose discipline and the nature of the action to be taken rests with the attorney's supervisors. Disciplinary actions against DOJ attorneys are governed by the DOJ Human Resources Order, chapter 1200, and include written reprimand, suspension, demotion, or removal.
"In cases in which it finds professional misconduct (either intentional misconduct or conduct in reckless disregard of an applicable standard or obligation), OPR ordinarily advises bar disciplinary authorities in the jurisdiction where the attorney is licensed of its finding.
"Such a referral is not made if OPR determines that the matter involves purely federal or Department concerns and no bar disciplinary rule appears to be implicated. OPR's investigative information may be disseminated to assist state bar disciplinary authorities to meet their responsibilities."
In a letter sent in February 2008, to Democratic Sens. Dick Durbin and Sheldon Whitehouse, members of the Judiciary Committee, who requested OPR launch an investigation into OLC's legal work authorizing torture, Jarrett wrote that his office was already "examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys."
The OPR report was completed in December, but was kept under wraps by Attorney General Michael Mukasey while Bush finished out his days in office.
In March, the Justice Department said the report would undergo revisions after Mukasey and his then-Deputy Attorney General Mark Filip criticized OPR's initial draft.
"Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments [after the first draft was completed in December], and OPR revised the draft report to the extent it deemed appropriate based on those comments," said acting Assistant Attorney General Faith Burton in a March 25 letter to Whitehouse and Durbin (D-Illinois).
Burton also said that the final OPR report may undergo more revisions based on responses from Yoo, Bybee and Bradbury.
The OPR's findings could influence whether Bush and other senior officials are held to account for torture and other war crimes. Bush has pinned his defense on the fact that he had received advice from Yoo and other Justice Department lawyers that the brutal interrogations of "war on terror" detainees did not constitute torture or violate other laws of war.
Bush's line of defense could collapse if it were determined that the lawyers were colluding with administration officials in setting policy, rather than providing objective legal analysis. Already, extensive evidence exists, including Yoo's own writings, showing that he participated in high-level administration meetings to discuss and set policy.
For instance, in his 2006 book "War by Other Means," Yoo describes his involvement in frequent White House meetings regarding what "other means" should receive a legal stamp of approval. Yoo, who was a deputy assistant attorney general assigned to the powerful OLC at the Justice Department, wrote:
"As the White House held its procession of Christmas parties and receptions in December 2001, senior lawyers from the Attorney General's office, the White House counsel's office, the Departments of State and Defense and the NSC [National Security Council] met a few floors away to discuss the work on our opinion. …
"This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism. We certainly did not all agree, nor did we always get along, but we all believed that we were doing what was best for the nation and its citizens.
"Meetings were usually chaired by Alberto Gonzales," who was then White House counsel and later became Bush's second attorney general. Yoo identified other key players as Timothy Flanigan, Gonzales's deputy; William Howard Taft IV from State; John Bellinger from the NSC; William "Jim" Haynes from the Pentagon; and David Addington, counsel to Vice President Dick Cheney.
What Yoo's book and other evidence make clear is that the lawyers from the Justice Department's OLC weren't just legal scholars handing down opinions from an ivory tower; they were participants in how to make Bush's desired actions "legal," even if the arguments were professionally flawed.
For instance, the August 1, 2002, OLC opinion known as the "torture memo," which opened the door to abusive tactics such as waterboarding, which subjects a detainee to the sensation that he is drowning, was rescinded soon after Goldsmith became head of the OLC in fall 2003.
It is unknown whether OPR's conclusions dealing with the August 1, 2002, memo will be included in the final version of the watchdog's report or whether the findings alone rise to the level of "professional misconduct." Attorney General Eric Holder must approve the final version of the report.
OPR investigators poured over thousands of pages of internal Justice Department emails and White House memos over the past four years and built a disturbing narrative about Yoo's work, the sources said, adding that OPR investigators also examined Yoo's book for further evidence that he had fixed the law around the administration's policy interests.
In "War by Other Means," Yoo wrote: "The only way to prevent future September 11s will be by acquiring intelligence. The main way of doing that is by interrogating captured al-Qaeda leaders or breaking into their communications.... In an opinion eventually issued on Jan. 22, 2002, OLC concluded that al-Qaeda could not claim the benefits of the Geneva Conventions."
In the context of explaining why detainees were not entitled to the benefits of the Geneva Conventions or prisoner of war status, Yoo wrote:
"When our group of lawyers visited Gitmo, the Marine general in charge told us that several of the detainees had arrived screaming that they wanted to kill guards and other Americans.…
"Many at Gitmo are not in a state of calm surrender. Open barracks for most are utterly impossible; some al-Qaeda detainees want to kill not only guards, but their peers who might be cooperating with the United States. The provision of ordinary POW rights ... is infeasible."
Yoo's argument that only quiet POWs "in a state of calm surrender" should qualify for Geneva protections might be news to many former US POWs, including Sen. John McCain, who have boasted about their various forms of resistance to their captors.
Yoo added that a few weeks after he returned from Guantanamo "the lawyers met again in the White House Situation Room to finally resolve the issue for presidential decision."
"If Geneva Convention rules were applied, some believed they would interfere with our ability to apprehend or interrogate al-Qaeda leaders," Yoo wrote. "We would be able to ask Osama bin Laden loud questions and nothing more. Geneva rules were designed for mass armies, not conspirators, terrorists or spies."
The OPR also investigated whether Yoo, Bybee and Bradbury purposely twisted their legal advice to satisfy the White House and knowingly avoided citing existing case law in order to reach conclusions the White House wanted. It's unknown what the OPR has concluded about that point in its report.
Beyond ignoring the case law on torture, Yoo, as a deputy assistant attorney general, pushed the theory that President Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force at a time of war.
"As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," said Yoo in another memo dated August 1, 2002, and entitled "Standards of Conduct for Interrogation."
In that opinion, Yoo failed to cite the key precedent relating to a president's war powers, Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry Truman's order to seize steel mills that had been shut down in a labor dispute during the Korean War.
Truman said the strike threatened national defense and thus justified his actions under his Article II powers in the Constitution.
But the Supreme Court overturned Truman's order, saying, "the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Since Congress hadn't delegated such authority to Truman, the Supreme Court ruled that Truman's actions were unconstitutional, with an influential concurring opinion written by Justice Robert Jackson.
In "War by Other Means," Yoo offered up a defense of his failure to cite Youngstown. "We didn't cite Jackson's individual views in Youngstown because earlier [Office of Legal Counsel] opinions, reaching across several administrations, had concluded that it had no application to the President's conduct of foreign affairs and national security."
Yoo added, "Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war....
"Detention and interrogation policy are at the heart of the President's Commander-in-Chief power to wage war, and long constitutional history supports the President's leading role on such matters."
But legal scholar and Harper's contributor Scott Horton disagrees. "The Youngstown case is considered the lodestar precedent addressing the President's invocation of Commander-in-Chief powers away from a battlefield," Horton told me via email.
"Justice Jackson's opinion is the most persuasive of the opinions justifying the decision," Horton said. "If you examine any treatise on national security law, you'll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance.
"It's obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.
"But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever cockeyed theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that's exactly what he did."
In his book, Yoo criticized the OPR investigation, DOJ officials who launched the "ethics" probe "responded reflexively to political controversy" and that members of the legal community who blasted his work were former Clinton officials "who overlooked their administration's own legal views, which, on the matter of executive authority in war and national security, were nearly identical" to the Bush administration's views.
The DOJ officials "certainly did not check the bona fides of the critics who first made the accusation that not citing Youngstown amounted to a failure of professional responsibility."
"I cannot help but think that Justice Department officials panicked when the Abu Ghraib scandal erupted, and then were misled by the charges about ethics," Yoo wrote. "Claims about 'ethics' always emerge as a weapon, both on the left and on the right, when the party in power cannot be budged on policy specifics. Justice officials surely did not consider the long-run implications of what they were doing ... If [the Justice Department] were to accept that Youngstown controlled the executive branch in war, the President's powers would be crippled."
It's still unclear if, and when, the report will be released.
In a letter sent to Durbin and Whitehouse on Monday, Assistant Attorney General Ronald Welch said, "OPR ... shared its initial draft with the Central Intelligence Agency for a classification review" and "the CIA requested an opportunity to provide substantive comment on the report."
"OPR has since provided the revised draft for both classification review and substantive comment," Welch wrote. "The Attorney General and D?puty Attorney General will have access to whatever information they need to evaluate the final report and make determinations about appropriate next steps."