Tuesday, May 5, 2009

Working the Refs

The Washington Post reported last night that according to two unnamed sources Bush administration officials were working behind the scenes to "soften" the ethics report about the lawyers who wrote the torture memos that the Justice Department's Office for Professional Accountability has been working on for the last five years. Putting aside the reliability and/or motive of the unnamed sources for a moment,  we know that during those five years there were Bush officials who worked to alter the report, or as the Post says in their current story,  "counterbalance" the report. 

In a separate effort to counterbalance the draft report, Attorney General Michael B. Mukasey and Deputy Attorney General Mark R. Filip wrote a 14-page letter before they left office this year. 

In addition to Mukasey and Filip getting a crack at this report, all three targets in the report, Steven Bradbury, John Yoo and Jay Bybee were also given the opportunity to make comments about the report before it was released, which is not in line with past DOJ practices. Normally an ethics report is released and then the subject of the report is able to appeal the decision.

Though Justice traditionally has allowed staffers to appeal OPR decisions, in this case, former Attorney General Michael Mukasey — a Bush appointee — allowed Bybee, Yoo and Bradbury to review a draft and comment before the report was finalized.

According to Sheldon Whitehouse and Dick Durbin,  even an outside agency like the CIA, has been given an opportunity to submit a comment about this supposedly internal inquiry.

“We will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter,” the duo said.

Even though the attorneys representing Bybee and Yoo (evidently Bradbury hasn't hired one yet) are not allowed to comment about this report in public due to a confidentiality agreement they signed, they most certainly have been able to at least verbally comment in private about this as yet unreleased report.

Miguel Estrada, an attorney for Yoo, said, "As a condition of permitting me to represent Professor Yoo in this matter, the Department of Justice required me to sign a confidentiality agreement. As a result of that agreement, there's nothing I can say."

Maureen Mahoney, an attorney for Bybee, also cited the confidentiality requirement in declining to comment.

There may also be others, who we don't know about yet, who were given the opportunity to influence this report over the years. But putting that aside, the number of people with a vested interest in the outcome of this report, who we already know were allowed to shape it's findings, are way too many people to make this an unbiased report. After all this is supposed to be an "ethics" report and letting so many people, with such obvious conflicts of interest work the refs, is in my view highly unethical.

The DOJ's Office of Professional Responsibility was originally created as the watchdog in charge of investigating DOJ misconduct because of the criminal role the Justice Department played in Watergate. But over the years they have become less of a watchdog and more and more of a tool for politically motivated Attorney Generals to use in order to downplay misconduct at the Justice Dept. If you really want to get to the bottom of DOJ misconduct you assign the investigation to the DOJ's Inspector General, but if you want to give the illusion of an investigation you give it to the OPR

George Stephanopoulos at ABC News reports:

This is the only outstanding Justice Department investigation into the Bush-era interrogation memos.  Attorney General Eric Holder has no plans (Stephanopoulos actually said "highly unlikely")  to open another investigation.  So, based on current facts, it is highly unlike that this will lead to any prosecutions.

So will the current Attorney General, Eric Holder, allow the OPR to white wash this investigation for the sake of political expediency or will he order an independent criminal investigation, free from the outside interference of those who have a stake in the outcome? How about it Mr. Attorney General? Does our current Justice Department support the rule of law or does it cave in to the rule of politics?

A brief comment about the unnamed sources used in the Post's story.

The Post states that their unnamed sources claimed that former Bush administration officials were lobbying to water down the ethics report. This information might be true but on the other hand, maybe this leak in the paper about Bush officials lobbying behind the scenes is total BS. Maybe Bush & Co. have decided to let the lawyers take the fall for them on torture and they're just putting out this smokescreen about lobbying on their behalf to keep the lawyers from turning on them? Or maybe the leak is from a current Justice Dept. official who wants to alert Americans that there are former Justice officials lobbying their old department to not only water down an ethics report but to lobby against criminal prosecutions and they want the public to push back? 

The point is that we just don't know what the reason is for this leak about back channel lobbying and that lack of knowledge makes a difference in how we understand the story.  The only thing that the Post  told us about these sources was that there were two of them. We don't know if they are former Bush officials, current Justice officials or maybe even Bybee and Yoo themselves. That's the trouble with newspapers who allow anonymous sources to remain so anonymous that they don't even bother to give the reader a basic understanding of their point of view so that we can make an intelligent decision about their motive for revealing information.

UPDATE:  TheraP posting in this thread at emptywheel made the observation that the media coverage on this subject has been misleading concerning what the OPR can and can't do.It is not up to the OPR to make a referral for prosecution, that would be the job of the Justice Dept. Inspector General.

Based on my reading (IANAL) of the Policies and Procedures of the Office of Professional Responsibility, OPR does not investigate crimes but instead investigates ONLY the:

professional ethics, competence or integrity of a Department attorney
If OPR does find “professional misconduct, it appears to have ONLY three options available as “penalties”:

Section 10. Formal Disciplinary Action (within DoJ itself)
Section 11. Referral of Findings of Professional Misconduct to Bar Disciplinary Authorities
Section 12. Public Disclosure of OPR Findings

The option of referral for prosecution does not appear to be available under OPR Policies and Procedures.


Thus, it would appear to me that media coverage of this issue has been misleading to an extreme. For I find no evidence that OPR itself can refer for prosecution.
It was a good comment and I'd encourage everyone to read the full comment at emptywheel

Update 2: Spencer Ackerman has a piece up at the Washington Independent that documents how former DOJ whistleblower Jesselyn Raddack's treatment by the OPR was very different from how the OPR treated Bybee, Yoo and Bradbury.


  1. It's especially upsetting that Bradbury got to see the memo in draft form while he was still head of OLC. I'd love to see hearings that get access to the draft as sent to OLC compared to what came back after their revisions. Did Bradbury take out a recommendation for his own referral to a bar association? Whether that happened or not, for the rest of his career, his taking part in that review will follow him like a dark storm cloud directly over his head.

    The Bush DOJ had zero understanding of the concept of conflict of interest.


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