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.
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.
“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.
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.
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.
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.[Snip]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.