Paul Kiel May 5, 2008, 4:17 PM

From The National Law Journal:

Congress is close to enacting the most significant boost in three decades in the independence of the cadre of government watchdogs — federal inspectors general — but the lawmakers have retreated from a key change involving the U.S. Department of Justice.

The Senate on April 23 approved, by unanimous consent, S. 2324, the Inspector General Reform Act of 2008. But the bill passed only after the lawmakers agreed to an amendment by Senator Jon Kyl, R-Ariz., which, among other items, deleted a provision giving the Justice Department’s Office of Inspector General (OIG) jurisdiction to investigate misconduct allegations against department attorneys, including its most senior officials.

Unlike all other OIGs who can investigate misconduct within their entire agency, Justice’s OIG must refer allegations against department attorneys to the department’s Office of Professional Responsibility (OPR). The latter office, unlike the OIG, is not statutorily independent and reports directly to the attorney general and the deputy attorney general….

President Bush had threatened to veto the House bill for a variety of reasons. The Kyl amendment to the Senate bill was seen by many as a vehicle for the White House’s objections.

OPR, which reports to the attorney general, is currently conducting a variety of very sensitive investigations for the administration. The office is probing the Department’s approval of the administration’s warrantless wiretapping program. And recently it announced that it is investigating the Department’s legal memos authorizing the use of waterboarding and other forms of torture by CIA and military interrogators.

It is conducting those probes because Inspector General Glenn Fine cannot. The bill which passed the House would have changed that, as Fine himself pointed out in a letter (pdf) to Sen. Sheldon Whitehouse (D-RI) and Dick Durbin (D-IL) back in February, when he told them that he could not investigate the Department’s authorization of torture because “under current law, the OIG does not have jurisdiction to review the actions of DOJ attorneys acting in their capacity to provide legal advice.” Fine added: “Legislation that would remove this limitation has passed the House and is pending in the Senate, but at this point the OIG does not have jurisdiction to undertake the review you request.”

And with Kyl’s amendment, it appears that Fine won’t be getting that jurisdiction any time soon.

The National Law Journal quotes a former DoJ IG on why some people want to tie Fine’s hands:

Former Department of Justice IG Michael Bromwich, a partner in the Washington office of New York-based Fried Frank Harris Shriver & Jacobson, said opposition “either has to be based on a misunderstanding of what the IG is seeking or on an attempt by people in the department to keep certain kinds of investigations away from the IG for reasons they should articulate.”

The department, he added, is an outlier among all other agencies. The current situation seems to give its lawyers a “privileged status” to be reviewed by OPR, which lacks the OIG’s independence.

Torture