Eric Holder

Holder: OPR Torture Report Should Be Out By Month's End

Zachary Roth | November 18, 2009, 1:46PM

That long-awaited report on the Justice Department's role in the Bush administration's torture program could finally be ready to see the light of day.

During his testimony before Congress today, Attorney General Eric Holder said that the report, by the Justice Department's Office of Professional Responsibility, is "in its last stages," and that he expects it will be released by the end of the month.

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Torture

ACLU Lawyer: Torture Probe Too Narrowly Focused

Zachary Roth | August 31, 2009, 4:45PM

Earlier today, Jameel Jaffer of the ACLU went on MSNBC, and made a crucial point about the decision to probe torture.

The problem, argued Jaffer, is not that we're investigating clear evidence of law-breaking -- as Dick Cheney and countless conservatives would have it. Rather, it's that the scope of the investigation, as we've noted, appears to be unduly narrow. As things stand, it focuses on CIA personnel, but ignores the Bush administration officials -- both Justice Department lawyers like John Yoo, and high-ranking policy-makers like Cheney himself -- who authorized and approved torture in the first place.

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Justice Department

Only Yoo: Report Details Bush White House Use Of Hand-Picked DOJ Lawyer To Justify Warrantless Wiretapping

Zachary Roth | July 14, 2009, 4:03PM

The fact that John Yoo was the only Justice Department OLC official who was "read into" the surveillance program -- even though he wasn't the head of OLC at the time -- has already been noted by others looking through the inspectors general report on the program released last week.

But one excerpt from the report is worth paying particular attention to, since it underlines the special role that Yoo came to play on the White House's behalf.

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Barack Obama

Holder May Investigate Torture -- But Several Probes Are Already Underway

Zachary Roth | July 13, 2009, 2:34PM

The pendulum appears to have swung back in the other direction on the issue of criminal investigations into Bush-era torture. It had looked for a while like President Obama's stated desire to look forward not back had carried the day. But now it appears that Attorney General Eric Holder -- independent of his boss's political concerns, which is how things should work -- is leaning back towards initiating a probe. The news was first reported over the weekend by Newsweek, then picked up today by the New York Times and Washington Post.

But whatever Holder ultimately decides, there are already several ongoing government efforts to investigate torture, which figure to substantially fill out our still patchwork understanding of the issue. So as we wait for official word from the Justice Department on a criminal inquiry, it's worth being clear about what those efforts are, and how they relate to each other.

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Alberto Gonzales

Gonzo: Don't Blame Me For Torture -- I Wasn't At DOJ Yet

Zachary Roth | May 26, 2009, 5:32PM

TPMmuckraker favorite Alberto Gonzales went on CNN this afternoon to talk Sotomayor.

But Wolf Blitzer also asked him about the ongoing torture debate. And it was interesting to see that Gonzo -- who was White House counsel at the time the torture policies were first formulated -- seemed eager to shift any blame onto the Justice Department he would later go on to lead.

Pressed by Blitzer about his role in approving torture, he first clarified that he wasn't at the Justice Department at the key time, and said "It's the responsibility of the Department of Justice to provide legal guidance on behalf of the executive branch."

In other words: blame Ashcroft, Yoo, and Bybee.

Of course, it's unclear how that stance lines up with a report that Gonzo, while at the White House, personally signed off on CIA requests to conduct torture.

Gonzo also assured Blitzer: "I stand by my record," and "I did my best to defend our country."

Watch:

John Yoo

Yoo Must Be Joking! Bush Torture Architect Used Philly Inquirer Column To Attack Political Opponents

Zachary Roth | May 12, 2009, 3:56PM

So we told you earlier today that the Philadelphia Inquirer has signed up Bush torture guru John Yoo as a columnist.

But it gets worse. Greg Sargent points out that in March, Yoo used his new perch to attack civil libertarians who have criticized the Bush administration's expansion of executive power -- an expansion in which Yoo played a key role.

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John Yoo

Yoo's New Gig: Writing Column For Philly Inquirer

Zachary Roth | May 12, 2009, 11:30AM

It was one thing when the Philadelphia Inquirer gave a column to hard-core right-winger Rick Santorum. But that looks like a responsible decision compared to their latest hiring...

Will Bunch, of the Philadelphia Daily News (a unit of the Inquirer), reports that in late 2008, the Inquirer quietly signed a contract with John Yoo, giving a monthly column to the architect of Bush's torture program.

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Torture

WaPo: Bushies Lobbying To Water Down Torture Report

Zachary Roth | May 5, 2009, 4:47PM

It looks like the Bushies are going all in to limit the damage from those torture memos.

The Washington Post reports that former Bush administration officials have launched a "behind-the-scenes lobbying campaign," designed to pressure DOJ to soften its forthcoming ethics report into the lawyers who approved torture.

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Torture

Turley: We Need A Special Torture Prosecutor, Not Some Lame Commission

Zachary Roth | April 22, 2009, 10:02AM

Jonathan Turley, the media-friendly George Washington Law School professor, who's an outspoken advocate of curbing executive power, gave a bravura performance on MSNBC's Countdown last night, on the subject of possible torture prosecutions.

Arguing that investigations aren't just necessary but long overdue, Turley made two important points that have been getting a bit lost in the rapid-fire debate lately.

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George Bush

Nadler And NYT: Impeach Bybee For Torture Memo

Zachary Roth | April 20, 2009, 2:36PM

More fallout from last week's release of the Bush DOJ's torture memos...

Both Congressman Jerry Nadler and the New York Times are calling for Jay Bybee, the author of one of the memos, who's now a federal judge, to be impeached.

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John Yoo

More OLC Memos To Come?

Zachary Roth | March 3, 2009, 4:16PM

Some followup by the New York Times on the Bush-era OLC memos released yesterday by the Justice Department...

Department officials have told the paper that they may soon release more secret opinions about counter-terror tactics. Those that contain classified information will need to be cleared with other government agencies before they can be released.

Separately, some Democrats are jumping on the controversial memos to bolster their argument for a commission to look into the Bush administration's counter-terror policies.

Senate Judiciary chair Pat Leahy, who has called for such a commission, put out a statement Monday that praised the Justice Department for releasing "some of these long-secret opinions." But it also argued that a "fuller review of these policies" by the new Obama team was needed.

And Sen. Sheldon Whitehouse said: "These memos appear to have given the Bush administration a legal blank check to trample on Americans' civil rights. We need to get to the bottom of what happened at O.L.C. and ensure it never happens again."

Also, the Times picks up on that footnote in the Steven Bradbury memo that we highlighted earlier. Reports the paper:

In a footnote to Mr. Bradbury's Jan. 15, 2009, memorandum sharply criticizing Mr. Yoo's work, Mr. Bradbury signaled that he did not want his repudiation of the legal reasoning employed by Mr. Yoo to be used against Mr. Yoo as part of the ethics probe.

Mr. Bradbury wrote that his retractions were not "intended to suggest in any way that the attorneys involved in the preparation of the opinions in question" violated any "applicable standards of professional responsibility."

Steven Bradbury

Is Footnote In OLC Memo Designed To Protect Its Author?

Zachary Roth | March 3, 2009, 12:41PM

There's an interesting detail buried in those OLC memos released yesterday, that perhaps hasn't gotten the attention it deserves.

In the January 15, 2009 memo written by then-acting OLC head Steven Bradbury -- in which he repudiated many of the previous OLC memos that articulated an expansive view of presidential power in the war on terror -- there's a footnote stressing that the memo is not "intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility."

Why would Bradbury have gone out of his way to make this point -- especially in the context of repudiating those opinions?

Perhaps because the Justice Department's Office of Professional Responsibility has been working on a report on whether OLC lawyers violated standards of professional responsibility when they approved harsh interrogation tactics like water-boarding. And, as Newsweek revealed last month, a draft of the report is sharply critical of three senior OLC lawyers in particular -- John Yoo, Jay Bybee, and Steven Bradbury.

The report's release was delayed after then-Attorney General Michael Mukasey and his deputy Mark Filip objected that responses from Yoo, Bybee, and Bradbury should be included. As of February 6, Attorney General Eric Holder had not yet reviewed the report, and it had not yet been turned over to Congress.

So the fact that the earlier memos have been repudiated could potentially still affect the OPR report's conclusions about the lawyers' actions. As a result, Bradbury would have had good reason to explicitly state in his recent OLC memo that the repudiation of the original opinions did not bear on issues of professional responsibility.

It'll be interesting to see, when the OPR report is released, whether its authors agree with that take.

John Yoo

Experts Weigh In On Bush Justice Memos

Zachary Roth | March 3, 2009, 11:53AM

So what to make of those Bush administration legal memos, formulating counter-terrorism policy, that the Justice Department released yesterday?

The key news seems to be that at least ten of the opinions issued by the department's Office of Legal Counsel in the early years of the War on Terror -- outlining an expansive view of executive power -- were later deemed flawed and ordered withdrawn. We had previously known that this had occurred with just two such opinions.

In one memo, John Yoo argued that during wartime, the president could ignore free speech protections and could order warrantless searches. In another, the Bush DOJ claimed that detainees could be sent to countries that commit human rights abuses, as long as the US did not intentionally seek their torture. Five days before Bush left office, both of these opinions and several others were repudiated in a separate "memorandum for the Files" by Stephen Bradbury, then the acting head of the Office of Legal Counsel. That document was also released yesterday.

Other Bush administration memos that were later withdrawn argued that the president could unilaterally abrogate foreign treaties; could ignore guidance from Congress in dealing with terrorist suspects being detained; and could conduct warrantless wiretapping.

Since the release of the memos yesterday, expert opinion has essentially been united in denouncing the opinions.

Walter Dellinger, who ran OLC during the Clinton administration tells the New York Times that the Bradbury memo "disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were."

Jennifer Daskal of Human Rights Watch speaking to the Washington Post, singles out the memo that allowed the administration to send detainees to countries that commit human rights abuses. "That is [the Office of Legal Counsel] telling people how to get away with sending someone to a nation to be tortured," Daskal said. "The idea that the legal counsel's office would be essentially telling the president how to violate the law is completely contrary to the purpose and the role of what a legal adviser is supposed to do."

Orin Kerr, a law professor at George Washington, focuses on the memo that gave the administration the power to conduct warrantless wiretapping. Writing on the blog The Volokh Conspiracy, Kerr calls the argument that FISA doesn't apply to national security issues -- which appears to be the memo's argument -- "an extremely lame analysis." He continues: "Much of the point of FISA was to regulate that."*

And Salon's Glenn Greenwald is particularly outraged by an opinion arguing that the president can deploy the US military inside the US, directed at both foreign nationals and US citizens. Greenwald calls this "nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens."

He concludes:

If this isn't the unadorned face of warped authoritarian extremism, what is?

* This paragraph has been corrected from an earlier version which reported incorrectly that the blog post was written by Eugene Volokh.

Torture

Dem Senators To DOJ: How's That Report On Torture Opinions Coming?

Zachary Roth | February 16, 2009, 2:36PM

Looks like it's not just journalists who are interested in the progress of that DOJ report into whether Bush administration lawyers shaded their opinions on the legality of harsh interrogation methods in order to please the White House.

In the wake of Newsweek's story from over the weekend that a draft of the report criticizes several top Bush officials, including John Yoo, Democratic senators Dick Durbin and Sheldon Whitehouse, both of whom sit on the Judiciary committee, have sent a letter to Marshall Jarrett, who heads the DOJ's Office of Professional Responsibility and is overseeing the report.

In the letter, the senators, who wrote to Jarrett last year requesting the investigation, note that, according to Newsweek, a draft of the report was submitted in the final weeks of the Bush administration. They ask for an update on the status of Jarrett's probe by February 23.

They also suggest that they'll take action if the evidence shows that DOJ lawyers shaped their opinions to conform to the White House's views, writing:

Our intelligence professionals should be able to rely in good faith on the Justice Department's legal advice. This good faith is undermined when Justice Department attorneys provide legal advice so misguided that it damages America's image around the world and the Justice Department is forced to repudiate it. If the officials who provide such advice fail to comply with professional standards, they must be held accountable in order to maintain the faith of the intelligence community and the American people in the Justice Department."

As we noted before, it's not clear that the report will ultimately be released to the public. But at least some in Congress appear to be taking it seriously.