Did the Obama administration pressure the Department of Justice (DOJ) to suppress a long-awaited report from one of the agency’s watchdogs on issues revolving around torture until Congress passes a health care bill?
That’s what senior aides to two Democratic lawmakers who have been closely tracking the report have alleged in interviews conducted over the past month.
The report, prepared by the DOJ’s Office of Professional Responsibility (OPR), examined the legal work former Office of Legal Counsel (OLC) attorneys John Yoo, Jay Bybee and Steven Bradbury performed for the Bush administration after 9/11 and is said to have reached damning conclusions.
It was supposed to be released last November, according to testimony Attorney General Eric Holder gave to Congress, after a career prosecutor completed a review, which Holder said at the time was in its “final stages.”
But the aides said in December, a couple of weeks after Holder testified, they participated in an informal meeting about the possibility of holding hearings when the report was released. During the discussion, someone raised questions about why the report was not yet released as Holder had promised.
The aides said that a senator, whose name they would not reveal, then disclosed that he was told by senior White House officials that if the report were released as planned it would have hurt the administration’s efforts to get a health care bill passed and impact the possibility of trying to win Republican support for the legislation, which never came to pass.
So, in early December, the senator claimed, according to the account given by the aides, the administration told the DOJ to delay releasing it.
Spokesmen for Democratic Sens. Sheldon Whitehouse and Dick Durbin, who have been instrumental in pushing for the report’s release, said they did not know why it has not yet surfaced nor were they aware of any claims that the report has been delayed until a health care bill passes.
In an interview early this month, Tracy Schmaler, a DOJ spokeswoman, disputed claims that the White House was pressuring the agency to withhold the report in lieu of a health care bill.
“That is absolutely untrue,” Schmaler said. “One thing has nothing to do with another.”
During our interview, Schmaler said the review “process is ongoing and we hope to have [the report] complete and released soon.”
Two DOJ officials familiar with details of the report said a delay in releasing it in the time frame Holder had promised was due, in part, to the fact that the career prosecutor charged with reviewing the final version was hospitalized in December for pneumonia.
However, they noted that that the prosecutor’s illness doesn’t account for why the report has still not been released, which they claim is due to “politics.” These sources requested anonymity because the details surrounding the report remain secret.
The possibility that politics may be the reason the report remains under wraps was not lost on the ACLU, which filed a lawsuit Friday in hopes of compelling the DOJ to immediately release the report.
In an interview, ACLU lawyer Alex Abdo, who, along with other attorneys at the civil rights organization, has successfully pried loose previously withheld documents related to the Bush administration’s torture policies, said “it’s possible political reasons might be holding up the release of the report.”
“It’s long overdue and this is an unacceptable delay,” Abdo said. “We haven’t seen any progress or received any public explanation.”
The group first filed a Freedom of Information Act (FOIA) request on December 4, 2009, when it became clear that the report was not going to be released in the time frame Holder promised that it would be. Abdo said the ACLU never received a response to its FOIA request. So, the organization filed another one last week. Earlier this month, a coalition of attorneys, journalists and activists also filed a FOIA request with the DOJ to obtain a copy of the report and other documents.
Abdo noted that when the report is finally released, “we will almost certainly see redactions [and the FOIA lawsuit will] serve as a placeholder to lodge challenges to excessive redactions in the report.”
In response to the ACLU’s complaint, Schmaler said that Holder has already stated “the department would make [the report] available as much as possible when it’s done.”
She added that there is “no delay” in releasing the report and, as she noted in a previous interview, she pointed to OPR “post investigation” guidelines, which details the process that takes place during the course of such internal investigations.
The OPR report was completed more than a year ago. It was revised after former Attorney General Michael Mukasey and his deputy, Mark Filip, insisted that Yoo, Bybee and Bradbury be given an opportunity to respond to its conclusions.
In his testimony last November, Holder said the report had not been released sooner due to “the amount of time we gave to the lawyers who represented the people who are the subject of the report an opportunity to respond. And then [OPR] had to react to those responses.”
Last month, several legal sources knowledgeable about the review process said Yoo filed additional responses to the report’s findings via his attorney, Miguel Estrada.
Estrada told Truthout he was bound by a confidentiality agreement he entered into with the DOJ and could not comment on the claims that he submitted another set of responses on behalf of Yoo.
Schmaler said she could not comment on the veracity of those claims.
According to the two DOJ officials, an original draft of the report had already concluded that when writing the August 2002 torture memo, 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.
Yoo’s memoranda concluded that the laws governing torture violated President Bush’s commander-in-chief powers under the Constitution because it prevented him “from gaining the intelligence he believes necessary to prevent attacks upon the United States.”
Yoo’s lengthy response to the OPR expanded upon a defense he first cited in his 2006 book, “War by Other Means,” in explaining why he didn’t cite Youngstown.
Yoo wrote: “we didn’t cite [Justice Robert] Jackson’s individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the president’s conduct of foreign affairs and national security.
“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 …
“Far from inventing some novel interpretation of the Constitution, [Office of Legal Counsel, where Yoo, Bybee and Bradbury worked] was really doing little more than following in the footsteps of the Clinton Justice Department and all prior Justice Departments.”
It’s unknown whether Yoo made a convincing argument to OPR in defending his reasons for not citing the landmark ruling.
But a July 10, 2009, report by the inspectors general of the CIA, National Security Agency, DOJ and Defense Department into the Bush administration’s warrantless wiretapping program, which were based on legal opinions written by Yoo, also took Yoo to task for failing to cite Youngstown.
Yoo “omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, a leading case on the distribution of government powers between the Executive and Legislative Branches,” the report said.
“Justice [Robert] Jackson’s analysis of President Truman’s Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC’s subsequent reevaluation of Yoo’s opinions,” the report said.
Ironically, as Congress continues to try and pass a health care bill that Democrats say wil expand insurance benefits to millions of Americans, the issue also plays a particularly important role in the OPR report.
The early draft of the OPR report concluded, legal sources said, that Yoo misinterpreted an obscure 2000 health benefits statute and wrongly applied it to August 2002 and March 2003 interrogation opinions he wrote, according to the DOJ officials.
Again, expanding upon a defense that first appeared in his book, Yoo placed some of the responsibility on Congress for forcing him to rely upon the statute to narrow the definition of torture in a way that permitted techniques such as waterboarding.
In passing an anti-torture law, Congress only prohibited “severe physical or mental pain or suffering,” Yoo wrote. “The ban on torture does not prohibit any pain or suffering whether physical or mental, only severe acts. Congress did not define severe … OLC interpreted ‘severe’ as a level of pain ‘equivalent in intensity to the pain accompanying serious physical injury, such as death, organ failure, or serious impairment of body functions. [Emphasis added.]
“OLC’s first 2002 definition did not make up this definition out of thin air. It applied a standard technique used to interpret ambiguous phrases in law. When Congress does not define its terms, courts commonly look in the United States Code for the use of similar language. The only other place where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including ‘severe pain’ where an individual’s health is placed ‘in serious jeopardy,’ ‘serious impairment to bodily functions,’ or ‘serious dysfunction of any bodily organ or part.'”
Jack Goldsmith, who succeeded Bybee at the OLC in October 2003 after Bybee was confirmed as an appeals court judge on the Ninth Circuit, wrote in his book, “The Terror Presidency,” that Yoo’s torture memo “was legally flawed” and sloppily written and he was harshly critical of Yoo’s use of a medical benefits statute to define torture.
“That statute defined an ’emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function,” Goldsmith wrote.
“The health benefits statute’s use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like…. OLC’s clumsily definitional arbitrage didn’t seem even in the ballpark.”
Goldsmith rescinded the torture memo in mid-2004 and resigned shortly thereafter. His questions as to whether Yoo and Bybee provided the White House with sound legal advice sparked the OPR investigation.