OPR Torture Report Still Under Review, Should Be Released “Soon“

The Department of Justice is still working on the report prepared by an agency watchdog that probed several legal opinions John Yoo and two other former attorneys who worked at the DOJ’s Office of Legal Counsel (OLC) wrote for the Bush White House on torture, an agency spokeswoman said Wednesday.

“The [review] process is ongoing and we hope to have [the report] complete and released soon,” Justice Department spokeswoman Tracy Schmaler told Truthout.

The Office of Professional Responsibility (OPR) completed the report in December 2008 following a five-year investigation.

Adding to the delay in releasing the report (Attorney General Eric Holder testified before Congress last year that the report was complete and was expected be released by end of November), according to several legal sources knowledgeable about the review process, were additional responses to its conclusions that Yoo filed via his attorney, Miguel Estrada. The legal sources spoke on the condition of anonymity because the report is still classified.

If that’s true, the career prosecutor charged with reviewing the report would have to carefully review Yoo’s responses and, as Holder testified last November, “react to those responses” as well.

Estrada told Truthout he was bound by a confidentiality agreement he entered into with the Justice Department 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 rumors. But she pointed to the Office of Professional Responsibility’s “post investigation” guidelines, which details the process that takes place during the course of such investigations.

The big question is will the report be released on or before January 15?

That’s the date lawyers representing alleged “dirty bomb” plotter Jose Padilla are due to file a response to the government’s friend-of-the-court-brief, which recommended that a lawsuit Padilla filed aginst Yoo over the legal advice he gave to the Bush White House that resulted in Padilla being tortured be tossed out because the OPR report would address the issue that Yoo provided the White House with poor legal advice.

“In addition to potential discipline by a state bar, Department of Justice attorneys are also subject to investigation by the Office of Professional Responsibility (“OPR”)… OPR and the Office of the Inspector General have broad investigatory powers and can recommend discipline and even criminal prosecution, where appropriate, the government’s December 3, court filing states.

As blogger Marcy Wheeler pointed out earlier this week, “At the rate we’re going, Padilla’s lawyers will have to file their response to the boast that OPR can offer adequate discipline in cases like this, without yet learning what OPR did in this particular case.”

Believing that the report is being suppressed, a coalition of attorneys, journalists and activists to file a Freedom of Information Act request Thursday with the Justice Department to obtain a copy of the report and other documents.

Upcoming Hearings on Torture?

In an interview last month, Christopher Anders, the ACLU’s senior legislative counsel, said Senate Judiciary Committee Chairman Patrick Leahy and his counterpart in the House, John Conyers, have both said they intend to hold hearings next year when the OPR report is released.

Leahy and Conyers “said a number of times that they would have hearings when the OPR report comes out,” Anders told me. “It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings.”

Erica Cabot, a spokeswoman for Leahy, said it would be premature to discuss any plans for possible future hearings until the report is released.

“Adverse Findings”

The Justice Department was prepared to publicly release the report last January. But it underwent revisions after then-Attorney General Michael Mukasey and his deputy, Mark Filip, demanded that Yoo, Bybee and Bradbury be given the chance to review and respond to the findings.

“In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office,” said Assistant Attorney General Ronald Weich’s May 4, 2009 letter to Democratic Senators Dick Durbin and Sheldon Whitehouse. “A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else.”

Legal sources familiar with an early draft of the report said it concluded that some of Yoo and Bybee’s legal work for the Bush White House rose to the level of professional misconduct and therefore warranted a disciplinary referral state bar officials. These sources said they were unaware whether OPR reached the same conclusions about Bradbury’s legal work.

Weich’s letter noted that if the appeals filed by Yoo, Bybee and Bradbury resulted in a rejection of OPR’s findings by the “career official” reviewing the document then no such referral would occur.

“Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made,” Weich’s letter said. “This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process.”

Weich added that the initial draft of the report was also shared with the CIA for a “classification review,” and the agency, having reviewed the findings, “requested an opportunity to provide substantive comment on the report.”

Durbin and Whitehouse, in a statement last May, said they “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.”

A CIA spokesperson did not return calls for comment about the agency’s response to the report.

Weich’s letter to Durbin and Whitehouse was sent in response to queries by the senators last March about revelations that Bradbury oversaw OLC’s review of the report in late 2008, despite the fact that he was a subject of OPR’s investigation and was also acting head of OLC at the time.

Three months before Bush exited the White House, Bradbury, in a “memorandum for the files,” renounced several legal opinions drafted by Yoo and Bybee.

Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”

Bradbury wrote another memo five days before Bush left office last January, in which he once again repudiated Yoo’s legal opinions. It would appear that this memo was in response to the OPR report. Bradbury said in the Jan. 15 memo that the flawed theories by Yoo in no way should be interpreted to mean that Justice Department lawyers did not “satisfy” professional standards.

Rather, Bradbury wrote, “In the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation.”

Durbin and Whitehouse said they believed Bradbury’s “memorandum for the files” made it a “conflict-of-interest” for him to participate in the formal review process.

But Weich said, “Because Mr. Bradbury’s participation in that process was transparent, OPR advised that it can evaluate the OLC response with the knowledge of Mr. Bradbury’s participation just as it would evaluate a response from anyone whose actions were within the scope of OPR’s investigation.

“Therefore, OPR does not believe that Mr. Bradbury’s participation in the OLC response was improper,” Weich said.