Co-authored with Brina Milikowsky
Ruth Goldman Judicial Selection Project Fellow
Alliance for Justice
On Friday, the Department of Justice's Office of Professional Responsibility (OPR) released its long-awaited report about John Yoo, Jay Bybee, and Steven Bradbury, the senior government lawyers who authored the infamous "torture memos," and revealed damning new evidence about the involvement of senior White House officials in the production of those memos. The report raises further questions about improper political interference with DOJ's legal work and adds to the mounting evidence that warrants a full-scale investigation of those who ordered, designed, and justified torture.
Let's start with a quick recap: As we all now know, the Bush administration wanted to use "enhanced interrogation techniques" on alleged terrorists held in detention, but it administration didn't want a few federal and international laws to interfere with its agenda to abuse and humiliate detainees - so it turned to top lawyers in the Office of Legal Counsel (OLC) to write a series of "torture memos" providing legal cover for letting the CIA do whatever it wanted with the detainees.
The OPR report confirms what legal ethics scholars have long suspected: as a general practice, senior White House officials improperly pressured Yoo, Bybee, and Bradbury to "come up with an answer" in the "torture memos" that would justify the ongoing interrogation regime, conclude it was legal, and allow it to continue. We now have irrefutable proof that White House attorneys played a central role in shaping the content of the memos. White House counsel Alberto Gonzales told OPR that he would typically review drafts from lawyer John Yoo and "pass them along to other lawyers, such as [Cheney's lawyer David] Addington or [Gonzales' deputy Tim] Flanigan, who would forward them to Yoo along with their own comments." In a bombshell statement about Yoo's most notorious August 2002 memo, Gonzales is quoted as saying, "I'd be very surprised in [sic] David did not participate in the drafting of this document.'"
The final OPR report also establishes that Yoo added the most flawed and egregious portions of his August 2002 memo after the criminal division of DOJ refused to give the CIA the legal authority it was seeking - and after an auspiciously timed meeting at the White House. It seems the CIA requested a DOJ criminal declination letter providing advance blanket immunity from criminal prosecution before beginning interrogations in order to ensure that no CIA interrogator would be prosecuted for torture. Michael Chertoff, then Assistant AG in charge of DOJ's criminal division, found the request unreasonable, and refused to provide a blanket protection against criminal prosecution. The next day, Yoo went to a meeting at the White House with Gonzales (and possibly Addington and Flanigan) - and the day after that, Yoo added the two most tendentious and flawed sections to his most notorious memo.
The OPR report is replete with other shocking revelations. For example, Yoo proved just how far-reaching and excessive his unitary executive theory is by telling OPR investigators that, as commander-in-chief, a president legally has the power to bomb a village to massacre civilians. These outrageous facts are all the more striking given the limited mandate, resources, and authority of OPR to conduct an investigation of this magnitude. OPR's jurisdiction is limited to those attorneys employed by DOJ, and it lacks subpoena power to compel production of documents from other agencies or interviews with other government officials. The OPR report is therefore just the latest damning piece of a puzzle that irrefutably calls for an independent inquiry into those who provided legal cover for torture.
OPR's investigation alone cannot resolve what sinister sequence of events that led the top officials in our country to believe they could legally torture other humans. The Senate Judiciary Committee hearing scheduled for Friday will provide Senators an important opportunity to ask former OLC lawyers Yoo, Bybee, and Bradbury more details about the interactions between DOJ, CIA, Department of Defense, and the White House. Additional crucial pieces of this puzzle will be uncovered if a special prosecutor or commission is empowered to investigate the conduct of officials in the CIA, Department of Defense, and White House who worked with DOJ officials on the development of torture policy.
Jane Mayer recently reported in the New Yorker that Eric Holder has decorated the walls of a conference room at the Department of Justice with portraits of his favorite Attorneys General. One of the portraits is of Elliott Richardson, who resigned rather than acquiesce to President Richard Nixon's command that he halt the Watergate investigation. Mr. Richardson's legacy reminds us that political pressure does not excuse an attorney general from his obligation to uphold the law. Only an independent inquiry and full-scale investigation into those who designed and authorized torture policy can restore America's international standing as a beacon of justice and human rights.