By Jason Leopold

The Public Record is reposting this exclusive investigative report, first published last month, on a still classified Department of Justice report into the legal work former agency attorney John Yoo performed for the Bush administration. The story is being republished now because on Monday the DOJ released nine previously secret legal memos from the Office of Legal Counsel, many of which were written by Yoo, that likely formed the basis for the DOJ’s scathing critique on Yoo’s legal work.

A Department of Justice investigation into the legal work John Yoo and two other former DOJ officials performed for the Bush administration was harshly critical of the former agency attorneys for failing to cite legal precedent and existing case law in legal opinions they prepared for the of Bush administration on a wide-range of controversial policy issues, including torture and domestic surveillance, according to several legal sources who have been briefed on the contents of the still classified report.

Moreover, the report prepared by H. Marshall Jarrett, the head of the Justice Department’s Office of Professional Responsibility (OPR), that carefully traced the genesis of one part of an August 2002 memorandum prepared by Yoo and signed by his boss Jay Bybee that provided the Bush administration with the legal justification to authorize interrogators to subject suspected terrorists to outlawed techniques, such as waterboarding, was drafted after the brutal method was used against one prisoner at least a month earlier, these sources said.

The implication of that specific finding appears to be that Yoo, in close coordination with senior White House officials, prepared the Aug. 1, 2002 memos to provide interrogators with legal cover for using methods-as well as ways to avoid prosecution-that were not yet explicitly authorized, these sources said.

Yoo did not respond to numerous messages left at his office at Chapman University School of Law, where Yoo in now a visiting professor, nor did he reply to e-mails about the report’s findings. Messages left for Bybee at the 9th Circuit Court of Appeals in San Francisco were also not returned.

It is unknown whether OPR’s conclusions dealing with the Aug. 1, 2002 memo will be included in the final version of the watchdog’s report or whether the findings alone rise to the level of “professional misconduct.” Sources said the report is being reviewed by Attorney General Eric Holder and other top DOJ officials and there is a strong possibility that the draft report will be dramatically different in “tone” in the final version.

The OPR investigation was launched in 2004 following the Abu Ghraib scandal and the leak of one of Yoo’s “torture memos.” Another memo Yoo drafted describing specific interrogation methods was prepared for the CIA, which is still classified and the subject of a Freedom of Information Act lawsuit filed by the American Civil Liberties Union.

The preparation of the memos took place after military and intelligence officials witnessed interrogations of at least one high-level suspected terrorist before August 2002 and said it amounted to a violation of international and domestic laws against torture.

The military lawyers are said to have lodged numerous complaints about the methods used against the detainee (to whom they complained to is unknown), which resulted in a hastily arranged meeting at the White House with then-White House Counsel Alberto Gonzales, Vice President Dick Cheney, his attorney, David Addington, then National Security Adviser Condoleezza Rice and other officials from the State Department and the Pentagon where discussions revolved around the drafting of a legal memo specifically for the CIA that stated what methods interrogators could use against detainees and the fact that tit would be legal under anti-torture laws, these sources said.

People interviewed by Jarrett’s team and documents obtained by his investigators concluded that there was a universal belief by CIA, Pentagon and high-ranking administration officials that harsh methods used against at least one detainee were legal because President George W. Bush signed an Feb. 7, 2002 order stating that terrorists were not entitled to protections under the Geneva Conventions.

When protests were raised about the methods used against the detainee in July 2002, which included waterboarding, and the possibility that it was a violation of international and domestic laws against torture there was agreement that a memo stating what techniques could be use and why it did not meet the legal definition of torture.

It is believed that the detainee in question is Abu Zubaydah, a suspected al-Qaeda lieutenant captured in March 2002. Zubaydah’s waterboard interrogation was videotaped and the tape later destroyed, which is the focus of another Justice Department investigation headed by a special prosecutor.

Additionally, the investigation by OPR investigations found that Yoo, while working on March 2003 memorandum for the Department of Defense on new interrogation methods, routinely ignored the advice of military attorneys and Justice Department officials who said there were major legal flaws in the memo, that Yoo pushed the envelope on the legal limits of torture, refused to cite legal cases that, had he done so, may have undercut the Bush administration’s broad war powers claims. Yoo refused to rewrite the opinion or parts of the opinion, these sources said, adding that OPR investigators also concluded that Yoo went over then Attorney General John Ashcroft head and dealt directly with the White House.

Youngstown

Yoo’s August 2002 memo said Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force.

“As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy,” says the 50-page Aug. 1, 2002 memo prepared for Alberto Gonzales titled “Standards of Conduct for Interrogation.

But OPR investigators believed Yoo should have cited and applied Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry S. Truman’s effort to seize steel mills shut down in a labor dispute during the Korean War. Truman believed the strike would threaten national defense. According to the 1952 Supreme Court opinion, Truman “issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills.”

“The Order was not based upon any specific statutory authority but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces,” the Supreme Court brief says. “The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions.”

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.” Although Truman did alert Congress about his plans Congress did not delegate authority to Truman nor did they specifically provide Truman with approval to seize the steel mills. Therefore, the Supreme Court found, Truman’s actions were unconstitutional.

Justice Robert Jackson wrote a well-known concurring legal opinion in the case on the separation-of-powers often cited by constitutional scholars as defining presidential powers during wartime

According to legal sources familiar with the OPR report, Yoo, Bybee, and former OLC head Steven Bradbury are preparing responses to the report’s findings. A draft of the report was completed last year and a copy was supposed to be given to Senators Dick Durbin and Sheldon Whitehouse, but former Attorney General Michael Mukasey blocked its release reportedly so Yoo, Bybee and Bradbury could respond.

Yoo, however, has already offered up a defense to his failure to cite Youngstown, the OPR probe in general, and the overall criticisms about his legal work while working at OLC.

In his 2006 book, War By Other Means, Yoo said “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,” Yoo wrote. “It does not address the scope of commander-in-chief power involving military strategy or intelligence tactics in war… Detention and interrogation policy are at the heart of the President’s commander-in-chief power to wage war, and long constitutional history supports the President’s leading role on such matters. This is why all administrations have refused to acknowledge the legality of the War Powers Resolution, and have regularly started and continued military conflicts without congressional approval.”

But Scott Horton, a renowned human rights attorney, constitutional expert and contributor to Harper’s magazine, said, “the Youngstown case is considered the lodestar precedent addressing the president’s invocation of commander-in-chief powers away from a battlefield.”

“Justice Jackson’s opinion is the most persuasive of the opinions justifying the decision,” Horton said in an interview conducted via e-mail. “If you examine any treatise on national security law, you’ll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance. It’s obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.  

“But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever cockeyed theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that’s exactly what he did.”

In his book, Yoo then goes on to criticize the OPR investigation, saying DOJ officials who launched the “ethics” probe “responded reflexively to political controversy” and that members of the legal community who blasted his work were former Clinton officials “who overlooked their administration’s own legal views, which, on the matter of executive authority in war and national security, were nearly identical” to the Bush administration’s views.

The DOJ officials “certainly did not check the bona fides of the critics who first made the accusation that not citing Youngstown amounted to a failure of professional responsibility.”

“I cannot help but think that Justice Department officials panicked when the Abu Ghraib scandal erupted, and then were misled by the charges about ethics,” Yoo wrote. “Claims about ‘ethics’ always emerge as a weapon, both on the left and on the right, when the party in power cannot be budged on policy specifics. Justice officials surely did not consider the long-run implications of what they were doing…If [the Justice Department] were to accept that Youngstown controlled the executive branch in war, the President’s powers would be crippled.”

Yoo also explained placed some of the responsibility on Congress for forcing him to rely upon an obscure 2000 health benefits 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 {italics] physical or mental pain or suffering,” Yoo wrote. “The ban on torture does not prohibit any [italics] 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.

“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.’”

The OPR report concluded, legal sources said, that Yoo misinterpreted the statute and wrongly applied it to the August 2002 and March 2003 interrogation opinions he wrote.

Jack Goldsmith, the former head of OLC who arrived after Yoo had returned to academia, said Yoo’s legal work in this area was “legally flawed” and his Aug. 1, 2002 opinion was “sloppily written.”

“The health benefits statute’s use of ’severe pain’ had no relationship whatsoever to the torture statute.” Goldsmith wrote in his book “The Terror Presidency.” “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.”

Yoo also offers up clues about issues Ashcroft’s had with Yoo’s legal work and the former Attorney General’s refusal to stand behind the controversial torture memo and his complaints to the White House that he was being cut out of the process. Yoo said Ashcroft “did not flinch” when his office was under scrutiny and had stood behind controversial issues involving the Justice Department.

But, Yoo said, Ashcroft “pretended during the summer of 2004 [when the August 2002 torture memo was leaked to the media] that the attorney general had been out of the loop in 2002. It was a transparent effort to avoid responsibility by pleading ignorance of the activities of his own department.”

“No opinion of that significance could ever issue [sic] from the Justice Department without the review of the attorney general’s staff, in particular that of his counselor, or without the attorney general’s personal approval,” Yoo wrote. “I wish Ashcroft had stood up and defended the work of the dedicated men and women in his department. Instead an investigation was launched into so-called ‘ethics.’ It is fair to disagree with our conclusions on the merits. But to claim ethical violations is unfounded and unfair.”

Yoo’s claims that Ashcroft was kept in the loop, however, are contradicted by documents and in interviews Jarrett’s OPR investigators conducted with officials who said Yoo worked closely with David Addington, Cheney’s attorney, and Gonzales on the August 2002 torture memo and kept Ashcroft in the dark. Though Ashcroft protested to the White House, Bush officials continued to bypass him, legal sources familiar with the OPR report said.

Last week, Democratic Sens. Dick Durbin and Sheldon Whitehouse sent a letter to Jarrett to inquire about the circumstances that resulted in the report being kept under wraps and asked when it will be released. They asked Jarrett to respond by Monday.

Max Gleischman, a spokesman for Durbin, said Friday that the senator has not received any update on the OPR report from Attorney General Eric Holder or anyone else at the DOJ since the letter was sent Durbin and Whitehouse sent the letter to Jarrett.