The Department of Justice has agreed to comply with part of a Senate Judiciary Committee subpoena and will turn over documents to the panel related to legal advice DOJ lawyers provided to the Bush administration about the use of force in Iraq, torture, and other highly controversial legal memos drafted after 9/11, according to Patrick Leahy, the committee’s Democratic chairman.

But the DOJ hasn’t agreed to turn over the legal memos the White House signed off on authorizing torture.

The DOJ faced a Tuesday deadline of turning over a wide-range of legal opinions issued by the DOJ’s Office of Legal Council (OLC), which Leahy subpoenaed last month after Attorney General Michael Mukasey rebuffed several previous requests to voluntarily turn over the documents to Leahy’s committee.

Mukasey was also subpoenaed and scheduled to testify before the committee Tuesday. But that hearing was postponed, a spokesman for Leahy said, due to Democratic caucus meetings scheduled to take place.

On Friday, Keith Nelson, the DOJ’s Deputy assistant Attorney General, sent Leahy a letter stating the DOJ would not turn over all of the legal memorandums the Democratic senator sought.

“Complying with the Committee’s request for all OLC opinions since 2001 on national security and terrorism issues, or a list of those opinions, would constitute a wholesale disclosure of confidential legal advice that would undermine the ability of the Executive Branch to obtain confidential legal advice from OLC in the future,” Nelson wrote.

“As we have discussed with Committee staff, agencies would be substantially chilled from seeking OLC advice on sensitive, important subjects if they believed that the resulting memoranda would be disclosed to others. Moreover, OLC’s confidential opinions are intended to assist Executive Branch entities in understanding what activities are permissible or impermissible under the law, but they are not themselves law.”

Nelson, however, said the DOJ would turn over some OLC memorandums Leahy had subpoenaed sometime Monday.

Those memos include:

·      March 18, 2004 memorandum regarding “Protected persons’ in Occupied Iraq”
·      November 6, 2001 memorandum entitled “Re: Legality of the Use of Military Commissions to Try Terrorists”
·      February 7, 2002 memorandum entitled “Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949″
·      October 23, 2002 memorandum entitled “Authority of President Under Domestic and International Law to Use Military Force Against Iraq”
·      November 8, 2002 memorandum entitled “Effect of a Recent United Nation’s Security Counsel Resolution on the Authority of the President Under International Law to Use Military Force Against Iraq”
·      December 7, 2002 memorandum entitled “Further Material Breach Under U.N. Security Counsel Resolution 1141 as a Result of False Statements or Omissions in Iraq’s WMD Declaration”

The DOJ also said it would allow Leahy’s committee to review two other OLC documents: the Oct. 23, 2001 memorandum regarding “Authority for Use of Force to Combat Terrorist Activities Within the United States,” and a June 27, 2002 memorandum regarding the “Applicability of 18 U.S.C. 4001 (a) to Military Detention of United States Citizens.”

In a statement Monday, Leahy said he intends to “work in the coming days with the Justice Department to ensure that the Committee receives access to these promised documents, and I am fully confident that the remaining OLC documents will be reviewed under [President-Elect Barack Obama's] administration.”

“Under the Bush-Cheney administration, the Office of Legal Counsel secretly misconstrued laws passed by Congress,” Leahy said. “By writing secret law, OLC has given this administration a legal ‘free pass’ for its misguided policies, including its policies concerning interrogation and torture. The advice we have seen has been deeply flawed, sloppy, and wrong. Today, we still don’t know the full scope of these ill-advised policies.”

Leahy has been trying for five years to pry loose many of the legal memos that formed the basis of the Bush administration’s interrogation program. But he said the DOJ has stonewalled his committee’s investigation.

“After more than five years of requests for information and documents concerning legal analysis and advice from the Department of Justice’s Office of Legal Counsel (OLC) related to the administration’s detention and interrogation policies, the Senate Judiciary Committee has still only seen a small portion of the documents we have sought,” Leahy wrote in an Oct. 21 letter to Mukasey after his committee authorized the subpoena for OLC documents.

“Indeed, we have learned far more about OLC opinions from press accounts and books than we have from the Executive Branch. From the OLC’s approval of abusive interrogation techniques in the so-called [Office of Legal Counsel Director Jay] Bybee, or “torture,” memo, through the revelation just last week that the White House issued secret authorizations justifying the CIA’s interrogation program, members of this oversight Committee have seen far too many surprises.”

Leahy’s letter was prompted by an Oct. 15 report in the Washington Post last week that said former CIA Director George Tenet wanted assurances directly from the White House that CIA interrogators could use long outlawed techniques, such as waterboarding, against detainees. The memos were written in June 2003 and June 2004. It is unknown who drafted the memos.

The disclosures in the Post report further undercut assertions by President George W. Bush, Vice President Dick Cheney and other senior administration officials who have blamed cruel treatment of detainees on “a few bad apples” who acted on their own.

In April, President George W. Bush told an ABC News reporter during an interview that he approved of meetings of a National Security Council’s Principals Committee, whose advisers included Vice President Dick Cheney, National Security Adviser Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, CIA Director George Tenet and former Attorney General John Ashcroft, where these officials discussed specific interrogation techniques the CIA could use against detainees.

In June, Sen. Carl Levin, the Democratic chairman of the Senate Armed Service Committee, released dozens of pages of documents that detailed a pattern of humiliation, abuse and even torture inflicted on detainees was a deliberate policy of the Bush administration – debated by mid-level lawyers at the CIA and the Pentagon, given legal cover at the Justice Department and approved at the highest levels of government.
 
Last month, Rice admitted for the first time that she led high-level discussions beginning in 2002 with other senior Bush administration officials about subjecting suspected al-Qaeda terrorists detained to waterboarding, according to documents released last month by.

Rice responded in writing to questions by Levin, who has been investigating the administration’s interrogation program. Rice and John B. Bellinger, her legal adviser at the State Department, said they recalled participating in meetings with former Attorney General John Ashcroft and then-Defense Secretary Donald Rumsfeld in July 2002 about an Army and Air Force survival training program called Survival, Evasion, Resistance and Escape (SERE) meant to prepare U.S. soldiers for abuse they might suffer if captured by an outlaw regime.

Bellinger, who also worked with Rice at the NSC, said she “expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations” and that Rice asked Attorney General John Ashcroft to “personally review the legal guidance” of specific interrogation techniques.

“I recall being told that U.S. military personnel were subjected in training to certain physical and psychological interrogation techniques and that these techniques had been deemed not to cause significant physical or psychological harm,” Rice wrote in response to a question about the SERE techniques.

But those techniques were meant to prepare U.S. soldiers for abuse they might suffer if captured by a brutal regime, not as methods for U.S. Interrogations, which is what Rice said the discussions at the White House centered on. Moreover, the SERE methods were first designed by the communist government of China to be used against U.S. soldiers.

On Oct. 9, the Pentagon issued a directive explicitly banning SERE techniques during detainee interrogations.

“Use of SERE techniques against a person in the custody or effective control of the Department of Defense or detained in a DoD facility is prohibited,” said the directive.

In an interview with “60 Minutes” on Sunday, President-Elect Obama said he intends to follow through on a promise to shut down the Guantanamo Bay detention facility in Cuba that houses suspected terrorist detainees. Guantanamo is the sit where an untold number of harsh interrogations-including the simulated drowning technique known as waterboarding–against suspects.

Obama’s transition team also vowed that the president-elect would reverse OLC legal opinions that authorized brutal methods of interrogation.

“I have said repeatedly that America doesn’t torture,” Obama told “60 Minutes” correspondent Steve Kroft. “And I’m going to make sure we don’t torture. Those are part and parcel an effort to regain America’s moral stature in the world.”