By Jason Leopold
A key line in George W. Bush’s defense against war crimes charges has weakened with the disclosure that an internal Justice Department watchdog has concluded that the legal advice, which cleared the way for Bush’s policies on torture and other abuse of detainees, was tainted by political influence.
An investigation by H. Marshall Jarrett, head of the Justice Department’s Office of Professional Responsibility, reached “damning” conclusions about numerous cases of “misconduct” in the advice from John Yoo and other lawyers in the Office of Legal Counsel during the Bush administration, according to legal sources familiar with the report’s contents.
OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.
The Public Record was the first news organization to publish a report on the preliminary findings of OPR’s investigation.
One part of the OPR report criticized Yoo’s use of an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding and other acts that have historically been regarded as torture under U.S. law, the sources said.
The report also criticizes Yoo’s legal theories that the President of the United States had the right to suspend Fourth Amendment protections against unreasonable searches and seizures, the sources said. It is believed that Yoo’s legal theories led to a warrantless wiretap program after 9/11.
The OPR report was completed late last year but was kept under wraps by Attorney General Michael Mukasey while Bush finished out his days in office, the sources said.
Contacted Friday for comment as to why Mukasey and his deputy Mark Filip blocked its delivery to Congress, Matthew Miller, a Justice Department spokesman, said the “matter is under review.” Miller wouldn’t elaborate nor would he discuss the contents of the OPR report.
The OPR’s findings could influence whether Bush and other senior officials are held to account for torture and other war crimes. Bush has pinned his defense on the fact that he had received advice from Yoo and other Justice Department lawyers that the brutal interrogations of “war on terror” detainees did not constitute torture or violate other laws of war.
Bush’s line of defense could collapse if it were determined that the lawyers were colluding with administration officials in setting policy, rather than providing objective legal analysis. Already, extensive evidence exists, including Yoo’s own writings, showing that he participated in high-level administration meetings to discuss and set policy.
For instance, in his 2006 book War by Other Means, Yoo describes his involvement in frequent White House meetings regarding what “other means” should receive a legal stamp of approval. Yoo, who was a deputy assistant attorney general assigned to the powerful Office of Legal Counsel at the Justice Department, wrote:
“As the White House held its procession of Christmas parties and receptions in December 2001, senior lawyers from the Attorney General’s office, the White House counsel’s office, the Departments of State and Defense and the NSC [National Security Council] met a few floors away to discuss the work on our opinion. …
“This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism. We certainly did not all agree, nor did we always get along, but we all believed that we were doing what was best for the nation and its citizens.
“Meetings were usually chaired by Alberto Gonzales,” who was then White House counsel and later became Bush’s second Attorney General. Yoo identified other key players as Timothy Flanigan, Gonzales’s deputy; William Howard Taft IV from State; John Bellinger from the NSC; William “Jim” Haynes from the Pentagon; and David Addington, counsel to Vice President Dick Cheney.
What Yoo’s book and other evidence make clear is that the lawyers from the Justice Department’s OLC weren’t just legal scholars handing down opinions from an ivory tower; they were participants in how to make Bush’s desired actions “legal” even if the arguments were professionally flawed.
For instance, the Aug. 1, 2002, OLC opinion known as the “torture memo,” which opened the door to abusive tactics such as waterboarding, which subjects a detainee to the sensation that he is drowning, was rescinded soon after Jack Goldsmith became head of the OLC in fall 2003.
Goldsmith later described the opinion as “legally flawed” and “sloppily written.” The OPR report concurs in Goldsmith’s judgment, the sources said.
Asked to comment Friday about the OPR report and the disclosure that Mukasey blocked its delivery to Congress, staffers for Democratic Sens. Dick Durbin and Sheldon Whitehouse provided The Public Record with an advance copy of a letter the senators sent Monday morning to Jarrett to inquire about the circumstances that resulted in the report being kept under wraps.
“On October 1, 2008, Senator Durbin’s chief counsel sent an e-mail to Keith B. Nelson, then Principal Deputy Assistant Attorney General of the Justice Department’s Office of Legislative Affairs, stating, “Can you please let me know the status of OPR’s investigation of DOJ attorneys who provided advice on interrogation matters? … OPR Counsel Marshall Jarrett said he would provide the Senators with the results of the investigation upon its completion.” On October 16, 2008, Mr. Nelson responded, “Heard back from OPR. Should be done in 4-5 weeks. I believe he [Marshall Jarrett] will provide it to the Members. I’ll let you know if anything else develops.” Mr. Nelson did not contact Senator Durbin’s staff again regarding this matter.
“It has been one year since you notified us about OPR’s investigation. We would appreciate an update on the investigation’s status and would be grateful if you would respond to the following questions:
“Have you submitted a draft report on OPR’s findings? If so, when did you submit this report? Did then Attorney General Mukasey object to the draft report’s findings? If so, please describe these objections. Has OPR interviewed Justice Department attorneys who provided legal advice regarding interrogation techniques, including former Office of Legal Counsel (OLC) Assistant Attorney General Jay Bybee, former OLC Deputy Assistant Attorney General John Yoo, and former OLC Deputy Assistant Attorney General Stephen Bradbury? If so, when did OPR conduct these interviews? Have you recommended that an unclassified summary of OPR’s report be released to Congress and the public? If so, when do you plan to release this summary? Will you release to appropriate committees of Congress the classified portions (if any) of your report?”
A year ago, Whitehouse and Durbin discovered the existence of the internal probe after writing a letter to the Justice Department’s watchdog agencies requesting an investigation into the role “Justice Department officials [played] in authorizing and/or overseeing the use of waterboarding by the Central Intelligence Agency… and whether those who authorized it violated the law.”
The questions posed by the senators included whether the legal advice met professional standards and whether the lawyers were “insulated from outside pressure to reach a particular conclusion?” Whitehouse and Durbin also asked what role was played by Bush’s White House and the CIA in possibly influencing “deliberations about the lawfulness of waterboarding?”
Jarrett responded by saying the senators’ concerns were already part of a pending investigation that OPR was conducting into the genesis of the Aug. 1, 2002, legal opinion.
Because Yoo no longer works for the Justice Department, OPR can only recommend state bar associations conduct a review of his work to determine if he breached ethics and should be punished. The punishment could include disbarment.
The report also recommends state bar associations review the work of Jay Bybee, who was Yoo’s boss at the OLC, the sources said. Bybee, now an Appeals Court judge in San Francisco, signed the so-called torture memo and other controversial legal opinions that Yoo helped to draft.
According to OPR protocol, “OPR may find professional misconduct in two types of circumstances: (1) where an attorney intentionally violated an obligation or standard imposed by law, applicable rule of professional conduct, or Department regulation or policy, or (2) where an attorney acted in reckless disregard of his or her obligation to comply with that obligation or standard. OPR may also find that the attorney used poor judgment or made a mistake; such findings do not constitute findings of professional misconduct.
“In cases in which it finds professional misconduct (either intentional misconduct or conduct in reckless disregard of an applicable standard or obligation), OPR ordinarily advises bar disciplinary authorities in the jurisdiction where the attorney is licensed of its finding. Such a referral is not made if OPR determines that the matter involves purely federal or Department concerns and no bar disciplinary rule appears to be implicated. OPR’s investigative information may be disseminated to assist state bar disciplinary authorities to meet their responsibilities.”
OPR investigators poured over thousands of pages of internal Justice Department e-mails and White House memos over the past four years and built a disturbing narrative about Yoo’s work, the sources said, adding that OPR investigators also examined Yoo’s book for further evidence that he had fixed the law around the administration’s policy interests.
In War by Other Means, Yoo wrote: “The only way to prevent future September 11s will be by acquiring intelligence. The main way of doing that is by interrogating captured al-Qaeda leaders or breaking into their communications…. In an opinion eventually issued on Jan. 22, 2002, OLC concluded that al-Qaeda could not claim the benefits of the Geneva Conventions.”
In the context of explaining why detainees were not entitled to the benefits of the Geneva Convention or prisoner of war status, Yoo wrote:
“When our group of lawyers visited Gitmo, the Marine general in charge told us that several of the detainees had arrived screaming that they wanted to kill guards and other Americans. …
“Many at Gitmo are not in a state of calm surrender. Open barracks for most are utterly impossible; some al-Qaeda detainees want to kill not only guards, but their peers who might be cooperating with the United States. The provision of ordinary POW rights…is infeasible.”
Yoo’s argument that only quiet POWs “in a state of calm surrender” should qualify for Geneva protections might be news to many former U.S. POWs, including Sen. John McCain, who have boasted about their various forms of resistance to their captors.
Yoo added that a few weeks after he returned from Guantanamo “the lawyers met again in the White House Situation Room to finally resolve the issue for presidential decision.”
“If Geneva Convention rules were applied, some believed they would interfere with our ability to apprehend or interrogate al-Qaeda leaders,” Yoo wrote. “We would be able to ask Osama bin Laden loud questions and nothing more. Geneva rules were designed for mass armies, not conspirators, terrorists or spies.”
The OPR probe was launched in mid-2004 after a meeting in which Jack Goldsmith, then head of the OLC, got into a tense debate with then-White House counsel Alberto Gonzales about the torture memo. Following the meeting, Goldsmith, who had rescinded the memo, resigned.
According to people familiar with the OPR report, Yoo was briefed on the report in January. Yoo is said to have informed officials at the University of California at Berkeley, where he is a tenured law professor, according to two senior law school officials.
Yoo is now a visiting law professor at Chapman University School of Law in Orange, California, where he teaches foreign relations law. I approached him on campus recently and asked him about the report’s findings but he refused to comment. Chapman University officials also declined to comment.
In a letter to faculty and students last December, Law School Dean John Eastman said “Chapman University officials have received several notes of concern about my decision to offer Professor John Yoo a distinguished visitorship at the Chapman University School of Law.”
“I would encourage those who object to Professor Yoo’s appointment here to read his scholarly work on the subject of Executive power, and in particular the memos he authored while serving in the administration,” Dean Eastman wrote Dec. 18, 2008. “You will find that Yoo’s position, while disputed, is far from ignorant or disrespectful of the Constitution.”
Dawn Johnsen, who has been tapped by President Barack Obama to head the Office of Legal Counsel, has publicly criticized the work of Yoo and other OLC officials under Bush. In a 2006 Indiana Law Journal article, she said the function of OLC should be to “provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.”
“The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action,” said Johnsen, who served in the OLC under President Bill Clinton.
In a 2007 UCLA Law Review article, Johnsen said Yoo’s Aug. 1, 2002, torture memo is “unmistakably” an “advocacy piece.”
“OLC abandoned fundamental practices of principled and balanced legal interpretation,” Johnsen wrote. “The Torture Opinion relentlessly seeks to circumvent all legal limits on the CIA’s ability to engage in torture, and it simply ignores arguments to the contrary.
“The Opinion fails, for example, to cite highly relevant precedent, regulations, and even constitutional provisions, and it misuses sources upon which it does rely. Yoo remains almost alone in continuing to assert that the Torture Opinion was ‘entirely accurate’ and not outcome driven.”