By Jason Leopold
House Judiciary Committee Chairman John Conyers said Tuesday his panel will hold hearings to examine the legal framework behind Justice Department memoranda that allowed the Bush administration to implement a policy of torture.
In a statement posted on his website, Conyers said the memos, four of which were released by the Justice Department last week, “raise grave legal, ethical, and constitutional questions” and “runs counter not only to basic notions of decency, but places our own prisoners of war at risk and weakens our national security.”
“The fact that these memos were authored and approved by senior lawyers of the Department of Justice challenges the very notion that we adhere to the rule of law in this country,” Conyers said. “Critical questions remain concerning how these memos came into existence and were approved, which our committee is uniquely situated to consider.”
One of the memos authorized 10 techniques CIA interrogators could use to try and extract information from detainees, such as waterboarding and slamming a detainee’s head against a fake wall. The memos said the tactics would not violate federal and international torture laws because the methods would not be life threatening.
The Michigan Democrat said the hearings will likely be conducted just as the Justice Department’s Office of Professional Responsibility (OPR) issues a report on whether the legal work that went into the preparation of the memos violated “professional standards.” Conyers did not state when the hearings would start or who he would call to testify.
The OPR report was completed last December and was sharply critical of the legal work that granted President George W. Bush sweeping powers, including the right to abuse “war on terror” captives. But it’s release to Congress was delayed in order to give the three attorneys who were subjects of the probe an opportunity to respond to the conclusions.
In a letter to two U.S. Senators last month, the Justice Department said the changes to the report by the Office of Professional Responsibility followed comments from then-Attorney General Michael Mukasey, then-Deputy Attorney General Mark Filip and the Office of Legal Counsel, which was still run by Steven Bradbury, one of three lawyers who had been singled out for criticism in OPR’s initial draft.
“Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments [after the first draft was completed in December], and OPR revised the draft report to the extent it deemed appropriate based on those comments,” said acting Assistant Attorney General Faith Burton in a March 25 letter to Sens. Sheldon Whitehouse, D-Rhode Island, and Richard Durbin, D-Illinois, members of the Senate Judiciary Committee.
Burton also said that the final OPR report may undergo more revisions based on responses from the former OLC lawyers who were criticized and that a final version may not be released for some time, if at all. “Due to the complexity and classification level of the draft report, the review process … likely will require substantial time and effort,” Burton said.
On Monday, Whitehouse said in an interview with MSNBC’s Rachel Maddow that the report “can’t be more than a few weeks away,” and that he has “every reason to believe it will be a devastating opinion.”
Legal sources familiar with the internal debate about the draft report say OPR may have watered down the criticism of legal opinions by OLC lawyers John Yoo and Jay Bybee in 2002 and 2003 and by Bradbury, who in 2005 reinstated some of the Yoo-Bybee opinions after they had been withdrawn by Assistant Attorney General Jack Goldsmith when he headed the OLC in 2003 and 2004.
That back-and-forth over the OLC’s judgments regarding President Bush’s powers rest at the heart of the Bush administration’s defense of its “enhanced interrogation” techniques that have been widely denounced as torture, such as waterboarding which subjects a person to the panicked gag reflex of drowning and which was used on at least three “high-value” detainees.
Bush officials insist that they were acting under the guidance of the Justice Department’s Office of Legal Counsel, which advises Presidents on the scope of their constitutional powers. For the OPR report to conclude that Yoo, Bybee and Bradbury violated their professional duties as lawyers and, in effect, gave Bush pre-cooked legal opinions to do what he already wanted to do would shatter that line of defense.
In a response to Burton’s letter, Durbin and Whitehouse questioned whether Bradbury’s dual role as the acting head of the OLC and one of the criticized lawyers created a “conflict of interest” regarding revisions made to the draft in the last days of the Bush administration.
Bradbury “is reportedly a subject of the OPR investigation,” the senators wrote. “As such, it would appear to be a conflict of interest for Mr. Bradbury to review and comment on the OPR report on OLC’s behalf.”
Conyers said “if the OPR report is delayed further, we will have hearings in the near term in any event.”
Conyers has called for the creation of a “blue-ribbon” panel to investigate Bush administration “war on terror” abuses and requested that Attorney General Eric Holder appoint a special prosecutor to probe the Bush administration’s use of torture to interrogate “high-value” detainees.
On Tuesday, in a departure from statements he has made since his Jan. 20 inauguration, Obama said he was open to the idea of a 9/11-type commission to probe the Bush administration’s torture policies, but he said he was concerned “about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out critical national security operations.”
As for the possibility of prosecuting former Bush administration lawyers who drafted the memos, Obama said “that is going to be more of a decision for the attorney general within the parameters of various laws, and I don’t want to prejudge that.”
