Group Seeks Information on Whitewashed OPR Report

The Robert Jackson Steering Committee (RJSC) announced today that it has filed an appeal asking the Department of Justice to be more candid in its disclosures regarding the whitewashed Office of Professional Responsibility report into the lawyers who authored memos used by the Bush Administration’s Justice Department to justify torture. RJSC filed a Freedom of Information Request (FOIA) in January, seeking information related to the Department of Justice’s downgrading of the findings contained in the OPR report. DOJ supplied documents with heavy redactions, which RJSC believes were designed to insulate senior officials from criminal liability. They have submitted an appeal requesting fuller compliance with FOIA.

The 267-page OPR report about the “torture memo” authors was released in February, 2010, after a five-year investigation into the conduct of three former senior lawyers in DOJ's Office of Legal Counsel (OLC) – Professor John Yoo, now-Judge Jay Bybee, and Steven Bradbury. The report was revised to clear Yoo, Bybee, and Bradbury of any wrongdoing. An earlier draft of the report concluded that Yoo and Bybee violated their professional responsibilities in drafting the most infamous 2002 “torture memo,” but, Associate Deputy Attorney General David Margolis softened the report to conclude only that they showed “poor judgment.” Under DOJ rules, “poor judgment” does not amount to professional misconduct and therefore does not trigger a referral to state bar associations for disciplinary review or, in the case of Judge Bybee, a recommendation for an impeachment inquiry.

AFJ’s film Tortured Law explains in further detail the role that Yoo, Bybee, and Bradbury played in authorizing torture, and highlights the need for accountability.The OPR report revealed new information about the Bush Administration’s decision to condone torture, and showed the need for a full-scale investigation into what led our country to torture. OPR's investigation uncovered new evidence that begins to fill in the historical record, but the facts documented in the OPR report are just the newest pieces of a puzzle that still warrants a full investigation. Because OPR only has jurisdiction over DOJ attorneys and lacks subpoena power to compel witness cooperation or document production, OPR's review of the legal work that produced the first "torture memos" was just a first step towards accountability.

Congress should reassert its oversight role and conduct further hearings about the development of torture policy in DOJ and other government agencies. The Senate Judiciary Committee held a hearing on the OPR report in the spring, now the House should follow suit by holding a full hearing on the OPR report in which they question the authors of the "torture memos" as well as other players mentioned in the OPR report (including those such as John Ashcroft, who refused to voluntarily comply with the OPR investigators) about the interactions between DOJ, CIA, Department of Defense, and the White House in developing torture policy.

Tortured Law takes Honorable Mention at the Very Short Movies Fest!

We are pleased to announce that Alliance for Justice original film Tortured Law received an Honorable Mention at the Very Short Movies Fest. Thanks to the staff at VSM Cinema! Tortured Law should appear on http://vsmcinema.com within the month.

AFJ is proud to advocate for transparency and accountability, and delighted that VSM has recognized the importance of the issue. Help the growing call for accountability: watch Tortured Law or host a screening.

Experts Come Together to Discuss the OPR Report on the “Torture Memos”

In anticipation of the Senate Judiciary Committee's hearing on the Office of Professional Responsibility's (OPR) investigation into the "torture memos," Alliance for Justice hosted a panel of experts who could speak about the findings of the OPR report.

During her introduction, moderator Nan Aron, president of Alliance for Justice stated, “regardless of OPR’s conclusion about the lawyers’ ethical conduct, the report adds to the mounting evidence that warrants a full-scale investigation of those who ordered, designed, and justified torture. The new findings must be independently investigated, and I am delighted that tomorrow the Senate Judiciary Committee will be taking the next step toward uncovering the truth.”

Panelists David Cole, Professor of Law, Georgetown University Law Center, Michael Frisch, Ethics Counsel & Adjunct Professor of Law, Georgetown University Law Center, Scott Horton, Adjunct Faculty, Columbia Law School and Contributing Editor, Harper's Magazine, and William Yeomans Fellow in Law and Government, American University Washington College of Law discussed the findings of the OPR report, and what next steps are possible.

Bill Yeomans pointed out a gaping hole in OPR's investigation, “we know that there was extensive contact between John Yoo and the White House, including the Office of the Vice President, but we don’t yet know what was said. This gap screams out for further investigation to determine whether DOJ’s legal views on torture were shaped by pressure from the Bush White House.”

Michael Frisch, spoke about the failure of the OPR report to consider whether the authors of the torture memos had knowingly counseled their client to engage in, or assisted in, criminal conduct. “This clear standard of ethical behavior was largely ignored in the DOJ process. Notwithstanding the conclusion that the matter not be referred to bar disciplinary authorities, those authorities remain obligated to investigate these serious allegations of professional misconduct.

David Cole, author of The Torture Memos, was disturbed by the evidence of "two tracks of law in this country, one for public consumption and one secret. At every step of the way the secret law was used to subvert the public law."

Finally, Scott Horton, was adamant that OPR did not ask the right question.

“The question is not only whether an ethical violation occurred but whether a crime occurred. The OPR report does not address whether there was a conspiracy to torture under Rule 2340A.”

Watch video of the event here:

DOJ Whitewashes “Torture Memo” Ethics Report

News leaked this weekend that the five-year old Office of Professional Responsibility report about the “torture memo” authors has been downgraded to clear John Yoo, Jay Bybee, and Steven Bradbury of any wrongdoing. An earlier draft of the report concluded that Yoo and Bybee violated their professional responsibilities in drafting the most infamous 2002 “torture memo,” but, as Newsweek first reported, Associate Deputy Attorney General David Margolis has softened the report to conclude only that they showed “poor judgment.”

Under DOJ rules, “poor judgment” does not amount to professional misconduct – and therefore does not trigger a referral to state bar associations for disciplinary review or, in the case of Judge Bybee, a recommendation for an impeachment inquiry. This news confirms suspicions that the Obama DOJ has not spent the last year simply processing the OPR report draft through the normal channels of declassification review but has been modifying the report to let the “torture memo” authors off the hook.

Newsweek also reported that the report contains new facts that will raise further questions about what led the OLC lawyers to write the “torture memos” and whether the White House unduly interfered with their legal decisions. According to Newsweek:

The report, which is still going through declassification, will provide many new
details about how waterboarding was adopted and the role that top White House
officials played in the process, say two sources who have read the report but
asked for anonymity to describe a sensitive document. Two of the most
controversial sections of the 2002 memo—including one contending that the
president, as commander in chief, can override a federal law banning
torture—were not in the original draft of the memo, say the sources. But when
Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s
request for a blanket pledge not to prosecute its officers for torture, Yoo met
at the White House with David Addington, Dick Cheney’s chief counsel, and
then–White House counsel Alberto Gonzales. After that, Yoo inserted a section
about the commander in chief’s wartime powers and another saying that agency
officers accused of torturing Qaeda suspects could claim they were acting in
“self-defense” to prevent future terror attacks, the sources say. Both
legal claims have long since been rejected by Justice officials as overly broad
and unsupported by legal precedent.

The OPR report will therefore add to the mounting evidence that calls for a full-scale investigation into what led our country to torture. For years, DOJ has hidden behind the phantom OPR report as a means of accountability for Yoo, Bybee, and Bradbury. Yet, regardless of the degree of their professional misconduct, our laws require Attorney General Holder to investigate all allegations of torture and enforce our laws to the fullest extent possible. If OPR lets the “torture memo” authors off the hook, it has proven itself to be as ineffective as its critics have claimed it to be – and provides all the more reason why AG Holder should appoint a special prosecutor, who is independent from the institutional interests of DOJ, to investigate allegations of torture.