DOJ to Create New Professional Misconduct Review Unit

Attorney General Eric Holder issued a statement yesterday announcing the creation of a new Professional Misconduct Review Unit within the Department of Justice. The Unit will be tasked with handling DOJ attorney disciplinary actions that result from investigations by the Office of Professional Responsibility (OPR). Holder’s stated goal in creating the Unit is to ensure “consistent, fair, and timely resolution” of allegations of misconduct – a laudable standard.

Had this Unit been in place during DOJ’s investigation into the architects of the torture memos, we wonder if the outcome would have been different.

Following the conclusion of a five-year investigation by OPR into the authors of the torture memos, David Margolis, a career attorney with DOJ, was allowed to intervene and interfere with the OPR report’s conclusions. The OPR report concluded that John Yoo and Jay Bybee recklessly violated two rules of professional conduct, triggering a mandatory referral to the attorneys’ state bar associations for potential disciplinary action. But before the final report was released in February 2010, Margolis downgraded the findings and determined that Yoo and Bybee had only exercised “poor judgment” – not professional misconduct. As a result, more than eight years after the torture memos were written, the lawyers who crafted a scheme to torture people in U.S. custody have still not been held accountable for their actions.

Tortured Law a Finalist at the Humboldt Film Festival!

We are proud to announce that Alliance for Justice’s short documentary Tortured Law has been selected as a finalist at the Humboldt Film Festival! Our thanks to the dedicated organizers from the Humboldt Film Festival, the oldest student-run film festival in the world.

Alliance for Justice is proud to advocate for accountability for those who crafted US torture policy, and excited to share this crucial issue with the Humboldt audience. Add your voice to the call for accountability: sign our petition to investigate the torture memos, and to investigate the emails missing from the OPR report.

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:

OPR Report on “Torture Memos” Released By House Judiciary

In classic DC fashion, the report on the authors of the “torture memos” was released Friday night, buried under headlines about Tiger Woods. While the Department of Justice sent the Office of Professional Responsibility (OPR) report to Congress, it was the House Judiciary Committee Chair John Conyers (D-MI) who publicly released not only the final OPR report, but also the first and second drafts of the report and the responses from Yoo and Bybee.

In contrast to most peoples’ perception of Washington, Congress can move quickly when it wants to: by 6pm, less than an hour after the report’s release, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) announced that his panel will hold a hearing on the report next Friday morning. Leahy also called for Judge Bybee’s resignation.

“I have said before that if the Judiciary Committee, and the Senate, knew of
Judge Bybee’s role in creating these policies, he would have never been
confirmed to a lifetime appointment to the federal bench. The right thing to do
would be for him to resign from this lifetime appointment.”

The long-awaited report is the product of a five-year investigation by OPR, and the materials released by Conyers number more than 500 pages. We will be reading and analyzing the different drafts of the report and providing more in-depth analysis as we know more.

You can read the released documents here:
Memorandum for the Attorney General
OPR Final Report
OPR 1st Draft Report
OPR 2nd Draft Report
Yoo Response to OPR 2nd Draft
Yoo Response to OPR Final Draft
Bybee Response to OPR 2nd Draft
Bybee Response to OPR Final Draft

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.

FOIA Request Filed For the OPR Report

Today, members of the Robert Jackson Steering Committee (including Marjorie Cohn, a law Professor at Thomas Jefferson School of Law featured in our film, Tortured Law) filed a request under the Freedom of Information Act requesting the report from the Department of Justice’s Office of Professional Responsibility (OPR) on the Office of Legal Counsel lawyers who authored the “torture memos.” Release of the report has been repeatedly delayed for over a year, and most recently Attorney General Holder promised in November to release it “by the end of the month.” The end of November has come and gone and the report has still not been released.

In addition to requesting the release of the OPR Report, the FOIA request submitted today asks for the following sets of documents:

1.The long-overdue ethics report of the Office of Professional Responsibility (OPR) regarding the performance of Bush administration lawyers in the Office of Legal Counsel (OLC) from 2002-2007. The Attorney General last promised to release this report by the end of November, 2009, and it still has not been released.
2. The first OPR ethics report on the performance of Bush administration lawyers in the OLC, completed in December, 2008.
3. Former Attorney General Michael Mukasey's 10-page rebuttal of the December, 2008 report, referenced in The New York Times of May 6, 2009.
4. A copy of OPR regulations regarding settled procedure on conducting a misconduct investigation and producing a report.
5. A copy of any OPR regulations that allow the subjects of the investigation to a) read the final report, b) make changes to the report, and c) allow the Attorney General to rebut the report.
6. Copies of all written warnings from 2001 on from veteran members of the Survival, Evasion, Resistance and Escape (SERE) training program to the Department of Justice, including the OLC, stating that SERE methods of interrogation on detainees were ineffective in eliciting the truth and designed more to elicit false confessions.
7. Copies of all communications from military and national security lawyers and professionals to the Department of Justice, including the Office of Legal Counsel, objecting to the form of interrogation methods proposed by the CIA and adopted by the Bush White House and the OLC lawyers in 2002.
8. Given John Yoo's statement on p 15 of the New York Times Magazine of January 3, 2010, that "if there's a conflict between the president and the Congress, then you have to pick one or the other," we also request any documents shedding light on whom an OLC lawyer is supposed to 'represent' in rendering a legal opinion: the President, Congress, the Constitution, or the entire framework of domestic and international law?

This FOIA request is a good step. We hope it brings us closer to the accountability for torture that America needs.

AG Holder Says “Torture Memos” Report to be Released This Month

After thousands signed petitions from Alliance for Justice and CREDO Action, and many made personal calls to the Justice Department, Attorney General Eric Holder said today that the report on the “torture memos” will be released by the end of this month.

“I think this is a matter of great public interest, the whole question of the OPR report,” Holder said. “The report is completed. It is being reviewed now and it is in its last stages, there is a career prosecutor who has to review the report. We expect that that process should be done by the end of the month and at that point the report should be issued.”

Holder was asked about the status of the report by Senator Sheldon Whitehouse (D-RI) at an oversight hearing of the Senate Judiciary Committee this morning. A video of his statement is available on Talking Points Memo.

More than 10,000 people have signed petitions by AFJ and Credo Action calling for release of the report on the “torture memos.” Last week’s phone calls to the Attorney General asked him to expand his investigation to all responsible for U.S. torture, including the lawyers who authored the infamous “torture memos.”

“Releasing the OPR report is the first step towards accountability for those who authorized torture. We are pleased the Attorney General is bringing these facts to light,” said Nan Aron, President, Alliance for Justice.

In Holder’s first oversight hearing in June, he was asked when the report by the Justice Department’s Office of Professional Responsibility (OPR) on the conduct of the lawyers who authorized torture would be released. He said that the five-year investigation of the "torture memos" was close to an end and that OPR's report would be ready in a "matter of weeks." When asked again on October 8, Holder said the report was still waiting for comments from some of the lawyers involved.

The legal cover for torture was contained in a series of memos drafted by lawyers in the Department of Justice's Office of Legal Counsel, beginning in 2002. The Office of Professional Responsibility (OPR) began an inquiry in 2004 into the conduct of the DOJ lawyers. In January 2009, at the end of the Bush administration, news leaked that the report on this inquiry had been drafted, but it still has not been released.