Inching toward the Truth

Newsweek's Michael Isikoff reports on an internal DOJ investigation (initiated by the Bush administration) on the Bybee/Yoo memos.

H. Marshall Jarrett, chief of the department's ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys." According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. "The matter is under review," said Justice spokesman Matthew Miller.

If Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action. But some former Bush officials are furious about the OPR's initial findings and question the premise of the probe. "OPR is not competent to judge [the opinions by Justice attorneys]. They're not constitutional scholars," said the former Bush lawyer. Mukasey, in speeches before he left, decried the second-guessing of Justice lawyers who, acting under "almost unimaginable pressure" after 9/11, offered "their best judgment of what the law required."

Three things that are interesting in this report, two that are not terribly signficant, but one that has some implications for further action Holder's DOJ could take. First, there's now "official" confirmation of what all of the shrill bloggers and civil rights activists have known all along--the Yoo/Bybee's memos were crap, poorly argued and not "consistent with the professional standards that apply to DOJ attorneys. Second, former Bush officials are actually arguing that the OPR--the professionals who are tasked with reviewing DOJ actions--isn't qualifed to do its job. Somehow I don't think that argument is going to sway Holder.

But the third thing that is interesting, and potentially significant, is this:

One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted. In a departure from the norm, Jarrett also told members of the Senate Judiciary Committee last year he would inform them of his findings and would "consider" releasing a public version.

It's the process, baby. The question of "how the memos were crafted" is the key question from a political standpoint, particularly for a Senate Judiciary Committee that is primed to investigate. Looking at the e-mails of the back and forth of the memos in process, leading to who might have been pressuring for the conclusions, will be important information for Leahy's committee.

As an aside, anyone want to take best on whether that e-mail trail leads to David Addington?