This is not a call-out, it's a clarification. LarsThorwald has a diary that's #1 on the Recommended List, which it should be. I agree with his analysis of President Obama's speech (and appreciate him crediting me and other Kossacks with forcing the issue of torture prosecutions). I do, however, disagree with him about the Justice Department's Office of Professional Responsibility. Maybe its recent change in leadership (a few weeks ago) will help, but it has not sought to undo the extensive damage it has caused to people's lives and careers. Ronald Weich recently sent Senators Durbin and Whitehouse an incredibly misleading, whether deliberately or mistakenly, letter about the operations of OPR. It is described (and linked) in Spencer Ackerman's aptly-titled article, "One for Them, Another Law for Us" in The Washington Independent here: http://attackerman.firedoglake.com/...
The long-awaited, long-delayed, and tinkered-with report by the Justice Department’s Office of Professional Responsibility’s (OPR) into the infamous "torture memos" appears on the verge of release The memos at issue were authored by John C. Yoo, Jay S. Bybee and Steven Bradbury while they worked in the Department’s Office of Legal Counsel.
According to its website, OPR’s mission is to "investigat[e] allegations of misconduct involving Department attorneys that relate to the exercise of their authority to . . . provide legal advice." But there are a lot of irregularities in how OPR has handled this investigation that should give lawmakers, law enforcers and the public pause.
First of all, why has it taken OPR five years to do its report if the point is to get dangerous lawyers out of the Justice Department and legal profession? This inexplicable and inexcusable delay is unfair to both the subjects of the investigation because the passage of time erodes memories, and the public because the consequences of any wrongdoing are diminished. John Yoo now has tenure at Berkeley law and Jay Bybee now has a lifetime appointment as a federal judge. Even the worst case scenario that is being discussed ensues—disbarment—it will not affect their careers. You don’t need a law license to teach law or be a judge.
Second, why did former Attorney General Michael Mukasey delay the release of the report, a draft of which was completed in November? Apparently, because Mukasey and his deputy, Mark Filip, wanted the report to include detailed responses from the subject attorneys. Since when are the targets of an OPR investigation allowed the vet the investigatory report? And since when do investigators consider softening their findings based on the comments of targets? And since when are the former department lawyers allowed to submit written appeals to the findings? Never.
According to OPR’s own policies and procedures, "[A]n attorney alleged to have engaged in misconduct is interviewed" and given an opportunity "to review the interview transcript and to provide a supplemental written response and additional documents" as part of the investigation, not afterward. In fact, it is only if OPR wants to publicly disclose its findings that an affected attorney is given an opportunity to object, and then only on the grounds of privacy, not substance. The post-investigative special treatment in this case is more than an anomaly. It’s a blatant double standard.
Third, OPR can refer cases for criminal investigation and/or to bar associations for potential disciplinary action. I’m baffled why criminal referrals would be off the table. I was referred for actions far less severe (any many would argue, not misconduct at all) by blowing the whistle on discovery abuses in a terrorism prosecution. Foregoing criminal referrals would not only be another hypocritical departure by OPR, but would deny Americans their first glimmer of accountability for some of the most controversial policies emanating from the Bush administration.
As the former Justice Department ethics advisor in the case of "American Taliban" John Walker Lindh, I blew the whistle when my advice to provide him counsel was disregarded and evidence of that advice "disappeared" in contravention of a federal court order. Contrary to OPR’s own policies, it forwarded my case to the state bars in which I’m licensed absent a finding of professional misconduct, much less a finding of intentional misconduct or reckless disregard of an applicable standard or obligation—the benchmark that OPR uses.. Instead, OPR referred me to the bar disciplinary authorities for "possible misconduct." Moreover, I was referred based on a secret report to which I did not have access. Finally, I was referred for conduct I engaged in as a private citizen, not as a public servant, after I left the employ of the Justice Department.
Although the Maryland Bar dismissed the charges against me years ago, my referral to the D.C. Bar (the same Bar to which Yoo, Bybee and Bradbury would be referred) is still pending after more than five years. Politically-motivated treatment by the D.C. Bar, however, is another story about which a number of scholars have written.
The bottom line is that I am the only Justice Department attorney to be referred to bar disciplinary authorities for advice I gave in a torture case—and my advice was to permit a U.S. citizen his rights.
It should comes as no surprise that last month, Judge Emmet G. Sullivan took the extraordinary step of naming a special prosecutor to investigate the government lawyers who botched the case of former Senator Ted Stevens of Alaska. Ordinarily, a federal judge would refer the case to OPR. Judge Sullivan’s act was a clear vote of no confidence in that office.
It’s a good sign that within 48 hours of Sullivan’s admonishment, Attorney General Eric H. Holder Jr. appointed Mary Patrice Brown, a longtime and well-respected career prosecutor in D.C., to lead OPR. If OPR wants to live up to its lofty mission of ensuring "that Department of Justice attorneys perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency," it can start with itself.