As an initial matter, PLEASE URGE SENATORS Dick DURBIN (D-Ill.) and Sheldon WHITEHOUSE (D-R.I.) TO INVITE ME TO TESTIFY when they hold a HEARING ON THIS REPORT on May 13.
Toll free Capitol Switchboard: 1-800-828-0498
Where do I begin to tell you what a sham OPR is?
According to the Justice Department's 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 pause.
OPR conducted a long-delayed, long-concealed, totally unorthodox investigation into the infamous "torture memos" written by John C. Yoo, Jay S. Bybee and Steven G. Bradbury while they worked in the Department’s Office of Legal Counsel.
First of all, why did OPR only begin its investigation a year ago, when the memos became public in June 2004? This inexplicable and inexcusable delay is unfair to both the subjects of the investigation because the passage of time erodes memories, and to the public at large 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 if the worst case scenario that is being discussed ensues—disbarment—it will not affect their careers. You don't need to have an active law license, much less be the member of a state bar, for either job.
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 to vet the investigatory report? And since when do investigators consider softening their findings based on the comments of targets? And since when do the attorneys get to appeal? 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 are 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 is not only another hypocritical departure by OPR, but, yet again, denies Americans their first glimmer of accountability for actionable crimes 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 had 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.
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.
UPDATE: You are all making a difference. Read the awesome article on this by Spencer Ackerman of the Washington Independent:
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