Several news outlets, including the NYT, have reported that the Justice Department's inquiry into the BushCo lawyers who wrote the torture memos does not recommend criminal prosecution, but instead reprimands or possibly disbarment. This comes as no great surprise: it was undertaken by the Bush DOJ. When it was completed in December, Mukasey was apparently enraged by its conclusions and insisted on having it held back from release and sent to Yoo and Bybee for their response. While all of this was unfolding, Bradbury was head of the OLC while it was being prepared, it isn't a huge surprise that it doesn't recommend prosecutions.
As if the politicization of this document thus far wasn't enough, we find out from WaPo that there's been a concerted effort by former Bush officials to pressure Obama's DOJ to "soften" the ethics report.
Representatives for John C. Yoo and Jay S. Bybee, subjects of the ethics probe, have encouraged former Justice Department and White House officials to contact new officials at the department to point out the troubling precedent of imposing sanctions on legal advisers, said the sources, who spoke on the condition of anonymity because the process is not complete.
The effort began in recent weeks, the sources said, and it could not be determined how many former officials had reached out to their new counterparts.
A draft report of more than 200 pages, prepared in January before Bush's departure, recommends disciplinary action, rather than criminal prosecution, by state bar associations against Yoo and Bybee, former attorneys in the department's Office of Legal Counsel, for their work in preparing and signing the interrogation memos. State bar associations have the power to suspend a lawyer's license to practice or impose other penalties.
So we have a number of strikes against the report before it even comes out. Add in yet another: for some reason it was also shared with the CIA for "substantive" comment, according to the letter the DOJ sent Senators Durbin and Whitehouse regarding the report. Daphne Eviatar has the Senators' response:
While we are disappointed to learn that DOJ allowed Stephen Bradbury to participate in OLC’s ‘review and response’ to the report - despite the fact that he played a leading role in drafting the memos under review - we look forward to the prompt completion of this report, and we are pleased by the strong implication in the letter that former OPR chief Marshall Jarrett’s pledge to release the report will be honored.
We will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter.
The report is obviously going to be greeted with skepticism on the Hill, as it should be. Remember, the recommendations of this report are just that: recommendations. They are not binding on Eric Holder or on anyone else. I agree with David that disbarment is not enough, but regardless of this recommendation from the OPR, disbarment isn't the only option. The recommendations of this ethics panel isn't the final word on prosecutions. On this point, see Scott Horton, as well.
The New York Times reports that the OPR report recommends against criminal charges, but Justice sources with whom I spoke disputed the accuracy of the Times report on this point. They noted that while it might be literally true that the OPR report did not recommend criminal action, that follows from OPR’s jurisdiction, which covers only ethics matters and a fairly narrow area of criminal law directly associated with professional ethics. The ethics office would therefore not be expected to make recommendations about criminal charges. They note that the OPR report’s factual conclusions and recommendations will be passed to Attorney General Holder and will be weighed by him in connection with pending requests for a criminal investigation.... If he elects to open a criminal investigation, then the OPR report and underlying investigative materials would be provided to the prosecutor handling the matter who would be free to pursue the case as appropriate—possibly including the development of criminal charges involving the OLC lawyers. If the factual account is as described, it will add to the pressure on Holder to appoint a special counsel to address the matter.
In my mind, what's more important than the report's recommendations is the contents. I expect the contents are also more important in the opinion of Senators Durbin and Whitehouse. What's going to be important in his 220 page report is the contents; the e-mail exchanges between the lawyers and White House officials, the lawyers and the CIA, the e-mail exchanges between the lawyers themselves.
The contents are enough to for the OPR, already heavily weighted in favor of Yoo, Bybee, and Bradbury, to be what the NYT describes as "scathing" rebuke of the lawyers. Those contents, including the evidence in the form of those e-mails, are likely to provide added weight to the calls of these Senators for possible criminal investigation.
Add one more Senator to that list. Here's Chris Dodd:
"But if you are going to make the decision to release the documents, I presume every one of us here would the have a follow up question, which is: Well, what are you going to do about it? And if the answer is nothing, we are just going to release the documents.... Some of us in the room would say, 'Well wait a minute, you have a problem. If you are going to release them then you are going to have to answer the next question, what are you going to do with them?'"
"I know people don't want to go back, because it is uncomfortable. The president has said I want to look forward," he said. "You know my father was a prosecutor at the Nuremberg trials. They were not a popular idea.... Nuremberg became a symbol of who we were. Even these thugs got a lawyer, even these thugs got a trial despite their acts. And so we became a symbol of jurisprudence and the rule of law."
"Not to prosecute people or pursue them when these acts occur is, in a sense, to invite them again," Dodd concluded.