Tuesday, May 5, 2009; 3:06 PM
Former Bush administration officials are launching a behind-the-scenes lobbying campaign to urge Justice Department leaders to soften an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics, according to two sources familiar with the efforts.
In recent days, attorneys for the subjects of the ethics probe have encouraged senior Bush administration appointees to write and phone Justice Department officials, said the sources, who spoke on condition of anonymity because the process is not complete.
A draft report of more than 200 pages, prepared in January before Bush's departure, recommends disciplinary action by state bar associations against two former department attorneys in the Office of Legal Counsel who might have committed misconduct in preparing and signing the so-called torture memos. State bar associations have the power to suspend a lawyer's license to practice or impose other penalties.
The memos offered support for waterboarding, slamming prisoners against a wall and other techniques that critics have likened to torture. The documents were drafted between 2002 and 2005.
The sweeping investigation, now in its fifth year, could shed new light on the origins of the memos. Investigators rely in part on e-mail exchanges between Justice Department lawyers and lawyers at the CIA who sought advice about the legality of interrogation practices that have since been abandoned by the Obama administration.
Two of the authors, Jay S. Bybee, now a federal appeals court judge in Nevada, and John C. Yoo, now a law professor in Southern California, faced a deadline of yesterday to respond to investigators.
Attorneys for both men did not immediately return phone calls or e-mail messages seeking comment on the reports. An e-mail to Yoo and to a court representative for Bybee also received no response. The attorneys for the men, Maureen Mahoney and Miguel Estrada, had been trying to garner support for their clients by contacting former senior Justice Department officials to prevail upon their successors in the Obama administration, sources said.
The legal analysis on interrogation prepared by a third former chief of the Office of Legal Counsel, Steven G. Bradbury, also was a subject of the ethics probe. But in an early draft, investigators did not make disciplinary recommendations about Bradbury. Before they left office this year, then-Attorney General Michael B. Mukasey and then-Deputy Attorney General Mark Filip wrote a 14-page letter to counterbalance the draft report. They described the context surrounding the origins of the memos, which were written at a time when government officials feared another terrorist strike on American soil.
Both Mukasey and Filip were dissatisfied with the quality of the legal analysis in the wide-ranging draft report, sources said. Among other things, the draft report cited lengthy passages from a 2004 CIA inspector general investigation and cast doubt on the effectiveness of the questioning techniques, which sources characterized as far afield from the narrow legal questions surrounding the lawyers' activities. The letter from Mukasey and Filip has not been publicly released, but it may emerge when the investigative report is issued.
Interest groups, including the American Civil Liberties Union, have sued to gain access to the CIA inspector general report and other documents dealing with detainee treatment.
Late Monday evening, Assistant Attorney General Ronald Weich wrote senior congressional Democrats to offer an update about the status of the ethics investigation, which is being conducted by the department's Office of Professional Responsibility. Weich told Sens. Richard Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) that Attorney General Eric H. Holder Jr. and Deputy Attorney General David W. Ogden "will have access to whatever information they need to evaluate the final report and make determinations about appropriate next steps."
Authorities did not signal in the letter when or in what form the report would be released. They have shared their findings with the CIA and asked for the agency's comments, the letter said. The biggest holdup to release has been the fact that the content of the interrogation memos had been classified, but the documents were released last month by the Justice Department. Sources said the highly anticipated report could emerge as soon as this summer.
Any disciplinary findings about the former Justice Department attorneys are likely to add fuel to calls within Congress and among left-leaning interest groups for criminal prosecutions of Bush administration officials who authorized the interrogations and for an independent congressional inquiry into the origins of the practices.
Legal experts on both sides of the political aisle have cast doubt on the likelihood of wide-scale criminal probes, but neither President Obama nor Holder has ruled out investigations of those who might have gone beyond the Justice Department's legal advice.
The Office of Professional Responsibility, which has been conducting the investigation, itself has been a focus of criticism from defense lawyers and judges, who say it moves slowly and operates with too much secrecy. Last month Attorney General Holder transferred its longtime leader, H. Marshall Jarrett, to another senior post and replaced him with federal prosecutor Mary Patrice Brown. The report on Yoo, Bybee and Bradbury is now in her court, department sources said.