A Justice Department investigation into the conduct of senior lawyers who approved waterboarding was on the verge of completion last fall when then-Attorney General Michael Mukasey raised objections to the findings, according to an e-mail from a Justice official and two legal sources who have been briefed on the inquiry.
The e-mail was disclosed Monday by Democratic Sens. Dick Durbin and Sheldon Whitehouse following a NEWSWEEK story reporting that a draft of the report by the department's internal ethics watchdog unit, the Office of Professional Responsibility (OPR), sharply criticizes three former top lawyers at Justice who authored controversial legal memos about interrogation practices.
The OPR report has been eagerly anticipated on Capitol Hill for some time because it deals directly with one of the central issues in the contentious debate over Bush-era interrogation policy: whether a small group of senior lawyers violated professional legal standards when they concluded that waterboarding (or simulated drowning) and other "enhanced" interrogation tactics could be used by the CIA against Al Qaeda suspects without violating a federal law banning torture.
Last Oct. 1, a lawyer on Durbin's staff at the Senate Judiciary Committee e-mailed the Justice Department about the "status of OPR's investigation of DOJ attorneys who provided advice on interrogation matters," according to a letter to Marshall Jarrett, the chief of OPR, sent today by Durbin and Whitehouse.
A Justice legislative affairs official, Keith B. Nelson, e-mailed back on Oct. 16, 2008: "Heard back from OPR. Should be done in 4-5 weeks. I believe [Marshall Jarrett] will provide it to the Members."
But the report has yet to be turned over to Capitol Hill and a senior Justice Department official said last week that new Attorney General Eric Holder has not yet had a chance to review it. The NEWSWEEK story, published Feb. 14 and based on information provided by two knowledgeable sources who had been briefed on the inquiry, stated that Mukasey and his deputy, Mark Filip, strongly objected to the critical findings when they were presented with a copy of the OPR draft in the closing weeks of the Bush administration.
It could not be learned precisely what the grounds of Mukasey's objections were. (Neither he, Filip nor Mukasey's former chief of staff, responded to requests for comment.) But in several speeches before he left office, Mukasey criticized efforts to second guess the work of Justice lawyers who, he argued, were acting under "almost unimaginable" pressures in the aftermath of the Sept. 11 terror attacks.
Filip also insisted that detailed responses from the three former senior lawyers at the department's Office of Legal Counsel--Jay Bybee, John Yoo and Steven Bradbury--be included as part of the final copy of the report, one former Bush administration lawyer told NEWSWEEK. (Bybee, Yoo and Bradbury did not respond to repeated requests for comment. In addition, Miguel Estrada, a lawyer who has represented Yoo on matters relating to his service at OLC, declined comment.)
Citing information contained in the NEWSWEEK story, Durbin and Whitehouse in their letter Monday asked Jarrett to clarify the status of the report and tell them when it will be released. (Durbin also recently privately pushed David Ogden, nominee to be deputy attorney general, to make the release of the report a top priority, according to a Senate Judiciary Committee staffer who asked not to be identified talking about private discussions.)
The report, according to the senators and others, could have widespread implications. If Holder accepts the findings, the OPR report could be forwarded to state bar associations for possible disciplinary action against the lawyers. More broadly, the report would likely affect the broader debate over calls for a "truth commission" and other investigations of Bush-era policies.
Durbin and Whitehouse stated in their letter that they agreed with statements by Holder and CIA Director Leon Panetta that CIA officers who engaged in waterboarding should be able to rely "in good faith" on Justice Department legal advice. But that good faith is "undermined" when Justice Department attorneys provide legal advice so "misguided that it damages America's image around the world and the Justice Department is forced to repudiate it," the senators wrote.
"If the officials who provide such advice fail to comply with professional standards, they must be held accountable in order to maintain the faith of the intelligence community and the American people in the Justice Department," the senators stated.
Asked for comment, Justice Department spokesman Matthew Miller said Monday that "the matter is under review" and that the department will respond "appropriately" to the senators' request.