No Comment — August 24, 2009, 9:37 am

What To Look For Today

Today the Justice Department is required to release the “Rosetta Stone” of the torture issue, the massive report on an internal investigation conducted by John L. Helgerson. The release has already been delayed four times—delays resulting from wrangling between Justice Department and CIA officials over exactly which passages could be disclosed. The CIA wanted to keep the lid on the report, but the Justice Department pressed to release materials about which the legal rationale for secrecy has disappeared in light of decisions taken in the Obama White House to terminate the black site system and outlaw techniques used in the Bush-era torture program. It now appears likely that passages of the CIA report bearing directly on the Attorney General’s decision to appoint a special prosecutor will be released.

Newsweek’s Mike Isikoff and Mark Hosenball give us a preview in a piece that appeared Friday evening:

the report describes how one detainee, suspected USS Cole bomber Abd al-Rahim al-Nashiri, was threatened with a gun and a power drill during the course of CIA interrogation. According to the sources, who like others quoted in this article asked not to be named while discussing sensitive information, Nashiri’s interrogators brandished the gun in an effort to convince him that he was going to be shot. Interrogators also turned on a power drill and held it near him. “The purpose was to scare him into giving [information] up,” said one of the sources. A federal law banning the use of torture expressly forbids threatening a detainee with “imminent death.”

Of course, Jay Bybee and John Yoo wrote their memos in a manner that appears clearly calculated to wriggle around the “threat of imminent death” prohibition, suggesting that conduct which was designed only to provoke psychosis might still be okay. But the Newsweek disclosure seems to set the stage for a further investigation by the Justice Department focusing, as long expected, on the gaps between Office of Legal Counsel guidance and actual practices (which is a major focus of the Helgerson report).

What to look for? If the passages of the report describing in detail the practices used and comparing them to the OLC guidance are released, that would be significant. It would effectively set the stage for the appointment of a special prosecutor—and indeed, it looks to me that the Justice Department is now trying to build support for such a decision.

But in addition to the CIA inspector general’s report, another major document has been on hold for some time: the report of the department’s ethics office, the Office of Professional Responsibility (OPR). Now, its disclosure is another major issue. The New York Times reports this morning that OPR is advising Holder to “reopen nearly a dozen prisoner-abuse cases” based on its internal review of the torture memoranda and the process that led to their issuance.

This formulation suggests that these cases were investigated and dealt with by the Justice Department under Bush–but that plainly is not correct. The cases were funneled into the U.S. attorney’s office for the Eastern District of Virginia, which served as a sort of “dead letter office” for politically sensitive cases on which the Bush team expected nothing to happen. And nothing did happen. The OPR report would set the stage for appointment of a special prosecutor to look at these cases. As a result of the passage of time and the failure to undertake an investigation while evidence is fresh, it will now be much more difficult to build a case for charges, but an effort will be made. Still, the real issue is whether the OPR report itself will be made public.

The OPR’s final judgment about Yoo, Bybee and Bradbury frankly isn’t very interesting. As the American Bar Association Journal notes in a current article, OPR has a long established record of sweeping serious ethics violations involving Justice Department lawyers under the carpet. It’s unlikely that they will break with this sad record even in a high-profile matter like this. But the disclosure of underlying communications could be very important in establishing why the memos were written, what function they served, and whether they really do reflect lawyers giving their best legal advice to a client. Remember that Jay Bybee had asked for a judgeship and was told by Alberto Gonzales that he needed to do something for the White House first. There is a rather tawdry appearance of quid pro quo about this already, and the communications may make the whole setting much clearer.

Release of the entire OPR report is critical. If it is not released, or released with key passages blacked out, that will suggest that the Attorney General wants to protect Justice Department figures from scrutiny. The public would be correct to cry foul about this and any other efforts to deflect attention from the Justice Department’s own role in the wrongdoing, which was enormous.

The disclosures made at the beginning of the week will provide a solid indication of how we can expect Eric Holder to act. Most likely he will be exercising discretion to disclose facts and information that reveal whatever conduct he has decided to investigate. That’s sensible enough. But we shouldn’t allow this to distract us from what he’s chosen to keep secret. That will be even more revealing.

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