Remember those memoranda about torture that President Bush and Vice President Cheney both stressed they relied upon in deciding to torture prisoners? It looks like the Justice Department’s own ethics experts have had a look, and concluded that the memos in question are professionally incompetent—not worth the paper they’re written on.
The long expected ethics report prepared by the Justice Department’s Office of Professional Responsibility (OPR) addressing a number of memoranda crafted by John Yoo and his successor, Stephen Bradbury, was completed before the Bush team left office. The OPR report addressed the infamous torture memorandum and a number of others. The Office of Legal Counsel (OLC) memoranda of this era collectively became so infamous and drew so many formal rebukes from the organized bar and legal sources that President Obama set all OLC memoranda in certain subject matters out of force as one of his first official acts as president. Now it turns out that Attorney General Mukasey and his Federalist Society sidekick, Mark Filip, were livid about the OPR report and took steps to squelch it. Michael Isikoff reports in Newsweek:
According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo, and Bradbury did not respond to multiple requests for comment.)
But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush Administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. “The matter is under review,” said Justice spokesman Matthew Miller.
Why were Mukasey and Filip so troubled by the report? We won’t know for sure before we’ve seen it, which may still be a few weeks away. But we already know enough to venture a good guess. Mukasey repeatedly gave speeches in which he argued that no prosecutions were appropriate in cases in which administration figures—such as Bush and Cheney—relied on the OLC memos. If those memos were judged incompetent by his own ethics experts (as they already have been by ethics experts outside the Department), Mukasey’s position is going to look very foolish. In fact, Mukasey collapsed to the floor right after delivering an argument in favor of the reliance-on-OLC-memo defense. We may have just been given a reason why–it now appears that this was just about the time he learned of the OPR report that crushes that very thesis.