The movement to hold Bush-era torturers, their bosses and their lawyers criminally accountable for their crimes may be facing another setback. Reports are emerging that Justice Department investigators will recommend that the torture memo authors should not be criminally prosecuted. Instead, officials from the department’s Office of Professional Responsibility, which examines possible ethics violations by Justice Department employees, suggest the department refer “two of the three lawyers [who authored the torture memos] to state bar associations for possible disciplinary action,” according to an unnamed official interviewed by the Associated Press. “Investigators initially recommended professional sanctions against [Jay] Bybee and [John] Yoo, but not [Steven] Bradbury, according to the person familiar with the matter. That would come in the form of recommendations to state bar associations, where the most severe possible punishment is disbarment.”
As The New York Times put it, the investigators “concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted.” The report is still subject to review by Attorney General Eric Holder and can still be amended. And, as The Washington Post reports, “Former Bush administration officials are launching a behind-the-scenes lobbying campaign to urge Justice Department leaders to soften” the (already apparently very soft) report. While disbarment of any of the lawyers in question would be significant, it is by no means a replacement for a criminal prosecution.
Vince Warren, Executive Director of the Center for Constitutional Rights responded sharply to the news. “We represent people who were tortured as a result of these criminal policies: calling what was done to them a mere ‘lapse in judgment’ is outrageous,” Warren said. “Government officials broke laws and then tried to create legal justifications for breaking the law—since when do we decide whether to prosecute crimes based on political expediency?”
According to the Times:
The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency. Among the questions it is expected to consider is whether the memos reflected the lawyers’ independent judgments of the limits of the federal anti-torture statute or were skewed deliberately to justify what the C.I.A. proposed.
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The report was supposed to have been completed months ago, but was “delayed late last year, when then-Attorney General Michael Mukasey and his deputy asked investigators to allow the lawyers a chance to respond to their findings,” according to the AP. “Investigators also shared a draft copy with the CIA to review whether the findings contained any classified information… the CIA then requested to comment on the report.”
The Post also reveals that early this year before Bush left office, 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.
One of the key Senators monitoring the progress of the Justice Department report, Richard Durbin, said, “It’s time to get to the bottom of the conduct of some of the key players… . It’s a question of responsibility. In this chain of command, how far up did it go?” However, Durbin, according to the Post believes it is “premature to call for a special prosecutor or the impeachment of Bybee.” Powerful Democratic Senators, including Harry Reid and Dianne Feinstein, have called for closed-door Senate Intelligence Committee hearings. Feinstein asked Obama not to take any action for 6-8 months.
In contrast to Durbin’s remarks, in an interview Tuesday on Democracy Now!, Senator Russ Feingold said, he was “very open” to signing on to a letter from Rep. John Conyers and Jerrold Nadler calling for the appointment of a Special Prosecutor. “I want to see the letter,” he said. “That is one of the options that I agree with. I potentially agree with prosecutions. I agree with the idea of the truth commission. And I potentially would support a special prosecutor.” The CCR, ACLU and over 120 other organizations have called for the appointment of a Special Prosecutor.