In Praise Of Anxiety

Michael Isikoff in Newsweek:

“An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials. H. Marshall Jarrett, chief of the department’s ethics watchdog unit, the Office of Professional Responsibility(OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos “was consistent with the professional standards that apply to Department of Justice attorneys.” 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.)”

Michael Mukasey had objections to the report, but it should be submitted to Eric Holder shortly.

“If Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action. But some former Bush officials are furious about the OPR’s initial findings and question the premise of the probe. “OPR is not competent to judge [the opinions by Justice attorneys]. They’re not constitutional scholars,” said the former Bush lawyer.”

And I suppose it’s unimaginable that they might consult with constitutional scholars in preparing the report. On reflection, it’s a mystery how the OPR ever manages to assess lawyers’ work, unless they have experts in every conceivable legal sub-field on staff. Plus, I’m sure the state bar associations are familiar with the Office of Professional Responsibility, and are, in addition, capable of reading the report for themselves. If the OPR is incompetent, that fact will probably not escape their notice. And the state bar associations should absolutely consider whether Yoo, Bybee, and Bradbury fell below minimal standards of competence and professionalism.

But this is the part that really warmed my heart:

“OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted. In a departure from the norm, Jarrett also told members of the Senate Judiciary Committee last year he would inform them of his findings and would “consider” releasing a public version. If he does, it could be the most revealing public glimpse yet at how some of the major decisions of Bush-era counterterrorism policy were made.”

Break out the popcorn.

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