Justice Probes Authors Of Waterboarding Memos

By Dan Eggen
Washington Post Staff Writer
Saturday, February 23, 2008

An internal watchdog office at the Justice Department is investigating whether Bush administration lawyers violated professional standards by issuing legal opinions that authorized the CIA to use waterboarding and other harsh interrogation techniques, officials confirmed yesterday.

H. Marshall Jarrett, counsel for the Office of Professional Responsibility, wrote in a letter to Democratic lawmakers that his office is investigating the "circumstances surrounding" Justice opinions that established a legal basis for the CIA's interrogation program, including a now-infamous memo from August 2002 that narrowly defined torture and was later rescinded by the department.

"Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys," Jarrett wrote.

This is the second publicly disclosed Justice Department investigation related to the CIA's use of waterboarding, a type of simulated drowning that is considered torture by most human rights groups and legal scholars. Jarrett's inquiry got underway in 2004, but was not confirmed publicly until now, officials said.

In January, Attorney General Michael B. Mukasey assigned a special U.S. attorney to investigate whether CIA officials committed crimes by destroying interrogation videotapes of two high-level al-Qaeda detainees, including one who was waterboarded. But Mukasey has rebuffed demands from Congress to investigate the interrogations themselves, saying officials were acting under legal advice from the Justice Department.

Justice spokesman Peter A. Carr said in a statement that the existence of an OPR investigation "in no way suggests that those who rely on the Department's advice should be subjected to a criminal investigation."

OPR is also investigating whether Justice lawyers followed professional standards in helping to authorize a warrantless surveillance program by the National Security Agency. In addition, the office is part of a probe of the scandals surrounding the firings of nine U.S. attorneys in 2006, which led to the resignation of Attorney General Alberto R. Gonzales last fall.

The results of OPR investigations are usually kept confidential because they focus on allegations of professional misconduct or other personnel issues. But in his letter Monday to Sens. Richard J. Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.), Jarrett wrote that investigators will consider releasing a "non-classified summary" at the conclusion of the investigation "because of the significant public interest in this matter."

Durbin said in a statement: "A hard look at DOJ officials who approved waterboarding as a lawful interrogation technique is long overdue." He added that officials involved "must be held accountable for their actions."

The August 2002 memo was addressed to Gonzales, then the White House counsel, and was signed by Jay S. Bybee, then the head of the Office of Legal Counsel and now a federal appeals court judge in San Francisco. The memo's main writer was one of Bybee's deputies, John Yoo, now a law professor at the University of California at Berkeley.

The memo was formally withdrawn in 2004 by Jack L. Goldsmith, who succeeded Bybee as head of OLC. Goldsmith concluded that legal opinions on the NSA program, torture and other issues were fundamentally flawed and told the Senate last year that the memos created "a legal mess."

Two other Justice memos that are known to have dealt with waterboarding and harsh tactics are still-secret opinions penned in 2005 by Steven G. Bradbury, who is currently the acting OLC chief. Administration officials have said those opinions authorized a number of techniques, including waterboarding, sleep deprivation and head-slapping.

The Office of Professional Responsibility has the power to recommend punishments for current employees or to refer the most serious cases, involving intentional misconduct or reckless behavior by current or former Justice lawyers, to state bars. The office can also compile evidence of criminal wrongdoing for referral to federal prosecutors.

Debra L. Roth, a Washington lawyer who represents federal employees in internal investigations, said the ramifications of an OPR inquiry can be very serious, particularly if the office refers a situation to one of the state bars that license lawyers.

"It's very serious to have a bar referral from the Department of Justice, particularly if they found you intentionally violated rules of misconduct or acted with reckless disregard," Roth said. "If a lawyer loses their license to practice law, you've lost your access to your livelihood."

The CIA's "enhanced interrogation program" used a variety of coercive techniques on suspected al-Qaeda associates after the Sept. 11, 2001, attacks. CIA Director Michael V. Hayden acknowledged this month that, in 2002 and 2003, three suspects had been subjected to waterboarding, which involves strapping a prisoner to a board or table with his feet higher than his head and pouring or dripping water on cloth or cellophane over the nose.

Human rights advocates and legal scholars say the practice constitutes torture under U.S. laws and international treaties, but Bush administration officials say it was used under careful standards and controls and was not torture under U.S. laws at the time.

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