Senators Seek Ethics Findings
Investigation Focuses on Opinions Issued in Bush Administration on Torture

By Carrie Johnson
Washington Post Staff Writer
Tuesday, February 17, 2009

Two Senate Democrats urged the Justice Department yesterday to quickly release its findings of an ethics investigation into legal opinions under President George W. Bush that paved the way for waterboarding prisoners and other harsh interrogation practices.

Senate Majority Whip Richard J. Durbin (Ill.) and Sheldon Whitehouse (R.I.) are demanding an update on the probe by the department's Office of Professional Responsibility, which for more than a year has been examining whether the lawyers who prepared the memos followed professional standards.

At issue are opinions issued by John C. Yoo and Jay S. Bybee while they worked in Justice's Office of Legal Counsel, a once-obscure operation that advises the government's executive branch.

An August 2002 opinion they drafted narrowed the definition of torture, stating that U.S. law against torture "prohibits only the worst forms of cruel, inhuman or degrading treatment" and therefore permits many others.

Another Yoo memo, written in March 2003, suggested that the president's authority as commander in chief meant that those acting at his direction would be immune from prosecution for torture.

The Yoo and Bybee documents attracted intense interest because they provided a defense for intelligence agents who used simulated drowning and sleep deprivation against terror suspects.

Yoo is now a law professor at the University of California at Berkeley. Bybee was named by Bush to a seat on the U.S. Court of Appeals for the 9th Circuit. Since leaving the Justice Department, both men have been frequent targets of human rights protesters.

The 2002 memo, known as the "torture memo," was later withdrawn after successors in the office denounced its analysis as shoddy. Interrogators ultimately used enhanced questioning tactics approved by government lawyers on nearly three dozen suspects, former vice president Richard B. Cheney has told reporters. Bush Attorney General Michael B. Mukasey acknowledged to lawmakers last year that the 2002 memo had been a "mistake," but he discouraged the pursuit of investigations or other sanctions against the lawyers for their work on national security issues.

Two sources briefed on a draft of the report said there is a strong likelihood that its findings will be shared with state legal disciplinary authorities, who could launch their own investigation into whether the lawyers who prepared the memos abided by their professional responsibilities.

The effort began as a way to examine memos that Justice withdrew, but it widened to include all interrogation documents. In that vein, also mentioned in the draft report is Steven G. Bradbury, an official in the Office of Legal Counsel who departed after President Obama took office this year. Authorities did not make disciplinary recommendations for Bradbury, the sources said.

Durbin and Whitehouse spoke out after hearing complaints that the report may have fallen victim to foot-dragging by former Justice Department leaders who questioned its conclusions and its fairness. Memos issued by the OLC have been a frequent political pressure point. During the presidential transition, Bush officials refused to turn over the documents, prompting a high-level meeting between Fred Fielding, White House counsel for Bush, and Gregory B. Craig, who has become White House counsel for Obama. House and Senate Democrats continue to insist that the memos be released to the public.

Matthew Miller, a spokesman for new Attorney General Eric H. Holder Jr., said that "the matter is under review" but declined to comment further yesterday about whether Holder would endorse the investigators' conclusions. Friction surrounding investigators' draft report was first reported by Newsweek online over the weekend.

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