DOJ Should Make All Records Public in Probe of Interrogation Memos

Saturday, May 9, 2009

LAWYERS IN the Justice Department gave the Bush administration legal cover to use harsh interrogation techniques, including waterboarding. There is little dispute that some of the legal work was sloppy or overbroad, including breathtaking assertions about the president's powers; in fact, some memos were retracted or revised by Bush administration officials who took office after the memos were in effect. Now there is an intense debate about whether the lawyers responsible for the original memos should be stripped of their licenses for providing faulty advice or for tailoring their recommendations to bless Bush administration acts they knew or should have known were questionable, if not illegal.

The Justice Department's Office of Professional Responsibility (OPR) is putting the finishing touches on a report that is said to focus extensively on the work of former Bush administration lawyers Jay S. Bybee, now a federal appeals judge, and John C. Yoo, now a professor of law. Both men worked in the Office of Legal Counsel, which provides the executive branch with binding legal interpretations on a wide array of matters; both played key roles in crafting or signing off on the so-called torture memos.

Investigations of this type are usually kept secret unless and until the investigating entity determines that wrongdoing has occurred. There's a certain logic and decency to this: Mere news that someone is under investigation is often enough to tarnish that person's reputation -- even if charges ultimately are not brought. Yet the existence of the investigation and many details of the OPR report have already found their way into the public arena. For example, The Post and other news outlets have reported that the OPR will recommend that Judge Bybee and Mr. Yoo be referred to their respective bar associations for possible sanctions.

The best way to proceed -- both to ensure fairness and to fulfill the strong and legitimate public need to know how questionable policies and legal opinions came into being -- is to make all material relating to this investigation public, regardless of the Justice Department's findings. Documents that should be released include the full OPR report, all submissions by the subjects of the probe, and the letter written by former attorney general Michael B. Mukasey and former deputy attorney general Mark R. Filip that criticized the draft report.

We disagree profoundly with the Bush administration's decisions to employ waterboarding and other harsh methods -- not only because of their dubious legality but also because their use is immoral and damaging to the United States' standing in the world. We have also taken issue with many of the extreme assertions contained in the Office of Legal Counsel memos. But a decision to punish former Bush administration officials must be made on a thorough and fair rendering of facts -- what did the lawyers do, and why -- and not on the basis of policy disagreements. After all, a lawyer could act in "good faith" in rendering advice, thus meeting ethical and legal obligations, and still be guilty of exercising bad judgment. Disclosure of the full record on this matter is necessary to give the public confidence that justice has been done.

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