Torture Memos: Inquiry Suggests No Prosecutions

Central Intelligence Agency operatives have destroyed at least two tapes documenting torture against detainees. The admission has prompted an investigation.
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May 6, 2009

Torture Memos: Inquiry Suggests No Prosecutions

By DAVID JOHNSTON and SCOTT SHANE
New York Times

WASHINGTON — An internal Justice Department inquiry has concluded that Bush administration lawyers committed serious lapses of judgment in writing secret memorandums authorizing brutal interrogations but that they should not be prosecuted, according to government officials briefed on its findings.

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask state bar associations to consider possible disciplinary action, which could include reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.

The conclusions of the 220-page draft report are not final and have not yet been approved by Attorney General Eric H. Holder Jr. The officials said that it is possible that the final report might be subject to further revision but that they did not expect major alterations in its main findings or recommendations.

The findings, growing out of an inquiry that started in 2004, would represent a stinging rebuke of the lawyers and their legal arguments.

But they would stop short of the criminal referral sought by some human rights advocates, who have suggested that the lawyers could be prosecuted as part of a criminal conspiracy to violate the anti-torture statute. President Obama has said the Justice Department would have to decide whether the lawyers who authorized the interrogation methods should face charges, while pledging that interrogators would not be investigated or prosecuted for using techniques that the lawyers said were legal.

The draft report is described as very detailed, tracing e-mail messages between the 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 were an independent judgment of the limits of the federal anti-torture statute or were deliberately skewed to justify the use of techniques proposed by the C.I.A.

At issue is the question of whether the lawyers acted ethically and competently in writing a series of Justice Department legal opinions from 2002 to 2007.

The opinions permitted the Central Intelligence Agency to use a number of methods that human rights groups and legal experts have condemned as torture, including waterboarding, wall-slamming and shackling for hours in a standing position. The opinions allowed many of these practices to be used repeatedly and in combination.

The main targets of criticism are John Yoo, Jay S. Bybee and Steven G. Bradbury, who, as senior officials of the department’s Office of Legal Counsel, were principal authors of the opinions.

It was unclear whether all three would be the subject of bar association referrals. One person who saw the report said it did not recommend bar action against Mr. Bradbury.

Mr. Bradbury, and lawyers for Mr. Yoo, now a law professor at Berkeley, and for Mr. Bybee, now a federal appeals court judge in Nevada, all declined to comment Tuesday, saying Justice Department rules require confidentiality for ethics reviews.

The work of other lawyers in the counsel’s office was also questioned in the report, the officials said, but none are believed to be the subject of disciplinary recommendations. The report reaches no conclusions about the role of lawyers at the White House or the C.I.A. because the jurisdiction of the ethics unit does not extend beyond the Justice Department.

The draft report on the interrogation opinions was completed in December and provoked controversy inside the Bush administration Justice Department. But criticism of the legal work in the memos has intensified since last month when the Obama administration disclosed one previously secret opinion from 2002, drafted mainly by Mr. Yoo and signed by Mr. Bybee, and three from 2005, signed by Mr. Bradbury, which for the first time described the coercive interrogation methods in detail.

Michael B. Mukasey, attorney general when the draft report was first completed, was said by colleagues to have been critical of its quality and upset over its scathing conclusions. He wrote a 10-page rebuttal to its findings, and, in his farewell speech to employees, warned against second-guessing the legal work of the department’s lawyers.

Several legal scholars have remarked that in approving waterboarding, the near-drowning method Mr. Obama and his aides have described as torture, the Justice Department lawyers did not cite cases in which the United States government previously prosecuted American law enforcement officials and Japanese World War II interrogators for using the procedure.

In a letter on Monday, the Justice Department advised two Democratic senators on the Judiciary committee, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, that the former department lawyers who wrote the opinions had until May 4 to submit written appeals to the findings.

The letter, written by Ronald Weich, an assistant attorney general, also said the report had been given to the C.I.A. for review and declassification, and some officials said they expected a version to be made public, probably late this month.

Mr. Durbin and Mr. Whitehouse, who have criticized the Bush administration’s interrogation policies, have repeatedly demanded the release of the report. Mr. Whitehouse is scheduled to hold a hearing on May 13, to examine issues related to the report.

The professional responsibility office first began examining the actions of the lawyers nearly five years ago. Recently, Mr. Holder named Mary Patrice Brown, a senior federal prosecutor in Washington to head the office, moving its longtime chief, H. Marshall Jarrett, to another job within the Justice Department.