For more than four years, the Justice Department’s Office of Professional Responsibility has been investigating the origins of an Aug. 1, 2002 memo that provided the Bush administration with the legal guidance to authorize interrogators to use brutal tactics against suspected terrorists at Guantanamo Bay.
While it’s unclear whether the investigations will lead to recommendations that individuals under scrutiny be prosecuted, the OPR investigation into a torture memo drafted by the DOJ’s Office of Legal Counsel is likely to recommend that the memo’s authors, Jay Bybee and John Yoo, be rebuked for the way in which they interpreted a law that formed the basis of the memo, said people involved in the probe, which is being conducted by the agency’s director H. Marshall Jarrett.
Peter Carr, the acting director of the DOJ’s Office of Public Affairs said in an e-mail the OPR “investigation is ongoing.”
Bybee was the assistant attorney general at the OLC. He is now a federal judge on the United States Court of Appeals for the Ninth Circuit. Yoo was Bybee’s deputy. He is now a law professor at the University of California at Berkeley. Yoo was the principal author of the Aug. 1, 2002 memo and Bybee signed it. It was addressed to Alberto Gonzales, who was the White House counsel at the time.
The OPR investigation into the Aug. 1, 2002 torture memo was launched in late 2004 after the Abu Ghraib prison abuses were documented. Under Gonzales, the OPR has met some resistance in its attempt to obtain documents and interview officials, people familiar with the probe said, in explaining why the investigation is now in its fourth year.
In a letter released in February to Sen. Dick Durbin, who inquired about the probe, Jarrett said, "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."
The probe has centered on Yoo’s use of an obscure health benefits statute from 2000 in defining torture. That statue became the basis for authorizing enhanced interrogation methods, the OPR official said.
Yoo and Bybee’s legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture.
OPR investigators, who interviewed Bybee and Yoo, are said to have already concluded that Yoo and Bybee provided the White House with “poor legal advice.” The question that remains for agency investigators is recommendations to make for DOJ officials in a report and whether Yoo and Bybee should be held accountable beyond criticizing their legal analysis.
Neither Yoo nor Bybee responded to e-mails or phone calls seeking comment.
OPR has interviewed dozens of current and former DOJ and Bush administration officials, including Gonzales, who were involved in discussions that led to the drafting of the August 2002 memo, but several administration officials have refused to cooperate, people knowledgeable about the probe said.
OPR investigators have also spoken with Jack Goldsmith, the former head of the OLC, who upon arriving at the agency in October 2003 quickly determined that the Aug. 1, 2002 memo was “sloppily written” and “legally flawed” and withdrew the memo.
Goldsmith, who did not respond to calls or e-mails for comment, wrote a book about his tenure at the OLC, The Terror Presidency, which described in great detail how Yoo believed the health benefits statute could be used as the basis to authorize long-outlawed interrogation techniques such as waterboarding. Goldsmith, who has long referred to Yoo as a “friend,” has said that his former colleague did not provide the White House with sound legal advice.
"That statute defined an ’emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function," Goldsmith wrote in his book, The Terror Presidency.
"The health benefits statute’s use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like…. OLC’s clumsily definitional arbitrage didn’t seem even in the ballpark."
Goldsmith said that even though, "ironically," Yoo relied on a health benefits statute to write his legal opinion, these and "other questionable statutory interpretations, taken alone, were not enough to cause me to withdraw and replace the interrogation opinions."
"OLC has a powerful tradition of adhering to its past opinions, even when a head of the office concludes they are wrong," he wrote in his book.
Still, Goldsmith "decided in December 2003 that opinions written nine and sixteen months earlier by my Bush administration predecessors must be withdrawn, corrected, and replaced," Goldsmith wrote in his book.
"I reached this decision, and had begun to act on it, before I knew anything about interrogation abuses. I did so because the opinions’ errors of statutory interpretation combined with many other elements to make them unusually worrisome."
OPR’s report into the August 2002 torture memo will be “lengthy,” one person familiar with the probe said, but is not expected to be released until after Obama is sworn in.