Justice Department investigators say Bush administration lawyers who approved harsh interrogation techniques of terror suspects should not face criminal charges, according to a draft report that also recommends two of the three attorneys face possible professional sanctions.
The Obama administration decided last month to make public legal memos authorizing the use of harsh interrogation methods but not to prosecute CIA interrogators who followed the advice outlined in the memos.
That decision angered conservatives who accused President Barack Obama of selling out the CIA, and from liberals who thought he was being too forgiving of practices they — and Obama — call torture. The president's rhetoric, if not actual policy, shifted on the matter as the political fallout intensified.
Officials conducting the internal Justice Department inquiry into the lawyers who wrote those memos have recommended referring two of the three lawyers — John Yoo and Jay Bybee — to state bar associations for possible disciplinary action, according to a person familiar with the inquiry. The person, who spoke on condition of anonymity, was not authorized to discuss the inquiry.
Report yet to be finalized
The person noted that the investigative report was still in draft form and subject to revisions. Attorney General Eric Holder also may make his own determination about what steps to take once the report has been finalized.
The inquiry has become a politically loaded guessing game, with some advocating criminal charges against the lawyers and others urging that the matter be dropped.
In a letter to two senators, the Justice Department said a key deadline in the inquiry expired Monday, signaling that most of the work on the matter was completed. The letter does not mention the possibility of criminal charges, nor does it name the lawyers under scrutiny.
The letter did not indicate what the findings of the final report would be. Bybee, Yoo and Steven Bradbury worked in the Justice Department's Office of Legal Counsel and played key roles in crafting the legal justification for techniques critics call torture.
The memos were written as the Bush administration grappled with the fear and uncertainty following the Sept. 11, 2001, terror attacks. Over the years that followed, lawyers re-examined and rewrote much of the legal advice.
In the memos released by the Obama administration, the Bush lawyers authorized methods including waterboarding, throwing subjects against walls and forced nudity.
In releasing the documents, Obama declared that CIA interrogators who followed the memos would not be prosecuted. The president left it to Holder to decide whether those who authorized or approved the methods should face charges.
When that inquiry neared completion last year, investigators recommended seeking professional sanctions against Bybee and Yoo, but not Bradbury, according to the person familiar with the matter. Those would come in the form of recommendations to state bar associations, where the most severe possible punishment is disbarment.
Vincent Warren, executive director of the Center for Constitutional Rights, called the decision not to seek criminal charges "inconceivable, given all that we know about the twisted logic of these memos."
Warren argued the only reason for such a decision "is to provide political cover for people inside the Obama White House so they don't have to pursue what needs to be done."
Bybee is now a judge on the 9th U.S. Circuit Court of Appeals. Yoo is a professor at the University of California-Berkeley. Bradbury returned to private practice when he left the government at the end of President George W. Bush's term in the White House.
Asked for comment, Yoo's lawyer, Miguel Estrada, said he signed an agreement with the Justice Department not to discuss the draft report. Lawyer Maureen Mahoney, who is representing Bybee, also declined to comment.
"The former employees have until May 4, 2009 to provide their comments on the draft report," states the letter from Assistant Attorney General Ronald Weich to Sens. Sheldon Whitehouse, D-R.I., and Dick Durbin, D-Ill.
Hearing scheduled for next week
Whitehouse has scheduled a hearing on the issue next week.
Now that the deadline has passed, there is little more for officials to do but make revisions to it based on the responses they've received, and decide how much, if any, of the findings should be made public.
Both Whitehouse and Durbin have pressed the Justice Department for more information about the progress of the investigation by the Office of Professional Responsibility.
The office examines possible ethics violations by Justice Department employees. On rare occasions, those inquiries become full-blown criminal investigations.
The language of the letter, dated Monday, indicates the inquiry will result in a final report.
The letter notes that Holder and his top deputy will have access to any information they need "to evaluate the final report and make determinations about appropriate next steps."
The results of the investigation were delayed late last year, when then-Attorney General Michael Mukasey and his deputy asked investigators to allow the lawyers a chance to respond to their findings, as is typically done for those who still work for the Justice Department.
Investigators also shared a draft copy with the CIA to review whether the findings contained any classified information. According to the letter, the CIA then requested to comment on the report.