Experts Come Together to Discuss the OPR Report on the “Torture Memos”

Call for Independent Investigation on the Day Before the Senate Judiciary Committee Hearing

February 25, 2010, Washington, DC—On February 26, the U.S. Senate will hold its first hearing on the report by the Office of Professional Responsibility (OPR) into the Office of Legal Counsel Memoranda that justified torture of detainees in American custody during the Bush Administration.  In preparation for the hearing, the Alliance for Justice hosted a panel discussion on February 25, 2010, bringing together legal experts in ethics, international human rights law, Department of Justice policy, and Congressional oversight to provide an in-depth analysis of the facts brought to light in the OPR report, and discuss next steps in torture accountability.

“Regardless of OPR’s conclusion about the lawyers’ ethical conduct, the report adds to the mounting evidence that warrants a full-scale investigation of those who ordered, designed, and justified torture,” said Nan Aron, president of the Alliance for Justice.  “While the OPR report was an important first step in promoting transparency, that investigation alone cannot provide resolution for what led our country to support torturing humans.   The new findings must be independently investigated, and I am delighted that tomorrow the Senate Judiciary Committee will be taking the next step toward uncovering the truth.”
 
Bill Yeomans, Fellow in Law and Government at American University’s Washington College of Law and former Acting Assistant Attorney General of the Civil Rights Division of the Department of Justice, believes the investigation has been incomplete thus far.  “The OPR investigation uncovered disturbing facts, yet it suffers from a gaping hole.  The destruction of John Yoo’s Justice Department emails combined with the refusal of the Bush White House to cooperate leaves the core of the investigation incomplete,” Yeomans said.  “We know that there was extensive contact between John Yoo and the White House, including the Office of the Vice President, but we don’t yet know what was said.  This gap screams out for further investigation to determine whether DOJ’s legal views on torture were shaped by pressure from the Bush White House.”

Michael Frisch, Ethics Counsel and Adjunct Professor at Georgetown University Law Center, spoke about the failure of the OPR report to consider whether the authors of the torture memos had knowingly counseled their client to engage in, or assisted in, criminal conduct.  “This clear standard of ethical behavior was largely ignored in the DOJ process. Notwithstanding the conclusion that the matter not be referred to bar disciplinary authorities, those authorities remain obligated to investigate these serious allegations of professional misconduct,” said Frisch.

Scott Horton, Adjunct Faculty Member at Columbia Law School and Contributing Editor of Harper's Magazine, said,  “The question is not only whether an ethical violation occurred but whether a crime occurred.  The OPR report does not address whether there was a conspiracy to torture under Rule 2340A.”

David Cole, a Professor at Georgetown University Law Center, said, "the report confirms that there were two tracks of law in this country, one for public consumption and one secret. At every step of the way the secret law was used to subvert the public law."

The OPR report was released on February 19 and was a product of a five-year investigation by DOJ’s internal ethics review board into three former senior lawyers in the Department’s Office of Legal Counsel - Professor John Yoo, Judge Jay Bybee, and Steven Bradbury.  An  earlier draft of the report found that Yoo and Bybee violated standards of professional conduct when drafting the early “torture memos,” but David Margolis, a career DOJ attorney, downgraded OPR’s conclusions and declined to refer the “torture memo” authors to their state bars for disciplinary action.  The panel noted that Margolis’ conclusion does not foreclose the possibility of independent investigations by state bars or impeachment for Judge Bybee who holds a lifetime appointment in a position of public trust as a judge on the Ninth Circuit Court of Appeals. 

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Alliance for Justice is a national association of almost 100 organizations dedicated to advancing justice and democracy. For 30 years we have been leaders in the fight for a more equitable society on behalf of a broad constituency of environmental, consumer, civil and women's rights, children's, senior citizens' and other groups. Alliance for Justice is premised on the belief that all Americans have the right to secure justice in the courts and to have our voices heard when government makes decisions that affect our lives.