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OPR Report on the Torture Memos
On February 19, 2010, the Department of Justice released the final 267-page report by its Office of Professional Responsibility (OPR), the DOJ internal ethics review board, on the production of the "torture memos." OPR conducted a five-year investigation of the conduct of three former senior lawyers in DOJ's Office of Legal Counsel (OLC) – Professor John Yoo, Judge Jay Bybee, and Steven Bradbury – and concluded in its final report that Yoo and Bybee violated standards of professional responsibility when working at OLC. David Margolis, the senior career attorney at DOJ who conducted the final review of OPR's work, downgraded OPR's findings in a 67-page memo and concluded that Yoo and Bybee showed "poor judgment" – which does not rise to the level of professional misconduct and does not automatically trigger a DOJ referral to the attorneys' state bar associations for potential disciplinary action.
Despite Margolis's conclusions, the OPR report does not exonerate or vindicate Yoo or Bybee. On the contrary, the OPR report documents new, powerful evidence about how the White House improperly interfered with DOJ legal work and raises further questions about how various Administration officials worked together to provide legal cover for torture. This fact sheet explains the findings and conclusions of the report, highlights new revelations, and outlines possible next steps in accountability for those who ordered, designed, and authorized torture.
The OPR Report's Legal Ethics Analysis
From 2002 to 2007, Yoo, Bybee, and Bradbury, as senior lawyers in OLC, wrote secret "torture memos" that sanctioned acts of torture committed by members of the U.S. Central Intelligence Agency (CIA) against detained suspected terrorists. In the wake of the Abu Ghraib scandal in 2004, the earliest "torture memos" were revealed to the public, and OPR was tasked with investigating whether the OLC lawyers violated standards of professional conduct when producing two "torture memos" dated August 1, 2002. Written by Yoo and signed by Bybee, the 2002 memos analyze torture, executive power, and criminal defenses for an interrogator accused of torture, and approve 10 specific "enhanced interrogation tactics," including waterboarding, to be used on Abu Zubaydah. After a five year investigation, OPR concluded in 2009 that Yoo intentionally and Bybee had recklessly violated two rules of professional conduct: Rule 1.1, which requires competence, and Rule 2.1, which requires lawyers to "exercise independent professional judgment and render candid advice."
Departing from OPR's findings, Margolis concluded that Yoo and Bybee had exercised "flawed legal reasoning." According to Georgetown law professor David Luban, that's like saying that "Iago's advice to Othello showed poor judgment." Margolis takes a more generous view of the August 2002 "torture memos" by underscoring the dangerous and time-sensitive environment in which they were written in the wake of 9/11, even though the memos were researched and produced approximately 10 months after the attacks. Yoo and others are also quoted several times in the OPR report as saying that they did not feel they were under excessive time pressure to produce legal work on proposed interrogation tactics.
Michael Frisch, Georgetown law professor and D.C. bar ethics expert, has criticized both the OPR report and the Margolis memo for reviewing the "torture memos" under the wrong ethical standards. According to Frisch, an inquiry should have assessed the OLC lawyers' conduct in light of Rule 1.2(d), which prohibits lawyers from counseling a crime. In this case, as legal commentator Scott Horton has explained, "the evidence that their advice was designed to facilitate torture is clear-cut, torture is a felony, and multiple players putting a scheme in place to torture is a conspiracy to torture." Yet instead of accounting for the criminal aspects of the "torture memos," both OPR and Margolis focused solely on rarely enforced ethics rules dealing with the duty of candor and the duty to exercise independent professional judgment.
Neither OPR's nor Margolis's conclusions precludes state bar associations from conducting their own disciplinary review of Yoo's or Bybee's work. In fact, the Justice Department has its own ethical duty under Rule 8.3 (the so-called "snitch rule") to turn evidence of a serious ethics lapse by its officers over to the D.C. Bar for action. As Professor Frisch has noted, neither OPR nor Margolis even mention Rule 8.3, suggesting they were not aware of the Department's obligation. Taken together, the OPR report and the Margolis memo raise serious questions about DOJ's ability to self-regulate.
New Evidence Revealed in the OPR Report
The OPR report confirms what legal ethics scholars have long suspected: as a general practice, senior White House officials improperly pressured Yoo, Bybee, and Bradbury to "come up with an answer" in the "torture memos" that would justify the ongoing interrogation regime, conclude it was legal, and allow it to continue. The OPR report contains irrefutable proof that White House attorneys played a central role in shaping the content of the memos. White House counsel Alberto Gonzales told OPR that he would typically review drafts from lawyer John Yoo and "pass them along to other lawyers, such as [Cheney's lawyer David] Addington or [Gonzales' deputy Tim] Flanigan, who would forward them to Yoo along with their own comments." In a statement to OPR about Yoo's most notorious August 2002 memo, Gonzales is quoted as saying, "I'd be very surprised in [sic] David did not participate in the drafting of this document.'"
The final OPR report establishes that Yoo added the most flawed and egregious portions of his August 2002 memo after the criminal division of DOJ refused to give the CIA the legal authority it was seeking - and after an auspiciously timed meeting at the White House. It seems the CIA requested a DOJ criminal declination letter providing advance blanket immunity from criminal prosecution before beginning interrogations in order to ensure that no CIA interrogator would be prosecuted for torture. Michael Chertoff, then Assistant AG in charge of DOJ's criminal division, found the request unreasonable, and refused to provide a blanket protection against criminal prosecution. The next day, Yoo went to a meeting at the White House with Gonzales (and possibly Addington and Flanigan) - and the day after that, Yoo added the two most biased and flawed sections to his most notorious memo.
The OPR report also showed how far-reaching and excessive was Yoo's unitary executive theory: Yoo told OPR investigators that, as commander-in-chief, a president legally has the power to bomb a village to massacre civilians.
Missing OLC Emails
The OPR report contained another surprising revelation: OPR investigators stated in the report that their work was "hampered" by the destruction of OLC attorney emails from the time the 2002 "torture memos" were being written. Specifically, the report states that OPR staff was told that "most of Yoo's records had been deleted and were not recoverable." [Former Deputy AAG Patrick] Philbin's email records from July 2002 through August 5, 2002 - the time period in which the Bybee Memo was completed and the Classified Bybee Memo was created - had also been deleted and were reportedly not recoverable." Also "deleted" and "reportedly not recoverable" were the July and early August 2002 emails of Deputy Assistant Attorney General in OLC Patrick Philbin, who was reviewing Yoo's work that summer while he researched and wrote the 2002 "torture memos."
However, the Federal Records Act requires federal agencies to preserve agency records, including employee emails, and maintain safeguards against their removal or loss. Deletion or destruction of federal records is a criminal offense – not to mention that intentional destruction of emails that are material to an ongoing investigation may raise serious questions of obstruction of justice.
In a Senate Judiciary Committee hearing about the OPR report on February 26, 2010, Senator Patrick Leahy (D-VT) questioned Acting Deputy Attorney General Gary G. Grindler about the "missing" emails, noting that deleted emails are almost always recoverable. Grindler testified that if the emails are retrievable, he will direct a DOJ official to retrieve them. Numerous advocates have called for the Justice Department to conduct an investigation of the "missing" emails and for the Information Policy Subcommittees of the House Oversight and the Senate Homeland Security Committees to hold hearings on this issue.
After the OPR Report
OPR's investigation alone cannot resolve what sinister sequence of events led the top officials in our country to believe they could legally torture other humans. Because OPR only has jurisdiction over DOJ attorneys and lacks subpoena power to compel witness cooperation or document production, OPR's review of the legal work that produced the first "torture memos" is just a first step in accountability. OPR's investigation uncovered new evidence that begins to fill in the historical record, but the facts documented in the OPR report are just the newest pieces of a puzzle that still warrants a full investigation.
Now that OPR has finished its investigation, Congress should reassert its oversight role and conduct further hearings about the development of torture policy in DOJ and other government agencies. The Senate Judiciary Committee questioned Acting Assistant AG Grindler about the "missing" emails, but both the Senate and House Judiciary Committees should conduct full hearings about the OPR report in which they question the authors of the "torture memos" as well as other players mentioned in the OPR report (including those such as John Ashcroft, who refused to voluntarily comply with the OPR investigators) about the interactions between DOJ, CIA, Department of Defense, and the White House in developing torture policy.
Furthermore, now that it has been revealed that Yoo's and Philbin's emails were deleted, DOJ must devote resources to retrieving those emails and investigating how it was they went "missing." More broadly, the OPR report amounts to further evidence that senior government officials worked together to provide legal cover for torture, raising further questions about improper political interference with DOJ work and alleged conspiracy to commit torture in violation of federal law. The crucial pieces of this puzzle will be uncovered if a special prosecutor or commission is empowered to investigate the conduct of officials in the CIA, Department of Defense, and White House who worked with DOJ officials on the development of torture policy.
