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David Edwards and Stephen C. Webster
A Department of Justice report has called into question the entire legal basis of the Bush administration's repeated justifications of abusing prisoners captured in the former president's terror war. According to Monday night's guest on MSNBC's The Rachel Maddow Show, the "consequences" of some of the report's findings could be "enormous" for members of the Bush administration.
A draft of the report from the Office of Professional Responsibility, the department's watchdog unit, was submitted during the waning days of the Bush administration, but former Attorney General Michael Mukasey objected to it, according to a Monday report by Newsweek reporter Michael Isikoff.
"The [Justice Department] report is expected to focus on three former officials of the Office of Legal Counsel, the Justice Department office that advises the executive branch on the interpretation of the law," reports the International Herald Tribune. "They are John Yoo, a Berkeley law professor, now a visiting professor at Chapman University, who was the primary author of opinions on torture while at the counsel's office in 2002; Jay Bybee, now a judge on the U.S. 9th Circuit Court of Appeals, who as head of the office signed the 2002 opinions, which were later withdrawn; and Steven Bradbury, who wrote three more still-secret opinions on interrogation in 2005, when he was the top lawyer in the counsel's office."
Mukasey and his deputy wanted the report to contain responses from Bybee and Yoo, along with Steven Bradbury, chief of the Office of Legal Counsel (OLC), at the time the report was submitted.
The OPR is now working to include the ex-officials' responses before presenting a final version to Attorney General Eric Holder Jr. If Holder accepts the report's findings, it could be forwarded to state bar associations which may choose to disbar the attorneys.
On Monday night's The Rachael Maddow Show, Isikoff took time to shed additional light on the subject, offering several stark possibilities.
"Bush interrogation policy was based on not just shoddy legal analysis, but unprofessional and potentially unethical legal analysis," he said, noting that he has not yet seen the full report.
"But the consequences of such a finding would be enormous," continued Isikoff. "Not just for those lawyers, but for the whole argument of whether there should be a 'truth commission' or continued investigations.
"Remember, the pushback against that has always been, 'Well, there were valid, legal memos from the Justice Department that justified waterboarding.' Now, if these legal memos are called into question, that changes substantially the equation."
The most recent high-profile airing of the justification Isikoff mentions came during CNN's Larry King interview with President Bush, which aired Friday, Feb. 13.
In his interview with CNN's Larry King, Bush said, "Everything we did was -- you know, it had legal -- legal opinions behind it. Look, you're sitting there, you've captured Khalid Sheikh Mohammed. He's the guy that ordered the September the 11th attacks. And we want to know what he knows in order to protect the United States of America. And I got legal opinions that said whatever we're going to do is legal. And my job is to protect you, Larry. And I've given it my all. I've given it my all."
"If it turns out that those memos are bunk, that they might get their authors disbarred or something, does that actually materially change that as a legal defense though, to prosecution?" asked Maddow. "Or does that only change the political calculation about prosecuting?"
"Well, it certainly changes the political calculation," said Isikoff. "And it probably does not change the calculation for say, CIA officers who were relying on these memos. But what's really interesting about this report is -- and this investigation, is -- they just didn't reach a legal conclusion.
"I talked to a number of Bush administration lawyers who'd been questioned as part of this. And they said the OPR investigators who did this report got internal e-mails, internal drafts, of back and forth correspondence with the White House to reconstruct how these memos came to be crafted.
"And if, in fact, it's shown essentially senior officials in the Bush administration at the White House and others were dictating and in collusion with the lawyers with the Justice Department to sort-of predetermine what the outcome was, then, in fact, the look into how these memos, could go elsewhere; It could go beyond just the authors of these memos into the people who ... Into the clients they were seeking to please."
"On his second full day in office, President Barack Obama instructed officials not to rely on any opinions on interrogation issued by the Justice Department since 2001," noted the Herald Tribune.
This video is from MSNBC's The Rachel Maddow Show, broadcast Feb. 16, 2009.
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