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I’ve been under investigation for more than five years for legal advice that I gave in the immediate wake of the Sept. 11, 2001, terrorist attacks. This month, the Justice Department’s top career lawyer finally put an end to the farce.
The Justice Department’s internal ethics watchdog, known as the Office of Professional Responsibility (OPR), has waged a witch-hunt against Bush administration lawyers who developed policies to protect the nation after Sept. 11. OPR lawyers–and the Obama administration–disagreed with the policy choices made by President Bush on the detention and interrogation of terrorists. But instead of arguing against those policies honestly and openly, they decided to fight them under the pretext of a cooked-up ethics investigation.
David Margolis, one of the Justice Department’s most distinguished civil servants, was able this month to stop the politicization of our national security. He properly found that our work in the Office of Legal Counsel on the lawfulness of interrogation methods did not violate standards of professional conduct.
Our opinions were rendered under the most difficult circumstances and pressures of time imaginable, and addressed an unprecedented question during time of war. We gave the best answers we could, in good faith, about how far the CIA could interrogate top al-Qaeda leaders–and soon the United States had captured three of them–without violating the congressional ban on torture. Margolis’ decision protects the ability of our nation’s leaders to receive candid advice on how best to protect our country from terrorists.
OPR’s political bias was legion. Attorney General Michael Mukasey and Deputy Attorney General Mark Filip, for example, in their last days in office in January 2009, informed OPR that their report on our work was deeply riddled with errors. OPR ignored them in the hopes that the next administration would allow it to proceed.
Rejection of the OPR report’s recommendations shows that at least some career staff in the Justice Department leadership recognized the serious flaws and politicization in the office’s work. OPR itself was incompetent. It delayed the investigation for so long (more than five years) that it missed the applicable statute of limitations for complaints of attorney malpractice. OPR failed, as Margolis made clear, to even identify and understand the ethical rules that it is charged with enforcing.
Worse, media reports suggest that OPR leaked information from the classified report and investigation to Capitol Hill and the media. Not only is this another violation of professional rules of conduct, but it may be a serious violation of federal criminal law.
OPR lawyers who conducted the investigation had no training or experience in complicated issues of separation of powers law, and were ignorant of the decades of practice within the executive branch on wartime power questions and of other sensitive programs that relied on legal grounds similar to those in our memos.
Not only did OPR’s report reflect pure incompetence, it was obviously biased. OPR selectively tried to persecute only a few officials in the Office of Legal Counsel. OPR failed to interview, and reach conclusions on, the work of then-Attorney General John Ashcroft and other high-ranking officials, even though they received several briefings on our memos and approved them. OPR also excluded subsequent officials in the Justice Department who continued to approve of enhanced interrogation methods on grounds almost identical to the ones in our memos.
The numerous errors in the OPR report, the shoddy process by which it was developed, the leaks, and efforts to defy Mukasey and Filip make plain that OPR was driven by strong policy disagreements with the Bush administration, and nothing more.
In fact, the investigation is the gift that keeps on giving. On Friday, Sen. Patrick Leahy (D., Vt.) excoriated Margolis’ superior officer because OPR claimed it could not access 2002 e-mails from me and another Justice Department official who worked on the memos. Leahy’s outrage displays how little he and OPR understand the basics of intelligence.
The Justice Department’s e-mail system is unclassified and could not be used to discuss interrogation methods, which were classified at the highest levels of secrecy. Nor do I have any idea why OPR now asserts that the e-mails, which were sought years after I had left the government, have gone missing. During my interviews, OPR lawyers showed me several printouts of my e-mails. If they need more they should look in the files of the other lawyers on the network. The suggestion of a cover-up is just Leahy chasing his own tail to feed left-wing conspiracy theories.
The men and women on the front lines of the war against al-Qaeda have had good reason to wonder if their elected leaders have their best interests in mind. Attorney General Eric Holder allowed his OPR to conduct a persecution that would placate the far left of the Democratic Party and its representatives in Congress–at the expense of the nation’s security. Holder’s decision in our case continued this administration’s disturbing trend of treating the war against al-Qaeda as a simple criminal-justice problem: announcing the closing of the detention facility at Guantanamo Bay, Cuba, and the transfer of al-Qaeda prisoners to the continental United States; launching a criminal investigation into CIA agents who handled terrorists after the 9/11 attacks; trying Khalid Sheikh Mohammed in civilian court in New York City; and automatically treating Umar Farouk Abdulmutallab as a criminal suspect rather than an enemy combatant.
Margolis’ finding that our office did not violate professional ethics is a victory for the people fighting the war on terror. He has begun the process of rebuilding confidence and trust between our men and women in uniform and in the intelligence community and the elected leaders who put them in harm’s way.
John Yoo is visiting scholar at AEI.
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