The Bush administration had a problem when it decided to embark upon a torture program. Torture, after all, violates both U.S. and international law. The Bush team's solution was to ask some attorneys at the Justice Department to change the definition of torture. If it's not "torture," it's not illegal, and no one can be held accountable.
But what if that legal opinion isn't worth the paper it's written on? That's what two Senate Democrats want to know.
The Justice Department's Office of Legal Counsel is, effectively, the executive branch's lawyer. When White House officials want an official legal opinion, they call up OLC. If you were in the market for a favorable "reinterpretation" of the law, you might look for some pliant political appointees at OLC; hence, the Bush administration's so-called torture memos.
On Aug. 1, 2002, OLC issued the torture memos after input from Alberto Gonzales and David Addington, who were at the time, respectively, White House counsel and counsel to Vice President Dick Cheney. The memos defined torture away, calling it treatment "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
But just as there were DOJ attorneys telling the Bush administration what it wanted to hear, there were also other DOJ lawyers looking over their colleagues' shoulders. There is an office inside the Justice Department responsible for, among other things, preventing government attorneys from issuing questionable legal opinions just to make the White House happy. The Justice Department's Office of Professional Responsibility acts as a sort of internal watchdog.
According to Newsweek's Michael Isikoff, the Office of Professional Responsibility last fall issued a draft report that "sharply criticized" the OLC attorneys behind the torture memos, Jay Bybee, John Yoo and Stephen Bradbury. The report is not toothless. Had he so chosen, then-Attorney General Michael Mukasey could have forwarded the findings to state bar associations for possible disciplinary actions against the attorneys involved. Instead, says Isikoff, Mukasey objected to the draft, apparently stalling completion.
So what became of that report? That is among the questions Sen. Dick Durbin, D-Ill., and Sen. Sheldon Whitehouse, D-R.I., ask in the letter reproduced below. "We write to inquire about the status of the Office of Professional Responsibility's (OPR) investigation of Justice Department attorneys who provide legal advice regarding waterboarding and other abusive interrogation techniques."
When it comes to the torture memos, former Bush administration officials, including ex-Attorney General John Ashcroft, have argued: 1) We were really scared after 9/11 so give us a break; and 2) Reasonable people disagree about the logic of the OLC memos.
Critics have responded with: 1) That's no excuse to jettison the rule of law and the time-tested tools of gathering effective intelligence; and 2) No, they don't.