Tuesday, February 17, 2009
Senators Durbin (D-Ill.) and Whitehouse (D-R.I.) called for an update and quick end to the Justice Department's Office of Professional Responsibility investigation into whether lawyers who authored certain OLC legal memos for the Bush administration followed ethical standards. WaPo reports here.
The authors are John Yoo (Boalt Hall) and Judge Jay Bybee (9th Cir.); the memos include the infamous 2002 torture memo. Recall that that memo, authored by Yoo and signed by Bybee, defined torture in remarkably narrow terms and articulated unprecedented unilateral and complete Commander-in-Chief authority. It concluded that enforcement of the statutory torture ban would constitute an unconstitutional infringement upon the Commander-in-Chief powers. Harold Koh's testimony before the Senate Judiciary Committee on the nomination of Alberto Gonzales to be AG gives a sense why the OPR is looking into it. The OLC later withdrew the torture memo in this December 2004 memo, but it never specifically disavowed the vast claims of executive authority in it.
Also at issue: the March 2003 memo concluding that interrogators acting pursuant to Presidential order but also violating statutory bans on torture would be immune from prosecution.
According to reports, the investigation may likely lead at most to referral to state disciplinary authorities.