Justice Department's Internal Memo Inquiry Reaches Pivotal Stage

A draft version of the Justice Department's internal investigation of Bush Administration lawyers who wrote memos authorizing torture has concluded that at least two of them are guilty of significant misconduct, two sources with direct knowledge of the draft said.

The Associated Press reported tonight that the draft version of the report does not recommend criminal charges against lawyers John Yoo and Jay Bybee.  But the sources said that the report lays out, in exquisite detail, a significant number of exchanges between the lawyers and the White House as several of the memos were being crafted. The report includes excerpts from internal memoranda and e-mail messages.

Ostensibly, Yoo, an attorney for the Office of Legal Counsel and Bybee, that section's chief, were tasked by Attorney General John Ashcroft with determining whether so-called "enhanced interrogation techniques" violated U.S. law and treaty obligations.  But a draft report, prepared by the Justice Department's Office of Professional Review,  suggests that, at the direction of the White House, the OLC worked to justify a policy that had already been determined and did not begin their inquiry from a neutral position.

It is not clear -- and sources would not say -- who in the White House communicated with the two lawyers about the memos, and it is not clear whether Yoo or Bybee felt unduly pressured to provide a legal framework for a decision already made by senior administration officials.

The AP reported that an early version of the draft recommended that the California State Bar Association seek the disbarment of Yoo, now a Berkeley law professor, and Bybee, an appellate judge. A  Justice Department official said that the final decision had not been made.

Comments by Yoo, Bybee and OLC attorney Steven Bradbury, an author of a later memo, were due on Monday. Yoo, in particular, submitted an extensive document disputing some of the review's main contentions.  These responses will be incorporated into the final draft, although the conclusions of the examiners will likely not change.

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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