Attorney General Eric Holder is bearing the brunt of the blame for allegedly helping to water down an internal department investigation into the legal architecture of the Bush administration's war against terrorism. The reality is that David Margolis, the career official in the department with the most seniority, had near complete authority over the most sensitive parts of Office of Professional Review's report -- its conclusion and recommendations. He did not write them, but officials said that Margolis, because of longtime Justice practice, had the discretion to accept or reject or modify the sanctions suggested by the OPR attorneys and the reasons they cited for those sanctions.
Holder's team merely gets to decide how and when to release it. Critics of the report inside the Justice Department have leaked its conclusions to reporters
, portraying it as a bit of a whitewash -- that instead of violating professional standards of conduct, lawyers Jay Bybee and John Yoo merely used "poor judgment" in authorizing the use of torture techniques. Conveniently, the report --- still not released -- might have played a role in the lawsuit that "enemy combatant" Jose Padilla filed against Yoo. Marcy Wheeler believes
that the Justice Department "suggests DOJ delayed its release to protect Yoo in the Padilla suit."
For whatever reason, Holder seems to have believed that the report's release was imminent in June...then in August. Then November. Now -- February. According to sources, the official Justice line is that the report is undergoing declassification review, a lengthy process. It is also true that Yoo and Bybee were given several opportunities to dispute the initial draft of the report -- a draft that, according to sources of mine, was much harsher on the two men. It's not clear why or who in the department decided that a second round of responses and revisions were necessary. Reporting from August -- not disputed at the time by DOJ -- suggested that Holder's decision to appoint a prosecutor to re-review the CIA torture cases was influenced by his reading of the OPR report -- which was submitted to him for review in what everyone assumed was its final form.
Cum hoc ergo propter hoc logic notwithstanding, it is probably true that the OPR report would help Padilla's case against Yoo, particularly if it included language suggesting that Yoo recklessly or willfully disregarded the law. Perhaps Margolis just wanted to be careful, knowing how sensitive the OPR report would be. He has worked for the department of Justice for more than four decades, and is known within Main Justice as an a-political troubleshooter. His loyalty may therefore be to the department -- and here is a report that, even in its watered-down condition, significantly (and explicitly) criticizes the department itself. Margolis received the review from the OPR in August, and the adjudication process was supposed to happen quickly. But Margolis, who is 70 years old, took ill in the latter months of the year, and the review of the OPR's report was stalled. At some point, though, he seems to have rejected some of the conclusions and ordered the OPR to allow Yoo and Bybee to submit more proposed revisions to the report. The attorney general himself was not privy to this process, officials said.
Most likely, when the report comes out, it'll be framed by the left as a whitewash and by the right as a semi-vindication of the Bush approach to terror.d Though the Justice Department seems to leak with impunity, its press division has a policy preventing spokespeople from discussing reports before they are released. That makes sense in theory. In practice, it means that the leakers get to define the narrative -- and the narrative here is one that the department, despite its good intentions, is going to have to spend a significant amount of time fighting back against.
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is a contributing editor at The Atlantic
. He is also a senior contributor at Defense One
, a contributing editor at GQ, and a regular contributor at The Week