Sources: Interrogation Probe Almost Complete

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A Justice Department inquiry into the conduct of lawyers involved in writing the "torture" memos is nearly complete. A draft of the report, according to more than one source, will conclude that the attorneys will be referred for possible disciplinary action to bar associations.


From NPR News this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Michele Norris. Former Justice Department lawyers who wrote the infamous memos may soon learn their fate, and they apparently have reason to worry. The department is almost done with its investigation of the attorneys who gave legal blessing to harsh interrogations. Sources familiar with the report say it will refer attorneys to bar associations for possible disciplinary action. NPR's Ari Shapiro joins us with more details. Ari, what do we know about what's in this report?

ARI SHAPIRO: Well, as one person described it to me: if the torture memos were the movie, this report is the making of. We know what the torture memos said, this report will go into great detail about how they were developed. Apparently, the report will have a lot of back and forth email traffic within the Justice Department, between the Justice Department and the CIA, just sort of laying out how this product, the torture memos, was produced, what the process was.

NORRIS: And what do we know about the ultimate conclusions that they will make in that report?

SHAPIRO: Well, apparently the Office of Professional Responsibility, which has conducted this inquiry, has concluded that lawyers violated professional, ethical standards. The report looks at three lawyers in particular: John Yoo, Jay Bybee and Steven Bradbury. They all worked in the office of legal counsel, they all had a major hand in writing the torture memos. And the report will conclude that some or all of them should be referred to state bar associations for possible disciplinary action. And that conceivably means that people who were once prominent government lawyers could be barred from working as attorneys ever again.

NORRIS: And one other big question: does a criminal investigation seem likely?

SHAPIRO: At this point, no. The legal analysts I have spoken with say, you would pretty much have to find emails where attorneys said we believe this is torture, we believe it's illegal but we're going to try to find a way to allow it anyway and that's a pretty high bar. The Office of Professional Responsibility doesn't typically look into whether people committed criminal violation. The OPR looks into whether people violated ethical guidelines. The Attorney General Eric Holder has suggested that the results of this report could inform his decision making about whether a criminal inquiry is appropriate for these attorneys, but at this point I think the money is on no criminal prosecution.

NORRIS: Transparency is a big buzz word in this administration. Is it likely that the public will see this report?

SHAPIRO: Yes, and in fact that is one reason that the Justice Department took the unusual step of allowing Bybee, Bradbury and Yoo, the three targets, to comment on a draft of the report before it was released - not released, the draft was finished back in December. And the Justice Department sent members of Congress a letter today saying that yesterday was the deadline for Yoo, Bybee and Bradbury to comment on the draft.

People on Capitol Hill who I've spoken with say it looks like the Justice Department is sort of bending over backwards to make it look like this is not a witch hunt and some people in Congress are concerned that the Justice Department has gone too far. For example, Steven Bradbury, who I mentioned, was acting head of the Office Of Legal Counsel in 2005. Well, as the acting head he had a role in helping to craft this investigation even though he was also one of the targets of this investigation.

So one congressional staffer who I talked to said how they could have made the decision to let him part of the official review, not as a target but as acting head of OLC boggles the mind. In this letter, the Justice Department tried to explain it saying his role was transparent so we can take anything he says with a grain of salt if we want to.

NORRIS: Thank you, Ari.

SHAPIRO: You're welcome.

NORRIS: That's NPR's Ari Shapiro.

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Torture Memo Probe May Lead To Disbarments

The Justice Department has nearly completed its investigation into lawyers who wrote the "torture" memos authorizing harsh interrogations.

According to two sources familiar with the investigation, the report will refer people to bar associations for possible disciplinary action. Criminal prosecution, however, seems increasingly unlikely.

The investigation focuses on three attorneys who worked in the Office of Legal Counsel during the Bush administration. John Yoo, Jay Bybee and Steven Bradbury each played a significant role in writing the torture memos. The Office of Professional Responsibility has been investigating whether their role in crafting the memos violated legal ethics.

According to sources familiar with the investigation's findings, the report will provide a detailed play-by-play of how the memos were produced. It will contain e-mails sent from one Justice Department employee to another and from Justice Department employees to other government officials.

The sources say the report includes referrals to bar associations for possible disciplinary action. That means once-prominent government lawyers could be barred from ever working as attorneys again. However, legal analysts say a recommendation of a criminal investigation seems unlikely.

"You'd have to have some sort of information that those three guys understood that the memo was in itself just garbage," says former U.S. Attorney Roscoe Howard. "I'd be looking for something that shows they understood what they wrote was just unsupportable, but they decided they were going to write it anyway." Legal analysts say that is a high bar to prove any criminal wrongdoing.

It has been four years since the inquiry began, and the Justice Department says this is the final phase of the process.

Assistant Attorney General Ron Weich sent a letter to Sens. Dick Durbin (D-IL) and Sheldon Whitehouse (D-RI) saying Yoo, Bybee and Bradbury had until May 4 "to provide their comments on the draft report," which was finished in December.

The Justice Department has been trying not to make the investigation seem like a witch hunt. Some congressional staffers complain that the effort has gone too far. They are especially critical of the decision to allow Bradbury to participate in the inquiry as acting head of the Office of Legal Counsel.

"How they could have made the decision to let him be part of the official review, not as a target, but as acting head of OLC, boggles the mind," one Judiciary Committee staffer said.

In the letter to Congress, the Justice Department said because of the "significant congressional and public interest" in the investigation, the attorney general decided it was appropriate to give the subjects of the inquiry an "opportunity for review and comment" on the draft report.

The final version of the investigation could be released late this month, according to sources familiar with the Justice Department's plans.



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