Font Size: 
Former DOJ Lawyers Face Scrutiny Over Interrogation Memos
The National Law Journal
May 14, 2009
Senators clashed Wednesday over whether they should investigate former lawyers with the Justice Department's Office of Legal Counsel over their involvement with memos that authorized harsh interrogation techniques for suspected terrorists.
At the first-ever congressional hearing on the subject, Sen. Sheldon Whitehouse, D-R.I., and other Democrats questioned a former State Department official and other legal experts about how the memos were written. Whitehouse said that OLC lawyers "ignored, bastardized, and manipulated" the law when they supported techniques like waterboarding, and he pushed for possible sanctions against the lawyers.
"We've been told you shouldn't prosecute people who followed lawful orders, or relied on proper legal authorities, or in good faith offered their best legal advice. But those are questions, aren't they, and not the answers?" Whitehouse said.
Congress has no authority to sanction the lawyers, unless it pursues the removal of Jay Bybee, former assistant attorney general for the Office of Legal Counsel, from his seat on the 9th U.S. Circuit Court of Appeals. But Democrats made clear that they want to ramp up their oversight of what happened in the office during the Bush administration. Whitehouse, chairman of an oversight subcommittee that held Wednesday's hearing, said he hopes to hold more hearings once the Justice Department releases an internal report on the writing of the memos.
Sen. Lindsey Graham, R-S.C., warned that too much scrutiny would "make this country less safe." He said the former OLC lawyers committed no crimes and violated no ethical obligations. "They made some mistakes, out of fear [of further terrorist attacks], and we've learned from these mistakes," Graham said. "If we keep doing this ... we're going to tear this country apart."
The experts who testified Wednesday gave sharply different views of whether the former OLC officials acted properly. David Luban, a professor at Georgetown University Law Center, said that they made "frivolous arguments" merely to get the results they wanted. Robert Turner, associate director of the Center for National Security Law at the University of Virginia, said they had legitimate arguments under the Geneva Conventions.
To the chagrin of Democrats, Bybee has declined their invitation to appear before the Senate Judiciary Committee. Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, said Wednesday that Bybee declined through lawyers. "I assume he had no exonerating information to provide," Leahy said. He added in a written statement: "Judge Bybee must know that the presumption in our civil law is that when a person fails to come forward with information in his possession that is relevant to a matter, it is presumed to be because the information is negative and not helpful to his cause."
Graham, speaking to reporters, asked why Bybee would want to appear in front of a "circus." "If I were his lawyer, I would tell him no," Graham said. Other former OLC lawyers, including John Yoo and Steven Bradbury, have also stayed away.
Much of what Congress finds out about the work of OLC lawyers is likely to remain confidential for now. The Senate Intelligence Committee is sharing jurisdiction with the Judiciary Committee, and Intelligence Chairwoman Dianne Feinstein, D-Calif., said her committee's investigation would require months of confidential review. "To make this an explosive issue without carefully laying out all the facts ... will be a big, big mistake," she said.
The Office of Legal Counsel is currently without a Senate-confirmed leader, as Democrats try to figure out how they can move nominee Dawn Johnsen through the confirmation process. Republicans are holding up Johnsen, an Indiana University law professor who led the office on an interim basis during the Clinton administration, because of her writings on national security and her advocacy of abortion rights.
This article first appeared on The BLT: The Blog of Legal Times.
