WASHINGTON – Justice Department investigators have concluded that three Bush administration lawyers who wrote controversial interrogation memos should not face criminal charges, but that conduct by two of them was problematic enough to merit possible state disbarment or other disciplinary action, according to two sources familiar with a draft report.
The department’s Office of Professional Responsibility in December completed its investigation into the legal authorization of the CIA’s use of water-boarding and other coercive interrogation techniques against suspected al-Qaida leaders. The internal affairs unit concluded that Steven G. Bradbury – one of the lawyers who had worked in the Justice Department’s Office of Legal Counsel – had written at least three memorandums from 2002 to 2007 that, while troubling, did not merit any kind of serious disciplinary action, the sources said.
But, the investigators said, OLC lawyers John C. Yoo and Jay S. Bybee had engaged in an ethically questionable pattern of providing faulty advice to the CIA and administration officials about how they could conduct intensive interrogations that were deemed to be a critical part of the U.S.-led war on terrorism.
The report, if ultimately approved by the Justice Department, would be referred to bar associations in states where the lawyers practice for possible disciplinary action.
Bybee, who was an assistant attorney general, now is a judge on the 9th U.S. Circuit Court of Appeals in San Francisco. Critics and even some lawmakers have called for his resignation. Yoo is a law professor at the University of California, Berkeley.
One of the now-infamous memos they produced gave interrogators broad leeway in determining what kind of physical and emotional pain to inflict on high-value detainees in an effort to wring from them information about possible terrorist attacks.
The lengthy draft report remains secret, and neither the Justice Department nor the three former administration lawyers and their attorneys would discuss it.
It also is not final, because Bybee and Yoo have been given the opportunity to respond to the OPR findings. Attorney General Eric H. Holder Jr. and other senior Justice Department officials will review those responses – as well as one written by Bradbury before he left government – before making the report final.