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"Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments [after the first draft was completed in December], and OPR revised the draft report to the extent it deemed appropriate based on those comments," said acting Assistant Attorney General Faith Burton in a March 25 letter to Whitehouse and Durbin (D-Illinois).
Burton also said that the final OPR report may undergo more revisions based on responses from Yoo, Bybee and Bradbury.
Bush's Defense
The OPR's findings could influence whether Bush and other senior officials are held to account for torture and other war crimes. Bush has pinned his defense on the fact that he had received advice from Yoo and other Justice Department lawyers that the brutal interrogations of "war on terror" detainees did not constitute torture or violate other laws of war.
Bush's line of defense could collapse if it were determined that the lawyers were colluding with administration officials in setting policy, rather than providing objective legal analysis. Already, extensive evidence exists, including Yoo's own writings, showing that he participated in high-level administration meetings to discuss and set policy.
For instance, in his 2006 book "War by Other Means," Yoo describes his involvement in frequent White House meetings regarding what "other means" should receive a legal stamp of approval. Yoo, who was a deputy assistant attorney general assigned to the powerful OLC at the Justice Department, wrote:
"As the White House held its procession of Christmas parties and receptions in December 2001, senior lawyers from the Attorney General's office, the White House counsel's office, the Departments of State and Defense and the NSC [National Security Council] met a few floors away to discuss the work on our opinion."
"This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism. We certainly did not all agree, nor did we always get along, but we all believed that we were doing what was best for the nation and its citizens.
"Meetings were usually chaired by Alberto Gonzales," who was then White House counsel and later became Bush's second attorney general. Yoo identified other key players as Timothy Flanigan, Gonzales's deputy; William Howard Taft IV from State; John Bellinger from the NSC; William "Jim" Haynes from the Pentagon; and David Addington, counsel to Vice President Dick Cheney.
What Yoo's book and other evidence make clear is that the lawyers from the Justice Department's OLC weren't just legal scholars handing down opinions from an ivory tower; they were participants in how to make Bush's desired actions "legal," even if the arguments were professionally flawed.
For instance, the August 1, 2002, OLC opinion known as the "torture memo," which opened the door to abusive tactics such as waterboarding--which subjects a detainee to the sensation that he is drowning--was rescinded soon after Goldsmith became head of the OLC in fall 2003.
It is unknown whether OPR's conclusions dealing with the August 1, 2002, memo will be included in the final version of the watchdog's report or whether the findings alone rise to the level of "professional misconduct." Attorney General Eric Holder must approve the final version of the report.
Troubling Narrative
OPR investigators poured over thousands of pages of internal Justice Department emails and White House memos over the past four years and built a disturbing narrative about Yoo's work, the sources said, adding that OPR investigators also examined Yoo's book for further evidence that he had fixed the law around the administration's policy interests.
In "War by Other Means," Yoo wrote: "The only way to prevent future September 11s will be by acquiring intelligence. The main way of doing that is by interrogating captured al-Qaeda leaders or breaking into their communications.... In an opinion eventually issued on Jan. 22, 2002, OLC concluded that al-Qaeda could not claim the benefits of the Geneva Conventions."
