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April 1, 2009
Before leaving office, senior Bush administration lawyers secured changes in a Justice Department watchdog agency's report that reportedly was sharply critical of legal opinions granting President George W. Bush sweeping powers, including the right to abuse "war on terror"- captives.
In a letter to two U.S. senators, the Justice Department said the changes to the report by the Office of Professional Responsibility followed comments from then-Attorney General Michael Mukasey, then-Deputy Attorney General Mark Filip and the Office of Legal Counsel, which was still run by its acting chief, Steven Bradbury, one of three lawyers who had been singled out for criticism in OPR's initial draft.
"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 Sens. Sheldon Whitehouse, D-Rhode Island, and Richard Durbin, D-Illinois, members of the Senate Judiciary Committee.
Burton also said that the final OPR report may undergo more revisions based on responses from the former OLC lawyers who were criticized and that a final version may not be released for some time, if at all. "Due to the complexity and classification level of the draft report, the review process "- likely will require substantial time and effort,"- Burton said.
Legal sources familiar with the internal debate about the draft report say OPR is in the process of "watering"- down the criticism of legal opinions by OLC lawyers John Yoo and Jay Bybee in 2002 and 2003 and by Bradbury, who in 2005 reinstated some of the Yoo-Bybee opinions after they had been withdrawn by Assistant Attorney General Jack Goldsmith when he headed the OLC in 2003 and 2004.
That back-and-forth over the OLC's judgments regarding President Bush's powers rest at the heart of the Bush administration's defense of its "enhanced interrogation"- techniques that have been widely denounced as torture, such as waterboarding which subjects a person to the panicked gag reflex of drowning and which was used on at least three "high-value"- detainees.
Bush officials insist that they were acting under the guidance of the Justice Department's Office of Legal Counsel, which advises Presidents on the scope of their constitutional powers. For the OPR report to conclude that Yoo, Bybee and Bradbury violated their professional duties as lawyers and, in effect, gave Bush pre-cooked legal opinions to do what he already wanted to do would shatter that line of defense.
Conflict Question
In a response to Burton's letter, Durbin and Whitehouse questioned whether Bradbury's dual role as the acting head of the OLC and one of the criticized lawyers created a "conflict of interest"- regarding revisions made to the draft in the last days of the Bush administration.
Bradbury "is reportedly a subject of the OPR investigation,"- the senators wrote. "As such, it would appear to be a conflict of interest for Mr. Bradbury to review and comment on the OPR report on OLC's behalf."-
Durbin and Whitehouse also noted that Bradbury wrote two memos in the final months of the Bush administration distancing himself from some of the Yoo-Bybee opinions while insisting that they had acted in good faith as lawyers.
Three months before Bush exited the White House, Bradbury wrote that some of those controversial opinions were "the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11."-
In another memo dated Jan. 15, five days before Bush left office, Bradbury repudiated some Yoo-Bybee legal opinions, but said the flawed theories did not mean Justice Department lawyers failed to "satisfy" professional standards.
Rather, Bradbury cited "the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation."
Bradbury's Jan. 15 memo appeared to be in response to the draft OPR report, raising other concerns from Durbin and Whitehouse.
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