An ethics report prepared by H. Marshall Jarrett, head of the Justice Department's Office of Professional Responsibility (OPR), reached "damning" conclusions about numerous cases of "misconduct" in the advice attorneys John Yoo and Jay Bybee provided the Bush administration, according to legal and Congressional sources familiar with the findings and news reports.
The report, which also may be critical of legal opinions authorizing domestic surveillance activities, recommends state bar associations conduct a review of Yoo and Bybee's legal work to determine whether they should face disciplinary action, including disbarment.
Bybee, now an appeals court judge in San Francisco, signed the so-called August 1, 2002 torture memo and other controversial legal opinions that Yoo helped to draft. Bybee was head of the Justice Department's Office of Legal Counsel (OLC) and Yoo was a deputy assistant attorney general.
Steven Bradbury, the former acting head of OLC, was also a subject of Jarrett's probe and authored three legal opinions in May 2005, reinstating torture against alleged "high-level" terrorist detainees, but it's unknown exactly what the report has recommended Bradbury's punishment, if anything, should be. Bradbury, as it turns out, participated in a final review of the report while he was still acting head of OLC.
The OPR probe was launched in mid-2004 after a meeting in which Jack Goldsmith, then head of the OLC, got into a tense debate with White House lawyers, including Vice President Dick Cheney's legal counsel David Addington. Goldsmith had withdrawn some of the Yoo-Bybee opinions because he felt they were "legally flawed" and "sloppily written."
After the meeting, Goldsmith resigned and was subsequently replaced on an acting basis by Bradbury, who restored some of the controversial Yoo-Bybee opinions in May 2005, again granting Bush broad powers to torture detainees.
News reports published on Tuesday, describing details of Jarrett's report, said it specifically states that neither Yoo nor Bybee, should be prosecuted for drafting the legal memoranda that sanctioned torture.
But it would be unusual for an ethics report to make a definitive statement against prosecutions as that is usually left to the attorney general.
Indeed, according to OPR policies and procedures, "If OPR determines that professional misconduct or poor judgment occurred, it prepares a report containing its findings and conclusions, and provides that report to the Deputy Attorney General as well as the appropriate Assistant Attorney General, the Director of [Executive Office of US Attorneys], or other appropriate component head.
"In addition, if OPR finds professional misconduct, it will also recommend an appropriate range of disciplinary actions for consideration by the attorney's supervisors," the office's policies and procedures state. "In cases of poor judgment, the attorney's supervisors may consider training, reassignment, or disciplinary action.
"While OPR recommends an appropriate range of discipline in cases of professional misconduct, the decision whether to propose discipline and the nature of the action to be taken rests with the attorney's supervisors. Disciplinary actions against DOJ attorneys are governed by the DOJ Human Resources Order, chapter 1200, and include written reprimand, suspension, demotion, or removal.
"In cases in which it finds professional misconduct (either intentional misconduct or conduct in reckless disregard of an applicable standard or obligation), OPR ordinarily advises bar disciplinary authorities in the jurisdiction where the attorney is licensed of its finding.
"Such a referral is not made if OPR determines that the matter involves purely federal or Department concerns and no bar disciplinary rule appears to be implicated. OPR's investigative information may be disseminated to assist state bar disciplinary authorities to meet their responsibilities."
In a letter sent in February 2008, to Democratic Sens. Dick Durbin and Sheldon Whitehouse, members of the Judiciary Committee, who requested OPR launch an investigation into OLC's legal work authorizing torture, Jarrett wrote that his office was already "examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys."
The OPR report was completed in December, but was kept under wraps by Attorney General Michael Mukasey while Bush finished out his days in office.