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 waterboarding and other coercive interrogation techniques against suspected Al Qaeda 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, although 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 crucial 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 U.S. 9th Circuit Court of Appeals in San Francisco. Critics and even some lawmakers have called for his resignation. Yoo is a law professor at UC 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 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. Atty. Gen. 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.
Public pressure to release the OPR probe’s findings has intensified significantly since the Obama administration last month declassified four of the memos. That sparked international debate over whether the lawyers intentionally bent their interpretation of U.S. laws and international treaties to sanction what many critics believed to be torture.
The investigators relied on a wealth of classified information -- including e-mails between the Justice Department attorneys and officials at the CIA and White House -- in an effort to determine how the lawyers had come to their conclusions and whether they were pressured.
For instance, the U.S. government for decades had prosecuted and convicted people for using waterboarding, a technique that simulates drowning, during interrogations. Yet that was given little mention in extensively detailed legal memorandums.
The OPR investigation found that memos attempting to make organ failure the defining line between pain and torture was something any lawyer would find unreasonable. It also concluded that Bybee and Yoo had violated a lawyer’s duty to provide “reasonable legal advice,” according to one source familiar with the report who, like others interviewed, agreed to discuss the report on the condition of anonymity because it was classified.
Some current and former administration officials and legal experts have criticized Bybee and Yoo for writing sloppy legal opinions that allowed the CIA to slam detainees into walls, keep them awake for a week at a time, and use other tactics widely seen as torture. Holder himself has characterized waterboarding as torture.
But former Bush administration officials have been lobbying against any kind of disciplinary action, saying the lawyers gave their best advice under very trying circumstances -- including the fear of another imminent terrorist attack -- and that punishing them would have a chilling effect on future policy-making.
OPR had been reviewing the case for four years and first circulated its draft to the attorney general on Dec. 22. Several former administration officials said they were surprised at the findings and believed the internal affairs office had overreached, conducting a kind of investigation that was well outside its purview.
Former Atty. Gen. Michael B. Mukasey and his deputy, Mark Filip, vigorously opposed the report. In a 14-page memo, they recommended that the findings be revised and reconsidered, several former officials said.
But because the Bush presidency was ending, it fell to the Obama administration and Holder to decide what to do.
In November, Mukasey wrote that he was hopeful that once the Obama administration reviewed “the decisions made and the legal advice provided, it will acknowledge that despite any policy differences, the national security lawyers in this administration acted professionally and in good faith and that the country was safer as a result.”
Greg Miller in the Washington bureau contributed to this report.