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A five-year-long internal Justice Department inquiry into the origin of Bush-era interrogation techniques has recommended that government lawyers who defended the legality of practices like waterboarding not face criminal charges, according to media reports.
It is the latest volley in a drawn-out political debate over whether former Bush officials should be held legally accountable for the interrogation techniques, which were approved in the weeks following the Sept. 11, 2001, attacks. At the time, many feared that a second strike on the US was imminent.
President Barack Obama calls the techniques torture, but former President George W. Bush viewed them as an acceptable way to interrogate suspects who may know information about possible future attacks.
The legal arguments in favor of the techniques were revealed last month when President Obama released classified Justice Department memos written by John Yoo, Jay Bybee, and Steve Bradbury, who all served in the Office of Legal Counsel under President Bush.
When releasing the memos, Obama said he would not prosecute individual CIA agents who carried out the interrogations, but deferred the question of disciplining the practices's legal architects to Attorney General Eric Holder, reports the Associated Press (AP). According to the AP, sources with knowledge of the draft report say it recommends professional sanctions for two of the men and no penalties for the third, in a move that has drawn the ire of human rights groups.
Investigators recommended seeking professional sanctions against Bybee and Yoo, but not Bradbury, according to the person familiar with the matter. Those would come in the form of recommendations to state bar associations, where the most severe possible punishment is disbarment.
Vincent Warren, executive director of the Center for Constitutional Rights, called the decision not to seek criminal charges "inconceivable, given all that we know about the twisted logic of these memos."
Warren argued the only reason for such a decision "is to provide political cover for people inside the Obama White House so they don't have to pursue what needs to be done."
Bybee is now a judge on the 9th U.S. Circuit Court of Appeals. Yoo is a professor at the University of California-Berkeley. Bradbury returned to private practice when he left the government at the end of President George W. Bush's term in the White House.
The AP reports that the results of the inquiry were supposed to be made public last year, but were delayed after then-Attorney General Robery Mukasey requested that the three men be allowed time to respond to the findings.
Now, The Guardian reports that the full results of the inquiry may be released as early as next month, along with information on how the memos were written and e-mail transcripts of exchanges between the three men and officials within the administration and the CIA.
"You'd have to have some sort of information that those three guys understood that the memo was in itself just garbage. I'd be looking for something that shows they understood what they wrote was just unsupportable, but they decided they were going to write it anyway."
The Atlantic reports that "a draft report suggests" that more senior administration officials may have leaned on the legal advisers at the Office of Legal Counsel to write justifications for tactics to which they were already committed.
Ostensibly, Yoo, an attorney for the Office of Legal Counsel and Bybee, that section's chief, were tasked by Attorney General John Ashcroft with determining whether so-called "enhanced interrogation techniques" violated U.S. law and treaty obligations. But a draft report, prepared by the Justice Department's Office of Professional Review, suggests that, at the direction of the White House, the OLC worked to justify a policy that had already been determined and did not begin their inquiry from a neutral position.
It is not clear – and sources would not say – who in the White House communicated with the two lawyers about the memos, and it is not clear whether Yoo or Bybee felt unduly pressured to provide a legal framework for a decision already made by senior administration officials.
But the independence of the inquiry may be drawn into question by today's report from The Washington Post that former Bush administration officials "have launched a behind-the-scenes campaign to urge Justice Department leaders to soften" the report and its recommendations. The report cites two anonymous sources.
Representatives for John C. Yoo and Jay S. Bybee, subjects of the ethics probe, have encouraged former Justice Department and White House officials to contact new officials at the department to point out the troubling precedent of imposing sanctions on legal advisers, said the sources, who spoke on the condition of anonymity because the process is not complete.
The effort began in recent weeks, the sources said, and it could not be determined how many former officials had reached out to their new counterparts.