NPR reports that the Justice Department is about to release the results of its investigation into whether DOJ lawyers, under the Bush administration, violated legal ethics when they authorized "harsh interrogations." NPR has a hard time with that torture word.
Did the lawyers in question, when advising the White House, deliberately skew their advice to give a go-ahead to torture?
So the challenge for Justice Department ethics investigators is to distinguish a legitimate judgment call from a violation of legal ethics that deserves to be punished.
Professor Luban [legal ethicist, Georgetown] says in order to make those distinctions, investigators at the Office of Professional Responsibility need to look at how the memos were created.
"I'm told that the [Office of Professional Responsibility] report looks at the e-mail traffic and earlier drafts which might give some other hint that the law was being cherry-picked and that the memos were driven by the result," Luban says.
Other sources confirm that a draft of the report included a detailed play-by-play of how the memos were created. That gets at the question of whether lawyers knowingly omitted important cases to skew their findings or really engaged in a good faith analysis of the issues.
The office conducting this investigation has never been under this much scrutiny before. Some of the Bush administration's defenders have accused the Office of Professional Responsibility of going on a political witch hunt.
Attorney Nadira Clarke defends the office. She used to work there, though she has no knowledge of this particular investigation.
"You want some kind of internal policing," she says. "The department is communicating to its attorneys what is expected of them in terms of their conduct and what conduct will be and won't be acceptable."
Attorney General Holder has said the report is practically finished. Now parts just have to be declassified before it can be released.
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