United States Senator Jeff Sessions
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Sessions Criticizes OPR Report on Office of Legal Counsel Memoranda
“Mr. Chairman, for the last several years, the Judiciary Committee has debated extensively the legal and policy questions surrounding how we conduct the war with al Qaeda and other terrorist organizations. We will continue to do so as part of our very important responsibilities in this Committee.
“I think it is important, however, to put this hearing in context. Today, we are discussing memos that were written in 2002, repealed by the Department of Justice in 2004, and whose subject is an interrogation technique—waterboarding—that was only used on three people and never employed by the military. Yet here we are in 2010, in large part because of the missteps and delays by the Department’s Office of Professional Responsibility, holding a hearing on a Friday morning to dredge up this issue once last time.
“In the aftermath of September 11th, lawyers in the Department of Justice and our national security professionals had one unifying goal: preventing the next terrorist attack. The pressures were enormous. The lawyers’ job was to determine where the legal lines should be drawn and to push as close to those lines as possible in order to give our intelligence professionals the tools they needed.
“In his book The Terror Presidency, Jack Goldsmith noted as much. He talks about the “national security lawyer’s dilemma,” which is borne out of the conflicting commands these lawyers receive on a daily basis:
Stay within the confines of the law, even when the law is maddeningly vague, or you will be investigated and severely punished; but be proactive and aggressive and imaginative, push the law to its limit, don’t be cautious, and prevent another attack at all costs, or you will also be investigated and punished.
“Times have really changed, perhaps because of the fear created by Jack Goldsmith’s “dilemma” and investigations like the one undertaken by the Office of Professional Responsibility in this matter. Whatever the reason, the Obama Administration has taken a dangerous turn away from the lessons we learned in the aftermath of 9/11.
“In 2010, we have an Administration that has not only repealed tough and effective interrogation techniques, but announced to terrorists around the world that we have done so in favor of the Army Field Manual. We have an Administration that gave Miranda warnings and a lawyer to a terrorist who tried to blow up an airplane on Christmas Day, rather than question him aggressively for intelligence purposes so we could learn all we could as quickly as we could about al Qaeda in Yemen. We have an Administration that insists on giving Miranda warnings to terrorists caught during wartime on the battlefields in Iraq and Afghanistan. We have an Administration that has announced that it intends to hold an Article III criminal trial for KSM and other terrorists held at Guantanamo Bay, rather than prosecuting them through military commissions, which are constitutionally appropriate and have a long history of use in the United States.
“These policy decisions are troubling, and in my view dangerous. For reasons inexplicable to me, perhaps because this Administration wants to curry favor with the far Left, the ACLU and the human rights crowd that now seems to populate the Department of Justice, we have taken a step back.
“And I am afraid that investigations like the one OPR conducted against Jay Bybee and John Yoo have sent a devastating message to those who might serve as national security lawyers. In the immediate aftermath of September 11th—under pressures so great that Attorney General Mukasey and Deputy Attorney General Mark Filip noted that they would wish it on “no American, ever, and certainly no member of the Department of Justice”—John Yoo and Jay Bybee crafted two legal memoranda on the subject of enhanced interrogation techniques. One of these memos was later leaked to the press and a Member of Congress, Frank Wolf of Virginia, called for an investigation of the circumstances surrounding the drafting of the memo.
“After five and half years, two drafts and one final report later, the Office of Professional Responsibility concluded, apparently without any legal or factual basis, that Mr. Bybee and Mr. Yoo had violated legal ethics rules and deserved to be referred for sanctions by state bar authorities.
“There is much that can be discussed about OPR’s work in this matter, most of it not flattering. They dropped their first version of their report on Attorney General Mukasey on December 23rd, 2008, at the end of the Administration and with little time to respond. The first report was filled with gaping holes, shoddy legal analysis and something even worse: a clear desire to punish John Yoo and Jay Bybee, even if the facts didn’t support it.
“Later versions of the OPR report attempted to change the legal standard, to a heightened one that OPR contended applied only to Yoo and Bybee—the unfair equivalent of moving the goalposts in the middle of the game.
“And someone, by press accounts perhaps OPR lawyers themselves, repeatedly leaked the draft reports and conclusions to the media, including liberal bloggers, in a transparent attempt to embarrass Yoo and Bybee and grow public support for their flawed conclusions. That is unacceptable, and I am going to want to know whether the Department is investigating these leaks to determine whether they came from within DOJ.
“Fortunately in this matter, cooler and wiser heads prevailed. The senior career official at the Department, David Margolis, rejected OPR’s misguided efforts. Mr. Margolis, who has conducted the final review of every discipline matter of this sort in the last 17 years, drafted a 69-page opinion that lays out in great details the serious problems with OPR’s analysis. The Washington Post has called this opinion “courageous” and “correct.” I agree.
“So where do we go from here? How does OPR rebuild its reputation and credibility? Can it even do so? And most importantly, how can we undo the damage that misguided investigations of this sort have on the willingness of national security lawyers to take on the tough questions and provide candid legal advice without fear that their reputation and livelihoods will be threatened if they give advice that falls out of political favor years later with the benefit of hindsight?
“These are the issues I hope we might focus on today. Thank you, Mr. Chairman.”
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