The twelfth [interrogation] technique–which Mitchell and Jessen wanted approved but which Yoo excluded because of the rush to approve waterboarding–is mock burial.

There must have been significant discussion about the decision to exclude mock burial from the Bybee Two memo, because the reference to its exclusion in the report itself (PDF page 60 in the Final Report) includes a page and a half of redactions following the discussion of leaving it out.

We learned last year that the mysterious eleventh technique was prolonged diapering, thanks to the disclosure of the 2004 CIA inspector-general’s report into interrogation and detention. Wheeler’s discovery completes the list of what these two torture enthusiasts advocated.

Recall that it came out last year that in a classified August 2002 memoranda, Yoo and Bybee approved such tortures to captured al-Qaeda detainee Abu Zubaydah as placing insects inside a “confinement box” along with the detainee, who was to be led to believe the insects were poisonous. They concluded such a move wouldn’t be torture. Here’s a snippet of how they reached such a conclusion. They use the bizarre nickname “Boo-Boo” for Abu Zubaydah:

On June 30 [2002], Yoo asked [NAME REDACTED] by email, “[D]o we know if Boo-boo is allergic to certain insects?” [NAME REDACTED] replied, “No idea, but I’ll check with [NAME REDACTED]” Although there is no record of a reply by [NAME REDACTED] the final version of the classified Bybee memo included the following, “Further, you have informed us that you are not aware that Zubaydah has any allergies to insects.”

These were grown men sworn to uphold the law.

Both Yoo, now a Berkeley law professor, and Bybee, a federal judge, object to several findings listed in the report.

Update, 7:48 a.m., Feb. 20: My apologies for a hasty initial misread. Justice Department ethics officials found that Yoo and Bybee were professionally negligent, but OPR itself — while still treating their work harshly — found their misconduct didn’t rise to that standard.

So where is it?

The report, prepared by the Justice Department’s Office of Professional Responsibility, reviews the conduct of former Office of Legal Counsel lawyers John Yoo, Steven Bradbury and Jay Bybee, who is now a federal court of appeals judge.  All three helped produce memos that approved treatment of detainees that Holder has said is clearly illegal. Enough information has been leaked already that we know that its earlier versions, at least, were highly critical of the OLC attorneys’ work and could lead to disciplinary actions against the lawyers by state bar associations. If the review finds that the lawyers deliberately slanted their analysis of the law to reach a desired conclusion, it could also renew calls for their prosecution.

By the end of the day on Monday, the Department of Justice still had not produced the promised report.

In June, Holder similarly said that the report would be released “in a matter of weeks.”  That was almost six months ago.

Tim Griffin, Barbara Comstock and Karl Rove (Tim Griffin for Congress, Comstock for Delegate, White House photo)

For a candidate making his first bid for office, Tim Griffin couldn’t be in better shape. One week after announcing his campaign against Rep. Vic Snyder (D-Ark.), the incumbent in Arkansas’s most Democratic-leaning district, Griffin had raised $130,000. A Public Policy Polling survey released last week found Griffin only one point behind Snyder, a statistical tie with a congressman who did not even draw a challenger last year.

[GOP1] Griffin’s success so far has come with a price. In 2000 and 2004 he worked for the Bush-Cheney ticket; in 2004, according to a BBC investigation, he was involved in an effort to challenge the registrations of voters who weren’t at their regular addresses. In December 2006 he was appointed U.S. attorney for the Eastern District of Arkansas, but he resigned six months later, taking heat for being placed in the job without Senate approval. His political re-emergence has been made possible by the connections he made during the Bush years. His campaign, however, has nearly nothing to do with his experience under the previous president.

“When I go around the district here in Arkansas,” Griffin told TWI before attending a D.C. fundraiser last week, “what I hear about is jobs, private sector versus the government, the national debt, and this health care bill.”

Asked again if his experience working the Bush administration ever comes up with voters, Griffin was insistent. “No,” he said. “No, no, no.”

Griffin’s experience isn’t unique. Nearly a year after George W. Bush left office, some of the Republican strategists who built their reputations on his campaigns, or in his White House, have re-emerged as prominent pundits, legal thinkers and strategists, and some have made the move back into the electoral arena. So far, they’ve had considerable success in winning and in setting up credible operations for 2010. In Minnesota, Sara Taylor, Bush’s former director of the Office of Political Affairs, is advising Gov. Tim Pawlenty’s (R-Minn.) PAC. In Virginia, Republican lawyer Barbara Comstock — who worked for John Ashcroft’s Justice Department and who helped defend I. Lewis “Scooter” Libby — won a tight election for a seat in the House of Delegates. That was a victory that some Democrats see as a prelude to a run for Congress when Comstock’s mentor Rep. Frank Wolf (R-Va.) retires.

It’s a perplexing situation for Democrats. Bush’s presidency had staggered to an end. His approval rating did not rise above 50 percent for the last three years of his tenure; he did not hit the campaign trail for his party’s national ticket in 2008, and only addressed the Republican National Convention via a satellite feed. Democrats felled Republican after Republican in 2008 by putting their headshots next to Bush’s. In the year that’s followed, though, Democrats have watched former Vice President Dick Cheney (and his daughter Liz) resurface as a conversation-driving critic of their foreign policy. Bush Justice Department lawyers like John Yoo and Jay Bybee have thrived in their perches in academia and on the federal bench, respectively. In this year’s race for governor in New Jersey, Democratic incumbent Jon Corzine attacked his Republican opponent, Chris Christie, for having political conversations with Karl Rove while still serving as a U.S. attorney. Christie won the election anyway.

If there’s a way to turn service under Bush into a losing issue for Republican candidates, Democrats haven’t figured it out. Comstock’s upset victory in Virginia, in a race where both candidates spent nearly $1 million, came after months of attacks on her political service. Democrats went after the candidate’s ties with gimmicks like “Barbara Comstock’s lost resume” — experience like “initiated negative campaigning ‘storyline’ against Al Gore,” references like Karl Rove and Dick Cheney. TV ads and direct mail portrayed Comstock alongside the likes of Cheney and former Attorney General John Ashcroft. And Comstock didn’t wilt under the pressure. She welcomed backing from Republican allies up to and including Rove, who appeared at a September fundraiser on her behalf.

“Elections are always about the future and responding to what people are doing in their everyday lives,” Comstock told TWI, while also saying that she did not want to dwell too much on the attacks against her. “When you don’t do that, well, you look at some of these past elections for Republicans when people didn’t feel we were responding on those economic issues and we lost. In Virginia, we dealt with those real kitchen table issues.”

Democrats viewed Comstock’s win as insult added to an already injurious election night, a defeat that could have been prevented if she hadn’t been allowed to re-make her image. “Comstock ran an effective race,” said Matt Mansell, executive director of the Virginia House Democratic caucus. “She started communicating early and got the best of both worlds by presenting herself as a solutions-oriented moderate candidate while still getting fund-raising help from Ted Olsen and Mitt Romney and Karl Rove.” The party’s mistake, said Mansell, was not “to define her earlier as a Bush political hack.”

Not surprisingly, Comstock’s success has given a little bit of cheer to other veterans of the Bush administration who have been tarred by the association. Hans van Spakovsky, who was pilloried by Democrats over his work as voting section counsel to the assistant attorney general of the Civil Rights Division, told TWI that his career options were limited by those attacks.

“They were so effectively able to ruin my professional reputation as a lawyer,” said Spakovsky, who now works at the conservative Heritage Foundation, “despite the fact that they were wrong on all of these issues. I couldn’t get confirmed to the FEC. When I was looking for jobs last year, it was very clear to me that at least one of the law firms I talked to in town blackballed me because I was in the Bush administration. It’s a real problem in Washington today that people on the left side of the aisle can’t seem to disagree with people without going after that.”

Tim Griffin’s re-entry into politics, said Spakovsky, was a source of new optimism. “I wish Tim Griffin the best of luck,” he said. “I’m happy to see people who are determined, like him, start to fight back.”

If local Democrats have their way, Griffin’s comeback won’t take him all the way to Congress. “If he’s the nominee against Vic Snyder,” said Mariah Hattah, executive director of Arkansas Democratic Party, “it would pit a proven public servant against a campaign operative who worked for Karl Rove, the master of the dark arts of campaigning.” Hattah getting into a striking degree of specificity for a campaign that is still taking shape, suggested that state Democrats would make voters aware of the “caging” scandal that dogged Griffin before he left the U.S. attorney’s office. “No one likes likes voter suppression,” she said.

David Wasserman, the House race editor of the Cook Political Report, said that Democrats’ chances at making Griffin toxic depend wholly on the political environment. “In any other year that line on the resume would be a huge vulnerability,” said Wasserman. ‘But when the environment is good, it’s like Democrats are wearing velcro, and the Republicans are wearing teflon.”

In the meantime, Griffin is keeping his head down, raising funds and leaving aside much talk of his resume in the Bush years.

“I’ve done a lot of things in my career,” Griffin told TWI. “I’ve been in the army for 13 years. I’m a major. I went to Iraq. I’ve been an army prosecutor, and I’ve done a lot of things. And whatever I’ve done, I’ve just tried to do a really good job. Look — that’s politics. I don’t expect anything different. I’d say that if you get an opportunity to serve your president and your country, you take it.”

The federal judge who helped draft Justice Department memos on torture has set up a legal defense fund to pay the costs of defending against possible disciplinary or impeachment proceedings. Jay Bybee, a U.S. Court of Appeals judge in Las Vegas, quietly set up the fund last July following widespread news reports that he and a former deputy, John Yoo, were the focus of a long-running investigation by the Justice Department’s internal ethics unit, the Office of Professional Responsibility (OPR), over their role in crafting the memos.

Attorney General Holder said yesterday he expected the Justice Department would finally release a version of the OPR report by the end of the month. Judge Bybee is evidently prepared for the rather nettlesome case of his former employer considering him unfit to practice law: Isikoff reports that he’s got Liz Cheney’s advocacy group, Keep America Safe, on his side.

One interesting question arises. Bybee’s former deputy John Yoo helped him craft the torture memos in 2002. Yoo faces similar criticism and legal difficulty, and is reportedly implicated in the OPR report alongside his old boss. But Yoo’s personal legal expenses are, risably, covered by the American taxpayer. Will Bybee similarly stick us with the bill?

“The report is completed,” said Holder. “It is in its last stages of review now.” Holder said it was delayed “because of the amount of time we gave to the lawyers who were the subject of the report to respond. And then people in OPR had to respond to their responses.” Holder said that in this final stage, “a career prosecutor has to review the report. We expect that process should be done by the end of the month. At that point the report should be issued.”

The OLC is the office that housed such Bush-era luminaries as John Yoo and Jay Bybee, and issued the infamous “torture memos” that defined torture so narrowly that even waterboarding — which had always been considered a form of torture before, even by the United States — now passed legal muster. Johnsen was one of many critics of that office’s legal opinions during the Bush presidency, earning her the lingering ire of many Republicans.

Among them was Specter, who, during her confirmation hearing in February, took the lead in painting her as a radical left-wing ideologue. In April, even after switching parties, he reaffirmed that he was still opposed to her nomination. As a result of the staunch opposition of Specter, Sen. Ben Nelson (D-Neb.), and most Republicans, the Office of Legal Counsel has gone without a confirmed leader to advise the president on critical legal issues, such as the use of warrantless wiretapping and the treatment and trials of suspected terrorists and “war on terror” detainees.

But now, it looks like Specter may be changing his mind. Specter’s press secretary, Kate Kelly, emailed me Thursday with this:

Senator Specter has several concerns about Ms. Johnsen’s nomination, including her views on executive power and abortion. Senator Specter is solidly pro-choice, but he disagrees with her position equating limitations with involuntary servitude. Senator Specter had a second meeting with her to get clarification on her positions and he is still considering her nomination.

As I pointed out during Johnsen’s confirmation hearing, Specter grilled her on a footnote buried in a friend-of-the-court brief she’d co-authored with 10 other lawyers representing 77 different public interest organizations, 20 years ago in an abortion rights case when she was a lawyer for the National Abortion Rights Action League. The footnote said that laws curtailing the right to an abortion “are disturbingly suggestive of involuntary servitude, prohibited by the 13th Amendment, in that forced pregnancy requires [a woman] to provide continuous physical service to the fetus in order to further the state’s asserted interest.”

“When I read in your writings that abortion bans are a violation of the 13th Amendment ban on slavery,” Specter chastised Johnsen at her confirmation hearing, “that seems to me candidly beyond the pale.”

Johnsen, flustered, responded that, as far as she could remember, she hadn’t actually equated outlawing abortion with slavery, but was just making an analogy. Anyway, the point, while creative, was pretty tangential to the core of the brief’s argument. It was, after all, relegated to footnote 23. But that clearly did not satisfy Specter, who remained firmly opposed to her nomination.

Until Thursday.

The change is consistent with Specter’s overall transformation, captured well by Nate Silver’s Specterometer at FiveThirtyEight.com. According to Silver’s analysis, after switching parties on April 28th, Specter started out voting with the Democrats on “contentious votes” about two-thirds of the time. But since Rep. Joe Sestak (D-Pa.) announced on May 27 that he plans to challenge Specter in the 2010 Democratic primary, Specter has become a far more loyal party member, voting with the party on “contentious votes” 97 percent of the time.

That was Silver’s count in July, and I don’t have the count to date, but it does give some indication as to why Specter decided to meet with Johnsen a second time, and is now “reconsidering” which way he’ll vote on her nomination.

In March, Judge Garzón announced that he was planning to investigate the legal architects of the Bush detention and interrogation policies, including former Attorney General Alberto Gonzales, former Office of Legal Counsel attorneys John Yoo and Jay Bybee, former undersecretary of defense for policy Douglas Feith, former Vice President Dick Cheney’s chief of staff David Addington, and former Pentagon general counsel William Haynes. But he dropped that investigation on the advice of the Spanish Attorney General.

Now, though, according to Público, Judge Garzón has agreed to move forward with a lawsuit against the same six lawyers brought by several Spanish legal and human rights organizations and three former Guantanamo detainees.

Still, political pressures could force Garzon to back down. As Worthington reports, the Spanish Parliament in June passed a law aimed at “ending the practice of letting its magistrates seek war-crime indictments against officials from any foreign country, including the United States,” on the basis that Spanish courts should not judge foreign countries’ officials unless the victims are Spanish or the crimes were committed in Spain.

This seems more likely to be raised in defense of the CIA interrogators than against the lawyers. An investigation of the relationship between the OLC and the executive might turn up criminal wrongdoing, but bad legal work isn’t prosecutable on its own.

Of course bad legal work isn’t prosecutable.  And of course CIA interrogators will say they’re not guilty because they were just following vaguely worded guidelines — which sounds an awful lot like “just following orders.” My point is that a prosecutor can’t simply stop his investigation of the over-the-top CIA interrogations there. Not because shoddy lawyering is a crime, but because it’s very likely that the Justice Department lawyers knew better.They knew that the CIA’s instructions were vague but approved them anyway, possibly because they were told by senior Bush officials not to constrain the interrogators. And if the lawyers knew that was likely to lead interrogators to cross the line from “enhanced interrogation” to torture, then the lawyers could themselves be liable for participating in a criminal conspiracy.

All of which is to say that any real investigation of how and why some CIA interrogators broke the law by torturing and even killing detainees in their custody must look at the orders they received — and at who signed off on them.

From the report itself, John Yoo’s Office of Legal Counsel memo — and the lightning-fast reporting of Spencer Ackerman, Marc Ambinder and others on Friday — we now know that President George W. Bush and Vice President Dick Cheney, aware that ignoring the Foreign Intelligence Surveillance Act and the Fourth Amendment to the U.S. Constitution might come back to bite them later, sought the drafting of a legal opinion that would approve the president’s secret surveillance program and shield them from later attack.

The fact that the White House sought the assistance of Deputy Assistant Attorney General John Yoo in the OLC, though is itself evidence that the White House was trying to get around, rather than comply with, the law.

As I’ve noted before, legal memos justifying an unreasonable or inaccurate legal position don’t necessarily provide a “golden shield” for the executive.

Yoo, after all, was known when he was hired as the Berkeley law professor and staunch Federalist Society member who held theories on executive power that were far outside the legal mainstream. And the memos and academic analyses he then proceeded to write were so extreme and so mischaracterized law and history in an effort to reconcile conservative “originalist” principles with his own aggressive view of an all-powerful president as Commander-in-Chief that they’ve been characterized as an “outrageous theory of presidental dictatorship” by Yale University law professor Jack Balkin and as “simply hooey” by Marty Lederman at Georgetown (now in the Office of Legal Counsel in the Obama administration).

The inspectors general report details how Yoo and the administration ignored parts of the FISA law that conflicted with his theory, for example, and made the outrageous argument that a warrantless search doesn’t violate the Fourth Amendment’s prohibition on “unreasonable” searches and seizures because it can’t be “unreasonable” for the president to authorize it in wartime. Why it’s “reasonable” to prevent even secret judicial review of such searches is never explained.

For an academic to hold extreme views of executive power, of course, is arguably a matter of academic freedom, and even a form of creative theorizing that one might admire. (Although some of Yoo’s Berkeley colleagues, such as economist Brad DeLong, among others, have described his theories as reaching so far beyond the bounds of creative academic theorizing as to be simply dishonest and undeserving of that protection.)

But Yoo’s memos at OLC were not part of an academic exercise; they were making policy. Setting aside for a moment the potential culpability of Yoo himself, the more important point here is that, as the inspectors general report makes clear, the White House specifically sought him out and excluded his superiors, ignoring the usual chain of command in the Justice Department, apparently because they knew that John Yoo would give them the legal opinions that they wanted to hear.

That is not the purpose of the Office of Legal Counsel, as Dawn Johnsen, the Obama nominee to head that office has repeatedly made clear, along with more than a dozen other alumni of that office.

As Johnsen wrote in a law review article describing the ten “Guidelines” that should govern the Office of Legal Counsel: “OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies … In short, OLC must be prepared to say no to the President.”

That the president and vice president apparently chose someone who they knew in advance would not say no to the president is more than an abuse of that legal office; it strongly suggests an intentional and unlawful abuse of executive power.

The latest news accounts that Attorney General Eric Holder is leaning toward appointing an independent prosecutor suggest he may finally be starting to reach the same conclusion.