Assistant United States Attorney John Durham is close to completing a preliminary review of whether there is evidence that CIA agents violated the law when they used brutal methods to interrogate terror detainees, Attorney General Eric Holder said in speech Thursday night.

Holder, speaking in a question and answer session after his remarks at the University of the District of Columbia Law School, said Durham is ”close to the end of the time that he needs and will be making some recommendations to me.”  Holder’s comments were his fullest status report to date on the one  of the Justice Department’s most politically sensitive inquiries.

The question Durham’s investigating is ostensibly a narrow one: whether CIA interrogators acted outside of what Holder called the “pretty far-out OLC opinions” that justified torture. But there’s some room of interpretation of those strictures. A recently declassified CIA inspector general’s report from 2004 found that interrogators used mock executions and death threats with power drills and other gruesome techniques on detainees not explicitly outlined in even those “far-out” opinions. But they were operating in the spirit of those opinions, and most definitely with the sanction of policy from the Bush administration. So how will Durham calibrate what’s in and out of sanctioned boundaries?

Perhaps more saliently, what will Holder do in response? Indicting CIA interrogators without indicting the policymakers who put them in positions to break the law doesn’t exactly resemble justice. But neither does declining to indict torturers, especially when the Obama administration is trying to promote a rules-based international order more generally. Adam Serwer has a good post about the domestic politics the already-demonized Holder has to manage:

Of course, if there are prosecutable cases, and Holder chooses to pursue any of them, the GOP will paint the whole effort as a witch hunt against the CIA. That point if view is likely to draw more attention than the opposite one from the left, which is that the investigation didn’t go far enough in that it did not include those administration officials who authorized torture to begin with.

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.

An individual who voluntarily “enter[s], or serv[es] in, the armed forces of a foreign state” (13) may be expatriated, “if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer.” 8 U.S.C. § 1481(a)(3). Nonetheless, no person may be expatriated unless he acts “with the intention of relinquishing United States nationality.” 8 U.S.C. § 1481(a). That said, although the performance of an expatriating act cannot be used as “the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen,” such conduct “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.” Terrazas, 444 U.S. at 261 (quotations omitted).

Voluntary service in a foreign armed force that is engaged in hostilities against the United States has frequently been viewed as a particularly strong manifestation of an intention to abandon citizenship. As Attorney General Clark once opined, “it is highly persuasive evidence, to say the least, of an intent to abandon United States citizenship if one enlists voluntarily in the armed forces of a foreign government engaged in hostilities against the United States.” 42 Op. Att’y Gen. at 401. See also 22 C.F.R. § 50.40(a) (although “intent to retain U.S. citizenship will be presumed” when an individual “naturalize[s] in a foreign country” or “take[s] a routine oath of allegiance,” no such presumption is provided “[i]n other loss of nationality cases”).

So a couple of things here. First, al-Qaeda isn’t the agent of any state, so it’s unclear whether al-Qaeda would fall into this framework. Second, even if it does, al-Awlaki is not necessarily a member of al-Qaeda. Third, at the time Yoo wrote this memo, the Bush administration had three American citizens in its custody that it contended were agents of either al-Qaeda or the Taliban: Yaser Hamdi, Jose Padilla and John Walker Lindh. (Hamdi later claimed to renounce his citizenship.) And it did not claim any of them implicitly renounced their citizenship. While I think Yoo’s 2002 memo is technically still operative, it hasn’t been a guide to either the Bush or Obama administration’s behavior. I’m referencing it just to show that the citizenship-and-counterterrorism question has been around for years now.

Senators Ron Wyden (D-Ore.), Dick Durbin (D-Ill.) and Russ Feingold (D-Wis.) wrote a letter today — which you can read in full after the jump — calling on Attorney General Eric Holder to “immediately” give Congress a copy of OLC’s retroactive immunization.

The Honorable Eric H. Holder, Jr.
Attorney General
United States Department of Justice
Washington, DC 20530

Dear Mr. Attorney General:

We are greatly concerned by the Department of Justice Office of Inspector General (OIG) report entitled “A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records,” which was issued yesterday. The report documents what appears to be several years of rampant illegality in the FBI’s methods of obtaining telephone records. As you know, we have been urging changes to the Patriot Act that would protect national security as well as the rights of Americans, and we believe this report further highlights the need for legislative changes.

We write specifically because we believe the Department should immediately provide to Congress a copy of the January 8, 2010, Office of Legal Counsel (OLC) opinion that is referenced in the OIG report and that apparently interprets the FBI’s authority to obtain phone records. Although much of the information about the OLC opinion is redacted in the public version of the OIG report, the opinion appears to have important implications for the rights of Americans. The report states that “the OLC agreed with the FBI that under certain circumstances [REDACTED] allows the FBI to ask for and obtain these [phone] records on a voluntary basis from the providers, without legal process or a qualifying emergency.” (p. 264) It further states that “we believe the FBI’s potential use of [REDACTED] to obtain records has significant policy implications that need to be considered by the FBI, the Department, and the Congress.” (p. 265) And finally, it states that the OIG recommends “that the Department notify Congress of this issue and of the OLC opinion interpreting the scope of the FBI’s authority under it, so that Congress can consider [REDACTED] and the implications of its potential use.” (p. 268)

In light of the OIG’s recommendation, please provide Congress with the January 8 OLC opinion immediately. We appreciate your attention to this important issue.

Sincerely,

Russell D. Feingold Richard J. Durbin
United States Senator United States Senator

Ron Wyden
United States Senator

“After voting ‘pass’ (which means no position) in the Judiciary Committee, I had a second extensive meeting with Ms. Johnsen and have been prepared to support her nomination when it reaches the Senate floor,” reads a statement from Specter sent to TPMDC.

Unless Sen. Richard Lugar (R-Ind.) suddenly reverses his pro-Johnsen position, which is unlikely since his spokesman Andy Fisher just said the senator has “not changed his view” on Johnsen’s nomination “at all,” that’s 60 votes for Johnsen, who had to be renominated this year after her nomination never made it to the floor for a vote in 2009. Specter, various GOPers and Sen. Ben Nelson (D-Neb.) vocally questioned her judgment.

(Let’s show Greg Sargent some respect on this story, too.)

Yoo’s being pretty disingenuous here. The August 1, 2002 OLC memo on torture isn’t about perishable circumstances shortly after 9/11. It’s about the scope of executive power — and exclusive, inherent executive power. Yoo tells Stewart that Congress or the courts could rein in a rogue president on his conduct of a war. Yet his consistent view, as expressed in the memo, is that there’s pretty much nothing Congress can do during wartime short of cutting off funding, a politically extreme step.

Maybe people should give Yoo credit for picking his speaking venues.

Max Boot writes in his blurb for the book that it’s “not the work of some wild-eyed zealot,” but the book is clearly another of Yoo’s attempts to defend his more extreme legal theories, including those that have been roundly criticized by prominent Republicans who served in the Bush administration. Many of those theories — such as the executive’s right to authorize torture and to detain terror suspects indefinitely — are responsible for some of the worst conundrums that President Obama finds himself in today.

Whether cast as Hamiltonian or Machiavellian, Yoo’s point is that “great” presidents have always interpreted their powers broadly in times of crisis, and pesky critics at the time always denounced them for breaking the law. To illustrate this, Yoo rolls out the usual examples — Abraham Lincoln suspending habeas corpus during the Civil War, and Franklin Delano Roosevelt interning the Japanese during World War II.

Although careful not to call George W. Bush a “great” or even “above-average” president, Yoo argues that Bush’s decisions to suspend habeas corpus, use “coercive interrogation methods” (Yoo never uses the word torture) and indefinitely detain without charge “al Qaeda terrorists” (actually, terror suspects) were all simply par for the course — the actions any decent president would take under the circumstances. In Yoo’s view, this is not presidential lawbreaking, even if the president’s actions do violate existing laws. Rather, Yoo argues, the Constitution accommodates such lawbreaking — what Yoo calls “the need to respond to extraordinary events through the President’s executive power” — which apparently is limitless.

This is how, at the Office of Legal Counsel, Yoo managed to advise the president that he could ignore the legal bans on torture and even the Bill of Rights on U.S. soil. It’s too soon to know if that was wrong, Yoo says, since we’re still confronting the terrorist threat. “Only when we have the benefit of distance will we know whether Bush’s aggressive use of executive authority was too much, too little, or just right,” he writes, so complaints about torture and warrantless wiretapping are little more than Monday-morning quarterbacking.

It’s worth remembering that Yoo, now a law professor at University of California – Berkeley, is the subject of a still-unreleased ethics investigation as well as a pending lawsuit, both of which address charges that he not only misconstrued the law but was actively involved in breaking it. His aggressive defense of limitless executive authority sounds even shadier when read in that light.

But Yoo is at his most disingenuous when he criticizes President Obama. In his afterword, Yoo writes that under Obama’s executive orders, the CIA now must conduct interrogations according to the rules of the Army Field Manual — which “amounts to requiring — on penalty of prosecution — that CIA interrogators be polite.”

In fact, the Army Field Manual allows for prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners, as the Center for Constitutional Rights and others have noted. These can be used in combination, and can cause, as former Bush appointees and a congressional investigation have found, long-lasting psychological and physical harm.

Nonetheless, doing away with “the Bush system” means “we will get little timely information from captured al Qaeda terrorists,” Yoo asserts, especially if Obama allows them trials in federal court.

Yoo’s book was released too soon for his own good. Within just the last two weeks we’ve learned that an al-Qaeda terror suspect who tries to blow up a plane can be captured, arrested, charged in federal court and promptly provide information about others planning similar attacks on U.S. targets.

If Yoo’s views weren’t already thoroughly discredited, that last section of his book does the job — which just goes to show that Professor Yoo really should have stayed in academia. Yoo may have good stories to tell about the theories of executive power at work under Madison, Truman and Roosevelt, but when he applies theory to practice he fails miserably. Unfortunately, that’s not just a problem for his publisher. The entire nation is suffering for it now.

Eventually, the Justice Department did step away from Yoo’s defense — although Yoo’s personal lawyer, former GOP judicial nominee Miguel Estrada, is still being paid by U.S. taxpayers.

Now, despite having already filed briefs on Yoo’s behalf in the district court arguing that as a former DOJ lawyer he should not be held liable for the consequences of his legal advice sanctioning torture, the Justice Department has filed yet another brief in the case, making essentially the same argument, this time on the government’s own behalf.

In an amicus (friend-of-the-court) brief filed to the appeals court yesterday (the lower court had refused to dismiss the case), the Justice Department argues that the court should not allow a lawsuit against a government lawyer providing advice to the executive branch where the case implicates national security and war powers. Such liability “could deter frank and full discussions within the Executive Branch regarding such matters.”

Of course, if the executive branch had actually had a “frank and full discussion” about the legality of torture with more than just a couple of hand-picked lawyers who believed in absolute executive power in the first place, John Yoo and the rest of the country wouldn’t be in the mess we’re in now. But set that aside for a moment.

Footnote 1 of the brief implicitly acknowledges the weird conflict involved in the DOJ’s even filing this brief, though without explicitly noting that the DOJ already made these same arguments on Yoo’s behalf earlier.

The first footnote essentially says that the Justice Department is going to repeat only some of its earlier arguments this time but not others. Specifically, it’s not going to make the argument now that Yoo didn’t do anything wrong because the right not to be tortured wasn’t clear at the time he approved it. That’s because since filing that first brief making just that argument, the department realized that, whoops, Yoo is under an internal ethics investigation, so maybe we should just stay out of this.

Dave Hoffman at Concurring Opinions interprets the footnote this way: “We’d like to join and expand on Yoo’s arguments about his good faith behavior. But other parts of us are still holding onto a report which may call into question the accuracy of that claim. Coincidentally and luckily, that report continues to be delayed, making it unnecessary for us to commit to a position that would be internally incoherent.  Do us a favor and resolve this on constitutional grounds, would ya?”

To be sure, that hasn’t stopped the Justice Department from making the argument elsewhere that torture wasn’t clearly illegal when Yoo sanctioned it. In the case of Rasul v. Rumsfeld, for example, that’s precisely the argument the Obama administration is still making. In fact, as I noted recently, the administration is going even further than that. In a brief recently filed to the U.S. Supreme Court, the Obama Justice Department argued that under its own interpretation of the law, there is no constitutional right not to be tortured by U.S. authorities in U.S.-run prisons abroad.

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.

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?