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.

Today, in response to that delay, the National Religious Campaign Against Torture sent a letter urging Holder to make good on his promise and release the report immediately.

“The delay in the issuance of the report jeopardizes the admirable leadership the Administration has shown in calling for transparency in government and in ending U.S.-sponsored torture once and for all,” says the letter. “Release of the OPR report is not like release of the photographs of torture; release of the OPR report will not imperil the safety of our troops or encourage new recruits for the terrorists. Its effect will be exactly the opposite. Release of the OPR report will demonstrate the integrity of our government processes.”

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 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.”

Take the nomination of Dawn Johnsen, Obama’s pick to the head the Office of Legal Counsel, which provides critical legal advice to the president. The OLC, of course, is the same office that got into all sorts of trouble under the Bush administration, and several of its former lawyers are the subject of a much-awaited report from the Justice Department’s Office of Professional Responsibility, which reportedly has concluded that the lawyers violated legal ethics in recommending President George W. Bush permit the abuse of detainees and other suspensions of constitutional rights in the so-called “war on terror.” That report, although reportedly drafted last year, is apparently still being reviewed by the very lawyers it apparently censures, and is likely being edited and potentially watered-down as a result.

But even as President Obama says he wants to look forward, not back, he’s not exactly pushing very hard to get a new director for that Office of Legal Counsel confirmed so she can lead his legal department on its forward march. The nomination of Johnsen, a highly-respected law professor who was second-in-command at OLC under President Clinton, was voted out of the Senate Judiciary Committee with full Democratic support in March. She has yet to get a full Senate vote — though back in May, Attorney General Eric Holder called her confirmation “probably my top priority.”

Republicans have made clear that they’ll fight the Johnsen nomination and slow the voting process down, even though it seems clear Democrats have enough votes to confirm her. GOP lawmakers have painted Johnsen as a radical for publicly challenging some of the advice given by the Office of Legal Counsel during the Bush years. And during her confirmation hearings, some Republicans seized on the fact that Johnsen was a lawyer for the National Abortion Rights Action League (NARAL) early in her career, and 20 years ago was one of ten co-authors on a brief in which there was a footnote that some Republicans found objectionable.

With the health care debate ongoing and the president staking much of the success of his first term on its outcome, the Obama administration may not have much interest in pushing the Johnsen nomination just now, since Republicans will likely insist on cloture — and the 30 hours of debate that comes with it — which would detract from the president’s current mission.

As a result, according to the White House and Senate staffers, a vote on the Johnsen nomination isn’t even on the calendar yet.

I guess Thiessen didn’t read the same CIA inspector general report that so many of us have been scrutinizing in the last few days. That report repeatedly made the point that the CIA guidelines governing what was permissible or impermissible interrogation conduct were so unclear that, while “an improvement over the absence of such [Department of Central Intelligence] Guidelines in the past, they still leave substantial room for misinterpretation and do not cover all Agency detention and interrogation activities.”

Sure, lawyers and senior officials were involved in interrogations every step of the way, which is why their actions ought to be scrutinized in any criminal investigation. But unfortunately, that did not lead CIA interrogators to abide by the law.

Take, for example, the fact that the redacted information in the reports we now have been told included information about detainees who were brutally killed in custody. The supposedly “safe” techniques approved by CIA officials and Justice Department lawyers weren’t supposed to lead to that, but they did.

And then there’s the problem that of 100 supposedly high-level al-Qaeda suspects in CIA custody, a bunch of them — we don’t know how many — were simply “lost.” That’s right, this “well-run, highly disciplined” program that had custody of 100 people now can’t account for what happened to some untold number of them. Did they escape? Were they killed and buried to hide the evidence? We have no idea — and apparently the CIA Inspector General wasn’t able to find out, either.

There are all sorts of reports today about the “legal hurdles and complex political dynamics”, as Mark Mazzetti and David Johnston at The New York Times put it,  that will stand in the way of prosecuting these cases. Establishing criminal intent and digging up evidence in faraway places of crimes that occurred years ago is all very difficult, say the experts. In fact, those are the very reasons the Bush administration’s Justice Department gave Sen. Dick Durbin (D-Ill.) years ago when he pressed former attorneys general about why they hadn’t prosecuted the deaths of detainees in U.S. custody: “insufficient evidence of criminal conduct, insufficient evidence of the subject’s involvement, insufficient evidence of criminal intent, and low probability of conviction.”

That didn’t ring true to current Attorney General Eric Holder when he read the CIA report, though, and it didn’t sound ethical to the Office of Professional Responsibility inside the Justice Department that has recommended re-opening these cases for investigation. The OPR’s analysis, in fact, suggests that it was the Eastern District of Virginia, then under the direction U.S. Attorney Paul McNulty, who appeared to be playing politics with what should have been a straightforward prosecution.

McNulty,  you may recall, is the U.S. attorney who was elevated to deputy attorney general and went on to lie to Congress when he said the White House played almost no role in the controversial firing of nine U.S. attorneys on what appears to have been largely political grounds. That was later contradicted by subsequent testimony and documents.

Thiessen, in the Wall Street Journal, meanwhile, writes that it was “career prosecutors” who decided not to pursue the cases in the Virginia office. Or, it was the U.S. attorney whose career was elevated for making that politically astute decision and then resigned in disgrace a few years later.

The concern about opening this investigation is the politics. Is it unseemly for one attorney general to re-visit the work of a previous one? And will it be politically embarrassing to the Department of Justice and the CIA if it turns out that prosecutors refused to prosecute violations of the federal anti-torture statute by CIA officials? And, as so many commentators are asking this week, won’t this all be a big unwelcome distraction for President Obama from passing national health care legislation?

The late Sen. Edward Kennedy (D-Mass.), one of the great champions of universal health care who is being mourned today, surely would not have seen it that way. Two years ago, he stood up to say clearly that “waterboarding is torture” and opposed the nomination of Attorney General Michael Mukasey because Mukasey refused to admit that. Kennedy also urged the Senate to pass legislation explicitly stating that waterboarding is a war crime. Politics prevailed, and his colleagues rejected the idea.

But Kennedy would probably not suggest that we ought to sacrifice justice to achieve his dream of universal health care. One has nothing to do with the other, except in the sense that, as Kennedy believed, both ought to be basic rights in a civilized society.

David Johnston of The New York Times reports today, based on an anonymous source briefed on the report, that despite the fact that the Justice Department under President George W. Bush refused to prosecute, the Justice Department’s Office of Professional Responsibility believes, as an ethical matter, the DOJ now has to prosecute those abuse cases.

The OPR report was apparently provided to Holder at some point over the last few weeks.  And its conclusions are being leaked to the media just as Holder is expected to make a decision to re-open those cases that the Bush administration had rejected.

Last week, GOP senators — including Kit Bond (R-Mo.), Jeff Sessions (R-Ala.) and Jon Kyl (R-Ariz.) –  wrote to Holder and urged him not to prosecute those cases, warning that prosecutions would “chill future intelligence activities.” (Never mind whether or not the conduct was illegal.)

The latest ethics report now strengthens Holder’s hand.

Yoo, of course, is the author of the infamous “torture memos” that justified the abuse and torture of terror suspects held abroad in U.S. custody, and authorized the suspension of the Bill of Rights on U.S. soil.

The Associated Press reports that campus police arrested at least four people who refused to leave the university’s law school building.

Yoo reportedly ignored the demonstrators and. after police removed them from his classroom, began teaching.

Yoo returned to UC Berkeley yesterday after spending the spring semester at Chapman University School of Law in Orange County, where his friend John Eastman is the dean.

According to the AP, Berkeley law students are divided over Yoo: while some think he’s a war criminal who should be fired, his classes are still among the most popular at the law school.

The Department of Justice’s Office of Professional Responsibility is expected to release a report any day now analyzing the conduct of Yoo and his colleagues at the Office of Legal Counsel under the Bush administration, and determining whether he violated ethical rules.  The report has been delayed for months while its subjects and the Department of Justice review and amend its contents.

That the Justice Department sought responses from the subjects of the department’s Office of Professional Responsibility report and is now changing the report as a result has been a source of controversy in the past, particularly from Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.).

They both pressed Holder again today at the Senate Judiciary Committee oversight hearing, asking Holder why it’s taken so long for the report to be finalized and released.

Holder responded:  “My hope is to share as much of that report as I can with members of congress and the public.  There are some potentially classified parts of that report, which we will work to declassify.” Holder promised to release the report “in a matter of weeks. They’re pretty close to the end.”

He added, though, that there will then be a “declassification process” that could further delay the report’s release. “As people look at the work that the OPR has done I’d like them to have the full range of information that OPR considered,” Holder said. “That’s why I think declassification of the report is so important. I wouldn’t want to put an incomplete report in the public.”