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.

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.”

On Tuesday night, Sen. Sheldon Whitehouse (D-R.I.) told Keith Olbermann on MSNBC that calling those people now would be premature, given that the Justice Department’s Office of Professional Responsibility report, which reportedly reveals how those memos were created, hasn’t been released yet.

“I think it would be premature to bring them in before the report is out,” said Whitehouse.  And he added: “Once it’s out I’m confident that Sen. [Pat]  Leahy” — the Vermont Democrat who chairs the Senate Judiciary Committee,and has so far resisted holding hearings on the OLC lawyers’ conduct — “will either authorize hearings or conduct them himself.”

As I’ve reported before, Leahy has been under pressure to conduct just such hearings.  Let’s see if the release of the OPR report — whenever that may be — will make the difference.