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The AP’s “Most Complete Published Account” that Leaves Out Torture

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The AP’s DOJ and intelligence writers have a story out on the Durham investigation that purports to be “the most complete published account” of the destruction of the torture tapes. Only, it ignores key details that have already been published which paint a much more damning picture of the tapes and their destruction.

First, the news. The AP story does reveal the following new details:

  • The name of the guy in Thailand–then station chief Mike Winograd–involved in the destruction of the tapes
  • The news that the guy who destroyed the torture tapes–former CTC and Clandestine Services head Jose Rodriguez–is still lurking around Langley as a contractor with Edge Consulting
  • The observation that Rodriguez did not include the two CIA lawyers who “approved” the torture tape destruction (Steven Hermes and Robert Eatinger, who have been identified before) on his order to destroy them, which is perceived within CIA as highly unusual
  • The hint that prosecutors may use Sarbanes-Oxley to establish the requirement to keep the tapes as well as the detail that John Durham has prosecuted two of the only half a dozen cases that have used this Sarb-Ox provision
  • A list of reasons why all the requests that should have covered the tapes purportedly don’t:

_In early May 2003, U.S. District Judge Leonie M. Brinkema told the CIA to reveal whether there were interrogation videos of any witnesses relevant to the case of Zacarias Moussaoui, who was charged as a Sept. 11 conspirator. But that order didn’t cover Zubaydah, who Brinkema ruled was immaterial to the Moussaoui case, so the CIA didn’t tell the court about his interrogation tape.

_A judge in Washington told the agency to safeguard all evidence related to mistreatment of detainees at Guantanamo Bay. But Zubaydah and al-Nashiri were held overseas at the time, so the agency regarded the order as not applicable to the tapes of their interrogations.

_A judge in New York told the CIA to search its investigative files for records such as the tapes as part of a Freedom of Information Act suit. But the CIA considered the tapes part of its operational files and therefore exempt from FOIA disclosure and did not reveal their existence to the court.

_The Sept. 11 commission asked for broad ranges of documents, but never issued a formal subpoena that would have required the agency to turn over the tapes.

As such, the story adds valuable insight into the strategies that John Durham may be using to prosecute Jose Rodriguez and others.

But the story buys into certain well-cultivated CIA myths that obscure some other important details of the story:

  • The story replicates CIA’s favored narrative about why the tapes were made–“to prove that interrogators followed broad new rules Washington had laid out”–and why they were destroyed–to protect the identities of officers involved in the interrogation.
  • The story presents Winograd’s justification for destroying the tapes–“the inspector general had completed its investigation and McPherson had verified that the cables accurately summarized the tapes”–without any discussion of the fact that McPherson acknowledged evidence of tampering with the tapes during the IG Report and couldn’t say whether the techniques reflected the guidance given to the torturers.
  • The story ignores all evidence of earlier destruction of evidence and cover-up of criminal acts.
  • This claim–“The White House didn’t learn about the tapes for a year, and even then, it was somewhat by chance”–is either further evidence of a cover-up or simply false.

Let’s start with the primary fiction–that the tapes were designed solely “to prove that interrogators followed broad new rules Washington had laid out.” Aside from indications they were used for research purposes about the efficacy of the methods they were using, this claim suffers from a fundamental anachronism. After all, when the taping started on April 13, 2002, Washington had not yet laid out the broad new rules ultimately used to authorize Abu Zubaydah’s torture on August 1, 2002. Bruce Jessen didn’t even complete his proposed interrogation plan until three days after taping started.

Although, if “Washington” had indeed given Abu Zubaydah’s torturers broad rules three and a half months before the Bybee Memo was signed–reports have said that Alberto Gonzales authorized that treatment on a day to day basis–then that by itself would provide an entirely different logic for why the tapes were made and then destroyed (which is sort of the argument Barry Eisler makes in his book Inside Out).

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Jay Bybee Admits CIA Had No Approval for Water Dousing, Diapering

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On May 26, the House Judiciary Committee interviewed Jay Bybee about the circumstances that went into the Bybee Memos authorizing torture.  Here’s the transcript of that interview.

I’m going to read them in depth, but for now I wanted to point out this detail.

Bybee confirmed that a number of techniques reportedly used on CIA detainees were not approved by OLC:  These techniques include:  Diapering a detainee or forcing a detainee to defecate on himself, forcing a detainee to wear blackout goggles, extended solitary confinement or isolation, hanging a detainee from ceiling hooks, daily beatings, spraying cold water on a detainee, and subjecting a detainee to high-volume music or noise.  (Transcript of May 26, 2010, Interview of former Assistant Attorney General Jay Bybee at 75-78, 80-81, 86-90, 98-99.)

Spencer first wrote about the prolonged diapering here. I’ve written extensively about how CIA tried to fudge approval for water dousing (here’s an example, here’s what I wrote on Wednesday).

That is, it has long been fairly clear CIA did some things to detainees they had no authorization for. And in the case of Gul Rahman, one of those techniques (water dousing) killed him. Yet, reports say John Durham is finishing up, with not a squeak about prosecuting this death that–Jay Bybee says–had no OLC authorization.

In other words, this interview has Jay Bybee admitting that the CIA had no authorization for the techniques that contributed to Gul Rahman’s death. John Durham?

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Remember Scooter Libby’s Lost Emails?

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Turns out they’re still lost.

When we last heard from Libby’s lost emails, CREW and National Security Archive had reached a settlement with the White House to restore 33 days worth of email and examine 21 days of low volume email to see whether prior restorations had really worked (among other things).

I’m still reading through the documents to figure out what has happened since (aside from Libby’s emails still being lost–but then, that’s not news). The eye-popping takeaway is that, for the 21 days of emails supposedly restored, 83% of the emails weren’t restored:

As documented [in a report from Microsoft included in CREW’s available documents] the comparison of the two data sets–one containing emails previously identified as the archival email records of the Bush administration for the 21 days in question and one containing emails extracted from backup tapes for those 21 days–revealed a huge discrepancy between the two. Specifically, 190,819 email messages on the backup tapes were not found in the archival set of email messages. Conversely, 31,819 emails contained in the archival set were not found on the backup tapes for those same days. In other words, 83% of the universe of known emails for those days were not archived and would not be available today but for actions of CREW and the Archive and the resulting restoration project.

Now, the discrepancy, to me, is even more interesting than the sheer numbers involved. It suggests that two totally different sets of emails were captured in the multiple archiving processes. Which suggests a great deal of emails may have been tampered with between the time they were written and archived. (Though I await the tech wonks to explain this in more depth).

And then there’s this bit.

[On May 10, 2006], the estimated cost for one of [the options for restoring White House email]–restoring all dates of low volume email for EOP components–was $2,414.221 [sic]. The Bush White House did not pursue this option, and instead hired multiple contractors to perform various costly analyses aimed at winnowing down the number of days that arguable could be considered as statistically low volume.

In other words, rather than spend what now looks like a pittance (less than $2.5 million) to restore everything, the Bush White House instead spent even more money paying consultants to argue that not all these days needed to be restored. And that decision was taken, of course, at a time when Libby’s case was in discovery and any indictment of Rove had just been declined. And, presumably, Patrick Fitzgerald still may have had lingering suspicions that Libby and Judy (if not Novak) were emailing back and forth about outing Plame.

But really, none of this is suspicious at all.

Meanwhile, CREW just recently started this whole process over again to get John Yoo’s missing torture emails.

Does no one else see the pattern here?

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John Yoo: Stupid Political Hack AND Craven Addington Disciple

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If ever there were a doubt that John Yoo was not just a craven lackey for David Addington, but also a stupid political hack, his op-ed today puts that doubt to rest. After whining about how mean the Senate Judiciary Committee was to Robert Bork and Clarence Thomas and John Roberts (!) and Sam Alito, Yoo launches into the kind of fantastic ravings you’d expect from Glenn Beck.

Republicans can also use the filibuster to return the federal government to its proper role in our constitutional system. When Obama chose Sonia Sotomayor for the Supreme Court last year, the jury was still out on the president. It wasn’t clear if Obama was a moderate technocrat, as much of the electorate hoped, or if he was a man of the left, as Republicans feared.

That answer is now clear. At home, Obama has launched a broad campaign to redistribute wealth and engineer social change. He and his large congressional majorities enacted a wasteful $800 billion stimulus, increased the national debt by 50 percent in two years, and nationalized the health-care sector – fully one-sixth of the economy.

On national security, Obama kept to the Bush-Petraeus drawdown schedule for Iraq and reluctantly surged troops to Afghanistan. But he has tried his best to fit the war against al-Qaeda into the box reserved for criminal activities: He promised to shut down Guantanamo Bay, abjured tough questioning tactics, loosed a special prosecutor on CIA interrogators, announced a civilian trial in New York City for 9/11 plotter Khalid Sheikh Mohammed, and automatically treated al-Qaeda’s Christmas Day bomber as a criminal suspect.

[snip]

The GOP will earn public support for its actions, but more important it will be returning the Supreme Court to the original meaning and purpose of the Constitution. The framers wanted the federal government to play a limited role in domestic affairs, and an energetic one to protect the national security against unforeseen emergencies and war. They did not establish a government to redistribute income or impose a socialistic vision of regulated markets. The Constitution’s preamble declares its purpose: to “provide for the common defense” and “promote the general welfare,” not balance the common defense and promote special interests. If President Obama doesn’t send the Senate a nominee who understands those words, the Supreme Court vacancy could be another issue to await the results of the November elections.

John Yoo, apparently, had no problem with the way George Bush redistributed wealth to the very rich with the Wall Street Bailout and huge cuts in the estate tax. And he seems to have missed the news that Obama has embraced the kind of tools of unchecked executive power–including the ability to target American citizens for death with no due process–that John Yoo loves. And how cute that John Yoo now questions the kind of civilian trials that Bush used with Richard Reid and (eventually) Jose Padilla.

But what I’m most amused by is Yoo’s critique of Obama’s choice to forgo torture (kind of).

[He] abjured tough questioning tactics, loosed a special prosecutor on CIA interrogators…

You see, John Yoo has always pretended he neutrally read the law when he wrote his torture memos. He claimed, repeatedly, that he just did the legal analysis and had no stake in the policy decision. He suggested that he didn’t care, one way or another, whether Bush and Cheney embraced torture, he was just the lawyer doing analysis in isolation from those policy questions. He further has claimed that he only approved limited torture, not the techniques described by the press (which happen to match what the CIA IG saw on the torture tapes).

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Why Were the Torture Tapes Destroyed?

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Bob Baer has a column out stating that he can’t figure out why the torture tapes were destroyed–and repeating CIA spin claiming the torture depicted in the tapes should not, itself, be a legal problem, since it was approved by DOJ. (h/t cs)

Did the CIA want to destroy graphic evidence of sleep-deprivation or waterboarding? They were interrogation methods approved by the Department of Justice in memos sent to the CIA, and therefore shouldn’t have been deemed a legal problem. The closest thing we come to answer is an internal CIA e-mail released last Thursday, in which an unidentified CIA officer writes that Rodriguez decided to destroy the tapes because they made the CIA “look horrible; it would be devastating to us.”

[snip]

I haven’t been able to clear up the mystery either, beyond the fact that a former CIA officer aware of the details of the 2002 interrogation of the two al-Qaeda suspects told me that the tapes’ images were “horrific.” He believes that although the interrogations fell within the guidelines provided by the Department of Justice, if the public ever saw them, it would conclude that “enhanced interrogation” is just another name for torture.

Those of you who have been following along already know this, but I thought I ought to sum up what we do know–but what Baer’s CIA sources aren’t telling him.

First, Baer’s source who “believes … the interrogations fell within the guidelines provided by the Department of Justice” is wrong–at least so long as we’re talking DOJ’s written guidelines. As CIA’s Inspector General made clear, the waterboarding that was depicted on the tapes in 2003 did not fall within the limits of the Bybee Two memo, both because the torturers used far more water, forced it down Abu Zubaydah’s throat, and used it with far more repetition than allowed by the memo. Furthermore, the torturers exceeded even the guidelines the Counterterrorism Center set on sleep deprivation–though Yoo may (or may not have) have set the limit in the Bybee Two memo high enough to cover what had already been done to Abu Zubaydah. Folks in the IG’s office had about seven more pages of concerns about what was depicted on the torture tapes (PDF 86-93)–but that all remains redacted.

So the tapes did not, in fact, match the written guidelines DOJ gave them. The torturers claim to have kept John Yoo and others up-to-date on their variances, but John Yoo’s statements thus far challenge that claim.

And in any case, that only describes the evidence on the torture tapes as they existed in 2003 when the IG reviewed them and presumably in 2005 when CIA destroyed them.

The other, potentially bigger problem for those depicted in the torture tapes has to do with what once appeared on the 15 tapes that the torturers altered before November 30, 2002, when CIA lawyer John McPherson reviewed them. Before that point, the torturers had altered 21 hours of the torture tapes, which covered at least two of the harshest torture sessions. Had someone done forensics on the tapes before they were destroyed, we might have learned what happened during those 21 hours. But by destroying the tapes completely, the CIA prevented that from happening.

I’m guessing–though it’s only a guess–that was the point.

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Mudd Wrestling and Torture

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Spencer’s got one of the big scoops of the day: that Philip Mudd left the FBI about six weeks ago (so early March).

Philip Mudd, one of the intelligence community’s leading al-Qaeda analysts, has quietly retired from the FBI, where he was associate executive director of the National Security Branch. Mudd confirmed in an email that he left “about six weeks ago,” but didn’t immediately respond to additional questions about his departure.

Mudd was a longtime CIA counterterrorism specialist before coming to the FBI, but it doesn’t appear as if he’ll return to his home agency. This could be it for Mudd’s government career.

Spencer describes Mudd as one of the smartest guys on al Qaeda in government (here’s Mark Hosenball’s report on this, repeating the superlatives). But, last year, when he was nominated to take over Department of Homeland Security’s intelligence side, he was forced to withdraw his nomination after Senate staffers questioned whether he had ties to the torture program.

The White House nominee to be the undersecretary of intelligence and analysis at the Department of Homeland Security has withdrawn, he and the White House said in statements Friday. 

The withdrawal of the nomination of Philip Mudd, a veteran CIA analyst who had worked in recent years as a senior executive at the FBI, comes after an AP report yesterday. The report said that a Republican lawmaker planned to question Mudd over whether he had “direct knowledge” of the Bush-era harsh interrogation program while serving in a senior analytical role at the CIA.

The sinking of the nomination of someone who had served in an analytical capacity at the CIA, rather than in an operational or senior policy one, shows the broad scope of exposure to the controversial Bush-era harsh interrogation program for officials who did not obviously have a direct role in the program.

An aide to Sen. Susan Collins (R-ME) told the AP that “Mudd’s analysts used information obtained through harsh interrogations, and the official said that Mudd is likely to be questioned on whether the analysis branch pressured interrogators in the field to use harsher methods because they believed detainees were not telling the truth.” Collins sits on the Senate Homeland Security and Government Affairs committee that oversees the DHS. [my emphasis]

Now, I didn’t make the connection between these two events last year, but since I’ve been reading the questions CIA’s Inspector General was (probably) asking a manager at CTC in February 2003, I happen to have read this passage of the CIA IG Report just this morning.

Handgun and Power Drill
91. [Redacted] interrogation team members, whose purpose it was to interrogate al-Nashiri and debrief Abu Zubaydah, initially staffed [redacted]. The interrogation team continued EITs on Al-Nashiri for two weeks in December 2002 [redacted] they assessed him to be “compliant.” Subsequently, CTC officers at Headquarters [redacted] sent a [redacted] senior operations officer (the debriefer) [redacted] to debrief and assess Al-Nashiri.

92. The debriefer assessed Al-Nashiri as withholding information, at which point [redacted] reinstated [redacted] hooding, and handcuffing. Sometime between 28 December 2002 and 1 January 2003, the debriefer used an unloaded semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information.44 After discussing this plan with [redacted] the debriefer entered the cell where Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri’s head.45 On what was probably the same day, the debriefer used a power drill to frighten Al-Nashiri. With [redacted] consent, the debriefer entered the detainee’s cell and revved the drill while the detainee stood naked and hooded. [my emphasis]

Of note, the torturers had deemed al-Nashiri compliant. But CTC decided he had more information and sent out an operations guy to further question him, which is what led to two death threats being used against al-Nashiri (the kind of threats John Yoo had specifically refused to approve around July 25, 2002).

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Who Is Lying? The Torturers? Or John Yoo?

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One of the potential bombshells in last week’s FOIA dump appears in a CIA discussion about a potential statement in response to NYT’s breaking of the torture tape story (PDF 86). The document notes that the videotapes would have shown the sheer number of times the torturers waterboarded Abu Zubaydah, and suggests that that may have presented legal problems. The document continues that someone (it appears to be the torturers) informed DOJ of the real number of times they waterboarded AZ, but CIA had no proof.

Jay Bybee’s 1 Aug 2002 memo to John Rizzo stated, in part, “Moreover, you have also informed us that although some of these techniques may be used with more than once, that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions.” (p. 2) and again, “You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition.” (p.11). The OIG review determined that Abu Zubaydah was subjected to [redaction] waterboard sessions, consisting of at least 83 separate exposures [half line redacted] assured us that he gave regular updates to DoJ (i.e., John Yoo [few words redacted] at OLC) during this time frame, and DoJ was aware of the real numbers, but we were never able to verify this with DoJ, as INV management at the time elected not to interview witnesses outside the building. In addition to the disparity in numbers, the method of water application as recorded in the tapes was at odds with the Bybee opinion. [my emphasis]

That is, one problem with the videotapes is that, unless the torturers really did inform Yoo (and, I’m guessing, Jennifer Koester) about how and how many times they really used waterboarding then they would have been in violation of guidelines from DOJ.

The statement, by itself, is inflammatory enough. But particularly in light of what Yoo said to OPR in interviews conducted during the summer of 2005.

He told us during his interview: “I had actually thought that we prohibited waterboarding. I didn’t recollect that we had actually said that you could do it.” He added:

[T]he waterboarding as it’s described in that memo, is very different than the waterboarding that was described in the press. And when I read the description in the press of what waterboarding is, I was like, oh, well, obviously that would be prohibited by the statute.

Now, granted, Yoo is not addressing the number of repetitions of waterboardings. And he points to the depiction of waterboarding in the press, not the depictions of waterboarding that appeared in the CIA IG Report (which, as it happens, matches the descriptions in the press with regards to volume of water and forced ingestion of it). So Yoo, as is his wont, has left some wiggle room here.

But he seems to suggest surprise that he had actually authorized the use of waterboarding.

As implausible as that is, assuming he simply forgot the phone call he made to John Rizzo on July 26, 2002 personally authorizing waterboarding and then forgot reviewing the extensive descriptions Koester wrote into the Bybee Two memo, it strains credulity if Yoo was actually receiving updates from Thailand. Imagine how such an exchange might play out:

“Oh, by the way, John. We set a new record for ‘pours’ during one waterboard session! We drowned that motherfucker 27 times in today’s session!”

“Wha–What? I thought we told you not to use that medieval torture technique!”

John Yoo was playing (or actually was) dumb about the use of waterboarding in the months before CIA destroyed the torture tapes. Yet someone–perhaps Bruce Jessen or James Mitchell–claim they kept DOJ generally and Yoo specifically in the loop of what they were doing.

Someone is not telling the truth. Who is it?

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Abu Zubaydah May Have Been Waterboarded MORE than 83 Times

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MadDog and I just realized something that should have been apparent since August. He and I have been looking at the passage of yesterday’s document dump that refers to CIA keeping OLC informed of how many times waterboarding was used.

First, and most obvious, Jay Bybee’s 1 Aug 2002 memo to John Rizzo stated, in part, “Moreover, you have also orally informed us that although some of these techniques may be used with more than once, that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions.” (p. 2) and again, “You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition.” (p. 11). The OIG review determined that Abu Zubaydah was subjected to [redacted 2 characters?] waterboard sessions, consisting of at least 83 seperate exposures [redacted sentence] assured us that he gave regular updates to DoJ (i.e. John Yoo [redacted 2-3 words] at OLC) during this time frame, and DoJ was aware of the real numbers, but we were never able to verify this with DoJ, as INV management at the time elected not to interview witnesses outside the building. In addition to the disparity in numbers, the method of water application as recorded on the tapes was at odds with the Bybee opinion… [MadDog’s transcription and emphasis]

Now, here’s what the IG Report itself said about how they came up with that number, 83. (It’s worth actually looking at this passage–on PDF 41-42; this entire discussion appears in one paragraph in the “Videotapes on Interrogations” section.)

OIG reviewed the videotapes, logs, and cables [redacted] in May 2003. OIG identified 83 waterboard applications most of which lasted less than 10 seconds.

[4-5 lines redacted]

OIG found 11 interrogation tapes to be blank. Two others were blank except for one or two minutes of recording. Two others were broken and could not be reviewed. OIG compared the videotapes to logs and cables and identified a 21-hour period of time which included two waterboard sessions that was not captured on the videotapes.

That is, they got the number 83 from not just the videotapes, but also the logs and cables. That’s because the IG couldn’t have gotten the total number of waterboard applications from the videos. As the IG Report makes clear in the same paragraph that first mentions the number 83, two entire sessions of waterboarding should have appeared on the tapes that were taped over or otherwise damaged.

Remember the context of this. CIA’s Office of General Counsel had, in November-December 2002, reviewed the tapes, purportedly to make sure they matched the guidance the interrogators had gotten from Langley and the cables they sent reporting on the interrogation. Yet, as the IG  team had discovered during their investigation, the lawyer who conducted that review (according to the WaPo, John McPherson) hadn’t actually compared the guidance to what appeared in the videos. When the IG did a review themselves in May 2003, they discovered that the waterboarding in the video did not match the guidance. Perhaps that’s the only reason the IG Report seems skeptical about the self-reported number that appeared in the log and cables describing the two sessions not videotaped. Or perhaps the IG review of the videotapes had discovered a discrepancy between the numbers shown in the videos and those reported up the chain of command (which might be what the discussion in the four redacted lines is).

The bigger story remains that Abu Zubaydah’s torturers appear to have taped over or otherwise destroyed video of two of their waterboarding sessions. But one of the things that obscures about AZ’s treatment is the number of times he was actually waterboarded.

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How Abu Zubaydah’s Sleep Deprivation Got Out of Control

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The latest CIA document dump also provides more background on how Abu Zubaydah got subjected to extended sleep deprivation long before it was approved. PDF page 113-114 explains:

After consulting with the NSC and DOJ, CTC[redacted] originally approved 24-48 hours of sleep deprivation.

In April 2002 CTC[redacted] learned that due to a misunderstanding, that time frame had been exceeded.

However, CTC[redacted] advised that since the process did not have adverse medical effects or result in hallucinations (thereby disrupting profoundly Abu Zubaydah’s senses or personality) it was within legal parameters.

There a number of important points about this.

First, note the timing: April. When AZ was still recovering from bullet wounds and surgery.

This was also the same time period when (oops!) Binyam Mohamed was being subjected to extended sleep deprivation, presumably pursuant to the same kind of “misunderstanding.”

But also note the language. The “profoundly disrupt the senses or personality” is the language on severe mental suffering that John Yoo gave John Rizzo on July 13, 2002, which Jonathan Fredman sent to the torturers as their guideline on torture. It seems likely, then, that this (oops!) sleep deprivation was the “incident” that CIA was so concerned about as they were writing the Bybee Memos.

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What Happened to that OTHER OPR Report?

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Remember the OPR Report? No, not the OPR Report on John Yoo’s laughably bad torture memos. I’m talking about the OPR Report on John Yoo’s even worse memo(s) authorizing domestic surveillance. The Torture OPR Report notes that it was the domestic surveillance memo, and not the torture memos, that first clued Jack Goldsmith into how dangerous John Yoo was.

Because of the problems with Yoo’s NSA opinions, Goldsmith asked Philbin, who was familiar with Yoo’s work at OLC, to bring him copies of any other opinions that might be problematic.

And it was OPR’s investigation into the domestic surveillance memo–not the investigation into torture memos (as far as we know)–that George Bush tried to spike by refusing investigators the clearance to conduct the investigation.

Last we’ve heard official mention of this OPR investigation was last July, in the combined IG Report on warrantless wiretapping. At that point, we know, the investigation was not yet complete.

Title III of the FISA Amendments Act required that the report of any investigation of matters relating to the PSP conducted by the DOJ Office of Professional Responsibility (OPR) be provided to the DOJ Inspector General, and that the findings and conclusions of such investigation be included in the DOJ OIG review. OPR has initiated a review of whether any standards of professional conduct were violated in the preparation of the first series of legal memoranda supporting the PSP. OPR has not completed its review.

Since then we’ve heard nothing.

It turns out, I asked DOJ a week and a half ago about the report and got a “Oh, let me do research.” I did a follow-up last week (as it happens, on Friday, the day Dawn Johnsen withdrew her nomination) and got a very different response: “We don’t comment on OPR investigations.” Now, perhaps that’s just a prudent response after all the accusations Yoo and Bybee made that OPR was leaking information on the Torture memo investigation.

Still.

I find the secrecy around the domestic surveillence OPR Report all the more interesting given that DOJ still hasn’t decided what to do about the 2006 White Paper used to justify warrantless wiretapping after Jim Comey and Jack Goldsmith realized the inherent powers argument failed. Mind you, David Barron’s OLC passed what appears–from Glenn Fine’s description–just as troubling as those two earlier memos back on January 8, 2010. So maybe it doesn’t matter. Maybe we’re doomed to have OLC recklessly authorize illegal wiretapping of Americans in the dark of night, no matter who’s in charge there.

Nevertheless, it does seem worthwhile to remember that John Yoo was investigated not just for his egregious torture memos, but also for saying the President didn’t have to follow the law–even the laws saying that Presidents can’t wiretap Americans.

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