Is Footnote In OLC Memo Designed To Protect Its Author?

March 3, 2009 7:41 a.m.

There’s an interesting detail buried in those OLC memos released yesterday, that perhaps hasn’t gotten the attention it deserves.

In the January 15, 2009 memo written by then-acting OLC head Steven Bradbury — in which he repudiated many of the previous OLC memos that articulated an expansive view of presidential power in the war on terror — there’s a footnote stressing that the memo is not “intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility.”

Why would Bradbury have gone out of his way to make this point — especially in the context of repudiating those opinions?

Perhaps because the Justice Department’s Office of Professional Responsibility has been working on a report on whether OLC lawyers violated standards of professional responsibility when they approved harsh interrogation tactics like water-boarding. And, as Newsweek revealed last month, a draft of the report is sharply critical of three senior OLC lawyers in particular — John Yoo, Jay Bybee, and Steven Bradbury.

The report’s release was delayed after then-Attorney General Michael Mukasey and his deputy Mark Filip objected that responses from Yoo, Bybee, and Bradbury should be included. As of February 6, Attorney General Eric Holder had not yet reviewed the report, and it had not yet been turned over to Congress.

So the fact that the earlier memos have been repudiated could potentially still affect the OPR report’s conclusions about the lawyers’ actions. As a result, Bradbury would have had good reason to explicitly state in his recent OLC memo that the repudiation of the original opinions did not bear on issues of professional responsibility.

It’ll be interesting to see, when the OPR report is released, whether its authors agree with that take.

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