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OPR’s Deference to Bush Torture Lawyers is Standard Procedure? Tell That to Jesselyn Radack

Interesting fact about the soon-to-be-declassified report from the Justice Department’s Office of Professional Responsibility on the propriety of the Bush-era torture advocates at the department: while the office has gone out of its way to accommodate John Yoo, Jay Bybee and Steven Bradbury, an rule-of-law whistleblower who nearly had her career destroyed by OPR never got remotely the same courtesy.

As Daphne Eviatar’s been writing, OPR has been rather solicitous of the Bush administration lawyers who provided legal cover for the CIA’s "enhanced interrogation" program. They got to see the draft, comment on it, and then the office took their perspectives into account. That’s in keeping with standard practice to permit OPR targets a right of due response, the department explained. "In the past," wrote Assistant Attorney General Ronald Welch to Sen. Richard Durbin (D-Ill.) on May 4, "former Department officials who were subjects of OPR investigations typically have been permitted to appeal adverse OPR rulings to the Deputy Attorney General’s Office." In keeping with that spirit, Welch continued, former Attorney General Michael Mukasey, his deputy and the OPR chief agreed to "afford the subjects the chance to respond to the report prior to any release." Such a move, they reasoned, was "fair and reasonably correlates with the process usually applicable to OPR investigations relating to former employees."

Tell it to Jesselyn Radack. Radack was an early casualty of the Bush Justice Department. In 2001, as a department lawyer in the Professional Responsibility Advisory Office, she advised the FBI that it couldn’t interrogate John Walker Lindh, the so-called American Taliban captured in Afghanistan, without affording him counsel. It happened anyway. Here’s what happened next, according to Jane Mayer in the March 10, 2003 New Yorker:

[Radack] received a “blistering” performance review. It never mentioned her advice in the Lindh matter, but it severely questioned her legal judgment. She was advised to get a new job; otherwise, the performance review would be placed in her permanent file. Radack, who had received a merit bonus the year before, quickly found a job with a private law firm.

Worse, Radack learned that the department made an incomplete filing to the judge in the Lindh case, who had requested the department’s full record of internal discussions on the interrogations. Radack’s attempts to correct the record by providing the judge with the complete discussion ended up getting printed in Newsweek. Then Radack learned, as she recounted this morning in a Daily Kos diary, that OPR had opened a case file on her.

Far from allowing her a chance to contribute to OPR’s investigation, the office didn’t even solicit her perspective before sending a letter to the Maryland Bar informing it of "possible professional misconduct" on Radack’s behalf. "[W]e take allegations of misconduct by Department personnel very seriously," OPR Acting Counsel Judith Wish wrote to the Attorney Grievance Commission of Maryland in a letter the commission received on November 5, 2003 that Radack forwarded to me. But OPR hadn’t even reached a conclusion about Radack before going after her license to practice law. "Once our investigation… is complete… we will share the results of our investigation with you should you request you do so," Wish wrote. Radack forwarded the letter to me this afternoon. Responded Radack’s lawyer on November 25, 2003 in a letter to wish, "We find your admission that OPR has yet to conduct any interviews into these allegations startling."

Radack says she never got the chance to contribute to OPR’s investigation or appeal its ruling. She was suspended from practicing with her law firm until, eventually, the Maryland Bar Association cleared her name. All this for trying to ensure the Justice Department didn’t mislead a judge about the ways in which it handled the due-process rights of a U.S. citizen. Meanwhile, the attorney general will personally intercede with OPR to ensure that lawyers who provided legal cover for the CIA to engage in practices that the U.S. had previously prosecuted individuals for committing.

Here’s how Radack summed up the double standard in her dKos diary:

The bottom line is that I am the only Justice Department attorney to be referred to bar disciplinary authorities for advice I gave in a torture case—and my advice was to permit a U.S. citizen his rights.

If OPR wants to live up to its lofty mission of ensuring "that Department of Justice attorneys perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency," it can start with itself.

Crossposted to The Streak.

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Spencer Ackerman

Spencer Ackerman