- The Washington Times - Tuesday, April 21, 2009

WASHINGTON (AP) - Three Bush administration lawyers who worked in an elite Justice Department unit face further scrutiny over their advice on how to conduct tough interrogations of terror suspects, but criminal prosecution remains only an outside possibility.

Speaking to reporters Tuesday, President Barack Obama left the door open to prosecuting Bush officials who devised the legal arguments that waterboarding and other harsh methods could be used without running afoul of laws against torture. But he said the question of whether to charge them “is going to be more of a decision for the attorney general within the parameters of various laws and I don’t want to prejudge that.”

Facing the most scrutiny are Jay Bybee, John Yoo and Steven Bradbury, who worked in the Justice Department’s Office of Legal Counsel.

Known as the attorney general’s attorneys, this small office issues interpretations of federal law that are legally binding on executive branch employees.

Of the four memos on torture released last week, Bybee signed one and Bradbury signed three. Yoo was involved in drafting the Bybee memo.

Bybee is a judge on the 9th U.S. Circuit Court of Appeals. Yoo is a professor at the University of California-Berkeley. Bradbury returned to private practice when President George W. Bush left office.

For more than a year, their work on these memos has been investigated by the Justice Department’s Office of Professional Responsibility, which polices the ethics of department lawyers. On Feb. 18, 2008, H. Marshall Jarrett, then chief of the office, wrote to Democratic senators that “the role of Justice Department officials in authorizing and overseeing the use of waterboarding by the Central Intelligence Agency … are included in a pending OPR investigation into the circumstances surrounding the drafting” of the memos.

“Among other issues,” Jarrett wrote, “we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys.”

That investigation is thought to have been completed as the Bush administration left office. Its results have not been released. The Obama administration undoubtedly has been reviewing its findings.

The Office of Professional Responsibility has a range of options if it finds misconduct. For department employees, it can recommend administrative discipline, including firing. In the most serious cases, it has authority to seek criminal charges from a grand jury, but only rarely does so.

Having left the government, these three are beyond administrative discipline, but the office could recommend that any state or local bar association they belong to impose discipline, up to losing their licenses to practice law.

If the office were to seek criminal prosecution, various charges are possible depending upon what facts were uncovered.

“I think there are a slew of potential charges,” said John Strait, a law professor at Seattle University, including conspiracy to commit a number of felonies, including torture.

“If you counsel as a lawyer the engaging in criminal conduct, and people rely on that advice, it is possible to construct a conspiracy theory,” said Strait.

Another possibility is a more garden-variety charge of lying to a government official, if there were evidence the lawyers knew what they were approving was illegal but approved it anyway _ or that they lied to internal investigators about their actions.

Obama reiterated his opposition to prosecuting those who relied in good faith on the Justice advice _ and stayed within its limits _ in performing the harsh interrogations. It wasn’t immediately clear if he meant to include high-level policymakers who authorized the tactics based on Justice’s legal advice.

___

Associated Press writer Devlin Barrett contributed to this report.

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