DOJ Oversight Office Isn’t Releasing Reports on Waterboarding, Wiretapping

Posted by , ProPublica at 7:46 AM on July 9, 2008.

By Eric Umansky


The Department of Justice's Office of Professional Responsibility is meant to ferret out potential misconduct by DOJ lawyers.  The office is investigating everything from warrantless wiretapping to department lawyers' role in authorizing waterboarding.

Yet the OPR isn't exactly the most powerful investigation arm around. It is not independent -- the office reports to the attorney general. (A few years ago, an OPR investigation into the legal authorization of NSA wiretapping was shut down after the bosses decided that OPR's lawyers didn't have the required security clearance. That decision was reversed after Michael Mukasey was confirmed as attorney general.) Such limits on its power have led to criticism that it's the wrong shop to investigate such important issues as torture.

Meanwhile, a story inside yesterday's Los Angeles Times flagged another ever so slight limitation of the office: It hasn't been releasing its reports. From the Times:  

After President Bush took office in 2001, the Justice Department reversed a decade-old policy of publicly disclosing detailed summaries of OPR investigations of department lawyers found to have committed professional misconduct. Janet Reno, attorney general since 1993, had believed that publicizing the information would bolster confidence in the department; and during her tenure she had authorized the release of two dozen public summaries of misconduct cases -- including one against then-FBI Director William S. Sessions.

The OPR also has been far behind in producing required annual public reports summarizing its activities. Last month, it released its report covering fiscal year 2005. That means many investigations undertaken during the tenure of former Atty. Gen. Alberto R. Gonzales remain under wraps.

Why the change in policy? According to the Times:

Associate Deputy Atty. Gen. David Margolis said it was his decision to excuse the OPR from preparing summaries of cases that might be released to the public. He said the decision reflected a lack of resources, as well as concern about balancing public interests with the privacy rights of individual attorneys facing accusations.

"My goal is to get fair and speedy dispositions of allegations against our attorneys," he said, "and, to the extent possible, let the public know what we did and why we did it without unnecessarily or gratuitously . . . publicly humiliating our line attorneys as individuals."

The Department of Justice has another oversight office that has far fewer limitations: the inspector general's office. But because of decades-old legislation, the IG has only limited powers to investigate DOJ lawyers; only the less powerful OPR can do that.  

This spring, a bill was introduced to change that situation to give the IG broader investigative powers. But the White House threatened a veto, and the provision to expand the IG's purvey was removed. So for now, any investigations of the legal opinions provided by DOJ lawyers will be conducted by the non-independent (and as the Times noted), non-report-releasing OPR.  

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Journalist Eric Umansky blogs at Pro Publica.