No Bark, No Bite
Is the wrong watchdog investigating how the Justice Department came to approve water-boarding?
The Justice Department's internal ethics watchdog, the Office of Professional Responsibility, is investigating the legal memos by government lawyers that opened the door to the use of torture tactics in CIA interrogations. Marshall Jarrett, the head of OPR, announced the probe in a letter Friday to Democratic Sens. Richard Durbin of Illinois and Sheldon Whitehouse of Rhode Island. If you're worried about the role government lawyers played in authorizing water-boarding and other tactics, this should be a happy development.
Except that it's not clear OPR is the right arm of government to conduct this probe. The office has a small number of lawyers. It reports to Attorney General Michael Mukasey. And it isn't a shop of constitutional law experts who can readily second-guess the Office of Legal Counsel attorneys who approved torture for al-Qaida suspects (in John Yoo's infamous 2002 memo and then presumably Stephen Bradbury's secret 2005 substitute memo). The Justice Department's inspector general, Glenn Fine, has the independence, lawyer-power, and clout that OPR lacks. Why isn't he on the case?
The OPR investigation actually began a long while ago. We're only learning about it now because OPR tends to keep its doings to itself, which is yet another reason it may not be the best outfit for the job. The office finally went public with its investigation in response to pressure from Durbin and Whitehouse. A few weeks ago, CIA Director Michael Hayden admitted for the first time that the agency used water-boarding in 2002 and 2003. (Reporters exposed the practice years ago, but it was news for the agency head to directly admit to it.) Once Hayden spoke, Mukasey had to respond to questions about whether DoJ would criminally prosecute the CIA agents who conducted the torture. Mukasey said no, arguing that CIA agents can't be liable for doing what DoJ lawyers told them they could do. Fair enough: If the agents on the ground were relying on advice from DoJ, then they don't seem like the right actors to go after.
But this line of reasoning made Durbin and Whitehouse think it was time to zero in on the lawyers at DoJ. (A controversial lawsuit filed last month against John Yoo follows the same logic.) The senators pressed the inspector general and OPR to investigate DoJ's authorization of water-boarding. Their push for a joint probe would seem to make sense. Fine's office has a mandate to investigate fraud, waste, and abuse at DoJ. Jarrett's office, with total staff of 25, looks into ethical violations by individual DoJ attorneys, like an allegation of an improper closing argument or failure to turn over evidence. Fine has a staff of 400 and his office is independent of the attorney general: Mukasey can't block him or shut him down. Jarrett has a handful or two of investigative lawyers, and he reports to Mukasey. The inspector general issues public reports and recommendations. OPR often doesn't. Do you remember the report OPR issued about whether DoJ lawyers improperly settled the huge tobacco litigation in 2005, after Gonzales came into office? You don't, because it was kept quiet.
Traditionally, OPR has had a significant measure of independence, but there have been notable exceptions. For example, when the office tried to look into DoJ's role in approving wiretapping without a warrant, its lawyers were denied access to needed documents, which shut them down. Former Attorney General Alberto Gonzales said the order to reject OPR's security clearance came from the president; whether or not that's true, it speaks to OPR's limited powers.
In the end, the inspector general took over the wiretapping probe at DoJ. Fine's office is also jointly investigating with OPR the U.S. attorney firings under Alberto Gonzales—an investigation that has turned into a sweeping review of politicization at the department. Fine is a Democrat with a reputation for integrity that has survived the Bush administration. It's easy to understand why Durbin and Whitehouse wanted the inspector general involved in the torture memo probe as well.
So, why is Fine staying out of the torture investigation? In a letter to Durbin and Whitehouse, Fine said the probe simply falls outside the scope of his powers. Most inspector generals can investigate anything they choose at the agency they oversee. But for historical reasons, that's not true at DoJ. The department didn't get an inspector general until 1988, 10 years after most other government agencies, and when Congress did set up an IG, the FBI lobbied to prevent the office from investigating DoJ employees. OPR was a compromise created to fill the gap: Ethical violations among DoJ lawyers would be addressed, but the attorney general would hold onto the watchdog's leash. Fine has been asking Congress to change this for years. He doesn't want to replace OPR, or get involved in most of its work. But he's pushing for a new law that would give him the same jurisdiction over DoJ attorney misconduct that other IGs have over the employees at the agencies they oversee.
If Congress had widened Fine's scope as he has asked, he'd probably have made a different call on the torture probe. It's the sort of far-reaching and high-profile work that his office specializes in. But without a clear mandate from Congress, Fine decided to stay out. He's got his reasons, given his current limited mandate. The OPR investigation into the torture memos is closer to the heart of OPR's functions than the U.S. attorney firings, the IG's office argues, because it involves making a call about whether the lawyers who wrote the torture memos acted in accordance with their professional responsibilities. Also, while OPR's investigation into the U.S. attorney firings involved a direct conflict—OPR was supposed to investigate Gonzales while reporting to him—that's not the case with regard to the torture-memo probe. OPR doesn't report to the Office of Legal Counsel, which is the focus of this investigation. The office still has only the independence Mukasey gives it, but at least this time he's not OPR's target as well as its boss.
Correction, Feb. 26, 2008: Because of incorrect information provided by Getty Images, the caption on the photograph accompanying the story originally misidentified Glenn Fine as the FBI inspector general. He is the Department of Justice inspector general.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at email@example.com or on Facebook or Twitter.
Photograph of Glenn Fine by Win McNamee/Getty Images.