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Partisan Debate Over Torture Could Reignite

Senate Democrats expect the Justice Department to release within the month an explosive report that could set the stage for potential judicial impeachment hearings in the House and for a renewed partisan battle over how the previous administration approved the use of harsh interrogation methods against detainees.

Sources said the report from the department’s Office of Professional Responsibility is likely to recommend disbarment for at least two Bush administration lawyers who provided legal cover for the use of waterboarding, sensory deprivation and other severe tactics that have traditionally been considered torture in the international community.

One of those lawyers, Jay Bybee, is a judge on the 9th U.S. Circuit Court of Appeals, and members of the House Judiciary Committee have called for his impeachment over his role in writing the original memo authorizing harsh interrogations by the Defense Department and CIA. Any impeachment proceedings would begin in the House, not the Senate. The OPR draft reportedly will also recommend disbarment for former Office of Legal Counsel lawyer John Yoo. It is unclear whether the report will make any recommendations regarding another target of the investigation, former OLC acting director Stephen Bradbury.

The Washington Post reported Tuesday that lawyers for Bybee and Yoo have mounted a lobbying campaign to get senior Justice Department officials to tone down the report before it is released.

“This report, when it’s released, will add momentum to the efforts to hold accountable the attorneys who were involved in authorizing these torture techniques,— one Senate Judiciary staffer said. “It’s definitely going to be the other shoe dropping.—

But Republicans warned that any decision by the Democrats to punish the authors of the memos would be met with stiff partisan resistance.

“This would be nothing more than a McCarthyism-style witch hunt, and the Democrats would be well-advised to avoid this waste of time,— one senior Senate GOP aide said.

Senate Majority Whip Dick Durbin (D-Ill.), who has been urging the Justice Department to make the report public, said it could be released within “a matter of days.— Others said it might not be publicly available until the end of the month.

In a May 4 letter to Durbin and Sen. Sheldon Whitehouse (D-R.I.), Assistant Attorney General for Legislative Affairs Ron Weich did not promise to make the findings public, but he noted that the draft is being reviewed by the CIA.

President Barack Obama’s decision last month to release minimally redacted versions of the actual memos outlining the Bush administration’s legal justification for the techniques has made it likely that the OPR report will have a public release as well, sources said.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) said the report would prompt him to hold hearings, particularly because he has not seen movement on his proposal for an independent “truth commission— to look into the Bush White House’s authorization of harsh interrogation techniques.

“What we have to look at it in the Judiciary Committee, and I will, is why were otherwise perfectly qualified lawyers willing to write things that completely violate the law, violate our own Constitution, violate our [anti-torture] treaty organizations and come up with an outrageous thought that we can place certain people in this country above the law at the whim of the president or the vice president,— Leahy said. “The reason we’ll have these hearings is so that no president or vice president in the future — this one or any others — will be tempted to say, Let’s ignore the Constitution, let’s ignore the laws, let’s ignore our treaties and let’s put a black mark again on America.’—

With or without the report, Whitehouse — who chairs the Judiciary Subcommittee on Administrative Oversight and the Courts — plans to hold a hearing May 13 to explore whether the interrogation methods were actually effective. Philip Zelikow, a former Bush-era State Department official, and former FBI agent Ali Soufan are expected to testify about the objections that they raised during their respective tenures.

Though several Democratic sources have said the OPR’s report is expected to be scathing in its determination that the memos’ authors violated legal standards, Durbin and Whitehouse have raised questions about the influence that they may have had on the final report.

Though Justice traditionally has allowed staffers to appeal OPR decisions, in this case, former Attorney General Michael Mukasey — a Bush appointee — allowed Bybee, Yoo and Bradbury to review a draft and comment before the report was finalized.

Weich’s letter to Durbin and Whitehouse indicated that the Obama administration decided not to reverse Mukasey’s decision to allow an extended comment period.

“While we are disappointed to learn that DOJ allowed Stephen Bradbury to participate in OLC’s review and response’ to the report — despite the fact that he played a leading role in drafting the memos under review — we look forward to the prompt completion of this report, and we are pleased by the strong implication in the letter that former OPR chief Marshall Jarrett’s pledge to release the report will be honored,— Durbin and Whitehouse said in a joint statement.

They also questioned the CIA’s involvement. “We will be interested in the scope of the substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter,— the duo said.

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