The Washington Post editorial board purports to call for “fairness in the torture probe.” I’ll have more to say about this editorial later, but for now I want to focus on this passage regarding the Justice Department’s investigation, through its Office of Professional Responsibility (OPR), into legal analysis performed by Jay Bybee and John Yoo:
Investigations of this type are usually kept secret unless and until the investigating entity determines that wrongdoing has occurred. There’s a certain logic and decency to this: Mere news that someone is under investigation is often enough to tarnish that person’s reputation — even if charges ultimately are not brought. Yet the existence of the investigation and many details of the OPR report have already found their way into the public arena. For example, The Post and other news outlets have reported that the OPR will recommend that Judge Bybee and Mr. Yoo be referred to their respective bar associations for possible sanctions.
The Post makes it sound like the leaks of the OPR report, which is still a preliminary document, are nothing more than a deviation from the usual way of doing things. In fact, they are a violation of OPR’s rules and, it would appear, a criminal violation of the Privacy Act.
As Bill Otis has pointed out to me, the Justice Department has clear rules governing the circumstances under which OPR’s findings may be publicly disclosed:
Public Disclosure of OPR Findings
OPR’s findings in certain cases may be publicly disclosed. The Department may consider disclosing the final disposition, after all available administrative reviews have been completed, of any matter in the following categories:
A finding of intentional or knowing professional misconduct in the course of litigation or investigation where the Attorney General or Deputy Attorney General finds that the public interest in disclosure outweighs the privacy interest of the attorney and any law enforcement interests;
Any case involving an allegation of serious professional misconduct where there has been a demonstration of public interest, including referrals by a court or bar association, where the Attorney General or Deputy Attorney General finds that the public interest in disclosure outweighs the privacy interest of the attorney and any law enforcement interests;
Any case in which the attorney requests disclosure, where law enforcement interests are not compromised by the disclosure.
If a matter appears to meet these criteria, OPR prepares a summary of the matter including the attorney’s name, sufficient facts to explain the context of the allegation, and the final disposition. This summary is submitted to the Department’s Office of Privacy and Civil Liberties, which determines whether the Privacy Act permits disclosure of the included information and whether revisions should be made to the summary prior to disclosure. If Office of Privacy and Civil Liberties advises that the statement is appropriate for disclosure, the summary is sent to the attorney and the appropriate supervisory official, and both are given the opportunity to make written comments and objections to the proposed disclosure on grounds of privacy or law enforcement concerns. Any such objections are reviewed by Office of Privacy and Civil Liberties.
OPR forwards the proposed summary to the Deputy Attorney General with its recommendation regarding release and attaches all comments that were received. The final decision as to whether to release a summary is made by the Attorney General. If the Attorney General decides that disclosure is appropriate, the summary is forwarded to the Office of Public Affairs for release. (emphasis added)
Here, the key conditions for disclosure have not been satisifed. For example, the draft was leaked before Bybee, Yoo, or their lawyers had an opportunity to comment and before the Department of Justice determined that the preliminary report should become final.
The leaks also appear to consititute a criminal offense under the Privacy Act. 5 U.S.C. section 552a(i)(1) provides:
Criminal Penalties.– Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.
Agency “records” are “any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.” 552a(a)(4).
DOJ regulations make it clear that the Privacy Act’s strictures apply to exactly the class of OPR records that were leaked to, and used, by the Post. (I understand that there have been some minor modifications to the regs, but none that would change the analysis here). Thus, the leaking of such documents under circumstances that violate DOJ/OPR rules would appear to be a criminal offense.
The “fairness” the Washington Post calls for is, I assume, out of the question on this issue with this administration. But is it too much to ask that the Obama-Holder Justice Department comply with the law?
It seems to me that DOJ should consider the appointment of a Special Counsel to look into this matter. Surely this is what the Democrats, and the Washington Post, would be calling for if leaks like these had occurred under a Republican adminstration.