Holder: OPR Report Due Out this Month

By far the biggest news in today’s DOJ Oversight hearing before the Senate Judiciary Committee is that the Office of Public Responsibility report on the role of OLC lawyers in torture “should be released” this month.

Sheldon Whitehouse, who has been pushing for release of this report for years, asked Eric Holder when the report would be released.

Holder responded that the report is completed. Is is in the last stages now–a career prosecutor has to review the report. At  the end of the month, the report should be issued.

Holder explained that the report took longer than anticipated because DOJ gave lawyers representing subjects of the report more time to review the report. (This means, for example, that Miguel Estrada took his sweet time reviewing what it said about his client, John Yoo.) DOJ then had to react to responses from those lawyers. But, Holder reiterated, the report is now complete and is being review by the last career attorney before it gets released.

Now, I’m 90% sure that Holder said this was being reviewed by a “career prosecutor.” Should we take any significance from that?

55 replies
  1. phred says:

    I would put money on a Wednesday-the-night-before-Thanksgiving Special Holiday Edition Docudump.

    I can’t wait ; )

  2. Jim White says:

    Now, I’m 90% sure that Holder said this was being reviewed by a “career prosecutor.” Should we take any significance from that?

    Hey, I asked you first! Here’s my #3 from the previous thread:

    I suppose I would be reading too much into Holder’s “a career prosecutor has to review report” if I tried to believe that the career prosecutor is reviewing with an eye toward chargeable offenses?

  3. bmaz says:

    You know, the jurisdiction of the OPR is over “department attorneys”. Why would that not include the Attorney General himself? And if so, is it not circumspect that Estrada represents both Gonzales and Yoo?

    Edit: Nevermind, I may have been confused about Estrada representing Gonzales.

    As to a date for release, were I them, I would aim for the day that most looked like it would be consumed with healthcare goings on.

  4. scribe says:

    German radio reports that Obama, personally in a TV interview, admits that Gitmo will not (repeat, NOT) be closed and emptied of captives by the deadline of 1/20/10 he set.

    He blames the delay on what German radio called “Technical problems”.

    Any bets on whether this delay (which had to be nose-on-face obvious last week) had anything to do with Craig’s leaving when he did?

  5. scribe says:

    So, when is the next study on how to cut back screening, treatment and payment for female-centric HCR issues (e.g., breast, urogenital, reproductive) due out?

    B/c from what I can see, this cut-back-the-mammogram statistical (and only statistical) study sucked up a lot of the air on netowrk TV.

  6. Arbusto says:

    Since this report was treated more as a Notice of Proposed Rule Making (NPRM) than a dispassionate investigative report, can we see the original work product with comments from the interested parties? Please!

  7. scribe says:

    following up on the report I cited, which came from MDR, is this one from Deutschlandfunk


    Guantanamo kann nicht so schnell wie geplant geschlossen werden

    Das US-Gefangenenlager Guantanamo auf Kuba kann nicht wie geplant im Januar geschlossen werden. Das räumte Präsident Obama in mehreren Fernsehinterviews ein. Nun sei vorgesehen, die Einrichtung im Laufe des kommenden Jahres aufzulösen. Obama äußerte sich auch zum Militär-Engagement in Afghanistan. Dieses solle bis zum Ende seiner Amtszeit im Jahr 2013 abgeschlossen werden. Der US-Präsident hält sich derzeit in Südkorea auf. Ein Thema der Gespräche ist die Lage in Nordkorea. Zuvor hatte Obama in Peking vereinbart, dass die USA und China ihre strategische Partnerschaft vertiefen.

    Guantanamo cannot be closed as quickly as planned.

    The US prison camp at Guantanamo, Cuba, cannot be closed in January as had been planned. President Obama disclosed this in multiple TV interviews. It is now anticipated that the installation will be closed in the course of the coming year. Obama also expressed himself relative to the military engagement (i.e., operations) in Afghanistan. These should be concluded by the end of his term of office in 2013. The US President is currently stopped in South Korea. A topic of the talks (there) is the situation in North Korea. Previously in his talks in Peking, the US and China agreed to deepen their strategic partnership.

  8. BoxTurtle says:

    Now, I’m 90% sure that Holder said this was being reviewed by a “career prosecutor.” Should we take any significance from that?

    Holder considers himself a career prosecutor, doesn’t he? /s

    My bet: The report will rip former officals, point out the only remedy is removal from office and they’re already out of office. They’ll be careful not to see any evidence of anything that could be taken to court for which the SoL has not already expired.

    Boxturtle (King of cynics)

  9. foothillsmike says:

    Now, I’m 90% sure that Holder said this was being reviewed by a “career prosecutor.” Should we take any significance from that?

    It is ok if the prosecutors career has already lasted more than nine years.

  10. bobschacht says:

    I think the “reviewed by a career prosecuter” is meant to be understood as “not being reviewed by some political hack.”

    Can a career prosecutor also be a political hack?
    I’m not in a position to judge, but based on observing the behavior of AG Mukasey, my betting money would be on “yes.”

    Bob in AZ

    • earlofhuntingdon says:

      I’m afraid I have to agree with you. Mukasey has become the Lou Costello of former AG’s and reveals how much of a political hack he is and was when he was hired. The only good thing about his being AG was that it got him off the federal bench. He now has to make do as a partner in white shoe firm, Debevoise & Plimpton, where being a Republican hack will not make him stand out. Another example of failing up.

      • earlofhuntingdon says:

        That’s not quite correct, in that Mukasey retired from the bench in 2006, to rejoin the law firm he had been with in 1987, the one he shared with Scott Horton apparently. That association led Mr. Horton to misforecast that Mr. Mukasey might be an improvement over Alberto Gonazles. He admitted his misjudgment soon after Mukasey’s appointment.

      • LabDancer says:

        As Costellophile, I take umbrage. It’s likely I’m not alone, but as to who’s on first, I don’t know.

  11. Mary says:

    Well, in general OPR lawyers are competent to issue OPR reports themselves and they are not career prosecutors while in their career at OPR, so unless he was loose with his language (which could be – he may just have meant career DOJ employees/lawyers as opposed to prosecutors) then I do think it is interesting.

    One possibility is that they are going to have someone on Durham’s team look at it to make sure no element of DOJ that is wrapped into the torture coverups and/or the dual defense and prosecution roles of DOJ gets any kind of a surprise. Esp if Dunham/Holder are also getting ready to release non-prosecutions decisions, they will be able to say they reviewed the OPR report and it did not affect their determination. Better yet, they can make some language suggestions so the report even more strongly supports their determinations.

    A less likely possibility would be that Holder is going to extend the mandate of the OPR report to criminal review and try to incorporate some references to OPR investigators asking Crim Pros to review and confirm their determination that actions did not amount to crimes – so that they can try to use the OPR to make some affirmative statement on criminality (which it ordinarily should do) and then maybe be able to try to finally put the babies to bed with with the OPR report going where it shouldn’t on criminality and a follow additional “independent” report from the Dunhamco investigation echoing OPR findings.

    Or it could be something else altogether. *g*

    • LabDancer says:

      All three of your suggestions occurred to me as well [especially the third]. But referring back to fearless leader’s liveblog entry on the relevant passage:

      “The report is completed. Being reviewed now, last stages, a career prosecutor has to review report. At end of month report should be issued. Longer than anticipated bc of the amount of time we gave to lawyers representing subjects of report. Had to react those those responses. Report is complete being reviewed by last person”,

      I see:

      [a] “stages” – plural;

      [b] writing is one thing, redacting is another;

      [c] “career prosecutor” is distinct category – DOJO is another;

      [d] at any given point in time, bureaucratically speaking, the lowest DOJO outranks the highest careerist;

      [e] Holder’s response is completely consistent with this ‘process’ having got to the point where whoever it is who reports to Holder on this told him that it appears, with one exception, any and all actually, arguably, conceivably, possibly, potentially & even remotely interested DOJO, prosecutor or employee, past, present & [possibly] future, have been accounted for;

      [f] consistent with [c] above, one can take to the bank [gonna need a new cliche] that the ultimate review of the edited OPR report will be conducted by a political type;

      [g] there’s no support whatsoever for the idea that the one remaining careerist is Dunham, or anyone else involved in Holder’s musing mystery tour of a ‘review’.

  12. fatster says:

    EXCLUSIVE: CIA Secret ‘Torture’ Prison Found at Fancy Horseback Riding Academy
    ABC News Finds the Location of a “Black Site” for Alleged Terrorists in Lithuania


  13. Mauimom says:

    Now, I’m 90% sure that Holder said this was being reviewed by a “career prosecutor.”

    Marcy, are you hoping that “career prosecutor” has the initials “P.F.”?

    • Loo Hoo. says:

      That’s what I’m wondering too. That would put Fitz in an even better spot to move up in some way. Senator or AG???

    • freepatriot says:

      Horseback riding academy?
      Oh no,
      Not you, Mary, of all people

      that’s strange

      she don’t look Lithuanian

      (duckin & runnin)

  14. MadDog says:

    OT – I know EW said she’d be getting back to last week’s EFF FOIA Retroactive Immunity document dump, but I couldn’t wait. *g*

    From page 49 of the 66 page PDF – Office of the Director of National Intelligence, part 81-2, an email dated 11/01/2007 from Mary DeRosa (then Chief Counsel for National Security on the Senate Judiciary Committee and currently “Deputy Counsel to the President for National Security Affairs and Legal Adviser to the National Security Council”) to Benjamin Powell, General Counsel ODNI:

    Senator Durbin and others are very interested in a classified meeting with representatives from telecommunications companies to follow up on some questions from the briefing we had earlier this week. I understand that one meeting with representatives from different companies is not possible so we’d have to do back-to-back meetings. Is this something you guys can help me with? If not, do you have any suggestions for me? I know a person from one of the companies that I can call directly, but I don’t know the others, and I’m not sure whether you (or someone in government) would need to be involved…

    Too bad there’s no such thing as FOIA for Congresscritters, and there’s certainly no doubt why that is.

    • MadDog says:

      And more OT – From page 9 of the 67 page PDF Office of the Director of National Intelligence, part 81-3:

      …I wanted to flag for your attention a paragraph that we added, in the draft sent earlier today, to the section on Directives – paragraph (2), on page 5, line 2-3.

      It provides that each directive shall contain a list of specific targets.

      The paragraph reflects a suggestion we received here that it would help allay the driftnet concern if it were clear that directives addresses specific targets.

      But, in including it, I realize that we don’t know whether the practice now is for directives to include specific selectors, and hence whether a provision such as the one proposed would be consistent with current practice or a departure from it

      (My Bold)

      So, the author Mike Davidson, an Intelligence staffer on SSCI, even as late as October 2007, didn’t yet know whether the NSA was driftnetting or not.

      • emptywheel says:

        One of the things to watch out for as you read these things is when SSCI and HPSCI and HJC finally get to review directives. Remember that Whitehouse flipped out in December 2007 when he finally saw all of it, or not long thereafter.

  15. freepatriot says:

    so how many promised releases does this make ???

    we been promised a view of this report almost as many times as we been told we captured Al Qeada’s number 2 man

    and I might add; go ahead and release it on thanksgiving

    t’s a looooooong newsless weekend, and I need something to read in between ball games …

    an ME reading it is the least of their problems

    and do we got a name for the shortstop ??? I’m bettin it wasn’t Tinker

  16. cregan says:

    The only significance of “career prosecutor” is to imply that the report is going to be unbiased and free from any political considerations. Sort of like a hermetically sealed prosecutor.

    I doubt it means anything about anyone being prosecuted.

  17. Hmmm says:

    “Technical difficulties” closing GTMO… huh, that seems odd. Wonder whether there is also some other, separate mission taking place there for which the camp operation provides cover.

  18. MadDog says:

    By far the biggest news in today’s DOJ Oversight hearing before the Senate Judiciary Committee is that the Office of Public Responsibility report on the role of OLC lawyers in torture “should be released” this month…

    Daphne Eviatar over at the Windy thought this was an important bit of news as well:

    Holder Promises to Produce Evidence Requested on USA Patriot Act

    Testifying at a Senate Judiciary Committee hearing this morning, Attorney General Eric Holder promised to produce the evidence, withheld by the Department of Justice, that some Democratic Senators believe is necessary for an informed debate on the renewal of the USA PATRIOT Act.

    As I reported yesterday, Sens. Ron Wyden (D-Ore.), Russ Feingold (D-Wis.) and Richard Durbin (D-Ill.) sent a letter asking the attorney general to produce information that’s been classified but which they feel is necessary to allowing Congress to decide whether certain provisions of the Patriot Act — specifically section 215, known as the “business records provision” — should be renewed in their current form…

    And here’s that letter (1 page PDF).

    • MadDog says:

      And from Daphne’s earlier piece:

      …As Jennifer Hoelzer, Wyden’s communications director, said in an e-mail: “The fact that I can’t in anyway characterize the information in itself highlights the problem and why we believe it is so essential that the Justice Department declassify this information. Senators should know what they are voting on.”

  19. orionATL says:


    Thanks for ” birddogging” this.

    I am deeply curious about exactly what it is that sec 215 is allegedly being used for that silences (functionally) criticism from a senator like whitehouse.

    Sometime back a onetime commenter mentioned its possible use in drug interdictions.a

    • MadDog says:

      And even if AG Holder delivers what Senators Wyden, Feingold and Durbin want on declassifying the 215 stuff, it remains to be seen whether we will ever get to see it. *g*

      • Mary says:

        one of my more major gripes is how the media and Congress both buy into that “Congress was briefed” crap when only a couple of people or at most a couple of committees get briefed, and then the rest of Congress votes while operating in ignorance and without debate.

        • MadDog says:

          “Technically accurate” always seems good enough.

          They pretend that “Congress” is one single mind-meld entity rather than a mindless hive of 538 not-so-busy bees.

  20. Mary says:

    OT – but for anyone who was following the prior thread incorporating EW’s questions to and responses from Lt Col Frakt (answering in his capacity as prof and not on behalf of military) – he has visited comments at the end of that thread and provided some additional detail and information. I know things tend to leap forward at lightening speed, so I thought I’d mention it.

  21. emptywheel says:


    I’m not sure I buy Eviatar’s reading.

    First, Holder agreed to LEAHY, not Feingold, to provide enough information to Congress to review this–not to give FEINGOLD what he asked for.

    Also, I’m rather, um, shocked that she’s apparently oblivious to the references to 215 being used for other collection programs–as that has been made clear in about 5 different sources. Given that background, and given the likelihood this is used to authorize other programs, I’d be somewhat skeptical that Holder’s going to give enough to make really clear what it is.

    • emptywheel says:

      Also, Eviatar seems unaware of what got passed in 2001 and what got made explicit in 2005/6. That’s important, obviously, given other events going on wrt domestic surveillance.

    • MadDog says:

      …First, Holder agreed to LEAHY, not Feingold, to provide enough information to Congress to review this–not to give FEINGOLD what he asked for…

      Good point, and what makes it all more strange is that both Wyden and Feingold are on the SSCI (though not Durbin) so I’m guessing they both already know what that classified 215 info is, and are the primary motivators to see it declassified for Leahy and the rest of the SJC, and perhaps for the rest of the entire Senate.

      So, it remains to be seen if Holder delivers to Leahy, exactly what he delivers, and whether it meets the requests of Wyden and Feingold.

      Given the lack of DOJ responsiveness previously to a “June” classified letter, I’m guessing that whatever Holder does come up with, it won’t be sufficient to satisfy Wyden and Feingold.

      • emptywheel says:

        No no. At least given what Holder said today, the goal is to give the REST of Senate and House enough of briefing to vote on it. SJC has had their briefing, along with SSCI–though it’s clear SSCI loves the program more than SJC.

        • MadDog says:

          I must’ve missed the fact of the SJC briefing on the classified 215 stuff, but then with my Swiss cheese memory, you already knew that. *g*

  22. orionATL says:

    So please, somebody,
    Ew@48 et al.,

    I can’t stand not knowing any longer

    What is section 215 being used for other than beauty supply, banking, and computer records?

    All the used I listed are, I think, well known.

    I want to know what the (so far) hidden Obama agenda is for section 215.

    The use that made whitehouse sit down and shut in the senate judiciary?

    • emptywheel says:

      They started using 215 for a “collection program” in 2006. An there were some curious briefings in early 2006. And then there were some 215 orders that were approved in 2007 that IG counted in some of its metrics and did not count in others.

      In other words, the timing suggests that after the illegal program was ousted, some PART of it may have been covered in 215 (there are more coinkydinks of timing as well, but I’ll have to review those in a later post).

      But if you think about it, 215 CAN be used to collect any kind of business record (any kind of THING). And all evidence says they’re also collecting it in mass. So maybe things like bank records, and/or telecom metadata that can feed right into a big database, that can be cross referenced to pick who you wiretap. So it’s POSSIBLE, with some stretching (which we know they were doing) they were using it to cross-reference other records that people like Tice were whistleblowing.

      But that’s just a theory.

  23. fatster says:

    Pardon the O/T but this has possibilities galore:

    Fine and Inquiry Possible for Blackwater Successor [Xe]
    “The international security company formerly called Blackwater Worldwide is facing large government fines for unlicensed arms shipments to Iraq, as a key Congressional committee is asking for a separate investigation into whether the company bribed Iraqi officials.”


  24. orionATL says:


    Thanks for the historical background .


    if you know all this and can impart it to your readers,

    What more is there that so concerns senators wyden, durbin, and feingold that they write ag holder asking for more info?

    It seems to me that these dogs sense something we are ignoring.

    • emptywheel says:

      They’re not asking for more info (which is why I think Eviatar’s piece didn’t make sense).

      They asking OTHER Senators (and Congressmen) receive a briefing so they know what they’re approving. There’s this kabuki pretending this is ONLY about specific ties to terrorism (meaning, they can only ask for records that you bought acetone or hydrogen peroxide if they can first prove you have ties to a suspected terrorist).

      But once they eliminate that specificity, they basically give themselves license to collect “all” acetone and hydrogen peroxide purchasers (since the standard for collection is only relevance to a terrorism investigation). Which–given their intensity about keeping the lac of specificity–is a pretty good indication they’re doing that on some scale or other.

      What Feingold et al are trying to make clear is that the claimed use of this is very different from the real use of it–in the same way that Feingold tried to show they were bulk collecting by their refusal to accept a no bulk collection clause.

  25. orionATL says:


    Thanks for the explanation.

    The complexity of this social/political gaming astonished me.

    It’s a wonder anything in the best interest of the nation ever gets done.

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