Acting Deputy Attorney General Gary G. Grindler on the OPR Investigation into OLC Memoranda

February 26, 2010

Below please find the oral statement of Acting Deputy Attorney General Gary G. Grindler before the Senate Judiciary Committee at a hearing today entitled, “Office of Professional Responsibility Investigation into Office of Legal Counsel Memoranda.”

Chairman Leahy, Ranking Member Sessions, members of the Committee:

Thank you for the opportunity to appear before you today. I am pleased to respond to your interest in the Department’s decisions about the Office of Professional Responsibility's review of work by former attorneys in the Office of Legal Counsel on the lawfulness of certain interrogation techniques.

Last week we provided to the Committee a series of documents on this matter in response to the Chairman’s request. While the nature of the documents we provided was extraordinary, we concluded that their disclosure was necessary for the Committee to fully understand the ultimate decision in this matter. The legal complexity of the issues and our interest in assuring fairness to all of the individuals involved further supported our view that you should receive requested documents that we might not otherwise disclose outside of the Department.

Although some may disagree with our conclusions, we are confident that the Department followed an appropriate process in reviewing the OPR results and reaching a final resolution of this matter. The OPR report was completed on July 29, 2009. In keeping with our current practice regarding cases of alleged professional misconduct, the subjects of the report were given the chance to appeal the adverse findings contained in that report to Associate Deputy Attorney General David Margolis. Mr. Margolis decided this matter without interference from the Attorney General, the Deputy Attorney General or any other Department official, and his decision represents the Department’s final action. It has long been the policy of the Justice Department that a career official should review any appeal of OPR findings of professional misconduct with respect to former Department employees. No Attorney General or Deputy Attorney General has ever overturned the conclusion of the career official in such circumstances.

As some of you are aware, Mr. Margolis has been deciding such matters for the Department for many years now. He brings to that task almost 45 years of Department experience as an Assistant United States Attorney, Strike Force attorney, Chief of the Organized Crime Strike Force, and, for the last 17 years or so, Associate Deputy Attorney General, during which time he served as Acting Deputy Attorney General for a five-week period in February and March of 2009. His lengthy service as a career attorney who has served Administrations of both parties makes Mr. Margolis uniquely qualified to decide matters of this sensitivity on the merits without fear or favor.

My primary role today is to answer questions about the process that led to the Department’s final adjudication of this matter. I hope you will understand that I am not in a position to delve deeply into the substance of the reports. Both OPR and Mr. Margolis reached their conclusions independently and without political influence. That is how it should be. I believe that each of them fulfilled their responsibilities in this matter through diligent and significant good-faith efforts, which I am not prepared to second-guess. The process that began with OPR’s investigation culminated in Mr. Margolis’s decision. The Department stands behind that decision, including the decision not to refer the matter to the bar associations where Mr. Bybee and Mr. Yoo are members. Any effort on my part to summarize or paraphrase the reasoning of OPR or Mr. Margolis would simply run the risk of misrepresenting a record that speaks for itself.

There is one common thread among the documents we provided to the Committee: they reflect a shared conclusion that the OLC memoranda were flawed. The disagreement among the reviewers is whether the legal work at issue here was so flawed as to amount to professional misconduct. That is a difficult and nuanced question. In the end, Mr. Margolis concluded that the authors of the memos exercised “poor judgment,” which in OPR parlance means that they chose a course of action that represents a marked contrast to the action that the Department may reasonably expect an attorney exercising good judgment to take.

The Attorney General and I have great faith in Mr. Margolis and in the process that led to his decision in this matter. At the same time, we continue to have confidence in OPR’s ability to investigate allegations of professional misconduct against Department attorneys. As the documents we provided to the Committee make clear, evaluating the professional obligations of attorneys requires particular expertise, and the Department continues to believe that OPR is the appropriate entity to conduct those investigations.

Under new leadership since last year, OPR is working to resolve cases more quickly and has been allocated additional resources to meet the demands of a workload that has grown substantially. The Department fully supports OPR’s mission.

I hope this information is helpful, and I am happy to respond to your questions.