More scrutiny, secrecy at Justice

WASHINGTON —  Justice Department lawyers and investigators have come under more scrutiny after the Sept. 11 attacks than at perhaps any time since Watergate. Questions have been raised about the administration’s strategies for going after terrorism suspects and about whether politics was allowed to taint the department’s core mission to provide equal justice under the law.

But the internal unit that polices the lawyers’ conduct has been operating under a growing shroud of secrecy, shutting down what were once regular, public disclosures about its activities.

The Office of Professional Responsibility historically has attracted little attention because of its focus on the department’s everyday civil and criminal matters. Now, however, it is taking on some of the weightiest issues in government -- examining the role Justice’s lawyers played in formulating administration interrogation policies for suspected terrorists and in endorsing a National Security Agency program of warrantless electronic surveillance.

It has been thrown the task of deciding whether department lawyers engaged in selective prosecution of Democratic political figures. It also is looking into lawyers’ involvement in a decision four years ago to deport a Canadian citizen to Syria, where he was imprisoned and tortured. That case has emerged as one of the most infamous examples of a policy known as rendition, in which suspected terrorists are transferred to other nations for interrogation.

The OPR has broad power to recommend disciplinary action, including dismissal, if it finds that any of the Justice Department’s 10,000 lawyers have violated ethics rules or other regulations. But officials have declined to say whether even one government lawyer has been found to have engaged in professional misconduct in connection with the war on terrorism -- despite often fierce criticism from civil liberties groups, defense lawyers and judges.

The ethics watchdog has exonerated department lawyers in at least two high-profile terrorism-related investigations.

According to a redacted copy of a confidential OPR report obtained by The Times, the office found that department lawyers had not engaged in misconduct in connection with the controversial practice of using special warrants to round up and incarcerate men after Sept. 11 who were considered witnesses to crimes. Human rights groups said the technique was a way to illegally detain, sometimes for months, dozens of Muslims whom the government suspected but could not prove were engaged in criminal activity.

The report, issued more than a year ago, concluded: “Department of Justice attorneys involved did not misuse the material witness statute, and thus did not commit professional misconduct or exercise poor judgment.”

The OPR also exonerated department lawyers in connection with the case of Brandon Mayfield, a Muslim attorney in Portland, Ore., who was detained when the FBI erroneously linked his fingerprints to detonators involved in the March 2004 Madrid train bombings. In 2006, the government apologized and paid Mayfield a $2-million settlement. The OPR action was made public by the Justice Department without elaboration.

But the resolution of most matters investigated by the OPR remains closely guarded, even in cases where courts have found evidence of serious prosecutorial misconduct.

For example, a multimillion-dollar securities fraud case in Las Vegas was dismissed two years ago after an assistant U.S. attorney acknowledged in the middle of trial that he had failed to turn over evidence to defense lawyers that undermined the credibility of some crucial government witnesses.

“This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanctions available,” a federal appeals court ruled in agreeing that dismissal of the fraud charges was warranted. The U.S. attorney reported the allegations to the OPR, which sent a team to Nevada to investigate.

Natalie Collins, a spokeswoman for the U.S. attorney’s office in Las Vegas, told a legal newspaper that the OPR found no evidence of “intentional misconduct” by the office. She declined to say whether any other misconduct was found or whether any discipline was ordered. The OPR declined to comment.

Though the office does not release reports about individual cases, it does inform the parties to the investigations of the results, and they are free to make the decisions public.

After President Bush took office in 2001, the Justice Department reversed a decade-old policy of publicly disclosing detailed summaries of OPR investigations of department lawyers found to have committed professional misconduct. Janet Reno, attorney general since 1993, had believed that publicizing the information would bolster confidence in the department; and during her tenure she had authorized the release of two dozen public summaries of misconduct cases -- including one against then-FBI Director William S. Sessions.

The OPR also has been far behind in producing required annual public reports summarizing its activities. Last month, it released its report covering fiscal year 2005. That means many investigations undertaken during the tenure of former Atty. Gen. Alberto R. Gonzales remain under wraps.

Some legal experts say there is an impression that the Justice Department is hiding something.

Publishing the summaries “reassures the public that [the Department of Justice] takes its self-regulatory responsibilities seriously and puts prosecutors on notice that they face public embarrassment if they are caught engaging in wrongdoing,” said Bruce Green, a former federal prosecutor and a professor at Fordham Law School in New York.

Associate Deputy Atty. Gen. David Margolis said it was his decision to excuse the OPR from preparing summaries of cases that might be released to the public. He said the decision reflected a lack of resources, as well as concern about balancing public interests with the privacy rights of individual attorneys facing accusations.

“My goal is to get fair and speedy dispositions of allegations against our attorneys,” he said, “and, to the extent possible, let the public know what we did and why we did it without unnecessarily or gratuitously . . . publicly humiliating our line attorneys as individuals.”

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Back story: Office of Professional Responsibility

The Office of Professional Responsibility was created in 1975 in response to the Justice Department’s role in the Watergate scandal.

For years it was the department’s lone watchdog. It survived even after Congress decided in 1989 that Justice needed an independent inspector general. The OPR’s mission was narrowed to focus only on the activities of department lawyers in performing their duties. But there is constant overlap, and the much larger inspector general’s office has proposed for years to take over operation of the OPR.

Unlike the inspector general, the OPR reports to the attorney general, creating what many see as inevitable conflicts of interest. When then-Atty. Gen. Alberto R. Gonzales last year sought to quell concern over his handling of the firing of several U.S. attorneys, he chose the OPR for the job. The inspector general, Glenn A. Fine, objected, and the OPR agreed to a joint probe that will eventually become public.

Today the office has 25 lawyers, including three on temporary assignment. They are responsible for the conduct of about 10,000 attorneys.

H. Marshall Jarrett, the chief counsel and head of the OPR, says the office gets hundreds of complaints every year. It opens formal investigations in about 80 cases a year and closes about the same number. He says the office finds misconduct in about 25% of the cases -- 20 or so a year, on average. Half the time, the office finds that the attorneys acted appropriately. In the remaining cases, they are found to have exercised poor judgment or made mistakes, which generally do not qualify as misconduct.

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Source: Times research