Dispatches from the Creation Wars

Over at Firedoglake, bmaz has a very compelling post arguing that the OPR report on Yoo and Bybee should not exist. Why? Because the DOJ should not be policing itself in the first place. There are obvious conflicts of interest in allowing an agency to police the bad behavior of those who work at the agency.

The first, and most obvious, issue of conflict with OPR is that it places evaluation and resolution of ethical complaints against DOJ attorneys in the hands of the DOJ. The power to determine whether there is any impropriety is solely within the hands of those supervising and/or ultimately responsible for the impropriety. Pursuant to 28 C.F.R. ยง 0.39a, OPR reports directly to the Attorney General and Deputy Attorney General. A vested interest if there ever was one.

Obviously so. So why not have the agency’s Inspector General police such matters?

Most governmental agencies have independent Inspectors General which operate independently of the agency leadership, have jurisdiction of the entire agency including legal counsel, and thus have credibility as somewhat neutral and detached evaluators and voices. Not so the DOJ, who has arrogated upon themselves the sole right to sit in judgment of themselves. This action to grab the exclusive authority for themselves and exclude the independent IG was first accomplished by Attorney General Order 1931-94 dated November 8, 1994 subsequently codified into the Code of Federal Regulations and reinforced through section 308 of the 2002 Department of Justice Reauthorization Act.

And he quotes the congressional testimony of Glenn Fine, the Inspector General for the DOJ, explaining the reasons why such investigations should not be handled internally:

Second, the current limitation on the DOJ OIG’s jurisdiction prevents the OIG – which by statute operates independent of the agency – from investigating an entire class of misconduct allegations involving DOJ attorneys’ actions, and instead assigns this responsibility to OPR, which is not statutorily independent and reports directly to the Attorney General and the Deputy Attorney General. In effect, the limitation on the OIG’s jurisdiction creates a conflict of interest and contravenes the rationale for establishing independent Inspectors General throughout the government. It also permits an Attorney General to assign an investigation that raises questions about his conduct or the conduct of his senior staff to OPR, an entity that reports to and is supervised by the Attorney General and Deputy Attorney General and that lacks the insulation and independence guaranteed by the IG Act.

This concern is not merely hypothetical. Recently, the Attorney General directed OPR to investigate aspects of the removal of U.S. Attorneys. In essence, the Attorney General assigned OPR – an entity that does not have statutory independence and reports directly to the Deputy Attorney General and Attorney General – to investigate a matter involving the Attorney General’s and the Deputy Attorney General’s conduct. The IG Act created OIGs to avoid this type of conflict of interest. It created statutorily independent offices to investigate allegations of misconduct throughout the entire agency, including actions of agency leaders. All other federal agencies operate this way, and the DOJ should also.

Third, while the OIG operates transparently, OPR does not. The OIG publicly releases its reports on matters of public interest, with the facts and analysis underlying our conclusions available for review. In contrast, OPR operates in secret. Its reports, even when they examine matters of significant public interest, are not publicly released.

The executive branch doesn’t like independent Inspectors General, of course. That was the whole point of Bush’s invocation of the “unitary executive” theory (which does not mean what most people thought it meant, which was some sort of claim of absolute executive power). The unitary executive theory argues that it is unconstitutional to have members of the executive branch that he cannot control or fire — like Inspectors General. Obviously, if the president can fire an IG then the IG cannot have the kind of independence required to do their job objectively and they can easily be pressured.

Bush is not alone, by the way. The Obama administration has tried to do the same thing with Neil Barofsky, the Special Inspector General for the TARP program. They picked the man but found him to be entirely too independent for their liking; he liked to tell the truth instead of repeating the administration’s line. So Obama’s DOJ has been using the very same unitary executive theory to argue that Barofsky is subordinate to Geithner and thus can be fired at any time.