Digging Deep

Beyond day one on the torture ethics report

It can’t be fun.

Late on a Friday, some important, extremely controversial, highly complicated, and very long government document drops. Forget the dinner date. You’ve got to turn around a quick story.

And so it was last weekend, when a long awaited report from the Justice Department’s Office of Professional Responsibility on the legal culpability of lawyers working in the Bush-era department’s Office of Legal Counsel for memos they wrote justifying torture came out.

That report clocked in 289 pages and it was released alongside two draft versions, as well as lengthy responses from lawyers representing John Yoo and Jay Bybee, the report’s principle targets, and a 69 page memo from David Margolis, a department official who oversees the OPR. (And let’s put aside the day’s other news: the Tiger Woods statement, and, more relevant to reporters covering the Justice Department, a report on the investigation into the post-9/11 anthrax mailings.)

There’s no way that a single reporter, or a small team of reporters, could do the work necessary to pore over all of those pages in a night, not to mention to call around for comment or write the matter up.

So it’s no surprise that Saturday’s papers took a view from on high, and reported on the easier to manage story: the repercussions—or lack thereof—of the department’s decision. In short, The New York Times, the Los Angeles Times, The Washington Post, The Wall Street Journal, and the Associated Press reported with varying degrees of precision that the department’s final word found that the lawyers’ work was deeply flawed, but didn’t amount to professional misconduct.

All this coverage fed into—and perhaps was based on the same assumption—that the most important thing coming out the document dump were its recommendations and conclusions, and not what information it revealed about the drafting process or thinking behind the memos condoning torture.

That makes a certain amount of sense. The OPR report was viewed by Yoo and Bybee’s critics—not to mention those angered at the past administration’s fuller portfolio on issues of interrogation and surveillance—as one of the few remaining opportunities for accountability for the Bush administration’s actions.

But as the dust settles, it would be nice if reporters would turn their analytical power to other revelations contained in the documents.

Here’s an example: Newsweek’s Michael Isikoff reported on Friday night that Yoo told investigators that the commander in chief had the legal authority to order a village of civilians annihilated. Considering that Yoo once said that no treaty obligation prevented the President from ordering that a child’s testicles be crushed, adding that in certain situations, not even congress could prevent such mutilation, it’s long been clear that his views of presidential power tend toward the radically unilateral. But this is a vivid illustration.

And here’s another: Yoo says he believed that a key memo had actually prohibited waterboarding, not sanctioned it, a bizarre contention that seems ripe for follow up. So does the fact that OPR’s investigators were thwarted by missing emails from some principle lawyers. The government’s email record keeping is, in general, shoddy. At a minimum, here’s another example of a persistent problem. Perhaps further spadework would turn up more.

Marcy Wheeler, the investigative blogger at FireDogLake, not surprisingly took to the documents with gusto. After announcing that the report, the drafts, the rebuttals, and the memos provided a “great way to spend a Friday night–reading this with all my friends,” she established several somewhat freewheeling but extremely valuable “working threads” and invited her readers to spend the weekend helping tease out all the above and much more. (Wheeler’s got an impressive track record on ferreting out important information in document dumps—her sharp eyes caught the needle-in-the-haystack-fact that Khalid Sheikh Mohammed had been waterboarded 183 times in a month, a number redacted in some versions of a 2005 OLC memo.)

It would be great if the bigfeet on the beat were given the time and space to sort through these documents with similar care. Going a step further, it can’t be long before a major news organization decides to grapple with unwieldy document dumps in a similar fashion, by harnessing the reading skills and interest of their readers to make sense of hundreds of pages in a short period of time, shedding new light for readers.

After all, the Justice Department’s ultimate decision not to refer Yoo and Bybee’s conduct to their respective bars forecloses one avenue for accountability. That’s all the more reason for journalists to sort through what’s freshly released.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.