Speaking of New York Times Editorials...

By Benjamin Wittes
Wednesday, February 2, 2011, 9:26 AM

. . . I actually agree with this one this morning, arguing that the separation of the investigative functions of the Justice Department's inspector general and its Office of Professional Responsibility is a silly anachronism. The IG is, broadly speaking, responsible for internal investigations of matters other than attorney professional misconduct, which is reserved for OPR, and I think the Times is correct that this apartheid makes no sense. Yet even in agreement with the Times, I find myself indignant. The paper's major example in support of the idea that there's a problem with this division is, well, slimy:

The inspector general reports to Congress and the attorney general and can be fired only by the president. But the job’s purview of detecting and deterring waste, fraud, abuse and misconduct is oddly limited. It doesn’t include power to investigate alleged misconduct by the department’s lawyers in their legal work.

That is left to the Office of Professional Responsibility, which has no independence and can be far too easily overridden as it was in its investigation of the Bush administration’s appalling memos authorizing the drowning technique known as waterboarding and other torture of detainees. While the office urged that the lawyers who wrote the memos should be penalized for professional misconduct, a lawyer working for the deputy attorney general rejected that counsel.

If the inspector general had done the investigation and made the same recommendation, a midlevel official could not have rejected it. And the attorney general would have had to take it far more seriously.

The "midlevel" "lawyer working for the deputy attorney general" to whom the Times refers here is the highly-respected, long-serving career official, David Margolis. The notion that Margolis was acting politically in this instance to protect John Yoo and Jay Bybee from the consequences of a thorough and serious investigation and that the attorney general did not take OPR's work seriously is, well, not right. First of all, Margolis' 69-page report overturning the earlier OPR report is an absolutely devastating, if gently-worded, shredding of OPR's work product and conduct of its very long investigation. His reasoning is open and transparent and, at least to my mind, utterly persuasive. The results of the OPR investigation failed to stand not because OPR's lack of independence made them easy for the attorney general to ignore, but because the glaring deficiencies in the investigation could not withstand scrutiny.

What's more, the notion that Attorney General Eric Holder had some political incentive to shunt aside OPR's finding strikes me as far-fetched. All of Holder's incentives were on the other side; letting the department refer Yoo and Bybee for professional discipline would have insulated him against criticism for circling the wagons and failing to provide accountability for torture. The work product Holder had an incentive to ignore was not OPR's but Margolis'. To his credit, Holder let Margolis' report be the final word.

OPR had a lot of chances and a lot of time to get this right. The office failed and produced an embarrassing document that could not stand and did not stand. Ironically, that's a good reason to think about giving its attorney investigation function to a competent office like that of the inspector general--but not for the reasons the Times suggests.