The disappearance of e-mail messages by Bush lawyers who drafted memos blessing harsh interrogation tactics may launch a criminal inquiry. They cover a critical period in 2002 when Justice Department attorneys labored under heavy pressure on a memo that gave the CIA a green light to use simulated drowning, sleep deprivation and other since-repudiated interrogation techniques against al-Qaeda suspects. The Justice Department's five-year inquiry, which concluded last week, found that Yoo and lawyer Jay S. Bybee "exercised poor judgment" but will not face discipline. In 2001, President George W. Bush nominated former Justice Department lawyer Miguel Estrada to a seat on the federal courts of appeals. Estrada withdrew his name after a filibuster. His wife died of an accidental overdose of alcohol and sleeping pills, having also miscarried during the nomination fight, essentially over memos that Estrada had written while he was in office He now represents Yoo.

C.I.A. interrogation program broke the law




Two department lawyers involved in analyzing and justifying waterboarding and other interrogation tactics — Jay S. Bybee, now a federal judge, and John C. Yoo, now a professor at the University of California, Berkeley — had demonstrated “professional misconduct.” It said the lawyers had ignored legal precedents and provided slipshod legal advice to the White House in possible violation of international and federal laws on torture. David Margolis, a career lawyer at the Justice Department, rejected that conclusion in a report of his own

The Office of Professional Responsibility, however, suggested in its report that the legal conclusions were in effect pre-ordained. It said that John Rizzo, the C.I.A. lawyer who requested the opinion, had “candidly admitted the agency was seeking maximum legal protection for its officers” against possible criminal prosecution. Mr. Rizzo objected to the way his remarks were characterized by the office.

“While I have declined to adopt O.P.R.’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client,” Mr. Margolis said.

The ethics report is not the last word on the emotional national dispute about torture. In August, Attorney General Eric H. Holder Jr. opened a criminal investigation to determine whether the C.I.A. interrogation program broke the law, and that inquiry is expected to continue for months.