Tuesday, February 17, 2009

A Torture Report Could Spell Big Trouble for Bush Lawyers.

An internal Justice Department report on the conduct of senior lawyers of the Bush administration - who gave legal briefings allowing waterboarding and other forms of torture - is said to be causing concern amongst former Bush administration officials.

H. Marshall Jarrett, chief of the department's ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys."

According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials - Jay Bybee and John Yoo - as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)
The Attorney General at the time, Michael Mukasey, is said to have strongly objected to the reports findings, but if such a report is sent to Holder he might very well send it on to the state bar associations for possible disciplinary action.

This is one of the things which I find most puzzling about the legal opinions issued by Bybee and Yoo. They so go against almost every lawyers understanding of what is legal and what is not that one must conclude that they wilfully arrived at the wrong conclusions.

Indeed, Jack Goldsmith, who was hired in October 2003 to head the Office of Legal Counsel, the division of the Justice Department that advises the president on the limits of executive power, made himself into a sacrificial lamb and resigned in order to overturn Yoo's dreadful memo.

After he resigned Goldsmith wrote that he was "astonished" by the "deeply flawed" and "sloppily reasoned" legal analysis in the memos by Yoo and Bybee, especially with their claim that the president could ignore laws passed by Congress banning the use of torture.

Indeed, their conclusions are so outwith the legal norm that OPR investigators have started looking into whether or not Yoo and Bybee deliberately slanted their opinions so that they could tell the Bush administration what they wanted to hear and to this end they have gained access to copious amounts of material, including emails, which will help them piece together the process by which these memos were created.

If it is found that they twisted logic in order to tell Bush what he wanted to hear, then they should be struck from the bar. If a lawyer deliberately tells a client only what they want, rather than what the law actually says, then that lawyer has, in my opinion, forfeited his right to practice.

I don't see why that principle should vary simply because one's client is the president.


Glenn Greenwald:

The implications of this event can't be overstated. One of the primary excuses offered by Bush apologists and those who oppose investigations is that Bush DOJ lawyers authorized the torture and opined that it was legal. But a finding that those lawyers breached their ethical obligations would mean, by definition, that the opinions they issued were not legitimate legal opinions -- i.e., that they were not merely wrong in their conclusions, but so blatantly and self-evidently wrong that they were issued in bad faith (with the intent to justify what they knew the President wanted to do, rather than to offer their good faith views of what the law permitted).

The Convention Against Torture explicitly prohibits the domestic legalization of torture, and specifically states that it shall not be a defense that government officials authorized it. So whether or not these legal opinions were issued in good faith is irrelevant to our obligations under that treaty to investigate and prosecute. But a finding that these legal opinions were issued in bad faith -- with the deliberate intent to knowingly legalize what was plainly criminal behavior -- will gut the primary political excuse for treating Bush officials differently than common criminals.

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