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Partisan Position; No Justice At Justice

By Gretchen Gordon and Liz Jackson
Thursday February 04, 2010 - 08:26:00 AM

Last week Newsweek broke the story that the Justice Department will finally release its long-awaited report on the lawyers who justified the Bush administration’s torture and wiretapping policies. But according to what’s been leaked, the report’s findings aren’t what they used to be. The previous charge of professional misconduct against Office of Legal Council lawyers John Yoo and Jay Bybee has been replaced by a simple accusation of “poor judgment.” While the report in its original form would have triggered referral to state bar associations for possible disbarment, the new report looks to be about as strong as a slap on the wrist. 

The process for the production of the Justice Department’s Office of Professional Responsibility report has been a curious one. The OPR investigation began over five years ago, and the first draft was completed in 2008. After objections from Bush administration officials, it was revised based on comments from none other than Yoo and Bybee themselves. And now the conclusion—presto, change-o—is dramatically different. 

While the news is certainly disappointing for anyone who was hoping for accountability, it shouldn’t be surprising that the Justice Department has failed to find its own officials at fault. The Obama administration has been open about its support of former OLC lawyers. In December the Justice Department intervened in the pending civil case against Yoo by detainee Jose Padilla. Though it should have had no horse in the race, the administration filed an amicus brief urging dismissal of the case, arguing that detention and detainee treatment are beyond judicial authority.  

For over five years, the Justice Department, the state bar associations, and Congress have deflected calls for accountability through a monumental feat of buck passing. All investigations have been deferred until the release of the OPR report. With the new revised findings, surely Yoo (who has a book tour to attend to), Bybee, and the administration would all like this to be the last stop on the accountability train. But it doesn’t have to be.  

Despite its revised conclusion, the OPR report, at least based on what has been leaked, still seems to provide considerable evidence to support investigations of professional misconduct. From what Newsweek reported, it appears that Yoo and Bybee altered their professional legal advice to achieve a particular end: to give the appearance that torture could be committed without liability. The report also seems to echo what Justice officials have long said: that the legal reasoning offered was bunk. These are smart, experienced lawyers. If their legal advice was so shoddy, it raises an obvious red flag regarding the legal duty to give an honest and competent good-faith assessment of the law.  

Criminal prosecution is also still an option. Torture and the conspiracy to commit it are war crimes. And it is well established that government lawyers can be held responsible for the criminal results of their actions. Criminal investigations of the torture memo lawyers are underway in foreign jurisdictions, and, under international law, state and local governments also have a duty to investigate and prosecute alleged torturers and conspirators within their jurisdictions.  

We also shouldn’t forget that Congress has oversight over the Justice Department and over Bybee as a federal judge. Congress should hold hearings on the OPR review process and enact legislation to prevent future Office of Legal Council lawlessness. 

And while the revised report is no longer strong enough to trigger a referral to the state bar associations, the state bars have an independent responsibility to ensure that their lawyers are acting within their professional obligations. The Pennsylvania, California, and D.C. bar associations must act on the complaints pending before them.  

Even the universities, where former OLC lawyers are teaching the next generation of legal practitioners, have a duty to investigate whether their professors have upheld faculty conduct requirements.  

If the OPR report is as whitewashed as has been reported, the DOJ has engaged in a travesty of justice. But luckily our democracy isn’t reliant solely on the executive branch policing itself. We can demand accountability through other means. If Congress, the bar associations, and the universities still refuse to act, the failure is on them, and they must be held accountable. On an issue as fundamental as torture, the buck can’t so easily be passed.  


Gretchen Gordon and Liz Jackson are co-chairs of the Berkeley Law chapter of the National Lawyers Guild, a member of the Boalt Alliance to Abolish Torture.