By Harvey Silverglate
It’s unlikely that the pooh-bahs at the Bush Administration’s Department of Justice (DOJ) read any civil liberties column or blog, let alone The Free For All. But I can’t help but think that somehow this blog launched an idea when I suggested on February 8 that the DOJ sic its legal ethics watch-dogs from the Office of Professional Responsibility (OPR) on the DOJ lawyers who drafted the infamous “torture memos.” (Dan Kennedy certainly saw the connection!) My argument is that the blame for whatever illegal conduct was authorized by those bogus memos should be placed on those who deserve it: the lawyers who gave the bad legal advice, rather than the CIA agents and others who depended and acted on the basis of that advice.
And so I read with some satisfaction Dan Eggen’s Washington Post report indicating that the DOJ’s OPR had begun such an investigation. The first subject of the OPR’s scrutiny is Jay Bybee, the former head of the Office of Legal Counsel at the DOJ (and now a sitting federal judge for the Ninth Circuit Court of Appeals) who signed the infamous August 2002 memo (PDF). The key bit of chicanery deployed in that memo was the legal conclusion – breathtaking as a sheer matter of legal scholarship – that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
The other subject of the OPR’s investigation is John Yoo, who is said to have actually drafted that piece of legal nonsense while serving as Bybee’s then-deputy, and is now sitting in a tenured position at the University of California-Berkeley Law School (having switched from being paid with our federal tax money to living off of the taxpayers of California). As a result of the legal advice given by these charlatans, human beings were subjected to waterboarding in 2002 and 2003, while others were subjected to stress positions and psychological torture techniques. Over at Balkinization, Marty Lederman published a series of critiques (see, e.g., here) of the 2004 memo that superseded and repudiated the Bybee memo – but which left the door open for torture to be used.
We will do our best to follow the OPR’s investigation, hard as it will be, since OPR investigations are notoriously secret, although in this instance the OPR has indicated that an unclassified version of its final report will be made public when it is delivered to Congress. Though the punishment visited upon a DOJ lawyer sometimes becomes public, neither Bybee nor Yoo is still a DOJ employee, so no formal intra-department discipline can be recommended by the OPR. Instead, the DOJ can refer the matter to state bar associations or other agencies in charge of disciplining lawyers for unethical conduct. If this investigation results at some point in discipline – whether a mild admonition or censure, or a more radical penalty like suspension from practice or disbarment – it is possible that the life tenure enjoyed by these two lawyers could be disturbed.
Federal judges, for one, “shall hold their Offices during good Behaviour,” according to Article III, Section 1 of the Constitution. This means that if they behave badly (a standard notoriously difficult to define but left up to the Congress), they are subject to impeachment. And every university or law school has its own standards for revoking tenure. Of course, bouncing a judge or a tenured professor presents serious questions of judicial independence for the former, and academic freedom for the latter. But, as I wrote in my last post, there’s a difference between publishing revisionist law review articles as a law professor – as Yoo has done under the protection of academic freedom, both before and after his stint at DOJ – and ignoring federal statutes and treaties while advising the Executive Branch on its legal duties. This distinction would likely be key in any effort to discipline or dismiss Professor Yoo, or unseat Judge Bybee.
The point is that there are myriad questions to be answered, both substantive (did Bybee or Yoo commit unprofessional or unethical acts? did they write their nonsense in bad faith?) and procedural (who decides, how, and what results from such findings?). This is a long but vitally important road to travel, since there should be consequences when a government lawyer has put his imprimatur on advice that the lawyer knew, or should have known, was contrary to federal as well as international law to which the United States has accorded treaty and legislative recognition. Traveling that difficult road would be well worth the effort in order to re-assert that this is a nation of laws.
As it is said, the wheels of justice grind slowly, but infinitely fine.