“An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.
The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.
The conclusions of the 220-page draft report are not final and have not yet been approved by Attorney General Eric H. Holder Jr. The officials said it is possible the final report might be subject to revision, but they did not expect major alterations in its main findings or recommendations.
The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency. Among the questions it is expected to consider is whether the memos reflected the lawyers’ independent judgments of the limits of the federal anti-torture statute or were skewed deliberately to justify what the C.I.A. proposed.
At issue are whether the Justice Department lawyers acted ethically in writing a series of legal opinions from 2002 to 2007. The main targets of criticism are John Yoo, Jay S. Bybee, and Steven G. Bradbury, who as senior officials in the department’s Office of Legal Counsel were the principal authors of the memos.”
I really, really, really want to see those emails.
I can see not recommending prosecution. I am not a lawyer, so I could be wrong, but as I understand it, in order to convict someone in Yoo or Bybee’s position, you’d have to show that they knew that what they were recommending violated the law. If anything could establish that, the emails could; but it’s a high bar to meet. As, in general, it should be: while I think that in principle, offering legal counsel might well be part of a criminal conspiracy, I also think that one should have to meet a fairly high burden of proof before bringing charges on that basis.
(Please do not confuse this with some sort of solicitude for Messrs. Yoo, Bybee, and Bradbury. This is the way I think the system ought to work in general. When attorneys advise their clients about what’s legal, it’s always possible that they get it wrong, and say that something is legal when it’s not. I would not want lawyers who made that kind of mistake to be prosecuted for conspiracy. Thus, the high bar. It’s not about these particular people, any more than my belief that detainees at Guantanamo should have habeas rights has to do with my thinking that all of them are nice people.)
That said, I think disbarment would absolutely be appropriate. The difficulty with prosecution is establishing intent. When a lawyer makes a stupid legal argument, it’s always possible that s/he is not malicious, just a terrible lawyer. When you’ve narrowed the options to criminal intent or complete ineptitude, you have not got enough to prosecute. You have, however, got enough to disbar someone, since while total ineptitude is not an indictable offense, it is a good reason not to let someone go on practicing law.
If Yoo, Bybee, and Bradbury did not write their memos in order to provide a shield for criminal activity, then I think they had to be completely inept as lawyers. Their job, remember, was to interpret the law for their clients, and to advise them on what was legal and what was not. By getting the law spectacularly wrong, they exposed their clients to serious legal liability, and in so doing completely failed to meet their obligations to their clients. Moreover, they made some fairly stunning mistakes, like failing to cite any of the cases in which the US government had prosecuted people for waterboarding when those cases were plainly relevant.
I am somewhat puzzled by the fact that, if the NYT is right, the report does not recommend sanctions against Bradbury. His memos have many of the same mistakes as Yoo and Bybee’s. In addition, as I noted earlier, Bradbury (like Yoo and Bybee) discusses the question whether the techniques he’s writing about cause “prolonged mental harm”, which is relevant to the question whether they constitute psychological torture under the law. In this discussion, he cites a number of background papers, scholarly publications, etc. But he does not discuss the most obvious source of evidence available to him: namely, the detainees themselves.
His memos, like the others, go on and on (and on) about how often the detainees are examined by doctors and psychologists. Whereas Yoo and Bybee wrote their memos soon after the “enhanced techniques” were first used, Bradbury wrote his nearly three years later. Unlike Yoo and Bybee, therefore, he did not need to extrapolate from sleep deprivation studies carried out in very different circumstances to decide whether sleep deprivation, as practiced by the CIA, caused “prolonged mental harm”. He could simply have asked all those doctors and psychologists who were, we are assured, examining the detainees regularly.
And yet, oddly enough, he didn’t.
Imagine, by analogy, that you were suing someone for damages resulting from the fact that that person had burned your house down, and you needed to show that you had endured real pain, suffering, and financial hardship as a result. Could it possibly fail to occur to your lawyer that in addition to citing various studies of what arson victims typically suffer, she might take advantage of the fact that she had you available, and ask what financial and emotional hardships you had suffered? If she avoided any mention of you in particular, and acted as though she had to make her case entirely on the basis of scholarly studies of arson victims in general, would it not be logical to suppose that she had some reason for not putting you on the stand?
In this case, as before, I think that there are two options: it did occur to Bradbury that the psychological condition of the detainees was relevant, but he had some reason for not mentioning it, or it did not. In the first case, he is failing to mention something that is on its face crucial to determining whether the practices he is discussing constitute torture under the law. Doing so intentionally would make criminal intent a whole lot more likely. In the second, he is incompetent as a lawyer. In either case, he should be disbarred.
Yoo, Bybee, and Bradbury had a series of professional obligations. They had obligations to their clients: to inform them accurately of what the law required, and to err on the side of caution so as not to expose their clients to liability. They had obligations to the courts: to uphold our system of laws, and to represent those laws faithfully. In addition to those professional obligations, they had obligations to humanity: not to countenance torture. They violated all three, and made a mockery of the ethics of their profession. They deserve to be disbarred.