The report from the Department of Justice's own ethics investigation of its lawyers responsible for the legal "cover" opinion about torture is about to be released. Rumors leaking out suggest it is not a whitewash, the main indicator being that former bush administration officials are lobbying to try to get them to "soften" the report.
The Washington Post says the report: "recommends disciplinary action by state bar associations against two former department attorneys in the Office of Legal Counsel who might have committed misconduct in preparing and signing the so-called torture memos. State bar associations have the power to suspend a lawyer's license to practice or impose other penalties."
My guess is that would be Bybee and Yoo. It would probably mean Bybee having to resign his position as federal judge. Yoo is a professor at UCBerkeley Law School; tenure might let him keep his job but it certainly will damage his reputation.
I think this is probably the right solution. One could make the case for criminal charges, but they were under great pressure from above to produce these documents. Granted, as lawyers in the Office of Legal Counsel, it was their job to push back and say "you can't do that, Sir." But it's unlikely a trial jury would find them guilty of having done it with criminal intent.
I think the more appropriate penalty is to focus on their poor judgment and bad lawyering that should result in disciplinary action by their professional bodies.
This would be a serious enough consequence that it would be noted in history as precedent and warn future OLC lawyers to stand firm about what the law allows a president to do.
Now I'm really wanting there to be some consequences in all this for cheney, rumsfeld, bush -- and just throw in rove too because he deserves it.
Ralph
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