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As the controversy over the Bush administration's regime of detainee torture continues to fester, the fate of appeals court Judge Jay Bybee hangs in the balance.  Even as the torture memo author lobbied his Nevada Congressional delegation to come to his defense, New York Republican Peter King declared, "Judge Bybee should be given a medal for what he did."  And while many are calling for his impeachment and prosecution, a draft of an internal Justice Department report purportedly recommends that at most he and other Bush torture architects be disbarred.

Which is to say, for proclaiming that in George W. Bush's America, torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," Jay Bybee would be treated like Bill Clinton.

On the last full day of his tenure in the White House, President Bill Clinton signed an agreement with independent counsel Robert Ray that brought an end to the inquisition over what "the meaning of the word 'is', is."  As the New York Times reported on January 20, 2001, Ray halted any prosecution over the Lewinsky affair in exchange of an admission from Clinton that "certain of my responses to questions about Ms. Lewinsky were false."  In addition, Clinton paid a $25,000 fine to the Arkansas Bar Association, which revoked his law license for five years:

On Jan. 19, the last full day of his presidency, Mr. Clinton reached an agreement on the fine and suspension with Robert W. Ray, the independent counsel. Mr. Ray had been investigating whether to charge Mr. Clinton with crimes like perjury and obstruction of justice because of his sworn testimony about his relationship with a White House intern.

The agreement ended any criminal liability for Mr. Clinton in the collective matters known as Whitewater, and ended the wide-ranging, $60 million investigation that plagued Mr. Clinton and his wife, now Senator Hillary Rodham Clinton of New York, for much of their time in the White House.

The agreement also satisfied a legal effort by the Arkansas Supreme Court Committee on Professional Conduct to disbar Mr. Clinton for giving misleading testimony in the Paula Jones sexual harassment case.

Clinton's payback didn't end there.  At the start of its term in October 2001, the United States Supreme Court suspended the ex-President from practicing law in its chambers.  Richard Nixon, who was disbarred in New York in 1976 two years after stepping down over the Watergate scandal, resigned from the Supreme Court bar before action could be taken against him.  Ultimately, Bill Clinton went the same route in November 2001, choosing to resign rather fight the suspension.

As for John Yoo and Jay Bybee, even those legal sanctions seem unlikely.  As the Washington Post reported Thursday, the penalties for the 9th Circuit Court of Appeals supposedly recommended by the DOJ's Office of Professional Responsibility may prove prohibitively difficult to carry out:

Law professors and legal practitioners who have handled such cases said the difficulty of gathering witnesses and evidence could present "nearly insurmountable challenges" for state investigators who may wish to pursue a case against the lawyers, John C. Yoo and Jay S. Bybee...

Stephen Gillers, a professor of legal ethics at New York University, said state bars have no subpoena power to compel the Justice Department to make sensitive documents or key witnesses available.

The core question, Gillers said, is whether state lawyers could prove that Yoo and Bybee ran afoul of professional rules.

"The only theory on which [a case] could proceed would be if lawyers violated their duty to a giving the White House an opinion in which they did not actually believe," Gillers said.

On this question, Jay Bybee left very little doubt that he was a true believer.  In his one public statement on his legal reasoning which authorized potential war crimes, Bybee  calmly declared "the conclusions were legally correct."

Of course, that all depends of what the meaning of the word "torture" is.

** Crossposted at Perrspectives **

Originally posted to Jon Perr on Sat May 09, 2009 at 09:36 AM PDT.

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Comment Preferences

  •  Whatever It Is, It Doesn't Mean "Kiss" nt (1+ / 0-)
    Recommended by:

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sat May 09, 2009 at 09:39:41 AM PDT

  •  Apples and oranges (4+ / 0-)

    Clinton agreed to a temporary disbarment to get the Lewinsky investigation dropped once and for all. It was a plea arrangement to end the nuisance prosecution. It's not clear that he'd have been disbarred had he pursued a defense.

    •  I Don't Disagree... (3+ / 0-)
      Recommended by:
      kbman, Temmoku, TerribleTom

      ...with your assessment.

      My larger point was to highlight that men who provided the legal framework for potential war crimes committed in the name of the American people may face little - or no - legal consequences for their actions.

      •  And I think you're correct in (2+ / 0-)
        Recommended by:
        Ckntfld, southriver

        identifying the practical difficulties in pursuing disbarment.

        Most disbarment cases are quick and dirty matters involving seamy incidents either admitted to (see Clinton), matters of record, or fairly easily proven without a hearing that'd take weeks.

        Unless the state bars involved happen to have one or more lawyers willing to develop and perfect strong cases and unless there's significant sentiment in the disciplinary committee (or equivalent body) to pursue the matter, the cases against Yoo and Bybee could easily languish and fail for lack of vigorous prosecution. Difficulties in compelling witnesses and evidence only add to the problems.

        All of which raises another observation: The behaviors in question did not, as far as I know, occur in the states to which the referrals will presumably be made. While that may not amount to a legal jurisdictional barrier, it lends weight to a question that will doubtless be posed by torture sychophants at the state level: Why is this our problem?

        And, of course, Yoo and Bybee have available rather easy outs: They can resign first.

        Very few things happen at the right time, and the rest do not happen at all: the conscientious historian will correct these defects. -Herodotus

        by TerribleTom on Sat May 09, 2009 at 11:17:10 AM PDT

        [ Parent ]

        •  It's a bit more than just a jurisdictional issue. (1+ / 0-)
          Recommended by:

          Any state bar to which the matter was referred would be quite reasonable in saying "Violations of the torture statutes and our treaty obligations are issues of federal law. If the federal prosecutors don't care enough to investigate it thoroughly and take appropriate action, why should they be able to dump the mess in our lap, with our very limited ability to investigate?"

          Don't you think the Bush administration, which produced the Office of Professional Irrespnsibility Report that recommended this course, was well aware of the inherent difficulty of pursuing it?

          •  Nods. Yes, I think the remaining embeds at OPR (1+ / 0-)
            Recommended by:

            are fully aware of the difficulties.

            Futher, I doubt seriously whether any state bar will engage in determining the competence and correctness of the legal memos.

            If there's any hook that Yoo and Bybee should be concerned about, it'd be a straight-up ethical issue that doesn't require the bar to find the memos legally incompetant.

            Rule 5.4 Professional Independence Of A Lawyer
            (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

            If it can be shown conclusively that Yoo and/or Bybee were explicitly or implicitly "directed or regulated" such that they produced made-to-order legal opinions, there's a slim, slim chance they have sanctionable problems, but I think it's a stretch at best.

            Very few things happen at the right time, and the rest do not happen at all: the conscientious historian will correct these defects. -Herodotus

            by TerribleTom on Sat May 09, 2009 at 02:57:57 PM PDT

            [ Parent ]

  •  Outrageous! (4+ / 0-)
    Recommended by:
    cris0000, Temmoku, AllanTBG, daddy4mak

    How can you possibly compare the actions of our scoundrel ex-president, a man who made a personal mistake that affected absolutely none of our lives, with the actions of brave, bow-tied attorneys who devised ingenious ways to cover their asses in their pursuit of legalizing torture?

    I am enjoying, though, watching the spectacle of Cheney and Rice and the rest make asses out of themselves every time they make a public utterance. At least the big idiot has had the sense to go into seclusion. Condi, you're getting upstaged by 10 year olds. Isn't that a sign that perhaps you should go away and hide forever?

  •  Whether Bybee is disbarred or not (4+ / 0-)
    Recommended by:
    kbman, Ckntfld, Temmoku, TerribleTom

    He can still serve as a judge and he can still teach at a law school-even without a law license. I'm sure Ken Starr will find a place for him at Pepperdine.

  •  Every day, and for the rest of his/her career (0+ / 0-)

    we should mail postcards to places like the courts, libraries, private homes, featuring the pictures of torture that occurred on their watch.   We should make sure that someone in their world has to see what was done.  Postcards are graphic and reach a lot of hands before their arrival.  Someone has to face the postman.
    If Bush's library is ever built, we should make sure that the college and the library get some every day . . .


  •  Bybee belongs in the same class of lawyers and .. (0+ / 0-)

    judges who defended slavery as an acceptable practice.

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