The latest press reports say the long-delayed Department of Justice Office of Professional Responsibility (OPR) report on the investigation into the advice of "torture lawyers" John Yoo and Jay Bybee will be released this week and has been "revised" to remove language triggering bar discipline. Read: after the lawyers under investigation were allowed respond to the report, OPR let them off the hook.
This is a dreadful step backwards in holding responsible those who orchestrated the abusive policies of the last nine years.
Compare OPR's refusal to refer Yoo and Bybee to the bar with OPR's retaliatory bar referral of whistleblower and DOJ ethics advisor in the case of "American Taliban," John Walker Lindh, Jesselyn Radack. Ms. Radack blew the whistle when the legally sound advice she gave in the Lindh case mysteriously "disappeared" from the file in violation of a federal court order. One such OPR bar referral is, more than 5 years later, still hanging over Ms. Radack’s head.
OPR's priorities are disastrously misplaced.
OPR's outrageously irresponsible stance is that DOJ attorneys like Ms. Radack, who stood up for constitutional rights, get bar referrals, while the attorneys who advised that the President is above the law and authorized waterboarding, cruel interrogation tactics, and warrantless surveillance, suffer no real professional consequences.
The OPR report investigates the "torture memos" authored by now tenured Berkeley law professor John Yoo and lifetime-appointed federal judge Jay Bybee while they served in DOJ's Office of Legal Counsel (OLC). The OLC memos, filled with twisted reasoning and advocacy for unprecedented levels of executive power, are a tragedy for the legal profession and the country, and to let these lawyers off the hook makes the memoranda's damage infinitely worse.
The weakened OPR report will solidify for future DOJ attorneys that they will not suffer professional consequences for treating the President as their client instead of the people - John Yoo recently told the New York Times Magazine that the President was his client. Future attorneys can rest easy they will not be referred to the bar for ignoring landmark on-point case law - the memos glaringly neglect to mention Youngstown Sheet & Tube Co. v. Sawyer. The next generation of DOJ lawyers need not worry about advising the President that it is legal to deploy the military domestically without congressional or court review as Yoo did in his Oct. 23, 2001 Memo. Nor do future DOJ lawyers need to think twice before advising the President that he or she is permitted to ignore duly ratified treaties intended to protect basic human rights, such as the Geneva Conventions and the Convention Against Torture, as Yoo did in his March 14, 2003 memo. The next DOJ attorneys are also free to advise the President that the other branches of government cannot interfere with treatment of anyone called an "enemy combatant," as Yoo also wrote on March 14, 2003:
...any construction of criminal laws that regulated the President's authority as Commander-in Chief to determine the interrogation and treatment of enemy combatants would raise serious questions whether Congress had intruded on the President's constitutional authority.
Worst of all for those who may find themselves in U.S. custody in the future, DOJ attorneys can still hold lifetime appointments as federal judges after writing an analysis that eviscerates U.S. laws prohibiting torture, an analysis which prompted former Dean of Yale Law School, Harold Koh, to tell Congress:
[I]n my professional opinion, the August 1, 2002 OLC Memorandum is perhaps the most clearly erroneous legal opinion I have ever read.
Meanwhile, Jesselyn Radack, who honorably advised the Executive branch using sound legal reasoning and analysis, still remains under investigation from an OPR bar referral for "possible misconduct" - a.k.a. unsubstantiated misconduct - surrounding her attempts to adhere to the rule of law, not get around it.
While a few of us may still be confident that our current President will respect the Constitution and protect basic human rights, we know too well that not all Presidents will have deference to the rule of law, and this OPR report gives license to all future Executives to govern as if the rules don’t apply to them.
It might be easy to let the OPR report slide in the interest of "moving forward," or in the haze of Massachusetts elections, budget deficits, and Super Bowl commercial controversies. But to let Yoo and Bybee go about their careers without meaningful punishment, to let OPR cave to the political ease of not entering what could look like a partisan battle, is to give credence to the memoranda's deeply flawed reasoning and tacit acceptance to the horrific acts they rationalized.