NYT:
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.
Disbarment, however, will not be enough. It doesn't fit the crime, and of course, it doesn't even come close to addressing the torture issue itself. But the reason that disbarment isn't enough is that disbarment is among the punishments for the deliberate failure to cite known contrary authority in legal briefs in a routine civil or criminal case.
But of course, this is no routine civil or criminal case.
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.
In an ordinary civil or criminal case, when one of the attorneys withholds information about contrary legal authority, that deficiency is discoverable by the other parties, and that's what is supposed to keep things honest. But in this case, we're not only talking about legal memos that hid contrary legal authority that tended to indicate that certain of the techniques supposedly cleared as legal had in fact been historically prosecuted as crimes by the United States, but memos that were kept hidden from the other parties in this "case," but the conclusions of which were nonetheless offered up (in secret) as justification for the policies.
In the end, what happened here was this: Bush "administration" officials buttonholed Congressional leaders, swore them to secrecy, forbade them to consult with staff, and told them that DOJ attorneys had concluded that these techniques were legal. But these conclusions couldn't be reviewed or challenged in any real way. The memos were not only unethically skewed and designed to support a foregone conclusion, but they were kept secret so that their reasoning could not be reviewed, their conclusions could not be questioned, and the completeness of their citation of authority could not be verified.
Republican torture apologists make much of the claim that "Democrats in Congress were briefed." But were they? Is it really a "briefing" if you're simply assured that everything they're telling you about has been reviewed and deemed legal, but no, you can't see the memo? Nor can you discuss the details of the briefing with anyone else to get their opinion about the legality, lest you be accused of a breach of national security.
Perhaps there used to be a time when such a briefing might have been considered adequate. Back in whatever mythical day it might have been where Members of Congress had reason to trust that when representatives of the White House came to brief them on vital matters of national security, they would be telling them the unvarnished truth, for the good of the country and because it would be unethical and possibly illegal to do anything else, it might have made sense to suggest that this would have been an adequate briefing.
But with the Bush White House? Please.
The human tragedy of it all, of course, is that as a result of the actions of these lawyers, the Bush/Cheney program of torture continued under color of law.
The broader tragedy is that the Bush/Cheney White House preyed upon the desire of top ranking Members of Congress to behave as good Americans in order to do this.
And they did so knowing full well that if their scheme were ever discovered, they could rely on simpleton torture apologists like Joe Scarborough to dismiss this enormous breach of ethics and even more damaging subversion of the constitutional order of checks and balances as "blaming the lawyers," and then have everyone throw their hands up in frustration and declare it all just too confusing, and time to "move on" and not "look backwards."
Again, disbarment is something to talk about when unethical attorneys pervert the outcome of a routine case by intentionally failing to cite contrary legal authority. It simply cannot be the case -- it cannot be permitted to be the case -- that the same punishment obtains, and no more, when unethical attorneys pervert the underpinnings of constitutional government.
Neither can it be permitted that we be played for fools too feeble-minded to understand the complexities of the canons of legal ethics.
The President of the United States sent his people to lie to Congress and hide the truth from them, and then threaten them with accusations of treason if they even tried to verify what they'd been told. This he did with the goal of wringing from them their "approval" of his illegal assumption of extraconstitutional powers. Do not forget that the targets of this report are the men who agreed to do this President's -- this "unitary executive's" -- bidding in this plot.