Tuesday, February 23, 2010
On Friday, the U.S. Department of Justice announced what amounts to the end of its investigation of former Bush administration lawyers Jay Bybee and John Yoo for writing the 2002 memos that authorized the CIA to use enhanced interrogation techniques. While assailing Bybee and Yoo's "poor judgment," Assistant Deputy Attorney General David Margolis rejected the "final report" written by the Department of Justice's Office of Professional Responsibility. It found that Bybee and Yoo had engaged in "professional misconduct."
As Margolis noted, the office failed to prove misconduct, even though in an attempt to discredit Bybee and Yoo, the office changed the standards by which it judged Bybee, now a federal judge, and Yoo, now a UC Berkeley law professor. As Margolis wrote, the office failed to identify a "known, unambiguous" standard that the two lawyers were supposed to have violated.
"They never actually followed the standards they're charged with keeping," Yoo told me -- which is odd, because holding lawyers to professional standards is "all this office does."
Margolis' most damning conclusion: "In its final report, OPR's misconduct findings do not identify a violation of a specific bar rule."
In short, an investigation, which began in 2004 to determine if Bybee and Yoo deserved disciplinary action up to disbarment, was kept alive by changing the rules, and still the inquisitors failed to come up with any wrongdoing.
Had Margolis not put an end to this political witch-hunt, if the ethics office report had prevailed, it would have been as if a court found someone guilty of breaking the law, but the judge and jury weren't sure which law.
And the hounds didn't limit themselves to Washington. Since 2004, critics have been working to get Yoo fired and Bybee to resign.
UC Berkeley School of Law Dean Christopher Edley Jr., who in his other life acts as an outside-the-Beltway mentor to Barack Obama, has resisted the calls for ideological cleansing of the law-school faculty in favor of academic freedom. Kudos to Edley, who said in a statement last week, "I hope these new developments will end the arguments about faculty sanctions, but we should and will continue to argue about what is right or wrong, legal or illegal in combatting terrorism. That's why we are here."
The ACLU, however, reacted to the Margolis memo by suggesting that the Department of Justice expand its investigation into possibly criminal interrogations to include Bybee and Yoo.
The department found no professional misconduct, so the ACLU wants a criminal investigation? ACLU attorney Jameel Jaffer responded, "I don't think that anyone can fairly read those facts and conclude that these lawyers did anything other than construct a legal framework intended to authorize the torture of prisoners."
Except, if Margolis thought they were telling the CIA to break the law, that would be professional misconduct. As Yoo noted, this case "is far more important than just me. What it really involved was people trying to use criminal law, trying to use ethics rules, to fight out policy disagreements."
That is, so-called civil libertarians are trying to get the courts to enforce their politics -- and they've lost all sense of proportion. Having failed to get the Justice Department to yank two law licenses, the left's inquisitors now are pushing for the death penalty.
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See Other Commentary by Debra J. Saunders
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