Legal Ethics
Experts See Discipline Hurdles for Interrogation Memo Authors
Posted May 7, 2009 6:32 AM CST
By Debra Cassens Weiss
Justice Department lawyers who wrote memos approving harsh interrogation techniques for terrorism suspects are unlikely to be disciplined for the legal advice, ethics experts say.
Law professors and ethics experts tell the Washington Post that obstacles to ethics sanctions include difficulties in gathering witnesses and evidence and the lack of a clear ethics violation under professional conduct rules.
A draft report by the Justice Department’s Office of Professional Responsibility reportedly calls for ethics investigations against Jay Bybee and John Yoo, but does not call for criminal prosecution. Bybee is now a judge on the 9th U.S. Circuit Court of Appeals based in San Francisco and Yoo is a law professor at the University of California at Berkeley.
New York University law professor Stephen Gillers told the Post that said state bars do not have subpoena power to obtain sensitive Justice Department documents or testimony from witnesses who worked there. The core issue, according to Gillers, is whether there was a violation of professional conduct rules.
"The only theory on which [a case] could proceed would be if lawyers violated their duty to a client … by giving the White House an opinion in which they did not actually believe," Gillers told the Post.
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Should Supreme Court Justices Be Able to Review News Accounts Before Publication?
Comments
B. McLeod
May 7, 2009 7:19 AM CST
Like a game of “hot potato.” Obama gives it to Holder, who laterals to the separate ethics authorities (who will not have any one to pass it to, so will just have to give a pass to the torture triumvirate).
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Lars
May 7, 2009 8:28 AM CST
It does not seem to be that complicated. Model Rule 1.2(d) states that you shall not counsel clients to engage in “criminal” conduct. The U.S. joined the UN’s Convention Against Torture under Reagan in 1988. Therefore, if the memo writers counseled the President to breach this treaty (and the domestic law it represents), they violated model rule 1.2(b).
There are obvious constitutional issues as to whether or not the U.S. is actually bound by a treaty and whether or not the President’s power over foreign affairs can be bound by a treaty. But, I don’t believe these questions should deter Holder from pursuing disbarrment. Rather, the disbarrment proceedings would be a useful forum for addressing these legal issues.
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J.D.
May 7, 2009 9:05 AM CST
Fortunately for those involved, the U.S. did not engage in torture.
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B. McLeod
May 7, 2009 9:18 AM CST
Was it little elves, then, who waterboarded one of the prisoners every four hours for an entire month?
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J.D.
May 7, 2009 11:09 AM CST
Re: “One of the prisoners”
You mean, the mastermind of the 9/11 attacks which killed 3,000 people?
Your math is off. You clearly do not understand what waterboarding is all about, how long it takes, nor the estimates paraded around by the NYT. Neither do the people at the KosFiles. But you are a useful pawn for the jihadists. Just like MSNBC.
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B. McLeod
May 7, 2009 11:24 AM CST
Then at least I have the honor of being useful to somebody.
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James
May 7, 2009 11:47 AM CST
Lars, McLeod, sounds like you fellas know everything.
Too bad there’s no real working definition of torture that defines the limits as to what the government can do. Bush and his advisors asked legal counsel to prepare memos as to how far they could LEGALLY take their methods before they crossed the line. The attorneys gave honest and well researched opinions. Just because Obama and his pet cockroach Holder have a problem with the Bush administration doesn’t mean that a crime was committed. Last I checked it wasn’t illegal, nor a violation of the rules to render a legal opinion on a gray area of law especially when the opinion is for the purpose of establishing a line of where the conduct should stop before becoming illegal.
What amazes me are the slimy law professors who are coming out from under their rocks to attack these guys. It takes a unique type of arrogance that only liberals seem to possess to (1) think that you can define torture on the fly when your heroes at the UN and our own government has been unable to come up with a definition since long before Bush took office; and (2) argue for the disbarment of fellow lawyers for writing legal opinions about a controversal subject. Isn’t that what we do as a profession. What about someone who writes the brief for the government saying that lethal injection is painless, humane and an efficient way to kill prisioners or that partial birth abortion should be legal (can we disbar the planned parenthood lawyers)?
The point is that Misters Yoo and Bybee acted as lawyers rendering advice on a difficult subject. Indeed Lars, McLeod and Holder along with these law professors must sleep secure in their ability to know everything thus never having the need to do any acutal lawyering.
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B. McLeod
May 7, 2009 12:41 PM CST
Thank you, James. I must admit that it is, indeed, a very great comfort (but sometimes I do a little “lawyering” anyhow, just for kicks & grins).
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Torture (JAG - CALWP
May 7, 2009 2:04 PM CST
Torture is defined by the “winner.”
We could could confirm with the remaining Nuremburg defendants, but I do not know who they are, where they are, oR IF THEY STILL LIVE.
2009-05-07-5 -1603
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Lars
May 8, 2009 6:42 AM CST
Thanks for your thoughts James. I agree that I do not think that disbarrment proceedings on the ethics violations would likely prevail because this is a grey area of the law. But, contrary to your view, I think that we owe it to our profession to pursue ethics violations where they might exist. And to benefit the readers of this forum I cited my sources and double-checked yours. You are flat out wrong. 18 USC 2340A (2000) made it a crime to commit torture outside of the United States. 18 USC 2340 (2000) defined torture.
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J.D.
May 19, 2009 12:09 PM CST
“Torture is defined by the winner.” Good point. U.S. attorneys have concluded that pouring water on a person’s head is not torture, and neither are caterpillars.
BUT, the people who want to kill us all—that would be the jihadists—DO want the acts considered torture. If they are successful in getting a new definition, that means the jihadists have “won” under your definition.
And why, might I ask, do the liberals advancing this “caterpillars are torture” argument want the jihadists to “win”?
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