Legal Ethics

Experts See Discipline Hurdles for Interrogation Memo Authors


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.

Related coverage:

Associated Press: “Bush Attorneys Who Wrote Terror Memo Face Backlash”

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