The Justice Department finally issued its report on whether or not Bush attorneys John Yoo and Judge Jay Bybee violated any rules of professional conduct worthy of discipline when they drafted the now infamous torture memos and advised the administration on the treatment of detainees.  Not surprisingly, the Department declined to refer either Yoo or Bybee to state bar committees for misconduct proceedings despite nothing short of a scathing assessment of their conduct in authorizing torture. 

The lack of surprise comes not from my deepening cynicism that we’ll witness any real accounting for those who conceived of and promoted criminal policy in the name of national security.  Rather, the lack of surprise comes from an understanding that in self-policing professions like the law, only those who intentionally and deliberately refuse to exercise sound professional judgment are at risk of becoming embroiled in a misconduct hearing.  Lawyers tend to protect their own, a fact made abundantly clear in the Justice Department’s report.

For Bybee and Yoo the report is hardly vindication of their time spent at the Office of Legal Counsel.  In fact, the Department shreds their legal analysis and all but says the men were less lawyers than blinded ideologues, too devoted to their fundamentally flawed view of executive power to craft legally sound opinions.  As lawyers, the Department concludes, they failed in their single duty to provide appropriate advice to their client–in this case the President and Vice President.  That failure was negligent, and even grossly negligent at times, but it does not rise to the level of professional misconduct.

Yes, only the law could create a distinction that allows one of its lawyers to fail in doing his or her job and avoid any professional repercussions.  That is, in part, because professional misconduct proceedings are not the only way we deal with lawyerly mistakes.  Typically clients who have received bad advice, and relied on it to their detriment, have the ability to proceed via a malpractice claim– a standard civil remedy that has nothing at all to do with professional misconduct proceedings.  Not so, in this case.

In this case we have arguably one of the most egregious reported acts of legal malpractice yet no ability to address it.  Both men continue on in their professions (as a law professor and federal appeals court judge, respectively) while as a country we scramble to piece together what remains of our Constitution and of our reputation.  But unfortunately since Yoo and Bybee’s client was President Bush and Vice President Cheney and not the American people, professional misconduct proceedings were the only realistic avenue for securing justice for the torture memos.  With that possibility now off the table it looks more and more like the only real hope for justice will come from European trials.

Congress has not given up just yet.  House Judiciary Committee Chairman John Conyers and Senate Judiciary Chairman Patrick Leahy both condemned the findings and announced plans to hold hearings on the report.  According to Conyers, the hearings are important because the report “reveals that the [torture] memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House.”  In a statement Senator Leahy said the report “is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo on the treatment of detainees.  The deeply flawed legal opinions proffered by these former OLC officials created a ‘golden shield’ that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in U.S. custody.”

What these hearings will uncover that is not already in the report is unclear, but Rep Conyers and Sen. Leahy should be applauded for not letting this issue just go away quietly.  Unfortunately the pomp of Congressional hearings means little with the reality of a prosecution shield for those members of the Bush administration with blood on their hands.