An initial draft report by the Department of Justice’s Office of Legal Counsel concludes that attorneys Jay Bybee, John Woo, and Stephen Bradbury showed a severe lapse in judgment in advocating for the use of torture but stops short of recommending criminal prosecution for their role in aiding and abetting the commission of war crimes. In lieu of criminal prosecutions the OLC investigators recommend referring these matters to the state bar associations for possible reprimand or disbarment.
Now, the report is not final, and it is entirely possible that Attorney General Holder will disagree with the conclusion drawn by the OLC investigators. That is about as likely as Al Franken getting seated as Minnesota’s second senator before July 4th– if it happens it will be an event that defies every sense of political inertia and common wisdom.
Among the biggest issue the report should address is whether or not the conclusions reached by Bybee, Woo, and Bradbury showed independent-albeit criminally negligent- legal judgment, or if they were the result of pressure from the CIA to justify torture techniques already implemented. Simply put, were the opinions issued to guide the CIA in upholding the law (as absurd as that may sound) or were they issued to help shield the CIA from previous unlawful acts while justifying future crimes?
The problem with punting this issue to the state bar associations for disbarment, is that either scenario above represents an ethics violation that would justify disbarment. However, only the latter scenario has these lawyers as actual actors in an international torture ring. For a tenured law professor at UC Berkeley (Yoo) and a federal appeals court judge (Bybee), disbarment would be create some professional problems, but ultimately mean very little in the long run.
photo courtesy of amandabhslater via Flickr