Originally published by The Washington Post, 2-21-10
A Justice Department decision to reject sanctions against Bush-era lawyers who approved harsh treatment of terrorism suspects provoked a heated exchange among legal experts Saturday over whether the lawyers’ actions had constituted unethical conduct or violated professional standards.
Analysts divided bitterly on that question, but the torrent of commentary, unleashed by a senior department official’s decision to discard the recommendations of ethics investigators in the case of John C. Yoo and Jay S. Bybee, underscored the murkiness of disciplining lawyers.
Even the ruling, written by Associate Deputy Attorney General David Margolis and made public Friday, pointed to the malleability of the law and judgments about legal ethics.
“In the hands of capable attorneys, virtually every fact cuts both ways,” Margolis wrote. He noted that the two sides — lawyers defending Yoo and Bybee and ethics investigators — had accused each other of the same faulty reasoning and preordained bias, and that ethics investigators had repeatedly shifted their own analysis during the course of the probe.
“Analyzing the quality of legal products out of context is utterly ridiculous,” said David B. Rivkin Jr., a former Justice Department and White House lawyer for Republican administrations.
In contrast, Yale University law professor Jack M. Balkin summed up his thoughts in an online posting titled “Justice Department will not punish Yoo and Bybee because most lawyers are scum anyway.”
“It’s not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions,” Balkin wrote. “This is how the American legal profession simultaneously polices and takes care of its own.”
At issue are the sometimes vague standards for professional competence that lawyers must meet. Watchdogs generally focus on basic concepts, such as meeting deadlines and protecting clients’ money, four experts said. Rarely, the experts said, are lawyers scrutinized for judgment calls, such as how broadly the constitution and legal precedent inhibit presidential authority, a question that was at the heart of the Yoo and Bybee memos. Attorneys who work in government rarely face investigation by state disciplinary authorities, who have the power to revoke their license to practice, or criminal prosecution for shoddy legal work, experts said.
Former Justice Department officials had cautioned ethics investigators that a referral to state authorities for possible discipline of Yoo or Bybee would be “unprecedented.”
Yoo, now a law professor at the University of California, Berkeley, and Bybee, a federal appeals court judge in Nevada, signed off on memos paving the way for CIA contractors to use waterboarding, sleep deprivation and other harsh techniques against al-Qaeda suspects after Sept. 11.
The memos all but insulated interrogators from criminal charges for their roles in alleged detainee abuse as long as the CIA followed the preapproved guidelines. The documents later drew outcry from human rights advocates and even some lawyers in the Bush administration, who called them an ill-reasoned “get out of jail free card.”