Torture is still on the national conscience. Condi Rice has been filmed telling students that she isn't responsible because she just passed along the orders to the CIA, and because if the President said it was ok, then it was. The Justice Department ethics probe (conducted by Bush officials in the Department's Office of Professional Responsibility) of Bush era attorneys who from all appearances enabled torture by means of twisted, inventive, and incomplete legal reasoning--Yoo (currently a tenured law professor), Bybee (currrently an appointed-for-life federal appeals court judge) and others-- is apparently fairly harsh, possibly supportive of state bar action including perhaps disbarment, but stops short of recommending prosecution for war crimes.
Two things are worth noting here, assuming that the report as released does recommend disciplinary action.
First, we shouldn't wait for Holder's decision on whether to prosecute to start considering other appropriate actions. I hope justice prevails and the Department of Justice does prosecute the enablers of torture, but I'm not counting on it. Congress should begin impeachment proceedings against Bybee, and Berkleley should consider whether there is sufficient cause for removing Yoo's tenure. No federal judge should sit in judgment on actions by others who has played the role Bybee played in the U.S.'s darkest hour of shame in recent times. No one should teach future lawyers who used such twisted reasoning to rationalize torture to avoid the Geneva Conventions.
Second, Justice Dept. officials shouldn't be swayed by former officials' lobbying for leniency. Apparently, there is an effort underway by Yoo and Bybee to appeal to Justice Dept. attorneys to shelter the former officials by arguing that legal advisers simply shouldn't have to worry about being prosecuted for failure to heed the law in their legal advice--i.e., trying to get them to worry that they too could be on the hot seat of public scrutiny for their legal advice, as though that were a negative. See, e.g., Bush Officials Try to Alter Ethics Report, Washington Post, May 5, 2009. Sorry, folks. Being on the hot seat for the adequacy of your legal advice is part and partial of being an attorney. Government attorneys don't get a free ride. You might even argue that they have a higher duty to uphold the law, as they are sworn officers of the court by virtue of being attorneys and sworn officers of the government by virtue of being government attorneys. The idea that Justice Dept. attorneys' actions should be viewed with leniency because of the strident times post 9/11 or because of their role in advising the President is a slippery slope argument that leads to government attorneys acting as tools of potential dictators.
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