Justice for John Yoo and Jay Bybee

Last month,  Associate Deputy Attorney General David Margolis cleared the names of former Department of Justice lawyers John Yoo and Jay Bybee. Disparagingly labeled the “Torture Lawyers” by the New York Times, Yoo and Bybee wrote the now-infamous memos offering legal advice to the Bush administration that authorized the use of enhanced interrogation techniques in questioning high-level terrorists. Overruling the Office of Professional Responsibility’s (OPR) finding of “professional misconduct,” Margolis found that Yoo and Bybee acted in good faith, ethically serving their clients in the Executive Branch in time of war.

This comes as no surprise, Heritage Foundation Senior Legal Fellow Hans von Spakovsky explains because the OPR’s investigation and report was a total sham and part of an ideological witch hunt. Indeed, “The OPR criticisms would be laughable if this were not so serious.” As just one example, OPR found Yoo and Bybee guilty of misconduct for not citing an unpublished Ninth Circuit opinion, even though the Court’s own rules forbid citations to unpublished opinions. A violation of this rule, von Spakovsky notes, “can subject a lawyer to sanctions for professional misconduct.” Furthermore, the OPR extensively cited Professor David Luban of Georgetown University as an expert to support their claim that Bybee and Yoo expounded “advanced novel legal theories” and “ignored relevant authority.” But “they failed to mention that their supposed expert isn’t even a lawyer,” von Spakovksy points out. Rather, Luban has a doctorate in philosophy, has never practiced law, and—pointing to the entirely political nature of the investigation—“is a longtime critic of the Bush administration.” The OPR also repeatedly claimed that Yoo and Bybee had violated the rules of the District of Columbia Bar, even though they were not members of that Bar and were not required to be as Justice Department lawyers. Von Spakovsky points out the irony of the OPR’s demonstrated “basic lack of competence—the exact charge by OPR against Mr. Yoo and Mr. Bybee.”

Most consequentially, however, is the OPR’s criticism of Yoo and Bybee for not “considering the moral implications” of enhanced interrogation techniques. Critics often censure the two for supposedly offering legal justification for torture, but Yoo and Bybee “were tasked with providing pure legal analysis—not moral and social critiques.” Indeed, such a flagrant injection of politics into legal matters reveals this investigation for the “malicious, partisan witch hunt” it was, making “what OPR did (and almost got away with doing) extremely perilous.” The extremely liberal OPR’s irresponsible conduct will undoubtedly make future Justice attorneys more hesitant to provide the “frank legal advice” the executive branch needs unless OPR’s incompetence is exposed more broadly.

Andrew Odell currently is a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm