A Vindication of Interrogation; Misconduct Charge against Bush Lawyers Exposed as Witch Hunt

Article excerpt

Byline: Hans A. von Spakovsky, SPECIAL TO THE WASHINGTON TIMES

John Yoo and Jay Bybee, the Bush administration lawyers in the Office of Legal Counsel (OLC) who wrote the memos behind the enhanced interrogation techniques that were used on certain terrorism suspects, won't be disciplined, a new Justice Department report says. Many liberals don't like that, but it's good news for anyone ever victimized by a malicious, partisan witch hunt.

According to the Office of Professional Responsibility (OPR), Mr. Yoo and Mr. Bybee were guilty of professional misconduct for supposedly not providing thorough, candid, and objective advice. David Margolis, the department's most senior career official, flatly overruled the OPR.

Former Attorney General Michael Mukasey and Deputy Attorney General Mark R. Filip blasted OPR in a devastating letter not released by the department for attempting to deny basic due process to the targets of the investigation by denying them the opportunity to review the report. This injustice was corrected only after Mr. Mukasey and Mr. Filip personally intervened to demand that OPR follow its own well-established procedures. OPR successfully used the same ambush tactic in its investigations of the U.S. attorney firings and the faux politicized hiring probe of the Civil Rights Division.

While OPR may have some expertise in reviewing attorneys' basic ethical obligations, e.g., adhering to discovery deadlines, it's incapable of handling politically charged issues in an even-handed manner. Moreover, many at Justice think the lawyers who inhabit the OPR, besides being extremely liberal, generally lack the level of professional competence found elsewhere in the department.

The memos of Mr. Yoo and Mr. Bybee, two renowned scholars, carefully outlined in great detail the legalities of a complex question in a very unsettled legal area. The men operated under what Mr. Mukasey astutely characterized as enormous time pressure as the executive branch was trying to formulate a plan to ensure that the Sept. 11, 2001 attacks would not be repeated. Yet OPR ignored this reality.

Indeed, the OPR attorneys made little effort to disguise their own left-leaning prejudices. It was thus no surprise that, as Mr. Mukasey and Mr. Filip noted, OPR's investigation was based on factual errors, legal analysis by commentators and scholars with unstated potential biases, unsupported speculation about the motive of Messrs. Bybee and Yoo, and a misunderstanding of significant interagency practices.

Some of the OPR criticisms would be laughable if this were not so serious. For example, the OPR attorneys accused Mr. Yoo and Mr. Bybee of professional misconduct for not citing a particular case from the 9th Circuit Court of Appeals - an unpublished opinion. The 9th Circuit's rules specify that unpublished opinions cannot be cited for any purpose. Indeed, doing so can subject a lawyer to sanctions for professional misconduct. …