An article in today's New York Times surveys yet another iteration of the debate over the role of lawyers in the Bush Administration's Office of Legal Counsel in crafting legal policy regarding detainee policy, interrogation, and executive power. One reason this debate is in the headlines again is that the report of an internal Justice Department investigation, conducted by the Office of Professional Responsibility, has been forwarded to Attorney General Eric Holder. (See this Newsweek report by investigative journalist Michael Isikoff. According to the Washigton Post, Senate Democrats are urging that the report be released publicly.) The report is allegedly critical of the actions of three lawyers -- John Yoo, Jay Bybee, and Steven Bradbury. Another reason for the renewed controversy is that the OLC under President Obama is, as expected, releasing Bush OLC memos that had been secret until now. These memos confirm what knowledgeable observers had long suspected -- that the OLC had relied on extremely aggressive claims of presidential authority, the so-called Commander-in-Chief override power to refuse to comply with treaties, legislation, and even constitutional provisions such as the First and Fourth Amendment. (See the account in this Washington Post article by R. Jeffrey Smith and Dan Eggen, who have been covering this story from the beginning.) Clinton Administration acting OLC chief Walter Dellinger, quoted in the L.A. Times, said he can "never get over how bad these opinions were." Significantly, outgoing OLC head Steven Bradbury repudiated this analysis as one of his final acts in office.
The question being asked now is what, if anything, to do to the lawyers who drafted the memos. The NYT article considers several options, in decreasing order of severity:
(1) Criminal prosecution. The relevant precedents here are the Nuremberg prosecutions, for crimes against humanity, of Nazi lawyers who provided legal advice on various aspects of the Holocaust, and more mundane criminal prosecutions of "house lawyers" for criminal organizations. Human rights lawyer Scott Horton has written extensively on the possibility of war crimes prosecutions in domestic and international tribunals, although he favors some sort of truth-commission model.
(2) Constitutional tort claims. A Bivens action against John Yoo is pending in federal court in California, alleging that Yoo's bad faith legal advice led to the torture, in federal detention, of Jose Padilla. Last week at a hearing on the government's motion, the district judge seemed disinclined to dismiss the action.
(3) Professional discipline. The OPR has no power to discipline lawyers no longer employed by the Justice Department, but the report may provide a template for discipline by state bar associations in state in which the lawyers are admitted to practice.
(4) Informal sanctions. The NYT article reports that some former Bush administration officials involved in detention and interrogation policy are having trouble finding jobs. David Addington and Alberto Gonzales are the highest-profile lawyers to find themselves unemployable. Before the OLC advice became publicly known, Jay Bybee was rewarded for his loyal service with a seat on the Ninth Circuit. John Yoo had been on leave from a tenured position as a law professor at UC-Berkeley.
I will concentrate in (3) and (4) here, because the prospect of criminal prosecution seems remote. Also it seems difficult to prove the mens rea element here because John Yoo really does seem to believe sincerely that his views of executive power are correct. However, I am frequently asked whether John Yoo can be disbarred. I have argued that the advice in the OLC memos is so shoddy that it is essentially incompetent -- a breach of the duty of competence (Rule 1.1) and the duty to provide independent, impartial, candid legal advice (Rule 2.1). But a couple of issues get muddled when talking about professional discipline here. On competence, I am not arguing that Yoo, et al., simply made a mistake. Disciplinary authorities are understandably reluctant to reexamine legal advice from the perspective of hindsight, preferring to leave the enforcement of norms of competence to the tort system. The tort system, in turn, substantially underdeters incompetent advising for reasons that are well known. It is difficult to prove factual causation in a negligence action (the "case within a case" requirement), because it is hard to show that but for any particular slip-up, the result would have been different, on a more-likely-than-not basis. Also, lawyers aren't required to be perfect, just reasonable. If there is some question that is arguable, lawyers don't need to get it right, only to provide advice that is within the range of reasonable. Disciplinary authorities are also presumably wary of getting in the middle of what seems like a partisan disagreement.
I don't think these arguments against discipline hold any water in principle. Yoo is not being accused of ordinary, garden-variety incompetence, but of utter, contemptuous disregard of any conventional standard of legal analysis. The memos aren't just mistaken, but so far outside the range of reasonable that the only explanation for the analysis is that the lawyers seemed to think that going through the motions of a legal argument was enough to provide cover for government employees (CIA agents and the like) who acted in reliance on the advice. Yoo wrote in a Wall Street Journal editorial that punishing him would create a disincentive for lawyers to advise on controversial matters in times of national emergency. That's just hokum. The claim is not that Yoo got it wrong, but that he understood his job not as providing legal advice but as providing legal-sounding cover for the government to do whatever it wanted to do. It is significant that Yoo is really the only one left defending the advice on the merits. Lawyers like Jack Goldsmith and Steven Bradbury have repudiated it, sometimes at personal cost to themselves. The dean of Chapman Law School, quoted in the NYT article, worries that lawyers will be risk averse, but there is no risk provided lawyers give honest advice.
That, of course, is the rub -- how do we differentiate between honest-but-mistaken advice and bad faith, contemptuous faux-advice? Here is where the charges of partisanship obscure clear thinking. The argument is not that the Bush administration got it wrong, as a policy matter, in its approach to Guantanamo, waterboarding, military commissions, rendition, or any other aspect of the war on terror. Reasonable minds can indeed differ as a matter of justice, morality, expediency, or whatever. But the job of a lawyer is not to give policy advice. Some of John Yoo's defenders point that out, as if it were a defense of the OLC lawyers. But critics are not faulting the OLC lawyers for failing to give policy advice; rather, they are noting that the lawyers were on the same page with their clients, as a policy matter (which isn't necessarily a bad thing), and were so fully committed to their client's position that they were blinded to the legal prohibitions on the administration doing what it wanted. That's the problem -- the lawyers were so fully bought in that they were unable or unwilling to provide candid advice. How to prove that? Recent news reports suggest that there may be emails showing that the lawyers caved to pressure from political officials, and altered the substance of their legal advice. I don't know if that's true, but I doubt that John Yoo caved to anyone, because he was already a true believer in the excutive-power theory underlying the memos. In any event, proof of bad faith does not have to be based on direct evidence. There can be circumstantial evidence of bad faith legal advising, which would take the form of showing that the basis for the advice was so flimsy that no sensible lawyer would have endorsed it. That is the evidence that is coming out now, as we see how many lawyers distanced themselves from the advice, including conservative lawyers and those within the administration. Jack Goldsmith is again a helpful contrast, because in many ways he shares Yoo's policy outlook and views about executive power in wartime. The difference is that Goldsmith thought the law actually means something, and is not just an inconvenient form of words to be evaded if the client wants to do something else.
In the end, I don't see a serious possibility of professional discipline, but only because disciplinary authorities are likely to see this as a quagmire. It will be expensive and time-consuming to deal with the factual and legal record here, and disciplinary authorities are already streteched thin -- they can barely deal with all of the claims of clients who had money stolen, or cases totally neglected by lawyers. There probably is a sensible resource-allocation argument here against using the disciplinary process against these lawyers. At any rate, the most significant impact of the disciplinary process would be expressive -- it would be a repudiation, by the organized bar, of this style of legal advising. While I guess that would be helpful, there has already been a profession-wide repudiation of this style of legal advising. The NYT article quotes experts on the right and the left condemning the analysis in the torture memos. The outgoing head of the OLC withdrew the memos. The new administration's legal advisors, headed by a critic of the previous office, are releasing the formerly secret memos and will surely take a new path. John Yoo is, to some extent, a professional pariah. Significantly, lawyers from the Bush OLC who stood up for the rule of law have not suffered the same reputational costs, suggesting that this is not a partisan disagreement but a position based on a professional commitment to the notion that the law really does constrain what lawyers may do on behalf of clients.
[Updated to add: Over at Balkinization, Brian Tamanaha spells out in more detail than I have here why the OLC memos do not represent a good faith effort at ascertaining the content of the applicable law. He cites as evidence Bradbury's unequivocal repudiation of the memos but, significantly, also critiques the position of memos on its face. The argument that the President is above the law, and can ignore any restriction on his authority if he can claim to be acting as a wartime commander-in-chief (never mind that the "war" is fought on American soil, against American citizens, protected by the U.S. Constitution) is the sort of argument that just has to be wrong if there is any content at all to the notion of the rule of law. The whole point of the law is to ground a distinction between the lawful exercise of power and power as such. As a friend of mine likes to say, the rule of law means the little guy can say to the big guy, "hey, you can't do that to me." If the response to that claim is, "oh yes I can, because I am the President, then you know something has gone really screwy in the argument somewhere.]