Following the dismissal of an investigation of the two authors of the infamous "torture memos," GAP Homeland Security Director Jesselyn Radack now has the dubious honor of now being the only person currently referred by the Justice Department’s Office of Professional Responsibility for bar disciplinary action. What was their advice? That the CIA could proceed with waterboarding and other aggressive interrogation techniques. What was her advice? That an American citizen, accused of terrorist activities, should have legal counsel.
Radack (with GAP Homeland Security Counsel Kathleen McClellan) recently submitted written testimony to the Senate Judiciary Committee about a decision to essentially dismiss the extreme misconduct of John Yoo and Jay Bybee, the authors of the torture memos. Department of Justice (DoJ) Associate Deputy Attorney General David Margolis downgraded a 2009 report by the DoJ Office of Professional Responsibility that found Yoo had “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice,” to a finding that he used “poor judgment."
The report also stated that “[p]ursuant to Department policy, we will notify bar counsel in the states in which Yoo and Bybee are licensed.” However, on February 19, 2010, the same date that the DoJ released the original 2009 report, Margolis released a memorandum, which specifically did not “authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where Yoo and Bybee are licensed.”
What is going on here? In their testimony, Radack and McClellan make the point that the vast majority of the legal community has “condemned the memoranda.” This vast majority includes the past chairman of the international human rights committee of the New York City Bar Association, a prominent University of Chicago law professor, an international human rights law expert at Fordham University, and the current Legal Adviser to the United States Department of State, who stated of the 2002 torture memo:
If a client asks a lawyer how to break the law and escape liability, the lawyer’s ethical duty is to say no. A lawyer has no obligation to aid, support, or justify the commission of an illegal act…the August 1, 2002 OLC memorandum is a stain upon our law and national reputation.
However, despite the fact that so many have condemned the actions of Yoo and Bybee, the DoJ has rejected action against them.
In addition, Radack and McClellan argued in their testimony that OPR has failed as an internal oversight organization. OPR is not an independent agency, and lacks the necessary power to truly and effectively pursue accountability. And "in the absence of aggressive oversight and accountability, future generations of Justice Department attorneys will be able to authorize the same abusive techniques without consequences."
The DoJ must further investigate John Yoo and Jay Byee and realize that:
Holding accountable the officials who breached their duties as lawyers and as public servants during the past nine years is not a political attack on the previous administration but rather a prerequisite to putting this sad chapter in American history behind us and truly moving forward.