This post was written by GAP Homeland Security Director Jesselyn Radack for her Daily Kos Blog.
Although entirely predictable, I'm reeling from the Justice Department's Office of Professional Responsibility (OPR) decision--finally released late yesterday after 5 years--to give the authors of the infamous "torture memos" a pass.
This gives me the dubious distinction of being the only Justice Department attorney that OPR referred for bar disciplinary action stemming from advice I gave in a torture case--and my advice was to permit an American terrorism suspect to have counsel. If the Holder Justice Department had any inclination to rehabilitate OPR's lofty mission of
ensuring that Department of Justice attorneys perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency,
they've blown it.
According to the Justice Department's website, OPR’s mission is to
investigat[e] allegations of misconduct involving Department attorneys that relate to the exercise of their authority to . . . provide legal advice.
But Americans, and especially lawyers, should be outraged at how the Justice Department and OPR have handled this totally unorthodox investigation of the authors of the infamous "torture memos," the icing on the cake of which was allowing the targets of the investigation to review and soften the report.
As the former Justice Department ethics advisor in the case of "American Taliban" John Walker Lindh, I blew the whistle when my advice to provide him counsel was disregarded and evidence of that advice "disappeared" in contravention of a federal court order. Contrary to OPR’s own policies, it hastily and vindictively forwarded my case to the state bars in which I’m licensed absent a finding of "professional misconduct," much less a finding of "intentional misconduct or reckless disregard of an applicable standard or obligation"--the benchmark that OPR uses. Instead, OPR referred me to the bar disciplinary authorities for "possible misconduct." Moreover, I was referred based on a secret report to which I did not have access. Finally, I was referred for conduct I engaged in as a private citizen, not as a public servant, after I had left the employ of the Justice Department.
Although the Maryland Bar dismissed the charges against me in 2005, my referral to the D.C. Bar (the same Bar to which Yoo and Bybee would have been referred) is still pending after almost seven years. (Politically-motivated treatment by the D.C. Bar, and allowing itself to be used as a tool of revenge by the Bush Justice Department, is a diary for a different day.)
If the Obama administration thinks that this outcome is going to tamp down the vituperative Republican assault on its counter-terrorism strategy, think again. You're just further alienating the people (well, at least this voter) who elected you to de-politicize justice.
1. File a bar complaint against Bybee and Yoo: D.C. office of Bar Counsel (202) 638-1501, X1751
2. Ask the Holder Justice Department to have the OPR withdraw its referral of me to the D.C. Bar: Call (202) 514-2000, ask to be connected the the Office of the Attorney General, and leave a comment.
MSM: If you want an informed comment, you can reach me at (202) 369-1749.