Thursday, February 25, 2010

Due Process According to The New York Times

One of this blog’s recurring themes is that today’s liberals don’t worry enough about being responsible custodians of institutions that are designed to be politically evenhanded. I’ve written about liberals’ readiness to politicize: (1) the procedural rules of Congress here, here and here; (2) the protocols of the scientific objectivity here; and (3) the rules of the criminal justice system here.

We can now add the ethical rules of the legal profession to the list of politicized institutions. Consider this editorial from today’s New York Times about the Justice Department’s recent decision not to refer cases against Bush administration attorneys John Yoo and Judge Jay Bybee to their respective bar associations for disciplinary review:

“A five-year inquiry by the Justice Department’s ethics watchdogs recommended a disciplinary review for the two lawyers who produced the infamous torture memos for former President George W. Bush, but they were overruled by a more senior Justice Department official.

"The original investigation found that the lawyers, John Yoo and Jay Bybee, had committed “professional misconduct” in a series of memos starting in August 2002. First, they defined torture so narrowly as to make it almost impossible to accuse a jailer of torturing a prisoner, and they finally concluded that President Bush was free to ignore any law on the conduct of war.

"The Justice Department’s Office of Professional Responsibility said appropriate bar associations should be asked to look at the actions of Mr. Yoo, who teaches at the University of California, Berkeley, and Mr. Bybee, who was rewarded for his political loyalty with a lifetime appointment to the federal bench. It was a credible accounting, especially since some former officials, like Attorney General John Ashcroft, refused to cooperate and e-mails from Mr. Yoo were mysteriously missing.

"But the more senior official, David Margolis, decided that Mr. Yoo and Mr. Bybee only had shown “poor judgment” and should not be disciplined. Mr. Margolis did not dispute that Mr. Yoo and Mr. Bybee mangled legal reasoning and produced work that ultimately was repudiated by the Bush administration itself. He criticized the professional responsibility office’s investigation on procedural grounds and excused Mr. Yoo and Mr. Bybee by noting that everyone was frightened after Sept. 11, 2001, and that they were in a hurry.”
The Times' editorials can't bring themselves to mention that Margolis found that the Justice Department’s original investigation misapplied the pertinent ethical rules and reached conclusions that had no basis in legal ethics. And never mind that the Times didn’t cite any evidence for the proposition that “Mr. Yoo and Mr. Bybee were not acting as fair-minded analysts of the law but as facilitators of a scheme to evade it” because, to my knowledge, there isn’t any. The only apparent basis for charging them with professional misconduct is that they had the audacity to reach, and worse to stand by, legal opinions with which liberals (me included) disagree.

The editorial's concluding sentences tell you everything you need to know about the editors' commitment to the standards of due process that sustain the rule of law.
"The attorney general, Eric Holder Jr., should expand the investigation into “rogue” interrogators he initiated last year to include officials responsible for facilitating torture. While he is at it, Mr. Holder should assign someone to look into the disappearance of Mr. Yoo’s e-mails. The American Bar Association should decide whether its rules are adequate for deterring and punishing ethical failures by government lawyers.  The quest for real accountability must continue. The alternative is to leave torture open as a policy option for future administrations.”
Those are inspiring legal principles.  If the investigation you've conducted unearths no ethical misconduct, keep investigating until you find some.  And if you can’t figure out how to disbar people under the code of legal ethics now on the books, change the rules so that you can.

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