Slap on the wrist

Some were worried that there would be no real punishment for those who excused, enabled, and provided shoddy legal justification for torture. They were quite wrong. John Yoo and Jay Bybee are about to face the most serious repercussions any torture violating lawyer can possibly receive: a recommendation to a state bar that may or may not result into their cases maybe being looked at within the next few years and may result in eventual disbarment. Ouch. A stinging rebuke.

Efforts to impose professional sanctions on Bush administration lawyers who drafted memos supporting harsh interrogations of terrorism suspects face steep hurdles, experts on legal ethics said yesterday.

Law professors and legal practitioners who have handled such cases said the difficulty of gathering witnesses and evidence could present "nearly insurmountable challenges" for state investigators who may wish to pursue a case against the lawyers, John C. Yoo and Jay S. Bybee.

Government sources indicated this week that a forthcoming Justice Department investigative report would refer both men to state bar associations for possible disciplinary action as early as this summer. The report, which summarizes the findings of a nearly five-year review, cites sloppy legal analysis, misjudgments and possible political interference in the process, the sources said.
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Neither Yoo nor Bybee is likely to face criminal prosecution, a step that is nearly unprecedented for lawyers providing advice to clients. But they are expected to face inquiries from state legal authorities after the Justice Department report is made public. State bars have the power to disbar lawyers and suspend their licenses, among other steps.
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The core question, Gillers said, is whether state lawyers could prove that Yoo and Bybee ran afoul of professional rules.

"The only theory on which [a case] could proceed would be if lawyers violated their duty to a client . . . by giving the White House an opinion in which they did not actually believe," Gillers said.

If only there was an official document, perhaps released in a FOIA request from the ACLU, that actually showed that they didn't really believe the legal justification they were advocating for. If only this mythical document existed. Shame it doesn't.

So John Yoo will continue to teach prospective lawyers about the law in California (Tip 1 for students: anything becomes legal if you write a memo saying it is legal, despite what actual laws say. Bet you didn't know that!) and Jay Bybee will preside on the 9th District Court of Appeals (Tip 1 for those prosecuting cases in front of him: just say your client had a memo telling him whatever he did was totally legal. Bybee will understand.) Why? Because we can't be bothered to prosecute anyone who violates our laws. Why? Because that's Spain's job, not America's.