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SPAKOVSKY: A vindication of interrogation

- The Washington Times - Wednesday, February 24, 2010

John Yoo and Jay Bybee, the Bush administration lawyers in the Office of Legal Counsel (OLC)who wrote the memos behind the "enhanced interrogation techniques" that were used on certain terrorism suspects, won't be disciplined, a new Justice Department report says. Many liberals don't like that, but it's good news for anyone ever victimized by a malicious, partisan witch hunt.

According to the Office of Professional Responsibility (OPR), Mr. Yoo and Mr. Bybee were guilty of "professional misconduct" for supposedly not providing "thorough, candid, and objective" advice. David Margolis, the department's most senior career official, flatly overruled the OPR.

Former Attorney General Michael Mukasey and Deputy Attorney General Mark R. Filip blasted OPR in a devastating letter not released by the department for attempting to deny basic due process to the targets of the investigation by denying them the opportunity to review the report. This injustice was corrected only after Mr. Mukasey and Mr. Filip personally intervened to demand that OPR follow its own well-established procedures. OPR successfully used the same ambush tactic in its investigations of the U.S. attorney firings and the faux "politicized" hiring probe of the Civil Rights Division.

While OPR may have some expertise in reviewing attorneys' basic ethical obligations, e.g., adhering to discovery deadlines, it's incapable of handling politically charged issues in an even-handed manner. Moreover, many at Justice think the lawyers who inhabit the OPR, besides being extremely liberal, generally lack the level of professional competence found elsewhere in the department.

The memos of Mr. Yoo and Mr. Bybee, two renowned scholars, carefully outlined in great detail the legalities of a complex question in a very unsettled legal area. The men operated under what Mr. Mukasey astutely characterized as "enormous time pressure" as the executive branch was "trying to formulate a plan to ensure that the Sept. 11, 2001 attacks would not be repeated." Yet OPR ignored this reality.

Indeed, the OPR attorneys made little effort to disguise their own left-leaning prejudices. It was thus no surprise that, as Mr. Mukasey and Mr. Filip noted, OPR's "investigation" was "based on factual errors, legal analysis by commentators and scholars with unstated potential biases, unsupported speculation about the motive of Messrs. Bybee and Yoo, and a misunderstanding" of significant interagency practices.

Some of the OPR criticisms would be laughable if this were not so serious. For example, the OPR attorneys accused Mr. Yoo and Mr. Bybee of professional misconduct for not citing a particular case from the 9th Circuit Court of Appeals - an unpublished opinion. The 9th Circuit's rules specify that unpublished opinions cannot be cited for any purpose. Indeed, doing so can subject a lawyer to sanctions for professional misconduct. These types of repeated errors in the OPR report demonstrate a lack of basic competence - the exact charge by OPR against Mr. Yoo and Mr. Bybee.

To bolster their claim that Mr. Yoo and Mr. Bybee "advanced novel legal theories" and "ignored relevant authority," the OPR attorneys cited prominently professor David Luban of Georgetown University. However, they failed to mention that their supposed expert isn't even a lawyer. Mr. Luban has a doctorate in philosophy, has never practiced law, and is a longtime critic of the Bush administration.

The OPR report even criticizes Mr. Yoo and Mr. Bybee for not considering the moral implications of these issues. This is very revealing. Mr. Yoo and Mr. Bybee were tasked with providing pure legal analysis - not moral and social critiques. In fact, as Mr. Mukasey and Mr. Filip note, OLC is supposed to give legal advice "shorn of any policy preference or shading" so that senior policymakers receive "at least one legal analysis" that does not "mask discretionary policy preferences as legal requirements."

Whether enhanced interrogation techniques are immoral is beside the point. Some may think so, but this sentiment has no place in a sober legal analysis.

Another very telling fact is that OPR leaked details of this report like a sieve. Yet revealing a privileged and confidential law enforcement investigation to the press is a per se violation of the professional code of conduct.

The lawyers who really should be punished for engaging in incompetent and possibly unethical behavior are the OPR lawyers who conducted a biased witch hunt and leaked defamatory information to the press. (It is no surprise that the lead lawyer, Tamara Kessler, also was the lawyer who led the investigation of the Civil Rights Division, a report laced with the same bias, inaccuracies, gross exaggerations and deliberate misrepresentations of fact and law). The attempt to criminalize the rendering of legal opinions on complex issues of the law and to professionally damage and smear government lawyers who were valiantly performing their duties under the most difficult of circumstances is an outrageous and spiteful miscarriage of justice.

No government lawyers looking at what happened in this case can help but fear the personal and professional consequences they might face if they provide a legal opinion that is politically controversial. This makes what OPR did (and almost got away with doing) extremely perilous.

The president and his advisers depend on frank legal advice when they are faced with making difficult decisions about unprecedented dangers. Only if the OPR attorneys are further exposed for their ideological incompetence will that type of frank advice be available in the future.

Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former counsel to the assistant attorney general for civil rights.