By Carrie Johnson
Washington Post Staff Writer
Thursday, May 7, 2009
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.
Yoo, now a law professor in California, and Bybee, now a judge on the U.S. Court of Appeals for the 9th Circuit, were in the department's Office of Legal Counsel when they assessed the legality of simulated drowning and other harsh interrogation techniques for the CIA in a series of memos beginning in 2002. Ultimately, the lawyers gave a green light to waterboarding, sleep and food deprivation, and other tactics. The Obama administration has cast aside those techniques, saying they violate anti-torture laws and the Geneva Conventions.
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.
Yoo is a member of the Pennsylvania bar, and Bybee is a "judicial member" of the Nevada and D.C. bars, according to spokeswomen and public records on the bar Web sites. Their attorneys declined to comment yesterday, citing a confidentiality agreement they were required to sign with the Justice Department.
Stephen Gillers, a professor of legal ethics at New York University, said state bars have no subpoena power to compel the Justice Department to make sensitive documents or key witnesses available.
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.
Veterans of state bar offices said the organizations tend to move slowly because they are strapped for resources and are overwhelmed by cases in which lawyers failed to appear in court or absconded with clients' funds.
The Justice Department's Office of Professional Responsibility and its inspector general last year made multiple referrals of Bush political appointees alleged to have violated civil service rules in their hiring and promotional practices. But the state bar authorities have not yet taken public disciplinary action against any of those lawyers.
The analysis becomes complicated when investigators must draw lines between bad advice and illegal advice, particularly in an environment in which advocacy groups and lawmakers are calling for retribution, analysts said yesterday.
The liberal public interest group Alliance for Justice, for example, is hosting a panel discussion in Washington next week to consider ways that Bybee "can be held legally accountable" for his role in developing the interrogation memos, according to a news release.