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Justice Department decision on terror memos sparks legal debate

By Carrie Johnson
Washington Post Staff Writer
Sunday, February 21, 2010; A07

A Justice Department decision to reject sanctions against Bush-era lawyers who approved harsh treatment of terrorism suspects provoked a heated exchange among legal experts Saturday over whether the lawyers' actions had constituted unethical conduct or violated professional standards.

Analysts divided bitterly on that question, but the torrent of commentary, unleashed by a senior department official's decision to discard the recommendations of ethics investigators in the case of John C. Yoo and Jay S. Bybee, underscored the murkiness of disciplining lawyers.

Even the ruling, written by Associate Deputy Attorney General David Margolis and made public Friday, pointed to the malleability of the law and judgments about legal ethics.

"In the hands of capable attorneys, virtually every fact cuts both ways," Margolis wrote. He noted that the two sides -- lawyers defending Yoo and Bybee and ethics investigators -- had accused each other of the same faulty reasoning and preordained bias, and that ethics investigators had repeatedly shifted their own analysis during the course of the probe.

Advocates on both ends of the political spectrum continued to make their case Saturday, with conservatives praising the Margolis decision as a righteous vindication for the government employees, who strained to reach quick legal decisions with the nation's security seemingly on the line after the Sept. 11, 2001, terrorist strikes.

"Analyzing the quality of legal products out of context is utterly ridiculous," said David B. Rivkin Jr., a former Justice Department and White House lawyer for Republican administrations.

In contrast, Yale University law professor Jack M. Balkin summed up his thoughts in an online posting titled "Justice Department will not punish Yoo and Bybee because most lawyers are scum anyway."

"It's not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions," Balkin wrote. "This is how the American legal profession simultaneously polices and takes care of its own."

At issue are the sometimes vague standards for professional competence that lawyers must meet. Watchdogs generally focus on basic concepts, such as meeting deadlines and protecting clients' money, four experts said. Rarely, the experts said, are lawyers scrutinized for judgment calls, such as how broadly the constitution and legal precedent inhibit presidential authority, a question that was at the heart of the Yoo and Bybee memos. Attorneys who work in government rarely face investigation by state disciplinary authorities, who have the power to revoke their license to practice, or criminal prosecution for shoddy legal work, experts said.

Former Justice Department officials had cautioned ethics investigators that a referral to state authorities for possible discipline of Yoo or Bybee would be "unprecedented."

Yoo, now a law professor at the University of California, Berkeley, and Bybee, a federal appeals court judge in Nevada, signed off on memos paving the way for CIA contractors to use waterboarding, sleep deprivation and other harsh techniques against al-Qaeda suspects after Sept. 11.

The memos all but insulated interrogators from criminal charges for their roles in alleged detainee abuse as long as the CIA followed the preapproved guidelines. The documents later drew outcry from human rights advocates and even some lawyers in the Bush administration, who called them an ill-reasoned "get out of jail free card."

Jameel Jaffer, a lawyer at the American Civil Liberties Union, pounced on the ethics report, which he says proves that Yoo and Bybee shaped their conclusions based on advice from the Bush White House.

"Yoo and Bybee weren't trying to interpret the law, but to evade it," Jaffer said.

The release of hundreds of pages of investigative documents in the case, one of the most closely watched since the Justice Department's internal affairs unit came to life after Watergate, has opened up the disciplinary system for inspection.

For more than a decade, federal judges have criticized the slow pace and secrecy shrouding the department's Office of Professional Responsibility, which investigates ethical violations by government lawyers.

Maureen E. Mahoney and Miguel Estrada, prominent D.C. lawyers representing Bybee and Yoo, forcefully urged the Justice Department to undertake a close analysis of the professional rules, which require clear and unambiguous intent to engage in misconduct.

Margolis, the 40-year department veteran who made the final call to reverse OPR's recommendations against Bybee and Yoo, ultimately concluded that neither man had demonstrated such a mindset.

Several of Bybee and Yoo's colleagues who repudiated the memos in books and interviews nonetheless told investigators that pressure from the Bush White House and the possible consequences for national security argued against a misconduct sanction against them.

"When you combine all this with the threat reports that were being done and everything, I don't know whether anyone crossed the line," former department lawyer Jack Goldsmith said. "I certainly couldn't say that myself. I don't even know what the standard is."

But in its final report, OPR said that the hothouse environment after Sept. 11 was no excuse.

"Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide" sterling legal advice, "even if that advice is not what the client wants to hear," the report said.

Also cutting in Yoo's favor was a lengthy record of writings in which he had expressed a broad view of executive authority, particularly in the area of national security during wartime.

John Steele, a California lawyer who teaches ethics, said he thought the memos were "substandard and deeply disappointing." But under ethics rules that require lawyers to be competent and independent counselors to their clients, "if Yoo believed it, there's not much room to discipline him," Steele said in an interview. "He wrote things like this before, during and after he entered government."

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