This post was written by GAP Homeland Security and Human Rights Counsel Kathleen McClellan for her Daily Kos Blog.
All accountability hawks have been fuming over David Margolis’s memo, which effectively immunizes torture memo authors John Yoo and Jay Bybee from professional discipline despite a Justice Department Office of Professional Responsibility (OPR) report finding that they committed professional misconduct. Margolis’s softening of OPR’s report means no bar referrals for now tenured law professor Yoo and federal judge Bybee.
As the only attorney to be referred to a bar counsel for advice given in a terrorism case, Ms. Radack has a right to be particularly frustrated by the decision to let Yoo and Bybee off the hook. And, by the way, Ms. Radack’s legally sound advice in the “American Taliban” John Walker Lindh case was to properly afford the suspect his rights.
Ms. Radack, a legal ethics expert, courageously took Margolis and company to task in Harpers Magazien yesterday.
The injustice of Ms. Radack’s situation is more infuriating in light of the wimpy “punishment” given Yoo and Bybee. In her own words:
Contrary to OPR’s own policies, it hastily and vindictively forwarded my case to the state bars in which I’m licensed, absent a finding of “professional misconduct,” much less a finding of “intentional misconduct or reckless disregard of an applicable standard or obligation”–the benchmark that OPR uses. Instead, OPR referred me to the bar disciplinary authorities for “possible misconduct.” Moreover, I was referred based on a secret report to which I did not have access. Finally, I was referred for conduct I engaged in as a private citizen, not as a public servant, after I had left the employ of the Justice Department.
If Ms. Radack’s appalling treatment and Yoo and Bybee’s pathetic slap on the wrist proves anything, it’s that the Justice Department’s internal oversight mechanisms are simply not equipped to handle high-profile, politically-charged investigations. By its own admission, OPR’s ability to get information and interview witnesses was severely hampered without investigatory tools with teeth, like subpoena power. The OPR report states:
During the course of our investigation significant pieces of information were brought to light by the news media and, more recently, by congressional investigations…given the difficulty OPR experienced in obtaining information over the past five years, it remains possible that additional information eventually will surface regarding the CIA program and the military’s interrogations programs that might bear upon our conclusions.
FINAL OPR REPORT at 10.
Still, OPR overcame these obstacles and went out of its way to be fair to Yoo and Bybee, fairness Ms. Radack was denied. OPR revised the torture memos report twice to respond to criticisms from former Attorney General Michael Muksaey and former Deputy Attorney General Mark Filip and responses from Yoo and Bybee – which they were permitted to submit after reviewing a draft report – only to have the finding of professional misconduct rejected by Margolis’ memo. Worse, Margolis’s memo relies heavily on those criticisms and responses, as well as statements from other Bush Justice Department insiders – such as former Deputy Assistant Attorney General Patrick Philbin – to lampoon OPR’s conclusions and fault them for revising the report in light of the responses from Yoo and Bybee, which Margolis himself “recommended [OPR] solicit and review.” See FINAL OPR REPORT at 20.
Ms. Radack gets right to the heart of the larger problem:
To the extent that OPR holds itself out as an internal watchdog of the Justice Department, that is belied by the fact that David Margolis, a single senior career attorney who has been with the Department for more than 40 years, has the unilateral power to override anything OPR does. Like most career bureaucrats, he obviously has a vested institutional interest in legitimizing Department conduct. Margolis’s take-away message is that it’s okay to ignore the rules of professional conduct if you’re scared or in a hurry, failing to realize, perhaps because he’s a government attorney, that stress and deadlines are the status quo for most lawyers.
Although entirely predictable, the Justice Department’s decision to give Yoo and his cohorts a pass should offend all lawyers. It is now incumbent upon the legal profession, which is entirely self-regulated, to provide oversight and accountability within its own ranks and to the public.
With the Justice Department’s internal controls failing miserably, the legal profession – i.e. bar associations – should step up and hold accountable Yoo and Bybee, but even that seems unlikely considering that Ms. Radack’s referral to the D.C. Bar is still outstanding. Apparently D.C Bar Counsel Wallace E. “Gene” Schipp has taken over Ms. Radack’s case personally, but hasn’t bothered to close out the obviously retaliatory investigation. More details about Ms. Radack’s case, which has been dragging on since 2002, are available here.
In the future, we would be wise to remember that real checks on executive power cannot come from internal watchdog bodies susceptible to political corruption. When the stakes are so high, these investigations must be undertaken by external entities with meaningful oversight tools, starting with subpoena power to compel testimony from key witnesses, like say, Former Attorney General Ashcroft, the head of the Justice Department when the torture memos were released, who “declined” OPR’s request for an interview.