Public Comment

The final report of the Justice Department’s Office of Professional Responsibility (OPR) released Friday found that former Office of Legal Counsel (OLC) lawyer John Yoo committed “intentional professional misconduct” and that Yoo’s colleague, former Office of Legal Counsel lawyer Jay Bybee, engaged in “reckless disregard of his professional obligations” in their rendering of legal justifications for the Bush Administration’s torture policy. There is no more room for verbal acrobatics or flourishes in discussing this issue. The report clearly states, “Yoo’s legal analyses justified acts of outright torture.” And in rendering these analyses, the OPR report concludes that “Yoo put his desire to accommodate the client above his obligation to provide thorough, objective, and candid legal advice, and that he therefore committed intentional professional misconduct.”   

The findings of the OPR report are quite clear—the OLC lawyers responsible for authoring the so-called Torture Memos committed “professional misconduct.” Yet much of the press coverage missed the real story, focusing instead on Associate Deputy Attorney General David Margolis’s decision to downgrade the OPR findings to “poor judgment” and to refrain from referring the OPR findings to the relevant state bars. Fortunately, House Judiciary Committee Chair John Conyers is not so easily distracted from the actual contents of the report. He has disputed Margolis’s decision and scheduled Congressional hearings on the matter.   

Similarly, though the DOJ’s recommendation does not include sanctions, the contents of the OPR report provide a sound basis for action by other entities with jurisdiction over the lawyers’ conduct, including the University of California and the Pennsylvania and DC bar associations. These bar associations and the university have refused to investigate the conduct of Yoo until the release of the OPR report. Now they no longer have an excuse for delay; they have an immediate and pressing duty to investigate the professional misconduct and ethics violations spelled out in the OPR report.  

New facts revealed in the report include that Yoo “knowingly provided incomplete and one-sided advice.” The OPR report concludes “by a preponderance of the evidence” that Yoo, as a tenured professor of law, “knowingly failed to present a sufficiently thorough, objective, and candid analysis” through “his failure to carefully read the cases, and his exclusive reliance on the work of a junior attorney.” In addition, the report dismissed any excuse or justification for Yoo’s acts of professional misconduct, stating that “situations of great stress, danger, and fear do not relieve Department attorneys of their duty to provide thorough, objective, and candid legal advice, even if that advice is not what the client wants to hear.”  

It was evident from simply reading the Torture Memos that Yoo engaged in conduct that raised the gravest concerns of morality, ethics, and legality, yet the relevant bar associations and the University of California have failed thus far to fully investigate the Torture Memo authors and hold them accountable. According to the now publicly released OPR report, as a lawyer advising the president on matters of national security and “acts of outright torture,” Yoo failed to carefully read the cases he was citing and relied on a junior attorney for critical legal analysis. As the report concludes, this is clear evidence of a serious breach of professional standards.   

As a matter of law, of justice, and of due process, it is time for Congress, the Pennsylvania and DC Bar Associations, and the University of California to investigate. Full and thorough investigations are essential to ensure that these human and civil rights violations have stopped and never happen again.  

Megan Schuller is a second-year student at Berkeley Law and a member of the Boalt Alliance to Abolish Torture.