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DOJ clears Bush administration lawyers of professional misconduct allegations

[JURIST] The US Department of Justice (DOJ) [official website] has overruled the findings of a report [text, PDF] released Friday concluding that two Bush administration lawyers committed professional misconduct when they wrote memos [JURIST news archive] authorizing the use of certain interrogation techniques that critics have called torture. Instead, the DOJ said that John Yoo [academic profile; JURIST news archive], and Jay Bybee [official profile; JURIST news archive] were only guilty of "poor judgment" in writing the memos. An internal ethics investigation by the Office of Professional Responsibility (OPR) concluded that Yoo had committed "intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice." The report also found that Bybee had committed professional misconduct when he acted in "reckless disregard" of his duty to exercise independent legal advice. However, David Margolis, an associate deputy attorney general, released a separate memo [text, PDF] overruling the OPR's report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct. Margolis said:

This decision should not be viewed as an endorsement of the legal work that underlies those memoranda. However, OPR's own analytical framework defines "professional misconduct" such that a finding of misconduct depends on application of an known or unambiguous obligation or standard to the attorney's conduct. I am unpersuaded that OPR has identified such a standard.

While Margolis said that the memos contained "significant flaws," he said not all flaws constitute professional misconduct. He also criticized OPR for failing to identify a violation of a specific bar rule, but instead cobbling together standards of conduct from the DC Rules of Professional Conduct, an Office of Legal Counsel (OLC) [official website] memo issued in 2005, and other sources that do not directly apply. The American Civil Liberties Union (ACLU) and the Constitution Project [press releases] both called for a thorough investigation into the memos that targeted more senior Bush administration officials.

In July, Yoo appealed a district court ruling [JURIST reports] that allows a lawsuit alleging his complicity in torture to proceed. Meanwhile, former US attorney general John Ashcroft has defended the advice the DOJ gave the Bush administration on the use of certain interrogation techniques, saying that all guidelines issued by his office were legal. A coalition of organizations has filed complaints [JURIST report] with bar associations attempting to get Bybee, Yoo, and other Bush administration lawyers disbarred. Last March, a Spanish judge asked prosecutors to consider [JURIST report] investigating Bush administration lawyers, including Yoo and Bybee, for human rights violations under the principle of universal jurisdiction.

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