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</p>Last month,* Associate Deputy Attorney General David Margolis <ahref="http://www.washingtontimes.com/news/2010/feb/20/doj-no-misconduct-bush-interrogation-lawyers/?feat=article_top10_shared">cleared the names of former Department of Justice lawyers John Yoo and Jay Bybee. Disparagingly labeled the Torture Lawyers <ahref="http://www.nytimes.com/2010/02/25/opinion/25thur1.html?ref=opinion">by the New York Times, Yoo and Bybee wrote the now-infamous memos offering legal advice to the Bush administration that authorized the use of enhanced interrogation techniques in questioning high-level terrorists. Overruling the Office of Professional Responsibilitys (OPR) finding of professional misconduct, Margolis found that Yoo and Bybee acted in good faith, ethically serving their clients in the Executive Branch in <ahref="http://online.wsj.com/article/SB10001424052748704757904575078182303405948.html"> time of war.
This comes as no surprise, Heritage Foundation Senior Legal Fellow Hans von Spakovsky <ahref="http://www.washingtontimes.com/news/2010/feb/24/a-vindication-of-interrogation/">explains because the OPRs investigation and report was a total sham and part of an ideological witch hunt. Indeed, The OPR criticisms would be laughable if this were not so serious. As just one example, OPR found Yoo and Bybee guilty of misconduct for not citing an unpublished Ninth Circuit opinion, even though the Courts own rules forbid citations to unpublished opinions. A violation of this rule, von Spakovsky notes, can subject a lawyer to sanctions for professional misconduct.<spanid="more-27719"></span> Furthermore, the OPR extensively cited Professor David Luban of Georgetown University as an expert to support their claim that Bybee and Yoo expounded advanced novel legal theories and ignored relevant authority. But they failed to mention that their supposed expert isnt even a lawyer, von Spakovksy points out. Rather, Luban has a doctorate in philosophy, has never practiced law, andpointing to the entirely political nature of the investigationis a longtime critic of the Bush administration. The OPR also repeatedly claimed that Yoo and Bybee had violated the rules of the District of Columbia Bar, even though they were not members of that Bar and were not required to be as Justice Department lawyers. Von Spakovsky points out the irony of the OPRs demonstrated basic lack of competencethe exact charge by OPR against Mr. Yoo and Mr. Bybee.
Most consequentially, however, is the OPRs criticism of Yoo and Bybee for not considering the moral implications of enhanced interrogation techniques. Critics often censure the two for supposedly offering legal justification for torture, but Yoo and Bybee were tasked with providing pure legal analysisnot moral and social critiques. Indeed, such a flagrant injection of politics into legal matters reveals this investigation for the malicious, partisan witch hunt it was, making what OPR did (and almost got away with doing) extremely perilous. The extremely liberal OPRs irresponsible conduct will undoubtedly make future Justice attorneys more hesitant to provide the frank legal advice the executive branch needs unless OPRs incompetence is exposed more broadly.
Andrew Odell currently is a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit:*<ahref="http://www.heritage.org/about/departments/ylp.cfm">http://www.heritage.org/about/departments/ylp.cfm