Last month, Associate Deputy Attorney General David Margolis cleared the names of former Department of Justice lawyers John Yoo and Jay Bybee. Disparagingly labeled the “Torture Lawyers” 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 Responsibility’s (OPR) finding of “professional misconduct,” Margolis found that Yoo and Bybee acted in good faith, ethically serving their clients in the Executive Branch in time of war.
This comes as no surprise, Heritage Foundation Senior Legal Fellow Hans von Spakovsky explains because the OPR’s 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 As just one example, OPR found Yoo and Bybee guilty of misconduct for not citing an unpublished Ninth Circuit opinion, even though the Court’s own rules forbid citations to unpublished opinions. A violation of this rule, von Spakovsky notes, “can subject a lawyer to sanctions for professional misconduct.” 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 isn’t even a lawyer,” von Spakovksy points out. Rather, Luban has a doctorate in philosophy, has never practiced law, and—pointing to the entirely political nature of the investigation—“is 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 OPR’s demonstrated “basic lack of competence—the exact charge by OPR against Mr. Yoo and Mr. Bybee.”
Most consequentially, however, is the OPR’s 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 analysis—not 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 OPR’s irresponsible conduct will undoubtedly make future Justice attorneys more hesitant to provide the “frank legal advice” the executive branch needs unless OPR’s 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: http://www.heritage.org/about/departments/ylp.cfm
Continuing the wide-ranging assault on the Supreme Court’s First Amendment decision in the Citizens United case, The Washington Post claims that a poll the newspaper conducted in conjunction with ABC News shows that “Americans of both parties overwhelmingly oppose” the outcome. Cataloging the so-called “strong reservoir of bipartisan support,” the story suggests that already-promised legislative proposals aimed at curtailing the decision will be met with public accolades. But the Washington Post, and indeed virtually all of the critics of Citizens United, continue to recycle the same tired talking points, none of which withstand any rational scrutiny of the facts. Congress should be wary of this so-called “bipartisan support” for congressional action, as it is based on false reporting of the Supreme Court’s ruling, which restored First Amendment rights to engage in political speech and political association.
The Washington Post erroneously asked respondents if they supported or opposed “the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections.” Eighty percent responded that they were strongly opposed to that mythical decision, one that does not even exist. As Hans von Spakovsky, Senior Legal Fellow at The Heritage Foundation Heritage and a former commissioner on the Federal Elections Commission, has pointed out, the Supreme Court “did not touch the ban on direct [corporate] contributions to federal candidates,” which “remains in force today.”
The Citizens United decision merely removed the ban on independent political advocacy by corporations and other similar entities, including a provision of federal law that banned merely mentioning a federal candidate’s name in a broadcast advertisement during a certain time period—even if the ad was solely about an issue before Congress, and not intended to affect an election. A corporation desiring to contribute directly to political candidates cannot do so except through a political action committee that is funded by voluntary contributions from corporate management in compliance with an extensive regulatory scheme that the Court left untouched. Thus, the highly self-interested Washington Post finds overwhelming opposition on the basis of a misleading question that misrepresents the core of the Court’s decision in Citizens United. How difficult would it have been for the newspaper to use an accurate question, such as asking whether respondents agreed with “the recent ruling by the Supreme Court that says corporations and unions can spend money on independent political advocacy, but cannot contribute directly to political candidates?”
The poll also found that 72% of respondents strongly supported the “[reinstatement of] limits on corporate and union spending on election campaigns.” But this poll question is also tainted by the assumption that the Court allowed unlimited direct contributions to political campaigns. Thus, “overwhelming popular support” turns out to have been generated by another misleading question that does not distinguish between direct contributions to candidates and independent spending for advocacy. The Washington Post’s motives for such deception should be obvious. Under current campaign finance law, media outlets owned by corporations are granted an exemption from the ban on corporate political speech. The Washington Post must find “bipartisan support” for restrictions on corporate political speech to maintain its own monopoly on corporate political speech.
Some of the proposals being formulated also present serious constitutional issues, as explained in new research authored by von Spakovsky. Congress should be wary of allowing skewed data from biased and self-interested polls to unduly influence their position on legislative proposals that would roll back this decision. Accordingly, Congress should resist the temptation to replace careful consideration and deliberation with a blind acceptance of so-called popular opinion. And whether the polls are accurate or not, Congress should not interfere with the right to engage in political speech and to freely associate, two of the most basic and fundamental rights we enjoy under the Constitution and the Bill of Rights.