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 As just one example, OPR found Yoo and Bybee guilty of misconduct for not citing an unpublished Ninth Circuit opinion, even though the Court’s own rules forbid citations to unpublished opinions.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
Earlier today, President Barack Obama addressed the General Assembly of the United Nations. You can read the full transcript here. Experts in foreign policy and international affairs at The Heritage Foundation watched the speech and had plenty of reaction. Here are some highlights:
On Reaction at U.N.:
“The other U.N. member states have to be beside themselves with glee. President Obama gave them virtually everything they could ask for without demanding anything in return that was not already on the agenda – and which they are prepared to twist to their advantage. He did not even ask them to support more accountability, transparency, or efficiency in the U.N. , which will be leading action on the very complex and expensive tasks that he is proposing.
The Obama administration probably thinks that its actions and this speech have purchased them the goodwill of U.N. member states, which will translate into support for U.S. policies. They are setting themselves up for disappointment. The political nature of the U.N. is combative and tough. Most member states consider these concessions their due. They will pocket them and stand firm to defend their interests. Cooperation will be on their terms, on issues they wish to pursue. The naïveté of the speech was staggering.”
–Brett D. Schaefer, Jay Kingham Fellow in International Regulatory Affairs, Heritage’s Margaret Thatcher Center for Freedom, and author of ConUNdrum: The Limits of the United Nations and the Search for Alternatives
Compared to Other Obama Speeches:
“Was this Obama’s most naïve speech ever? It is a very strong candidate, but I think there is intense competition for that accolade. The president’s speeches in Cairo, Strasbourg and Prague would all vie for that title. Still, his address today will go down in history as one of the weakest major addresses by a U.S. president on foreign policy in a generation, by a leader who seems embarrassed, even ashamed, by the power and greatness of his own country.”
–Nile Gardiner, Director, Margaret Thatcher Center for Freedom, The Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation
On Afghanistan:
“Obama’s statements on Afghanistan at the U.N. today — which failed to mention the need to defeat the Taliban insurgency — will likely be interpreted by our allies as a sign that he is beginning to waver in his commitment to finishing the job of stabilizing and securing Afghanistan and preventing its return to being a safe haven for international terrorists. This is highly unfortunate. Without American leadership on Afghanistan, the entire civilized world will remain hostage to international terrorists, backed by the Taliban leadership, intent on attacking innocents at the times and places of their own choosing.”
–Lisa Curtis, Senior Research Fellow, Heritage’s Asian Studies Center
On the Middle East:
“President Obama proclaimed, ‘ We must embrace a new era of engagement based on mutual interests and mutual respect, and our work must begin now.’ But in the Middle East, his administration’s engagement policy has yielded very little of substance. The Israeli-Palestinian talks, which the administration has trumpeted as an urgent priority, remain in limbo. Obama’s meeting yesterday with Israeli Prime Minister Benjamin Netanyahu and Palestinian Authority President Mahmoud Abbas was little more than a tense photo opportunity that did little to clear the way for renewed peace negotiations.
“Although Washington had hoped to announce the formal opening of Israeli-Palestinian negotiations, this continues to be blocked by the refusal of Palestinians to agree to negotiations until Israel has halted the expansion of settlements in disputed territory. Never mind that many of the settlements would end up on the Israeli side when the borders are redrawn in a final agreement.
Iran also has proven to be highly resistant to the Obama administration’s calls for engagement. Despite three rounds of sanctions imposed by the U.N. Security Council and continued international pressure to halt its uranium-enrichment efforts, Iran has agreed to participate in talks on a wide variety of subjects — except for uranium enrichment, which it is accelerating. It will be interesting to see how Iranian President Mahmoud Ahmadinejad responds to Obama’s speech when he speaks later this afternoon. But the big question is what the Obama administration will do when engagement fails.”
–James Phillips, Senior Research Fellow for Middle Eastern Affairs, Heritage’s Douglas and Sarah Allison Center for Foreign Policy Studies