Rep. Jerrold Nadler (D-NY) has forwarded materials on the writing of the torture memos to state bars where John Yoo and Jay Bybee are licensed, calling on the bar association to consider possible disciplinary action, Nadler’s office announced today.
The torture memo report produced by the Justice Department’s ethics office concluded that Yoo, now a professor at Berkeley, and Bybee, now federal judge on the ninth circuit, committed professional misconduct in their drafting of the memos that authorized torture.
But top DOJ official David Margolis overruled that finding and barred the ethics office from referring the batter to state bars in Washington, D.C., and Pennsylvania, where Bybee and Yoo are members, respectively.
Nadler said he was “disappointed that, at the end of this lengthy process, we are now left with apparent confusion within the Department of Justice regarding the appropriate standards of conduct for its attorneys.”
He added:
“Setting aside the disagreement over what state ethics rules require, everyone agrees that the legal advice provided by attorneys Yoo and Bybee - advice that was used by the Bush administration to justify waterboarding - was seriously flawed and did not meet the Department of Justice’s own standards of conduct. This should never have happened, and I will continue working to ensure that the appropriate corrective steps are taken so that it does not happen in the future.At the same time, the relevant officials in the states where attorneys Yoo and Bybee are licensed to practice law have authority to determine whether further investigation or disciplinary action is warranted. These states do not need a referral from the Department of Justice in order to interpret and enforce the standards of professional responsibility and ethics against their members.
For that reason, I am forwarding to the relevant state bars copies of the OPR reports, and other materials, and asking that they review the documents to determine whether, under their laws, rules and procedures, any further action is warranted.”
It’s an open question how willing the state bars will be to look at the materials. Georgetown Law Professor David Luban, writing in Slate this week, noted that state bar associations “tend to be cautious and politically timid, and experts have told me that the probability of action from either the D.C. bar counsel or his Pennsylvania counterpart was close to zero. “