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In a late Friday afternoon document dump, the Justice Department finally released a heavily redacted report addressing the ethical lapses of the torture lawyers: John Yoo, now a professor at the University of California at Berkeley; Jay Bybee, now a judge at the United States Court of Appeals for the Ninth Circuit; Steven G. Bradbury, now a partner at Dechert LLP; and others at the Office of Legal Counsel. The professional staff in the Office of Professional Responsibility, charged with reviewing OLC actions, concluded that Yoo and Bybee had engaged in serious professional misconduct and that their cases should be referred to appropriate state bar disciplinary organs for review and further action. In an unusual addendum, however, Associate Deputy Attorney General David Margolis overruled the OPR findings, concluding that the conduct of the OLC lawyers did not rise to the level of “professional misconduct.” Margolis argued that OPR had failed to elaborate clear standards against which the lawyers could be judged.
The Margolis addendum, by arguing essentially that nothing can be done, raises a critical question: Is the Justice Department any longer capable of policing itself? The question has little to do with the torture issue, important as that is, or with partisan politics in general. It is clear now that the OPR itself is totally dysfunctional. The institutional ethos is now simple: the client is the president, and the department should do what it takes to make the client happy. Lawyers who serve their client will be protected and exonerated, even if they commit serious crimes in the process. Lawyers who cross the client are in serious trouble, even if they have only acted because of ethics requirements.
This mindset has survived the recent transition. Consider, for instance, the much ballyhooed public-integrity prosecution of former Alaska Senator Ted Stevens, a Republican. A conviction was secured, but soon thereafter it became apparent that the prosecution team had committed public corruption crimes potentially more serious than those they had charged against Stevens. The prosecutors now face a criminal inquiry themselves—and none of this happened as a result of internal Justice Department ethics action. Indeed, the Justice Department reacted to repeated warnings and inquiries by Judge Emmett Sullivan by doing absolutely nothing.
Or consider the New Year’s eve decision by Judge Ricardo Urbina to dismiss the department’s highest profile prosecution of seven Blackwater guards in connection with the shooting of seventeen Iraqi civilians in 2007. In a 91-page-opinion, Urbina catalogued a pattern of outrageously abusive conduct by prosecutors.
Or the December 15 hearing in Santa Ana, California, in which Judge Cormac J. Carney acquitted a group of Broadcom executives. The judge proceeded to excoriate the prosecutors. They had pressured an innocent man to accept a guilty plea to help lay the foundations of their case, Carney charged. In a manner reminiscent of authoritarian societies, they had intimidated the thirteen-year-old son of one defendant in an effort to get him to provide evidence against his father. The Justice Department’s conduct had been “shameful and contrary to American values of decency and justice,” the judge said.
The cases of Don Siegelman, Paul Minor, Charles Walker, and others reflect still more egregious misconduct, often with a strong political element. These cases were not undertaken by out-of-control youngsters. They are among the highest profile cases in the department; they were under supervision at the highest levels. David Margolis himself repeatedly hovers in the background of these cases, saying that everything is just fine when ethics failings are spotlighted by outsiders. Margolis presents himself as an ethics expert. But his views are incomprehensible in terms of ethics. They are far better understood in terms of political convenience.
Boston NPR affiliate WBUR recently did a series of reports on the ethics implosion in the Justice Department. In the final episode, “The Judges’ Rebellion,” they reviewed how federal judges finally became so disgusted with the institutionalized misconduct and the Justice Department’s refusal to discipline misbehaving lawyers that they began disciplining the prosecutors themselves—taking the same approach adopted by Judge Sullivan in Washington.
Fordham law professor Bruce Green, a former federal prosecutor, recently provided the ABA Journal with a disturbing slogan for OPR. “I used to call it the Roach Motel of the Justice Department,” he said. “Cases check in, but they don’t check out.” A year after the arrival of a new president and a new attorney general, the roach motel remains in business.
More from Scott Horton:
No Comment — November 4, 2013, 5:17 pm
An expert panel concludes that the Pentagon and the CIA ordered physicians to violate the Hippocratic Oath
No Comment — August 12, 2013, 7:55 am
How will the Obama Administration handle Edward Snowden’s case in the long term?
No Comment — July 29, 2013, 11:36 am
Is it possible to simply disband the partisan FISA court?
Fleming awoke in the dark and his room felt loose, sloshing so badly he gripped the bed. From his window there was nothing but a hallway, and if he craned his neck, a blown lightbulb swung into view. The room pitched up and down and for a moment he thought he might be sick. The word “hallway” must have a nautical name. Why didn’t they supply a glossary for this cruise? Probably they had, in the welcome packet he’d failed to read. A glossary. A history of the boat, which would be referred to as a ship. Sunny biographies of the captain and crew, who had always dreamed of this life. Lobotomized histories of the islands they’d visit. Who else had sailed this way. Famous suckwads from the past, slicing through this very water on wooden longships.
A welcome packet, the literary genre most likely to succeed in the new millennium. Why not read about a community you don’t belong to, that doesn’t actually exist, a captain and crew who are, in reality, if that isn’t too much of a downer on your vacation, as indifferent to one another as any set of co-employees at an office or bank? Read doctored personal statements from underpaid crew members — because ocean life pays better than money! — who hate their lives but have been forced to buy into the mythology of working on a boat, separated now from loved ones and friends, growing lonelier by the second, even while they wait on you and follow your every order.
Number of people stopped and frisked by the NYPD in 2011 for “furtive movements”:
The faces of Lego people were growing angrier.
Four people were arrested for using a remote-controlled hexacopter to fly two pounds of tobacco to prisoners inside the yard at Calhoun State Prison in Georgia.
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Our congratulations to Alice Munro, winner of the 2013 Nobel Prize for Literature