"An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials. H. Marshall Jarrett, chief of the department's ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys."Jay Bybee and John Yoo, authors of the infamous torture memo, must be quaking in horror at the prospect of disciplinary action that could range from a reprimand to suspension to disbarment.
"If [Attorney General] Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action."
As a practical matter, any disciplinary proceedings against Yoo would have little effect since he teaches law as a tenured member of the faculty at Berkeley. Jay Bybee sits on the 9th Circuit, and it's no small matter to discipline or remove a sitting federal judge. However, it seems highly unlikely that either Yoo or Bybee would face grave sanctions for "'deeply flawed' and 'sloppily reasoned' legal analysis." If they had been in the private sector when their opinions had been offered, a lawsuit for malpractice might prove more productive.
While professional discipline wouldn't be much of a sanction, given the war crimes these officials directly facilitated, at least it would be a start.
Under the Nuremberg principles, there's ample ground to launch a criminal investigation of Bybee and Yoo, along with former AG Alberto Gonzales. The true purpose of their "advice" was to give legal cover to practices that were blatantly in violation of U.S. and international laws prohibiting torture. Reliance on that advice is no excuse whatsoever. This hasn't been a gray area of the law for at least 63 years.
Nazi lawyers and judges were successfully prosecuted at Nuremberg — by U.S. prosecutors — for making the kinds of technical, bureaucratic arguments that Bybee, Yoo and Gonzales devised.
Obama needs to reconsider his apparent reluctance to investigate the Bush years and his inexplicable statement that officials who relied on legal opinions shouldn't be prosecuted. As a lawyer who has taught constitutional law, he surely realizes that there's no "good faith" defense to torture, and any reliance on legal opinions must be "reasonable." Moreover, the "good faith" argument is all too evocative of the discredited Nuremberg Defense ("I was only following orders").
Disciplinary proceedings would send a "signal," but not a very strong one — unless they provide a legal and political foundation for actual prosecutions of Bybee, Yoo and the rest of the Bush/Cheney cabal. A stronger move would be the creation of a "truth and reconciliation commission" along the lines proposed last week by Senator Patrick Leahy (D-VT).
Unfortunately, Leahy qualified his proposal by stating that "he was only offering the idea to see how much support it had:"
Why should the "level of support" really matter if war crimes were committed? (No doubt there was little support for the Nuremberg prosecutions in Germany in 1945 .) As Obama stated last week:
"We need to see whether the American people are ready to take this path," he said, adding that he did not have anyone in particular in mind to lead the commission, but wanted "people with real credibility."
"Nobody's above the law and if there are clear instances of wrongdoing then people should be prosecuted just like any ordinary citizen, but that generally speaking, I'm more interested in looking forward than I am in looking back," said Obama. "I will take a look at Senator Leahy's proposal but my general orientation is to say, let's get it right moving forward."In the face of such headwinds, it will require someone with raw political courage to pursue this issue, and that's traditionally been a scarce commodity in Washington (with some notable exceptions). But without an investigation, there's simply no way to evaluate whether any "wrongdoing" has occurred.
Finally, the least serious crimes committed by the Bush/Cheney administration are the ones that seem to be getting the most attention: torture and "abusive interrogations," detentions without due process, warrantless wiretaps, improper hirings and firings in the Justice Department. Sadly, the most serious offenses get little attention: crimes against peace, including such crimes against humanity as waging an aggressive war in Iraq and "the wanton destruction of cities, towns, or villages, or devastation not justified by military necessity" [Nuremberg Principle VI (b)].
Unless these questions are thoroughly addressed by an investigation, we — like the rest of the world — will be left to wonder what kind of people we are.
 This is not meant to suggest that the war crimes of the Bush administration are comparable, qualitatively or quantitatively, to those of the Nazis. But some of the same legal considerations apply to prosecutions under the Nuremberg principles and other provisions of international law. This topic has gotten a lot of attention on these pages, including (most recently) here and here.
PHOTO: Speaking of political courage, where's the great Telford Taylor (1908-98), a chief U.S. prosecutor at Nuremberg, when we really need him? [Wikimedia Commons]
versions of the above were cross-posted as comments.]