DOJ’s Office of Professional Responsibility concluded this, and then was overruled by Associate Deputy Attorney General David Margolis, a career DOJ official. Margolis’ decision also forbids DOJ from officially referring Yoo or Bybee to their respective state bars for disciplinary proceedings.
The full report will serve as weekend reading, but for now four points are in order:
1) Simply because DOJ cannot make an official referral in no way prevents the Pennsylvania and Utah state bars from beginning their own proceedings, based upon the information now publicly available.
2) Bybee is now a federal judge with life tenure. The report’s conclusions call for initial Judiciary Committee consideration as to whether impeachment is warranted. Bybee will never be removed by 2/3 of the Senate because of the GOP’s pro-torture position, but the facts must be fleshed out.
3) Because of Bybee’s position, it now falls to the Ninth Circuit, especially Chief Judge Alex Kozinski, to consider what sort of cases Bybee should be recused from. Any decision by Judge Bybee regarding, for example, police use of excessive force would become immediately and rightfully suspect, even if the police in question were completely innocent. It also beggars the imagination for Bybee to decide whether prison conditions constitute “cruel and unusual punishment.”
4) It is now time for the University of California at Berkeley to consider what actions, if any, should be taken against Yoo, including stripping him of tenure. Brad DeLong has advocated this for some time; I have consistently rejected it, because proceeding without hard evidence would require the university to investigate its members based upon newspaper reports — a step that I believe would constitute a violation of academic freedom. But the release of this report, and the evidence it contains, now presents Berkeley Law School with the prospect of assigning a man whom DOJ found committed professional misconduct to teach constitutional law, international human rights law, and/or legal ethics. This is now an issue that goes to the heart of the university’s educational mission.