DOJ Concludes that Yoo and Bybee Committed Professional Misconduct

In light of the OPR report, it beggars the imagination for Judge Jay Bybee to tell us what constitutes “cruel and unusual punishment”, or for Professor John Yoo to teach constitutional law.

Well, almost.

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.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

13 thoughts on “DOJ Concludes that Yoo and Bybee Committed Professional Misconduct”

  1. I'm not sure where you got the idea that Kozinski would decide what cases Bybee should recuse himself from. Typically judges make their own decisions on that, and this case is no different in that respect.

  2. Judges make their own decisions on what cases they *will* recuse themselves from. All and sundry have the right to make decisions about what cases judges *should* recuse themselves from. Kozinski, who may well find himself asked to overturn Bybee's decisions based on the argument that he should have recused himself, might as well start pondering which variations on that argument he'll find convincing.

  3. "… and this happens because the justice department is all on the take and doesn't give a fuck about serving anyone or anything but themselves and their rich buddies"

  4. This posting reminds us that, when the Pennsylvania and Utah state bars, the Congress, the Ninth Circuit, and the University of California at Berkeley all use the DOJ report as an excuse for taking no action against Bybee and Yoo, they will be lying.

  5. Jonathan, I'll wager your favorite drink in your favorite local bar that no action will be taken against Yoo; I'll wager a second drink that again that the Dean of Boalt Hall will use this as an excuse for not taking action. His earlier statement was sh*t; he fell back upon lack of prosecution as an excuse.

  6. Suzii, Kozinski sits on the same court as Bybee. He will therefore never be "asked to overturn Bybee's decisions", leastways not until he gets appointed to the Supreme Court. A failure to recuse would be appealable to the court above, of course, but if you think that SCOTUS will grant one of its circa 70 annual cert petitions to the question of whether a judge improperly failed to recuse himself you're being – how shall I put it – a touch unrealistic.

  7. wow, another liberal witch hunt. Gotta love the double standard too. Why don't we strip every whacko liberal faculty member of tenure for "professional misconduct" (including aspoused support for terrorism).

  8. Bux, let me toss a conservative cliche back at you.

    There is evil in the world, as much as you might dislike the fact. Yoo and Bybee both did evil while working at DoJ. While it's true that they were able to do their evil because they were trusted above many others, the fact is that with great trust comes great responsibility. When someone fails to exercise that trust responsibly, the consequences should be correspondingly more severe.

    I'm not espousing terrorism here: I think ObL should be put on trial, if we ever catch him. We don't have to catch Yoo and Bybee, the authorities know precisely where they are. If we want the hypothetical trial of ObL to have any meaning, we should certainly discipline those among us who grossly violate our laws.

  9. & Nixon & Libby ….

    New amendment needed – executive branch officials can only be pardoned by a subsequent elected president.

  10. Somebody explain to me again why Berkeley is a beacon of higher education with Peter Duesberg in Molecular & Cell Biology and John Yoo in Boalt Hall.

  11. I think there's a much more effective case to be made at the postgraduate level: people who took course required for graduation from Yoo should not be permitted to sit for examinations for admission to the bar.

    And really Bybee should be recused from sitting on any case that has a government as one of the parties. He's shown that he cannot exercise judgment independent of his employer.

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