More details are emerging about the DOJ Office of Professional Responsibility report examining the professional conduct of John Yoo and other Bush Administration attorneys who greenlighted the former President’s torture policies. Among them, the report criticizes the professional competence of former OLC head and current United States Court of Appeals Judge Jay Bybee:
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 (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.” According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials— (OLC) at the time the report was submitted, the sources said. . . . If Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action.
It’s hard to imagine an attorney more worthy of disbarment than one who effectively advised his client to commit a war crime. Yet while it would certainly be embarrassing to Judge Bybee if he lost his license to practice law, it’s not entirely clear whether disbarment would bring any real consequences on him. Federal judges enjoy life tenure, and there is nothing in the Constitution requiring judges to be licensed attorneys, or even American citizens for that matter. If the President of the United States nominated Osama Bin Laden to the Ninth Circuit, and the Senate confirmed him, bin Laden would be a federal judge.
I don’t know of any precedent for impeaching a federal judge because of their conduct before they ascended to the bench, but if Judge Bybee is to experience any real consequence for his role in approving George Bush’s torture policies, it will probably take an impeachment and conviction.
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Overruled 