John Yoo and Jay Bybee were the two Justice Department lawyers responsible for the memos authorizing the Bush Administration's use of torture. Torture is illegal under United States and international law. The Eighth Amendment to the U.S. Constitution forbids the government's use of cruel and unusual punishment. Under Article Six of the Constitution, treaties signed by the U.S. are the "supreme Law of the Land". Two international human rights treaties outlawing torture, the Geneva Convention and the U.N. Convention Against Torture, were signed by the U.S. In addition, the U.S. Criminal Code and the Army Field Manual prohibit torture, war crimes, and degrading treatment of detainees. The legal memoranda (see the original "Torture Memos" here) authored by Yoo and Bybee advised Bush Administration officials that the U.S. and International Law regarding torture did not apply to Taliban detainees or others with suspected links to Al-Qaeda and terrorism.
The Justice Department's Office of Professional Responsibility (OPR) initiated an investigation into the authors of the "Torture Memos" on October 25, 2004. The resulting report was released on July 29, 2009 and can be read in full on the website of the U.S. House of Representatives Judiciary Committee, here. The OPR report concluded that Yoo and his former boss, Bybee, demonstrated professional misconduct in preparing the legal opinions that justified waterboarding and other interrogation tactics on Al Qaeda suspects in American custody. In the OPR report, prominent legal scholars and professionals criticized the Bybee memo, characterized by Harold Koh as "blatantly wrong" and "erroneous legal analysis." Former Justice Department lawyer and current head of the White House Office of Information and Regulatory Affairs, Cass Sunstein, said of the legal reasoning contained in the "Torture Memos": "It's egregiously bad. It's very low level, it's very weak, embarrassingly weak, just short of reckless."
Despite heavy criticism and conclusive evidence of professional misconduct, Yoo and Bybee received only a slap on the wrist because the associate deputy attorney, David Margolis, released a report on the same day overruling the findings of the OPR report. Margolis said Yoo and Bybee demonstrated flawed reasoning but not misconduct and rejected the OPR's attempt to refer the two lawyers to state bar officials for possible disciplinary action. Scott Horton, former chairman of the international human rights committee of the New York City Bar Association, said, "the government lawyers involved in preparing the documents could and should face professional sanctions". Yoo, now a law professor at Berkeley, and Bybee, a federal appellate judge, should be held accountable for their involvement in the justification and authorization of the heinous crime of torture, in violation of U.S. and international law. The Disciplinary Board of the Supreme Court of Pennsylvania and D.C. Bar Association should disbar John Yoo and Jay Bybee.
Your offices have previously stated that you would defer any judgment of these two individuals until after the results of the investigation by the OPR. Now the OPR has spoken. While associate deputy attorney David Margolis has chosen to ignore the findings, it remains clear to the legal community and the nation at large that Yoo and Bybee committed a wrong and something must be done. Your offices retain the power and responsibility to see that the conclusions reached through the OPR’s year-long investigation and 289 page report are not ignored, and that Yoo and Bybee be disbarred for unethical conduct.
Please send the message that the PA and DC bar associations do not support ethical misconduct from attorneys on a scale that threatens to jeopardize the protection of human rights around the globe. I urge you to disbar those responsible for authoring the torture memos.