Legal News

Bush-era Lawyers Are Tough Legal Targets

By Nathan Koppel

A tone of sober realism has settled in today in place of the intriguing (shocking?) prospect that the Obama administration might investigate Bush-era Justice lawyers for authoring memos endorsing interrogation unpleasantness.

The odds are long, experts say, that the likes of John Yoo (left) and judge Jay Bybee could be criminally prosecuted.

A judge would have to determine that those lawyers deliberately misinterpreted the law against torture, according to an article today in the L.A. Times.

"It would be a real stretch," George Washington law professor Stephen Saltzburg told the Times. "They may be bad lawyers who gave extremely bad advice," but that is not a crime.

The other hurdle is that it might be considered arbitrary to go after the lawyers who wrote interrogation memos without also prosecuting their bosses, e.g., Dick Cheney.

The WSJ reports that congressional investigators have concluded that the interrogation polices involved key legal officials across the administration, not just a handful of lawyers. Cheney and Condoleezza Rice were "at the center of the discussions," Sen. Jay Rockefeller said.

In deciding who to prosecute, "where do you draw the line?" one ex-Bush official told WSJ, which also quoted Karl Rove. He said the Obama administration risks looking like a "Third World regime where the incoming junta of colonels" conducts "show trials of their predecessors."

The NYT weighs in with a piece that likewise concludes that it would be difficult not only to prosecute Bush-era lawyers but even to hand down a lesser punishment, like disbarment.

While legal experts have roundly criticized memos that endorsed water boarding, among other harsh techniques, NYT reports, Yoo, the chief architect of the memos, "had espoused idiosyncratic views about presidential power before joining the Justice Department, so it would be difficult to prove that he did not believe what he was writing."

Full post as published by Law Blog - WSJ.com on April 23, 2009 (boomark / email).