As always, hilzoy and I are on the same page:

The difficulty with prosecution is establishing intent. When a lawyer makes a stupid legal argument, it’s always possible that s/he is not malicious, just a terrible lawyer. When you’ve narrowed the options to criminal intent or complete ineptitude, you have not got enough to prosecute. You have, however, got enough to disbar someone, since while total ineptitude is not an indictable offense, it is a good reason not to let someone go on practicing law.

If Yoo, Bybee, and Bradbury did not write their memos in order to provide a shield for criminal activity, then I think they had to be completely inept as lawyers. Their job, remember, was to interpret the law for their clients, and to advise them on what was legal and what was not. By getting the law spectacularly wrong, they exposed their clients to serious legal liability, and in so doing completely failed to meet their obligations to their clients. Moreover, they made some fairly stunning mistakes, like failing to cite any of the cases in which the US government had prosecuted people for waterboarding when those cases were plainly relevant. [...]

Yoo, Bybee, and Bradbury had a series of professional obligations. They had obligations to their clients: to inform them accurately of what the law required, and to err on the side of caution so as not to expose their clients to liability. They had obligations to the courts: to uphold our system of laws, and to represent those laws faithfully. In addition to those professional obligations, they had obligations to humanity: not to countenance torture. They violated all three, and made a mockery of the ethics of their profession. They deserve to be disbarred.

Tags: Jay Bybee, John Yoo, Steven Bradbury, torture

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