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.

Newsweek:

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 Office of Professional Responsibility (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—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.) [...]

If Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action. But some former Bush officials are furious about the OPR’s initial findings and question the premise of the probe. “OPR is not competent to judge [the opinions by Justice attorneys]. They’re not constitutional scholars,” said the former Bush lawyer. Mukasey, in speeches before he left, decried the second-guessing of Justice lawyers who, acting under “almost unimaginable pressure” after 9/11, offered “their best judgment of what the law required.”

But the OPR probe began after Jack Goldsmith, a Bush appointee who took over OLC in 2003, protested the legal arguments made in the memos. Goldsmith resigned the following year after withdrawing the memos, and later wrote that he was “astonished” by the “deeply flawed” and “sloppily reasoned” legal analysis in the memos by Yoo and Bybee, including their assertion (challenged by many scholars) that the president could unilaterally disregard a law passed by Congress banning torture.

OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted. In a departure from the norm, Jarrett also told members of the Senate Judiciary Committee last year he would inform them of his findings and would “consider” releasing a public version. If he does, it could be the most revealing public glimpse yet at how some of the major decisions of Bush-era counterterrorism policy were made.

John Yoo and Jay Bybee should be disbarred.  They gave legal cover for some the worst atrocities ever committed by Americans.

I’ll be anxiously awaiting this report.

[h/t Brad DeLong]