The leaks from the Justice Department’s Office of Professional Responsibility in the investigation of John Yoo and Jay Bybee not only violate Justice Department rules but also violate federal law. The OPR is permitted to release only the final report, and even that only after Yoo and Bybee’s attorney’s have had a chance to comment. The leaks issuing from the “Office of Professional Responsibility” are not only unethical, but criminal. (George Orwell, call your office.)
So, let’s review the status of the investigation into the “torture memos”:
- The OPR leaks are a criminal violation of the Privacy Act.
- John Yoo cannot be sanctioned anyway, because too much time has elapsed for a complaint against him.
- Professional sanction would have been (and is, for Bybee) extremely unlikely in any case, as it would require a finding that no reasonable lawyer could have produced their reasoning. That finding is nearly impossible, if for no other reason than:
- The Obama-Holder Justice Department has argued the legal theory propounded in the “torture memos” in its filing in Demjanjuk v. Holder.
- And, by a 10-3 margin, the Third Circuit Court of Appeals has adopted that same legal theory in Pierre v. Attorney General.
What we are watching cannot be described in any terms other than as a partisan witch-hunt.
POSTSCRIPT: The Washington Post argues that the leaks in the case are insufficient, and the OPR should release all the raw material from its investigation. I wouldn’t be surprised if the Post gets its wish, but let’s not forget that what they’re asking violates federal law.