On Friday 19th February, the long awaited report into allegations of professional misconduct (pdf 9.86MB) was released. The Office of Professional Responsibility (OPR) conducted an ethics investigation into what have been described as the ‘torture memos’ written whilst John Yoo and Jay Bybee worked as lawyers for the Bush administration.

The report found that Mr Yoo had committed "intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice."1 And, Mr Bybee had acted with ‘reckless disregard’ of his duty to exercise ‘independent legal judgement and render thorough, objective and candid legal advice’2. The OPR informed bar councils where the two lawyers are licensed because lawyers must adhere to a strict code of ethics to be licensed.

Most importantly, the OPR report added that they recommended that due to their findings, the Department of Justice should review incidents of detainee abuse which is strengthening calls from around the world for transparency and accountability.

Rather than accepting the investigations findings, the US Department of Justice (DOJ) instead rejected and overturned the report, and issued a memo stating that the outcome was flawed because the report did not provide a clear definition of what constitutes ‘professional misconduct’. The DOJ added that Mr Yoo and Mr Bybee were only guilty of ‘poor judgement’.

The Call for Accountability

The report comes as pressure mounts for the Obama administration to act on allegations of torture and abuse rather than ‘looking forward’ and providing immunity to those involved. Other organisations and countries are taking up the challenge. Complaints on behalf of several organisations have been filed with many bar associations calling on Mr Bybee, Mr Yoo and other former Bush administration attorneys to be disbarred due to unethical conduct. John Yoo is also currently appealing a court ruling that has proceeded in charging him for complicity in torture in the case of Jose Padilla. In Spain, Baltasar Garzon has filed a complaint calling for an investigation of possible human rights violations committed by Bush administration lawyers under the principle of Universal Jurisdiction. The outcome is yet to be decided.

Amnesty International remains concerned at the lack of accountability for human rights abuses committed due to the so called ‘war on terror’. Amnesty International believes that the Obama administration should enact an independent commission of inquiry to investigate ALL aspects of the USA’s detention and interrogation policies and practices since September 11, 2001. Any act constituting a criminal offense under international law should be investigated and individuals should be subject to prosecution; this includes not only the individuals who directly perpetrated the violations, but also those who knew about the acts and did not report it, and those who authorised or knowingly provided assistance to the acts. Amnesty International also believes that these acts should not be limited to members of US forces, but also its agents, including private contractors and foreign agents.

“Rejecting impunity is crucial not only for dealing with past human rights violations, but also for preventing recurrences. The US administration must ensure that investigations and prosecutions in individual cases are initiated while simultaneously working to remove legal or practical or political obstacles to criminal responsibility.”3

References

  1. US Department of Justice, Office of Professional Responsibility, ‘Report: Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques” on suspected Terrorists, 29th July, 2009, p.11. Available at, http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf

  2. ibid.

  3. Amnesty International, “USA: Blocked at every turn. The absence of effective remedy for counter-terrorism abuses”. Available at, http://www.amnesty.org/en/library/asset/AMR51/120/2009/en/4404cee2-8e85-46ea-8187-5d8988b0c0d4/amr511202009en.pdf