This Era's 'Hiroshima' Ctd: Your Analysis



A reader writes:

I'm a law student at Duke and I studied the torture memos last term with a former federal prosecutor. I just started to dive into the OPR report which you so kindly posted and I thought I might be able to help those of your readers without extensive legal backgrounds analyze the arguments. I think it's easy to get bogged down in such a report, so I thought I would try to explain what we should be looking at in determining what the standards for professional misconduct are at OLC and whether Yoo/Bybee violated them.

Start with pages 18-21. Here, the OPR outlines their analytical framework for determining whether an attorney has engaged in professional misconduct.

The first thing to understand about criminal law generally (and although this analysis may not be a "crime" per se, the analytical framework used is largely the same) is that culpability is dependent upon a finding that the accused performed a prohibited act (referred to as the "actus reus") and did so with the requisite mental state ("mens rea"). Here, the OPR says that the required mens rea for a finding of professional misconduct is either "intent" or "recklessness" (note that under the common law these are legal terms of art but, as per footnote 19, the OLC has it's own definition for what constitutes intentional or reckless behavior in this context).

For the sake of simplicity, I will leave "intent" out of the discussion, since a finding of recklessness is sufficient to find Yoo and Bybee culpable (and if you can't prove recklessness, then you can't prove intent).

The OPR defines "recklessness" in this context using a three part test. In order to be reckless, one must (1) "know or should know" of the professional obligation or standard, (2) "know or should know" that his/her conduct "involves a substantial likelihood" that he/she will violate the standard or obligation, and (3) nevertheless "engages in the conduct, which is objectively unreasonable under the circumstances."

The "actus reus" required for professional misconduct includes violation of "any known, unambiguous obligation imposed by law, rule of professional conduct, or Department regulation or policy."

Summarization: If Yoo and/or Bybee knew or should have known of a professional standard or obligation imposed by law, professional standard, or Departmental policy and knew or should have known that their conduct violated it, but they nevertheless engaged in said conduct, then they have engaged in professional misconduct.

Note that this standard does not even require that Yoo or Bybee knew of their obligations or that their conduct violated those obligations, but ONLY requires that, given their experience and the "unambiguous nature" of the obligation, they SHOULD HAVE known about it.

So that's what we should be thinking about as we read the discussion and analysis of the memos and the obligations of attorney's at the OLC.

(Photo: a victim of a stress position, combined with violence, at Abu Ghraib prison under Cheney's rather than Saddam's ultimate control.)

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