Lawyers who reject President Barack Obama's decision not to seek prosecution of officials who may have participated in the torture of terror-suspect prisoners are seeking justice through another avenue: Sanctions against government lawyers who created the "enhanced interrogation" policies of former President George W. Bush.
Their first target is former Defense Department General Counsel William J. Haynes II. The San Francisco Bay Area chapter of the National Lawyers Guild (NLG) has filed a complaint against Haynes, asking the State Bar of California to investigate him and revoke his status as Registered In-House Counsel. Haynes is now an attorney with Chevron Corp. in San Ramon, California.
The Los Angeles Times reports that a similar complaint is being prepared in Pennsylvania against former Justice Department lawyer John C. Yoo, the University of California Berkeley law professor, for his role in drafting the legal guidelines that approved enhanced interrogation techniques including waterboarding during his service in the DOJ's Office of Legal Counsel (OLC) during the Bush Administration.
Marjorie Cohn, President of the NLG, told us, "The lawyers who provided the high Bush officials with 'legal' cover were participants in formulating the policy of torture and cruel treatment. They should be the targets of criminal investigations and should also be disbarred for their ethical violations."
She also noted that the complaint filed with the Pennsylvania state bar against John Yoo "has been put on hold pending the release of the report of the DOJ's Office of Professional Responsibility, which is apparently highly critical of Yoo, Jay Bybee and Stephen Bradbury, authors of the torture memos."
Haynes served as the DOD General Counsel from May 24, 2001 until his abrupt resignation on February 25, 2008. He resigned days after an article accusing him of rigging trials of enemy prisoners at Guantánamo Bay appeared in "The Nation" magazine. Haynes was the DOD's chief legal officer and legal adviser to then-Secretary of Defense Donald Rumsfeld.
Several memoranda to and from Haynes were released as part of the Obama Justice Department disclosures of March 2009.
Haynes was also one of the six Bush-era officials named in the ongoing investigation of torture and other unlawful acts currently being considered by the Spanish judiciary.
The NLG complaint charges that, while General Counsel at the DOD, Haynes advocated for harsh tactics amounting to torture in violation of U.S. and international law. His "improper advocacy directly led to detainee abuses at the Guantanamo Bay and Abu Ghraib facilities," the NLG complaint charges.
It says Haynes "breached his duty as a lawyer" in providing legal cover for U.S. soldiers and federal agents to use dogs, nudity, stress positions and other humiliating tactics to break down terror suspects.
The complaint says Haynes "is directly linked to the torture of at least one detainee," Mohamed Mani Ahmad al-Kahtani, an alleged member of al-Qaeda, who allegedly intended to come to the U.S. to take part in the terrorist attacks of September 11, 2001 as a "muscle hijacker" but was refused entry due to suspicions that he was attempting to immigrate. Since January 2002, al-Kahtani has been detained at the U.S. prison at Guantanamo Bay, Cuba.
According to Susan J. Crawford, convening authority for military commissions at Guantanamo, Al-Kahtani's treatment during this time was torture. She stated, "We tortured Kathani. His treatment met the legal definition of torture." Because of his torture, Crawford dismissed the charges against him.
The NLG charges that Haynes is also directly linked to the prosecution of low-level service members for using techniques he approved.
Haynes's conduct "demonstrates moral turpitude," the NLG charged. The group alleges that he failed to show "respect for and obedience to the law, and respect for the rights of others" as required by the rules of the California bar.
He "intentionally or recklessly" failed to act competently, failed to adequately supervise the work of subordinate attorneys, and forwarded "shoddy legal memoranda regarding the definition of torture" to Rumsfeld.
"Haynes further acted incompetently by advising Secretary Rumsfeld to approve interrogation techniques that were in violation of U.S. and international law, and without even mentioning strong objections by the military," the complaint says.
Under a legal memorandum written by Haynes and approved by Rumsfeld, one detainee was "bothered by the presence and touch of a female," "females viewing his naked body," and being refused the right to pray.
Haynes "recommended approval of aggressive interrogation techniques that the military stated may violate the law. He forced subordinate attorneys to rely on memoranda prepared by the Office of Legal Counsel that have since been rescinded in an unprecedented manner. His advice was so contrary to the law that Secretary Rumsfeld was forced to rescind the approval based on the Haynes Memo," the NLG complaint says.
It continues, "There is absolutely no evidence that Mr. Haynes attempted to present an impartial, unbiased review of the law. All of the evidence shows that Mr. Haynes improperly advised the allowance of illegal and inhumane interrogation techniques."
Haynes "failed to support or uphold the U.S. Constitution, and the laws of the United States, or to maintain the respect due to the courts of justice and judicial officers. His actions involved moral turpitude, dishonesty and corruption."
He "abused and disrespected the law for political purposes. This is wrong."
Haynes was nominated to the Fourth Circuit Court of Appeals by President George W. Bush on September 29, 2003. He was approved by a straight party-line vote of the Senate Judiciary Committee on November 19, 2003, but his involvement with the creation of a memorandum entuitled "Legal Arguments for Avoiding the Jurisdiction of the Geneva Conventions" triggered a filibuster that prevented his nomination from receiving a full Senate vote.
The "bar association strategy" has been effective a number of times in the recent past. In 2001, former President Bill Clinton resigned from the Supreme Court bar rather than face near-certain disbarment for perjury related to Lewinsky scandal. And the Arkansas bar moved to disbar Clinton, but offered a deal that saw him suspended for five years for making false statements in the Jennifer Flowers proceeding.
Former Vice President Spiro Agnew, having pleaded no contest -- which subjects a person to the same penalties as a guilty plea -- to charges of bribery and tax evasion, was disbarred from practicing law in Maryland, the state of which he had previously been governor.
And former President Richard Nixon was disbarred from practicing law in New York in 1976 for obstruction of justice related to the Watergate scandal.
The NLG complaint also draws on decisions reached in the Nuremberg trials of Nazi war criminals following World War Two. The complaint notes that one lawyer was found guilty of war crimes and crimes against humanity because he "materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the Party minions, and the police. He participated in the corruption and perversion of the judicial system."
The NLG says, "As shown in the Nuremberg trials, powerful leaders can and do engage in illegal acts and inhumane treatment of others. These leaders rely on lawyers and the legal system to give the appearance of legitimacy to an illegal agenda. Sadly, there always seem to be lawyers willing to do the bidding of powerful rulers."
Going after the law licenses of people who wrote craven and legally unacceptable memos is good strategy - if not to actually get them disbarred, then at least to keep the national spotlight on their transgressions.
The question is: How much public pressure will it take to force President Obama and AG Holder to revoke their "get out of jail free" card?