I pointed out, earlier, that giving bad legal advice isn't a crime. Thus the bad advice that the Bush Administration's lawyers gave is not sufficient reason to charge them with a crime. Criminalizing the practice of law is 100% opposite of rule of law, and being an incompetent lawyer is simply bad lawyering, not something which is criminal in nature.
But Hilzoy states the next logical step that is part of the whole concept of rule of law: Disbarring bad lawyers. These guys gave *terrible* legal advice, ignoring clear precedents in their eagerness to provide their clients with legal advice that they believed their clients wanted. Hilzoy says:
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.
Indeed. I agree 100% with Hilzoy: Yoo, Bybee, Bradbury, and anybody else involved in this outrageous example of bad lawyering ought to be immediately disbarred by their state bar associations and forever prohibited from practicing law again. And those who happen to be on the bench (hello, Bybee!) ought to be immediately impeached. They have proven, at the very least, that they are not fit to practice law. It's the least we can do for them...
-- Badtux the Law Penguin
Before, you, Mr. Penguin, an admitted non-lawyer, dismiss the possibility that deliberately bad legal advice may constitute war crimes, I suggest you read the following blog entry from 2006:
ReplyDeletehttp://www.talkleft.com/story/2006/10/09/187/02565
You should probably follow this article up by watching Judgment at Nuremberg (Spencer Tracy is great) and by reading Torture Team by Philippe Sands (just came out in paperback).