Obama justice: legalizing torture

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The best title for this story I've seen yet comes from Yale law professor Jack Balkin at Balkinization: "Justice Department will not punish Yoo and Bybee because most lawyers are scum anyway."

Keith Olbermann's Friday night MSNBC segment with Georgetown constitutional law expert Jonathan Turley is more succinct: "Off the hook."

Late Friday the DoJ released two long-awaited reports, the FBI's "final" (heh -- we'll see) report on its investigation of the anthrax attacks in 2001, and the OPR (DoJ Office of Professional Responsibility) oversight report on the work of the department lawyers who produced a series of torture memos from 2002 to 2005. Silly buggers -- haven't they learned yet that Friday night document dumps just give Sherlocks like Marcy Wheeler and others a whole weekend to deconstruct their shoddy work?

Anyone who wants an eloquent and lucid summary of the corruption at the core of the OPR report should read Balkin's essay, linked above. I've wandered a bit in the weeds of the report itself and the running working threads at EW's place, so I'll add a few scattered amateur comments on the turn.

Obama's AG Eric Holder invited a senior career DoJ fixer, David Margolis, to review the final draft of the OPR investigation, which many had begun to suspect had already had the life reviewed out of it (by just about every significant player mentioned in it). So I think Holder and Obama can wear this mess.

The OPR had already come to a pretty weak-tea conclusion that Yoo and Bybee were guilty of professional misconduct (for facilitating torture? engaging in a conspiracy?) and their cases should be referred to their bar associations. Margolis has overturned even that mild conclusion, and in the process spends some time spanking the OPR in some of the same terms in which Yoo and Bybee (in my view, most unprofessionally and sarcastically) criticized the earlier drafts they were given to review. Never mind the heinous acts that Yoo was prepared not only to countenance but to authorize; the OPR weren't sticking to the right format (the "Guidelines"), actually came up with some measures with some moral content of their own. And we can't have that, can we.

Balkin elaborates:

... Margolis explains (although he puts it far more diplomatically) that Yoo was an ideologue who entered government service with a warped vision of the world in which he sincerely believed. Yoo had crazy ideas even before he entered government; which strongly suggests that he probably shouldn't have been hired in the first place. Therefore it is hard to conclude that Yoo deliberately gave advice that he knew was wrong to the CIA. Yoo isn't putting people on when he says the absurd things he says in these memos and elsewhere. He actually believes that the President is a dictator and that the President doesn't have to obey statutes that make torture a crime. He actually believes that you should read the torture statute so narrowly that it lets the CIA torture people. John Yoo used every trick in the book to twist the law because he actually believes in a law that is twisted. And Margolis points out that other department lawyers, who, presumably, did have properly functioning consciences and were not seriously incompetent, looked at the torture memos and told Bybee that, on the whole, in the context of the limited audience for the memos, and putting aside their most ridiculous claims, the torture memos made defensible legal arguments of the kind that lawyers sometimes make on behalf of their clients. It is important to understand that Margolis reached this conclusion not because Yoo's arguments were just or sensible, or even plausible, but because lawyers can make really really crazy arguments and still avoid professional sanction. This is less a defense of Yoo than an indictment of the doctrines of professional responsibility.

I'm part-way through Margolis's covering memo, and that's pretty much his logic. In overturning the judgement of his own OPR, he sounds like a junior-high English teacher grading a book report not on its content or the way it is reasoned or written but strictly according to how well the student managed to reproduce some banal abstract format.

Banal ... Nuremberg ... Once there was a time when we were all supposed to know how to connect those dots.

But Margolis cheerily -- damningly, to me -- cites OPR interviews with a series of former senior OLC (DoJ Office of Legal Counsel) lawyers to support his view that there was no objective moral or legal standard for Yoo and Bybee to meet. Jack Goldsmith, Yoo and Bybee's immediate successor at the OLC, who at least had the sense to be shocked by the torture memos when he read them and to withdraw them, is still, like Margolis, willing to give them cover: "I don't even know what the standard is." That's a Harvard law professor, and that's a fail, sir. (The more I read Goldsmith, the more I realize he's never read anything but American legal history.)

The main body of the report is also remarkable for what could be an even more important reason. A number of the attached emails make clear reference to how closely Yoo in particular and a later successor, Stephen Bradbury, were working with White House lawyers -- for which read David Addington, Cheney's counsel and then chief of staff. At one point Yoo, who is supposed to be giving the administration independent (or at least competent) legal advice, responds to a colleague who questions a particular passage, "They want it in." And then there's the chilling question Yoo had a colleague refer to the CIA (as first reported by Spencer Ackerman ) : "Do we know if Boo-boo is allergic to certain insects?" "Boo-boo" is Abu Zubaydah, then claimed falsely by the administration to be a senior al-Qaeda figure, who was already being tortured by the CIA and whose waterboarding the administration was panting to order up through Yoo.

The close readers are already at work pinning down the details of the conspiracy we already know so much about, inching the analysis forward a little more each time, because what more can they do faced with a president and an AG who seem determined to ignore or rationalize or even repeat the worst crimes of the Cheney-Bush regime? If Holder and Obama won't prosecute torture, its authors and its facilitators, then they have legalized it.

For now.

H/t to pogge for the FDL video.

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5 Comments

So I think Holder and Obama can wear this mess.

Absolutely. The Obama administration has taken every opportunity to slow this report down — and water it down — just as it has taken every opportunity to prevent any other action that might lead to holding members of the previous administration to account for their roles in torture and denial of due process. Yes, they wear it.

I just noticed something interesting about the Turley interview. Well, disappointing, I guess, although remember that he was speaking after having had almost no time to look at the docs.

At about 3:50, Olbermann asks the question about the broader involvement of the Bush administration -- in other words, he's wondering whether there's any evidence in these docs of a conspiracy, or at least he's wondering about the responsibility of senior officials beyond the DoJ. Turley misses that entirely. He answers by talking about how interesting to legal experts Bybee's omissions will be, but that wasn't what Olbermann was looking for.

I am hoping on one here was surprised by the Obama administration's actions. It is completely consistent not only with his whole presidential philosophy, but with his life experience up to gaining the presidency. With Obama it has always been (going all the way back to the Harvard Review) talk like Martin Luther King, rule like Richard Nixon.

I agree, Greg. My mind was sealed against Obama for good when he appointed McChrystal head of forces in Afghanistan. Except for the early release of the torture memos, I can't think of a single progressive move he's made to back up the empty claim that "America does not torture" or the promises to clean up the justice system, halt renditions, face up to the problems of GTMO and the other torture sites, etc. Somebody put a stop to all that right after the release of the memos, and it's been a long slide backwards ever since.

This is as much for my own files as anything else, but Scott Horton does a devastating critique of Margolis.