The
WSJ is crowing about the "vindication" of torture memo author John Yoo, ripping into the Holder DoJ's "witch hunt" and declaring justice to be done.
So after five years of investigation, partisan accusations and unethical media leaks, the Justice Department's senior ethicist has concluded that Bush Administration lawyers John Yoo and Jay Bybee committed no professional misconduct. The issue now is whether the protégés of Attorney General Eric Holder who led this exercise at Justice's Office of Professional Responsibility (OPR) should themselves be in the dock.
That's our reading of the analysis by Associate Deputy Attorney General David Margolis, a career official who reviewed both the Bush-era legal memos on interrogating terror suspects and their review by the lawyers at OPR. Remarkably, his report is far more scathing about OPR than it is about Messrs. Yoo and Bybee, who he says made legal errors but did so in good faith, out of honest legal analysis, and in the ethical service of their clients in the executive branch at a time of war.
And just like that, torture has now become standar operating procedure in the US. We torture people. John Yoo got a note from his lawyer saying it was OK for him to write a note to the Bushies saying torture was perfectly fine during a "time of war". The only crime here, the WSJ editorial board assures us, was committed by those of you who dare to disagree with Mr. Yoo and questioned these patriotic practices. Indeed, the WSJ is calling for the removal of everyone involved in trying to smear Yoo at the Justice Department's OPR:
Readers can review the documents for themselves, but two OPR judgments deserve particular scorn. The first is the claim that Messrs. Yoo and Bybee were so close to their client, i.e., the White House, that they knew what the President and CIA wanted to hear. But it is perfectly appropriate for a lawyer to know what his client wants, and, by OPR's standard, 99% of professional lawyers could be considered guilty of misconduct.
The ethicists at OPR also claim the Bush attorneys were wrong to stick to a legal analysis of interrogation practices and should have also considered their moral and policy implications. But the duty of the Office of Legal Counsel is precisely to offer legal advice, not to render policy judgments. Interrogation policy was determined by the CIA and the White House, as it should have been. The last thing the country needs is for lawyers to tell the CIA how to get actionable intelligence from enemy combatants.
What's more, as Mr. Mukasey's memo makes clear, the legal canons of Washington, D.C. and many states expressly prohibit lawyers from offering such policy advice to sophisticated clients such as the U.S. government. This is precisely so lawyers don't muddy their legal counsel with policy bias.
The rotten quality of the OPR efforts—and Mr. Margolis's repudiation of them—raises real questions about the lawyers who produced this work. H. Marshall Jarrett, who supervised the first OPR draft, is a protégé of Mr. Holder who managed not to produce his draft report until the Bush Administration was preparing to leave office. After Mr. Mukasey "memorialized" his concerns, as his letter put it, the Jarrett draft was leaked without the Mukasey response. Mr. Holder reassigned Mr. Jarrett in April 2009 to lead the Executive Office for U.S. Attorneys, an arguably more powerful post. His OPR effort makes him unfit for such a job.
Silly civilians. Lawyers serve but one purpose: to do the President's bidding. if the President wants a plenary executive, then the DoJ is there to make sure he gets it. H. Marshall Jarrett can't even handle that much, and therefore has too much honor to serve in government. The WSj concludes thusly:
The larger story here is the vindication of Mr. Yoo and the other Bush attorneys, who were pilloried unfairly over ethics in what was really a policy dispute in the war on terror. Democrats wanted to appease the anti-antiterror left, and they fixed on punishing mid-level officials as prominent enough to get public attention but not so prominent as to seem like a banana republic seeking revenge against a former President or Vice President. Their campaign has now been exposed as a partisan, and unethical, smear.
Yes, the real banana republic was apparently not the people who waterboarded terror suspects to make them talk using a form of outlawed interrogation revived expressly for the purpose of "seeking revenge" for 9/11,
but those who dared stand up to it.
The real lesson is that American torture is fine because David Margolis says John Yoo and Jay Bybee could say it was fine.
And thus, it enters our standard operating procedure. It will be used again. And each time it is, we lose a little bit more of what made America great once.
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