One particularly crucial missing link in the ongoing effort to discover just what the hell went on during the Bush Administration's systematic dismantling of America's prohibitions on torture is the 2006 report from the DoJ's Office of Professional Responsibility. The Bush team's protection from prosecution in these matters relies almost entirely on the assessment of three lawyers that subjecting al Qaeda suspects to drowning, freezing, beating, sleep deprivation, etc. was perfectly legal. However, it has long been known that the Justice Department's independent review of the legal reasoning undertaken in that assessment was so flawed and weak as to rise to the level of professional misconduct. Accordingly, it has long been obvious that, far from having taken an independent analysis of domestic and international legal precedent as pertains to torture, the public's lawyers simply told the President what he wanted to hear in a deliberate attempt to provide impunity and avoid future prosecution for war crimes. The only question has been, what has been taking so long for Obama's Justice Department to release said OPR memo to the public (after all, the legal memos which permitted the torture in the first place have themselves been released). Well, now we know - the OPR report was taking so long to be released because it was being rewritten to soften the findings.
A career lawyer at Justice has downgraded the initial assessment of the OPR - which originally said that DoJ lawyers Yoo, Bradbury, and Bybee violated their professional responsibilities by providing legal cover to the President - to say that they simply showed "poor judgment" in doing so. Poor judgment, which included a finding that the President was not bound by the Convention Against Torture or the corresponding federal statutes in a time of war, even though said treaty specifically calls out war and other emergencies as circumstances that do not rise to the level of exemption. Poor judgment, which failed to recognize the fact that waterboarding has been prosecuted by the United States as a crime of torture in both domestic law enforcement cases and international war crimes tribunals. Poor judgment, which included making this assessment only after the President was unable to secure a pledge from other divisions of justice that American agents wouldn't be prosecuted for torture after following orders from the President.
Once the new, whitewashed report comes out, it will, conveniently, remove any obligation on Obama's DoJ to take any action against Bush's lawyers, and will even remove the specter of professional rebuke for these fine public servants. And from there, anyone happy with the government's current position on torture - which is that the President can do whatever the hell he wants, whenever he wants - can rest assured that those of us who disagree are simply exercising a different legal judgment. No true law really applies - only the good graces of the executive branch. It's worth pausing here to note that the federal statutes defining cruel and unusual punishment for the purposes of interpreting the Convention Against Torture specifically refer to the same standards one would use to interpret the Eigth Amendment of the Constitution. Just imagine what will happen the next time a US citizen is abused in federal custody, now that the Obama administration has effectively notarized the Bush administration's decision to torture foreign detainees. We have officially joined the ranks of Iran, Libya, and Saudi Arabia in our legally sanctioned conduct against foreign threats.
In other news, Senate Minority Leader Mitch McConnell has gone on the record saying that George W. Bush made some serious mistakes in the war on terror. Namely, he never should have tried Richard Reid and others in a civilian court the way Obama's trying to treat Khalid Sheikh Mohammed, and he let too many people go from Guantanamo Bay. Starting a war under false pretenses, expanding unfunded entitlements in an unprecedented manner, nominating his own in-house counsel to the Supreme Court - no objection to any of these. But following the model of Ronald Reagan, Dwight Eisenhower, Winston Churchill, etc. when it comes to the treatment of non-state terrorists, and releasing detained individuals when we have no evidence that they did anything wrong - now the Senator's ready to speak out against this breach of the public trust. McConnell also confidently predicted that Congress has enough votes to cut off any funding Barack Obama might need to try any al Qaeda members in criminal court, or to close Gitmo as he desires.
On this fine morning I find myself reflecting on just how marvelous all this must make Osama bin Laden feel. After decades of treating him and his ilk like the common scum they are - with same accord as we would any other violent criminal - the United States is finally ready, on a bipartisan basis no less, to concede that today's Islamic terrorists are so dastardly, so cunning, so powerful and Batman-villainesque, that we must abandon our normal modes of operating and disavow our faith in ordinary law enforcement and civilian justice. He and his band of warriors have roused our attention so greatly and irreversibly, that we're now prepared to opine that even George W. Bush didn't take the threat seriously enough. Al Qaeda has caused us so much fear that we dare not let them into our cities and our courtrooms, even in chains, lest they turn our centuries-old system of justice against us. He must be very proud to be given this much respect.
I also find myself wondering, as our leaders go on TV to talk about how scared we should all be, just what I would say to a citizen of Pakistan or Afghanistan about why he should throw his lot in with the Americans at this particular point in history, now that we've shed our faith in the rule of law, our moral authority in the treatment of our enemies, and now finally our serenity in the face of simple-minded fanatics with nothing to offer the world but outdated revolutionist rhetoric and bombs in their underwear.
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