Last Friday, the Justice Department finally released its report from the Office of Professional Responsibility regarding the legal work of Messrs. John Yoo and Jay Bybee, which provided the Bush Administration lawful cover to systematically dismantle America's commitment to domestic and international prohibitions on cruel and inhumane treatment. The final recommendation of the OPR was that both attorneys receive professional sanction for being in breach of their duties as officers of the court, in that they failed to provide thorough, objective, and independent advice to their client, the government of the United States. Also released with the OPR report, however, is a refusal to accept the OPR's recommendation, from David Margolis, the senior Justice official responsible for adjudicating disputes of this nature within the Department. Mr. Margolis agrees with the substance of OPR's assessment of the legal work of Yoo and Bybee, but finds that no clear enough standard of behavior actually exists in the Department of Justice against which these attorneys could be held in violation. So while they indisputably showed "poor judgment", they're more or less off the hook.
I'm of two minds on today's events, neither of which involves any real outrage. On the one hand, what I feel in reading these reports - as I struggle to digest the process by which the country's most powerful attorneys deliberately twisted, manipulated, or simply ignored centuries of theory and precedent in service to facile, long-discredited thuggery - is just kind of a detached sadness and revulsion. Sort of like watching seagulls pick away at the dessicated carcass of a beached whale, and reflecting how something once great and majestic can so easily be reduced to dead rotting weight. I won't reproduce the entire case against Yoo and Bybee here - this piece does a pretty thorough job of it - except to say that Margolis's defense more or less boils down to the fact that these lawyers can't be held responsible for doing what everyone expected them to do anyway, which was to find a way to justify Bush and Cheney's desired policy, no matter what a truly objective, independent assessment would yield in the longer term. John Yoo is on the record as saying that the President of the United States is not bound by any law whatsoever when he is acting in defense of the nation - up to and including the mass murder of civilians. What difference would it make to him that US Courts have prosecuted foreign and domestic individuals for waterboarding? Why would he care that the eventual exposure of the administration's activities would render moot any future prosecution of our enemies, for similar violations? Why would it matter at all to him that the federal statutes prohibiting cruel and inhumane treatment tie those standards specifically to the protections that American citizens enjoy under the fifth, eighth, and fourteenth amendments? The President wanted a legal opinion, and John Yoo had a law degree; that's all that was ethically required. Not competence, not thoroughness, not consensus. Just John Yoo. That's how this works.
So, one guy says waterboarding's legal, then another bunch of guys says no it's not and anyone who says otherwise is a lousy lawyer, then another guy says ok, maybe it's not legal, but if people who think it is are acting in the interest of the President, who are us simple folk to say any different, and so on, and so forth. Kind of despicable all around; but actually I think today is a good day on balance, because at long last it's all out in the open. David Margolis actually has a history of preferring OPR reports to remain sealed, so as not to unnecessarily humiliate targets of internal DoJ investigation. But now, all Americans finally get to see how all this sausage is made, and consider the consequences of allowing the parts of the DoJ which check the government to rot like a beached whale. This is our right, more than anything else - to know the truth. Defenders of the Bush Administration have already begun to claim that the OPR report and Margolis's addendum exonerate Yoo and Bybee, which of course they don't. Should the public choose to find out the truth for ourselves, by reading the actual words of the parties involved, now we can do that.
One final point on the report...I was unaware until I read it that the waterboarding torture of Abu Zubaydah actually was claimed to have supported allegations against Binyamin Mohamed, once suspected of being involved in a dirty bomb plot against the US. I've written about Mohamed before; he was released last year because he was INNOCENT OF ALL CHARGES, and his case was the subject of a dispute between the British High Court and American intelligence agencies, regarding the release of classified information pertaining to his treatment while in custody. The seven originally redacted paragraphs in the Court's opinion have also been released, to the consternation of American authorities, and the government of Great Britain is now on the record finding that the US engaged in behavior that would be in violation of British and international law had it happened there. As this Washington Post article documents, just as the torture of Abu Zubaydah produced bad intel on Binyamin Mohamed, the cruel and inhumane punishment of Binyamin Mohamed produced bad intel on other detainees, which were also ultimately released. This is worse than just honest mistakes that unfortunately resulted in the pain and suffering of some foreigners - this was an unconscionable waste of resources by people trusted to keep us safe. Until Cheney and Bush came along, everyone knew that this stuff didn't work, that it was the sole hallmark of fools and tyrants, and that it would produce more bad intelligence than good. To this day, not a single verified case of actionable plot-related intelligence against al Qaeda has been successfully attributed to the "enhanced interrogation program", although there have been dozens of documented deaths from it. And yet, even after Bush himself shut it down as useless and detrimental, the program's defenders continue to stroll the op-ed pages of the country's biggest papers crowing about unfair politicizing of sound legal opinions, and how Barack Obama is undoing all the great work they did for this country. Insanity.
And finally, in the background to all this, the American government disrupts a huge plot to set off explosives inside New York City, without military tribunals, or enhanced techniques, or indefinite detention laws. Naijbullah Zazi has pled guilty to conspiracy to commit terrorism, and is cooperating with authorities, while facing a certain life sentence. What say the critics? Nothing yet - but I'll let you know...
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