Wednesday, February 24, 2010

Equal Justice Under Law ... except for ...

Water boarding (is not torture). Jay Bybee and John Yoo - "Torture Memo Authors."

John Yoo Faux Pas (February 24, 2010): Mr. Yoo can't even get the date straight for when the investigation started that just cleared him of misconduct (instead found that he displayed poor judgment with the so-called torture memo). Yoo blames it all on Mr. Obama. In fact, the investigation started under Mr. Bush in 2008 - long before Mr. Obama was even elected. John Yoo is a despictable human being.

The story is here.

Major Update (main post follows this update) (February 22, 2010): I bit long, but needs to be said.

From Glenn Greenwald at (editing for this post by me to try and make it simple and clear for my non-lawyer readers ... I hope I succeeded, but if not, the original sources are provided for them to read the entire background themselves.

Greenwald’s piece is here. He writes in part (edited by me for simplicity) this regarding the OPR report (all segments of that report are here):

Margolis declined to adopt OPR's finding of misconduct against John Yoo and Jay Bybee, saying in part, “While I have declined to adopt OPR's finding of misconduct... as the recommendation did not reach the level of the DOJ guidelines for misconduct ... they both exhibited poor judgment ... etc. etc.”

Poor judgment? Margolis had to follow the D0J Ethics Handbook, as it were, to find out what the outcome should/would have to reach in such cases

Margolis repeatedly adopted the OPR's findings that the Yoo/Bybee torture memos – on which the entire American torture regime was constructed and which media elites now embrace in order to argue against prosecutions – were “wrong, extreme, misguided, and the by-product of poor judgment, but, as he concluded not based on any misconduct.”

So, did a definition, or lack thereof of a clear definition “save” Yoo and Bybee? Apparently so, but how or why? The thing that saved therm in Margolis' eyes was that attorney ethical rules (that he measured their conduct or lack thereof against) was written by lawyers to protect themselves – ergo: It did not fit, so he had to acquit.

What would have been misconduct, we wonder for such government lawyers in such cases? Yale Law Professor Jack Balkin says it pretty well in this piece – extract follows: (emphasis is mine)

“... the rules of professional misconduct are aimed at weeding out sociopaths and people driven to theft and egregious incompetence by serious drug and alcohol abuse problems; they do not guarantee that lawyers will do right by their clients, or, in this case, by the Constitution and laws of the United States of America.”

In effect, by setting the standard of conduct so low, rules of professional conduct effectively work to protect all those lawyers out there whose moral standing is just a hair's breadth above your average mass murderer. This is how the American legal profession simultaneously polices and takes care of its own.”

“To show misconduct, according to the standard that Margolis finds most relevant, one would have to show that Yoo or Bybee intentionally made arguments that they knew were wrong and false or did so not caring whether they were wrong or false. That standard could not be met for Jay Bybee, because Bybee was, to put it bluntly, an empty suit who relied on the advice of others and didn't analyze the memos all that closely. He just signed the papers. This makes him pathetic, but not, in Margolis' view, someone who unambiguously violated existing rules of professional responsibility.”

“As for John Yoo, 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.”

I could not have said it any clearer.

The Original Post Follows Below:

Introductory quote from Deborah Rhode, director of the Stanford Center on Ethics. She is Ernest W. McFarland Professor of Law at Stanford University.

This quote has nothing to do with the issue of torture that I address below, but her quote is worth remembering at this stage of the so-called investigation of the "torture memo," or the now apparent closure of the Bybee/Yoo portion. In short, those two may be off the hook.

"Equal justice under law" is one of America's most firmly embedded and widely violated legal principles. It is a rhetorical flourish commonly encountered in ceremonial rhetoric and occasionally even constitutional decisions. But it comes nowhere close to describing the justice system in practice. While this is not, of course, the only legal context in which rhetoric outruns reality, it is one of the most disturbing, given the fundamental nature of the rights at issue."

Bybee and Yoo: According to the new "modified final DOJ memo" says that they displayed poor judgement and NOT misconduct or anything else foul. So, at this piont they can keep their law licenses and continue having "bad hair days?"

This short 5-minute video from a very smart constitutional law professor, Jonathan Turley says it far better than I can [click here]. He says it violates the principles laid out at the Nuremberg trials, summarized here, I suspect he means in this quote:

“If we were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime.” — Justice Robert Jackson’s final concluding sentence from his 20-page summation at the conclusion of the Nuremberg Trials (July 26, 1946).

The full document of that is [from here].

Background: The CIA requested legal advice on conducting detainee interrogation from Jay Byee's office. That request was routed to the OLC (Office of Legal Counsel) by then-White House General Counsel Alberto Gonzalez who desired the "ability to quickly obtain information from captured terrorists and their sponsors."

The CIA inquired whether, after the terrorist attacks of September 11, 2001, it could aggressively interrogate suspected high-ranking al-Qaeda members captured outside the United States. In effect, the CIA was asking for an interpretation of the statutory term of "torture" as defined in 18 U.S.C. § 2340. That section implements, in part, the obligations of the United States under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

The OLC drafted a memo in response to the CIA request. The memo was principally authored by OLC lawyer John Yoo with aid from David Addington, then legal counsel to then Vice President Dick Cheney.

The memo described the limitations on the behavior of U.S. government interrogators outside the United States as governed by the United Nations Convention Against Torture.

This memo became known as the "Torture Memo."

To Date: The Justice Department released a long-awaited watchdog report on the Bush administration legal team that authorized the now-infamous torture memos. And in a move destined to anger critics of the past administration's conduct, the career official in charge of the investigation overruled a previous finding of misconduct -- exonerating the lawyers (Bybee and Yoo) under examination (see below link).

The nearly 300-page report concludes that Yoo and Bybee are not guilty of any "professional misconduct" in writing the memos that recommended "enhanced interrogation techniques." Rather, Yoo and Bybee used "poor judgment" in their issuing of the torture memos.

To the Point: In late January 2010, Newsweek reported that the official in charge from the Justice Department's Office of Professional Responsibility (OPR) who spearheaded the report is career veteran David Margolis. Margolis watered down his criticism of Bybee and Yoo in his final draft. The accompanying documents released show that while an initial OPR report found Yoo and Bybee to have engaged "in professional misconduct," but Margolis subsequently decided to drop the charge.

The Latest: Sen. Patrick Leahy (D-Vt.) has announced that the Senate Judicial Committee will hold a hearing next Friday, Feb. 26, to examine the Justice Department's report about the Bush administration's torture memos. According to a press release from the Senator's office, witnesses will be announced in the coming days. Leahy, a former prosecutor, said that he was "offended" by the "premeditated approach" that John Yoo and Jay Bybee used to draft "seriously flawed national security policies."

Stay tuned - or, as Yogi Berra would say, "It ain't over til it's over."

No comments: