Wednesday, February 24, 2010

OPR Report Whitewash: U.S. DOJ Officially Alibis Construction of Torture Program

Selections from two outstanding articles covering the OPR torture report scandal. Other important articles have appeared as well, both at, for instance, Andy Worthington's blog, and at Marcy Wheeler's Emptywheel.

From Stephen Soldz at Op-Ed News:

Justice Department protects the torture lawyers, persecutes the ethical
The torture memo author John Yoo is excused, according to DoJ hack David Margolis, because he simply demonstrated "poor judgment" in claiming that the abhorrent and patently illegal was legal. Jay Bybee was excused because he, according to Margolis, didn't pay attention when he signed off on torture.

The circle is now closed and smoothed:

* White House desires torture
* CIA demands legal cover
* OLC asked to provide legal rationale
* CIA and White House tell what they want OLC memos to say; CIA provides the so-called "evidence" of safety of torture techniques
* OLC writes the memos, following instructions
* Obama White House then says no one can be prosecuted because they followed the memos
* Memo authors are immune because there was no standard saying that incompetent work on demand designed to legalize hitherto illegal activities is unethical
* Thus, patently illegal activities are able to carried out with no legal culpability for anyone

A beautiful job, now completed by Obama-Holder Justice Department hack Margolis. Future lawless administrations now have a ready template to use to provide legal rationale for any abuses they desire.
Dahlia Lithwick at Slate:
Torture Bored: How we've erased the legal lines around torture and replaced them with nothing.

So murky is the line between torture and tough talk that Dick Cheney can now admit to having endorsed water-boarding on national television. Mark Thiessen, the Bush speechwriter turned Washington Post columnist, can appear on a Catholic television program, not merely to defend torture but to find it consistent with Catholic teachings. Thiessen excoriated CNN's Christiane Amanpour for even calling what we did to prisoners "water-boarding" since we don't, after all, use a big box. And when Bob Barr, former U.S. attorney for the northern district of Georgia and a member of the House of Representatives, suggested at CPAC this past weekend that water-boarding is plainly torture, he was booed. Because it's become an article of faith that whatever Americans do cannot be torture. That's not a legal definition. It's magical thinking. Today there is plenty of room for water-boarding in our sub-basement, and we've thrown in a pinball machine and a jukebox so CPAC can party down there.

And now here comes the long waited report from the Justice Department's Office of Professional Responsibility, pushed out late Friday, Timid Mean Time, after having been drafted and redrafted and then papered over with legal analysis that shows that the lawyers tasked with advising the president on the legal floor for torturing prisoners were not fully responsible for being unable to locate it. And because there can be no legal boundaries unless lawyers locate and police them, the conclusion is inescapable: If there is no lawyer competent to identify it, there is no longer a floor at all.

For reasons mostly bad, as David Luban explains in Slate today, DoJ career lawyer David Margolis argued for downgrading OPR's conclusion that the Bush lawyers committed professional misconduct to the far lesser sin of "poor judgment." That means that while Tiger Woods apologized to the nation for his personal marital infidelity, there will never be an apology from anyone for the humiliation and abuse of our captives. According to Margolis, Yoo and Bybee made some bad calls, but, to paraphrase Prof. Jack Balkin, since lawyers are weasels and write their own rules, how much could we really expect from the Bush legal team? In declining to refer Bybee and Yoo for disciplinary proceedings, Margolis determined that the standard for professional misconduct for a lawyer is both ambiguous in theory and astonishingly low in practice.

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