The New York Times reports that a top Justice Department official has concluded that “poor judgment” is not professional misconduct, reversing an earlier O.P.R. finding:
WASHINGTON (AP) — Justice Department lawyers showed ”poor judgment” but did not commit professional misconduct when they authorized CIA interrogators to usewaterboarding and other harsh tactics at the height of the U.S. war on terrorism, an internal review released Friday found.
The decision closes the book on one of the major lingering investigations into the counterterrorism policies of George W. Bush’s administration. President Barack Obamacampaigned on abolishing the simulated drowning technique of waterboarding and other tactics that he called torture, but he left open the question of whether anyone would be punished for authorizing such methods.
An initial review by the Justice Department’s internal affairs unit found that former government lawyers Jay Bybee and John Yoo had committed professional misconduct, a conclusion that could have cost them their law licenses. But, underscoring just how controversial and legally thorny the memos have become, the Justice Department’s top career lawyer reviewed the matter and disagreed.
”This decision should not be viewed as an endorsement of the legal work that underlies those memoranda,” Assistant Deputy Attorney General David Margolis wrote in a memo released Friday.
Margolis, the top nonpolitical Justice Department lawyer and a veteran of several administrations, called the legal memos ”flawed” and said that, at every opportunity, they gave interrogators as much leeway as possible under U.S. torture laws. But he said Yoo and Bybee were not reckless and did not knowingly give incorrect advice, the standard for misconduct.
…
The Office of Professional Responsibility, led by another veteran career prosecutor, Mary Patrice Brown, disagreed.
”Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear,” her team wrote in a report that criticized the memos for a ”lack of thoroughness, objectivity and candor.”
In God and Whose Army?, I note the flawed logic of the torture memos and conclude that their advice was reckless if not outright gleefully malicious:
This is demonstrated pointedly in the leaked torture memos, which were labyrinthine in their attempts to provide a legal shadow of doubt for torturers. For example, page 16 of the Bybee-Rizzo memo holds that an action only constitutes torture if there is a “specific intent to inflict severe pain or suffering.” Further, the intent must be express (stated openly), and cannot be predicated on a “good faith belief that his actions will not cause such suffering.” What constitutes a good faith belief? One that is honest, but not necessarily reasonable. What constitutes an honest belief? One that is based on the “advice of experts” (advice which was routinely twisted by the Justice Department–see for example the citation of a sleep study by James Horne as proof that extreme sleep deprivation was not torture. Horne later expressed his outrage that the results of his experiments, which restricted themselves to controlled environments with subjects who experienced no additional stress factors, were misrepresented to justify 11 day non-controlled sleep deprivation periods). Read narrowly, the memos argue that it is possible to simulate drowning on an individual in one’s custody while believing (neither reasonably nor expressly, but at the same time based upon so-called “expert advice”) that the panicked, drowning detainee at one’s thrall is not suffering severely.
It must finally be asked if any such torturer could be said to have acted in good faith, provided they have read the memos, which concede that a court may object to their actions? Is it possible to read and understand a legal argument which sidesteps the prohibition against cruel and unusual punishment by pointing out that such a prohibition was directed against convicted individuals and not detainees who have not even been charged with a crime, accept this as adequate justification for committing torture, and remain a morally exempt agent of the state? An individual who fully digests the memos’ slipshod legal reasoning and maintains a good-faith belief in spite of it is highly devout or dangerously uneducated–perhaps too devout or uneducated to be placed in a position which allows him or her to hold such extensive power over another human being. Neither can one cannot remain a “good faith” actor if he or she is aware that the “enhanced interrogation” program was being used to ferret out a confession to substantiate a manufactured link between al-Qaeda and Iraq, in order to justify an act of aggression (one of the victims of torture who provided such a link, Ibn al-Sheikh al-Libi, later recanted his confession and committed suicide–allegedly–in a Libyan prison). In reality, the only good faith actors were the few who refused to take part in torture, legally sanctioned or otherwise.
For further evidence of this, see the following exchange between Yoo and an O.P.R. official (source):
Yoo was asked how to explain how the torture statute would interfere with the President’s war making abilities, and gave the following answers:
Q: I guess the question I’m raising is, does this particular law really affect the President’s war making abilities…
A: Yes, certainly.
Q: What is your authority for that?
A: Because this is an option that the President might use in war.
Q: What about ordering a village of resistants to be massacred? … Is that a power the President could legally –
A: Yeah. Although, let me say this. So, certainly that would fall within the Commander-in-Chief’s power over tactical relations.
Q: To order a village of civilians to be [exterminated]?
A: Sure.
Sure! Elsewhere in the O.P.R. documents is the following reasoning:
On one of the interrogation videotapes, CIA OIG investigators noted that a [REDACTED] interrogator verbally threatened Abu Zubaydah by stating, “If one child dies in America, and I find out you knew something about it, I will personally cut your mother’s thoat.” [REDACTED] commented, in its review of CIA OIG Report, that the threat was permissible because of its conditional nature.
The Margolis decision underscores a major inconsistency in American law: the myth of the good faith actor. This ties in to the plea of superior orders defense (“just following orders”), but is used here in a far more twisted manner to exonerate a high-level official, one who could be thought of more accurately as a order-giver (or order-facilitator) rather than order-follower.
It is time to admit that the memos were written with the winking assumption that the executive was essentially untouchable. Margolis’ reversal (and Obama’s unwillingness to support the prosecution of any involved individuals) is the culmination of this illicit hubris. How is this “good faith”? In order to conclude that Yoo and Bybee were not acting with malicious intent, one must be uncritical to the point of slavering fanaticism, and a constant danger to those nearby–or, at the very least, to a distant village which has found itself within the President’s cross-hairs. Margolis claims to not endorse the particular legal reasoning of the memos, but there is a surfeit of evidence that the insidious reasoning which exonerated them (that the attacks of September 11th were unprecedented and created a hectic atmosphere in which sloppy legal reasoning–adopted under explicit pressure from Washington, especially from Cheney and Addington, by the former’s own admission–could be forgiven–or that there is a “war exception” to the Constitution) is still being honored in Washington.
Margolis’ memorandum repeatedly references the September 11th attacks. Indeed, the panic of September 11th, incredibly, is used as an excuse in both Yoo and Bybee’s memos and in Margolis’ exoneration of Yoo and Bybee. September 11th is as well-traveled an excuse as anyone is likely to find–a boon for the hateful bureaucrats who no longer even attempt to hide their contempt for the law. Are they too good faith actors?
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