OPR’s final punt on Yoo, Bybee and Bradbury offers multiple layers for critique. Not all of them deserve immediate, reflexive rebuke.
This leak excerpt sums up matters:
Bush administration lawyers who paved the way for sleep deprivation and waterboarding of terrorism suspects exercised poor judgment but will not be referred to authorities for possible sanctions, according to a forthcoming ethics report, a legal source confirmed.
The work of John C. Yoo and Jay S. Bybee, officials in the Bush Justice Department’s Office of Legal Counsel, provided the basis for controversial interrogation strategies that critics likened to torture in the years after al-Qaeda’s 2001 terrorist strikes on American soil. The men and their OLC colleague, Steven G. Bradbury, became focal points of anger from Senate Democrats and civil liberties groups because their memos essentially insulated CIA interrogators and contractors from legal consequences for their roles in harsh questioning.
Initial reaction by ‘the Left’ [sic], mainstream pundits and lawyers is understandably harsh. On the surface these men unleashed torture, death and permanent moral defacement of the U.S. Internally within the profession and department, Jack Goldsmith, one of the few at DoJ to take a stand during the Dark Years, noted their ‘legal’ work was often incoherent, self-contradictory, and shockingly slipshod. Much of it that we know about today contained misrepresentation. Anonymous Liberal has a succinct summation.
We share those views generally. OPR is never known for its ‘teeth’ within DoJ, the wider legal community or Community. It’s not just another empty sham like the infamously useless ‘Intelligence Oversight Board’. Still, a career official’s decision to water down the original draft’s (reportedly) proposed sanctions gravely undermines the Office of Legal Counsel (OLC) former elite status. A wider political science Weberian bureaucratic conclusion is inescapable: the optics are bi-partisan gloss. Regardless of non-political appointees. The bureaucratic (and career) realities are that ‘legal’ memoranda even from DoJ’s DoJ can be written by anyone about anything without serious consequence.
Precedent matters (unless you are the Roberts Court). This decision starts and stops a big deal. For the moment.