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.
On the most narrow front, OPR’s dive necessarily will corrode the Academy as well. This means generation(s) of lawyers to come. An OLC ticket punch used to be universally beyond reproach. Faculty recruitment to Top Ten law schools. If faculty politics can be negotiated an eventual deanship awaits. OLC were legal Jesuits. OPR’s light knuckle rap effectively sanctions de facto and de jure OLC’s overt politicization. The lesson is leave a better paper trail next time. True, the Movement actively groomed law students from good (and terrible) schools for decades for these moments. But how to explain Obama’s DoJ (he’s the alleged constitutional scholar, remember?) filing an unsolicited amicus brief on Yoo’s behalf? The unnecessary action merely fans cynicism. Arguments Obama’s DoJ proffers sadly are not wholly dissimilar to German lawyers’ defenses at Nuremberg. (We won’t do a complete Turle on Olbermann, don’t worry).
Take two is broader. Here we recognize law, Weberian bureaucratic self-interest and general politics are real partners. Awkward bedfellows. Ideally, constitutional outcomes are decided by inter-branch checks and balances (not the static, rejected separation of powers boilerplate of say of Burger’s unworkable Chadha or the unitarian cut and paste). We always said that national security, constitutional law and the Community properly belong in this prism.
Consider the case of John Yoo. Do you remember back in the day when ACLU, bloggers, etc. were gunning after Yoo as the unmasked ‘mastermind’ behind ‘torture’? Yoo, all day all the time. We remember conversations with a now relatively well read national security journalist/blogger and other Administration critics. We repeatedly advised that Yoo was a patsie. That he was a distraction. The desperate flare off a fighter jet seeking to defeat infrared heatseekers. Addington and Libby were the puppeteers. We even pointed to the Iran Contra Report, Casey and Addington’s relationship, Casey getting Addington on HPSCI as a ‘mole’, Cheney’s role on the House Iran Contra Committee, etc. We described our conversations with the Minority Staff (including Michael Malbin) at the time. (We weren’t the only ones, of course).
Yoo regurgitated cant written 20 years earlier. Now amped all the way up on meth. Gradually all this became ‘well, of course’. But not for some time.
We’re not asking you to join a vain victory lap. Here’s why. From OPR’s perspective, the political realities and Libby and Addington’s goal of manipulating OLC ‘legal product’ are still fresh memories. Yoo already drank their unique unitarian sect’s Kool Aid before he got the job. That’s why he got it. David Addington, however, is not just two words. He was a real ‘force’. His friend Steve Berry (also from Iran Contra days, etc.) who is in some ways the epitome of Washington ‘smooth’ (in praise as well) concedes Addington can be volcanic. (To his credit Berry is a friend who stands with people even in the tough times). Others still try to dance around a personality that can literally fill a room.
In the ether of the co-joined political/legal realm, Addington (and Libby) was/were the proverbial client(s) from Hell. They manipulated inputs, critiqued the product and pre-determined the outcome. OLC is our firewall. A bureaucracy on paper can’t withstand this unprecedented assault. The entity must at the last rely on its people when processes collapse. They obviously failed. Sitting in OPR’s chair, one can see the rationalization that sanctioning Yoo, Bybee, Bradbury (and others) would be like the zealous ‘investigative reporters/policy analysts’ mid 2000s. Grab the puppet. The puppeteers skate. Fall for the flare. If a law license was suspended among them? Another ‘Special Comment’? A sense of vengeance? In Watergate, they nailed John Mitchell. Not just Kenneth Parkinson literally holding the bag. How many Lynndie Englands are enough?
Then bureaucratic mechanics kick in. Bury the file, responsibility and whole sorry episode. Best forgotten. The President says ‘move on (no pun).’ It’s self preservation. If Yoo et al. pay a price beyond reputational damage for intentionally politicized shoddy work (with scienter, knowing understanding of what they were doing) then all of them at DoJ are fair game for just a career-ending allegation. That’s not trivial. When John Nields (House Chief Counsel to the Iran Contra Committee) successfully tried Bivens Actions against rogue FBI personnel before Iran Contra it sent a massive shockwave. Accountability? Lawyers love to dwell on their need to be protected to offer candid advice, etc. That mob lawyers go down in RICO cases as defendants and accessories and OLC essentially gets a Handi Wipe for bloody hands ? The breaks – and they went to the wrong law schools and spoke funny.
The latest word on the Justice Department’s Office Of Professional Responsibility review of the Office of Legal Counsel lawyers who drafted the so-called “torture memos” is that the report concludes that the the lawyers committed “serious lapses in judgment,” as The New York Times puts it in a front page story today, but they should not be prosecuted. How exactly the authors reached that conclusion remains unclear, given that the 220-page investigation is still in draft form and hasn’t been made public.
On the other hand, it’s not exactly a surprise that the forthcoming report won’t recommend prosecution. As I wrote yesterday, a draft was given to its subjects — the OLC lawyers who wrote the torture memos — for their review and comment. Revisions were then made based on their responses. A copy was also given to the CIA for its review and response, though the report wasn’t about the CIA, but rather the legal justification provided for their tactics. All this extraordinary outside input on an internal ethics investigation has sparked serious concern among some senators, particularly Durbin and Whitehouse, who’ve been pushing for full, open and objective investigations of what happened and why.
Meanwhile, the The Washington Post has reported that since the draft was made available to the OLC lawyers, their lawyers have been lobbying the Justice Department to water down the report’s conclusions and recommendations.
Then the chain reaction. Agency, NSA and contractor lawyers will be exposed next. OPR could undermine fatally their claim they were entitled to rely on OLC memos. That then exposes *their* clients. Precedent does matter. You see where this goes. Why should *they* be the only ones held accountable in the TARP universe? It’s not like they made billions.
Assume for a moment that the Stiftung’s checks and balances prism is the right plane to decide inter-branch constitutional questions. Where was Congress? True, Cheney, Addington and Libby turned Congress inside out with their compartmentalization games and got Congress to strangle itself re its own statutory rights on notification, special activity, etc. But they did tell some. About some. And no one did anything. Career officials also know Dumas like to think they are equal and dignified. Press release theatrics an expected part. Complicity is such an ugly word.
All of it goes away for another day if one career official’s ball point just overwrites the words ‘poor judgment’. *Everyone* after all really knows what happened. Can’t we just pretend to forget? It’s the bi-partisan thing to do.