In re. Yoo and Bybee v. Law, Ethics, and Decency: Does any right-winger ever consider for even a second telling the truth?

Of course Rachel gets it, and Michael Isikoff gets it, and their viewers get it. But the rest of the country, under the benevolent bipartisan gaze of our free-from-principle Village elders, doesn't give a hoot about the rule of law and thinks torture is a good thing. But still, do they always have to lie about it? (Answer: Yes, apparently they do.)

"The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. The Charter of this Tribunal evidences a faith that the law is not only to govern the conduct of little men, but that even rulers are, as Lord Chief Justice Coke put it to King James, 'under ... the law.' And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment."

-- Opening Statement of the Chief Prosecutor, Supreme Court Justice Robert H. Jackson, at Nuremberg, from the website of the Robert Jackson Steering Committee, lawsnotmen.org

by Ken

I really don't want to go into DoJ stooge David Margolis's 69-page report declining to take any legal action against should-be-disgraced former DoJ stooges Jay Bybee and John Yoo, the "Torture Boys," who disgraced the obligation of the Office of Legal Counsel (OLC) to provide the executive branch with accurate information about the law. (Of course it's a cosmic irony that after the Bush regime turned the OLC into a crime-covering travesty, the law-hating crime enthusiasts of the Right have blocked the nomination of the superbly qualified Dawn Johnsen to head the OLC, the very job that, so thoroughly bungled, catapulted Torture Boy Bybee onto the federal bench.)

It sucks, of course. Some welcome heat is being generated by the lawyers and journalists of the Robert Jackson Steering Committee, which under the Freedom of Information Act secured the release of a host of DoJ documents -- unfortunately in heavily redacted form -- including the three versions of DoJ's Office of Professional Responsibility (OPR) report, all now overturned by the Margolis judgment. There is, for example, this comment from journalist Kristina Borjesson, an RJSC member:

To read the contents of the first OPR report, the subsequent reports, and then the DOJ conclusions, is to read an account of a classic whitewashing process, one that has been exercised often since the Iran-Contra hearings and before. The first report presents the real evidence, a parade of enumerated horribles that, by the final report by Margolis, have been erased or minimized according to the interests that the reviewing parties want to protect. The end result is always the same: no accountability for laws broken. These were not little legal infractions committed by the OLC lawyers. These were infractions that destroy the very fabric of our democracy.

And there's this comment from RJSC lawyer Peter Weiss, who participated in the FOIA filing:

We deplore the fact that David Margolis, speaking for the department, has gone very far toward accepting Yoo and Bybee's argument that, in times of emergency, legal norms as fundamental as the absolute prohibition of torture may be violated with impunity by the President and other high officials. If that is to become official US policy, it will merely reinforce the international movement toward universal jurisdiction for particularly heinous crimes, instead of leaving it to American courts to deal with Americans accused of such crimes.

But even the RJSC gets it wrong when it comes to characterizing the Margolis report: "The committee expressed grave concern that David Margolis, a senior lawyer in the Department of Justice, wrote a final opinion in January which completely exonerates the two lawyers for legally justifying the illegal torture of detainees."

Deep breath. THE DECISION DOES NOT "COMPLETELY EXONERATE" THE TORTURE BOYS. If you want to say it "lets them off," fine. But it's pretty unkind about the quality of their legal work.

What it comes down to, if you read what Margolis actually wrote, is that he doesn't see that it's likely to be provable that Yoo and Bybee weren't sincere in issuing the legal opinions for which the Office of Professional Responsibility recommended they be referred to their respective bar associations for disciplining. That, in Margolis's mind, is the legal issue: As long as they sincerely believed the bullshit that torture, which is unambiguously illegal under international and U.S. law, can be massaged to cleanliness, and that the president of the United States can under certain circumstances do any damn thing he pleases and fuck the law, for which there isn't a single word in the Constitution that provides the remotest hint of the shadow of a possibility of justification, but as long as they sincerely believe it, it's difficult to prove that they recklessly rendered bad legal opinions or deliberately advocated contrary-to-law positions.

Justice Jackson at Nuremberg: I know the defense that defendants were "only following orders" came up a lot (and was always rejected), but I don't recall that we established a Nuremberg Loophole excusing war-crimes defendants who were "sincere."

Now if people as sensibly attuned to the issues as the RJSC folks slip into declaring the Boys "exonerated," you can probably imagine what's going on on the truth-be-damned Right. Or can you? Glenn Greenwald has already declared himself surprised, in a vintage GG piece, "The flailing falsehoods of America's war criminals":

I didn't think it was possible, but former Bush officials -- desperately fighting what they know will be their legacy as war criminals -- have become even more dishonest propagandists out of office than they were in office. At National Review, Bill Burck and Dana Perino so thoroughly mislead their readers about the DOJ report . . . that it's hard to know where to begin.

Glenn, it appears, has actually read the Margolis report. And on the issue of whether "Yoo intentionally or recklessly provided misleading advice to his client," he points out, Margolis writes, "It is a close question."

"Just think about that for a minute," says Glenn.

Margolis said that whether Yoo "intentionally or recklessly provided misleading advice to his client" when authorizing torture -- about the most serious accusation one can make against a lawyer, as it means he deliberately made false statements about the law -- "is a close question." That's the precise opposite of what Burck and Perino told National Review readers about Margolis' conclusion ("This shouldn’t have been close — and it wasn't, on the merits").

Moreover, 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."

He refers readers to Yale Prof. Jack Balkin's detailed analysis of the opinion on Friday, under the piquant head, "Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway." According to Balkin, says Glenn, "The only thing that saved Yoo in Margolis' eyes was that attorney ethical rules have been written by lawyers to protect themselves, and the bar is therefore so low that it basically includes only 'sociopaths and people driven to theft and egregious incompetence by serious drug and alcohol abuse problems.'"

And remember, Margolis described his judgment about actionability against the Torture Boys as "a close question." So there is no remotely conceivable sense in which Yoo and Bybee can be said to have been "cleared" or "exonerated," any more than anyone under investigation by a prosecutor's office that declines to prosecute can be said to have been. Less, actually, because rarely does such a person have a judgment delivered that says, "The decision was oh so close, you know this close, to going the other way."

In fact, one reason that should have been given more weight is the consequence of failing to take action: the possibility that the proponents of rampant government criminality can claim their heroes to have been "exonerated."

But did that stop the Washington Post from editorializing ("No punishment for torture memos' authors, but no exoneration, either"; at least they got the "no exoneration" part right) from claiming, "Mr. Margolis noted that the lawyers acted in 'good faith' under extremely difficult circumstances and with the benefit of several court decisions that could be read to support their approach"? Well, some stuff sort of along those lines is in there, but do you get the sense from this characterization that Margolis in fact described his decision -- hailed by the sleepy-at-the-wheel WaPo editorialist as "courageous" -- not to recommend action as "a close call"?

Actually, what the editorial says is that Margolis "correctly and courageously overturned a skewed recommendation by the department's Office of Professional Responsibility." Well, perhaps the final OPR report was skewed, but as those who have now read the redacted versions of the three OPR reports tell us, the skewing going on was all in the direction of watering it down, to make it more live-and-let-live Village-friendly.

Of course, by the time the "skewed" OPR report was scuttled by the Margolis one, it was a snap for the war criminals and their enthusiasts on the Right to claim "exoneration." I'm with Glenn on this one. You have to wonder, is there any lie those people won't tell to cover their butts?

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UPDATE From The Celebrated Songwriting Team Of David Swanson And Robert Allen Zimmerman

Tangled Up in Yoo
By David Swanson

Early one mornin' the sun was shinin',
Prisoners layin' in bed
Wond'rin' when the guards would come
And kick them in the head.
The folks who wrote the torture memos
Sure did have it rough.
They never got enough exercise.
The new condo wasn't big enough.
One victim standin' at the side of his cell
Blood dripping on his shoes
Admitted Iraq had WMDs
Lord knows that made the news but was it true,
Tangled up in Yoo.

Yoo was married to his belief
That nobody could force
A president to obey the law
And wartime only made that worse.
Yoo drove that point as far as he could
And overruled the rest
Of the lawyers who gave into him
All agreeing it was best.
He turned around to look upon
The damage he had done
I heard him whisper over his shoulder,
"They'll lock me up some day on the avenue,"
Tangled up in Yoo.

Yoo had a job training fascist youth
Writing up a book for a spell.
But he never did like it all that much
And one day the ax just fell.
So he drifted round to campuses
Wherever they would let him speak
About presidents crushing testicles
And disinheriting the meek.
But all the while he was alone
The past was close behind,
Yoo broke a lot of statutes,
Prison never escaped his mind, and he just knew,
Tangled up in Yoo.

Yoo was talkin' in a corporate place
And I stopped in to hear.
I just kept lookin' at the side of his face
In the spotlight so clear.
And later on as the crowd thinned out
I started calling John Yoo's name,
I handcuffed him to the back of his chair
Said to him, "Does it feel the same?"
Yoo muttered somethin' underneath his breath,
I read him his Miranda rights.
I must admit I felt a little uneasy
When he admitted it was the right thing to do.
Tangled up in Yoo.

Yoo left a bundle of memos behind, legalizing crimes.
"I thought you'd never come for me," he said
"And it really blew my mind."
Then he opened up a book of laws
And handed it to me
Written by all kinds of people
Over two or three centuries.
And every one of them words rang true
And glowed like burnin' coal
Pourin' off of every page
Like it was written purely so we'd indict Yoo,
Nothing else to do.

Yoo authorized aggressive war
and lawless imprisonment,
warrantless spying and torture techniques,
That was the way Yoo went.
Then he started into peddling lies
And something inside of him died.
He had to sell his heart and bones
And Yoo froze up inside.
And when finally the bottom fell out
Yoo became withdrawn,
The only thing he knew how to do
Was to sing his lying song, like a bird that flew,
Tangled up in Yoo.

So now Yoo's goin' to be tried,
The law got to him somehow.
All the people he used to know
They're co-conspirators now.
Some are ex vice presidents.
Some lead glamorous lives.
Don't know how it all got started,
I don't know what they're gonna tell their wives.
But me, I'm still on the road
Trying to make a point.
Yoo always did feel the same,
He just saw it from a different point of view,
Tangled up in Yoo

Obama administration to Bush regimistas: Not to worry, we've got your back

No, nobody got off at Nuremberg because they were "only following orders," but at Nuremberg we at least tried to make sure the people who gave the orders were prosecuted.

"I applaud Attorney General Holder’s decision to appoint a prosecutor to review the shocking violations of law that took place under the Bush administration. We cannot simply sweep these abuses under the rug. This investigation should not be limited to those who carried out interrogations or to whether the abuses they engaged in were officially sanctioned. The abuses that were officially sanctioned amounted to torture and those at the very top who authorized, ordered or sought to provide legal cover for them should be held accountable.”

-- Sen. Russ Feingold (D-WI), in a statement issued this afternoon

(As Zachary Roth reported for TPMMuckraker, similar sentiments were voiced by Senate Judiciary Committee Chairman Pat Leahy of Vermont and, in a joint statement, by House Judiciary Committee Chairman John Conyers of Michigan and Constitution Subcommittee Chairman Jerry Nadler of New York.)

by Ken

On torture, on the political subversion of the Justice Department, the Homeland Security Department, and everything else in the Executive Branch, on the campaign of lies that took the country to war -- on just about any issue of American governance in the yeas 2001-08, there is so much misconduct that's in urgent need of investigation with a view to whatever prosecutions may still be possible that it's hard to believe the only one the Obama administration has so far seen fit to pursue is into actual acts of torture by CIA interrogators. (As I write, rumors are in the air that one result, not yet explained, may be the resignation of CIA director Leon Panetta.)

With the five-year-old CIA inspector general's report now released, and the attorney general in possession of a report by his department's Office of Professional Responsibility, the adminstration clearly wants to appear on top of the issue. First, President Obama announced that the decision of whether to prosecute anyone would be left entirely to Attorney General Eric Holder, and then the AG announced that he has appointed John Durham, "a longtime federal prosecutor from Connecticut" (seen here in 2006 when then-AG Judge Malarkey named him to investigate the case of the destruction of CIA interrogation tapes), as the NYT's David Johnston and Jeff Zeleny put it, "to examine nearly a dozen prisoner abuse cases in which detainees were held by the Central Intelligence Agency." Among those cases are four that are being reopened after being closed by Bush regime self-investigators.

Should these people be prosecuted? I don't know. I'm not crazy about the idea of them going un-punished, but really, in terms of sending messages, is this one anywhere near the top of the list of those we need to be broadcasting? Yes of course, the U.S. officially rejects the "I was only following orders" defense, as we made clear in the Nuremberg prosecutions after World War II. But for goodness' sake, at Nuremberg we didn't have low-level flunkies being tried while the people who gave the orders were going scot-free.

Now that the U.S. political opposition has adopted the Rule of Lies and Lawlessness as its basic operating principle, it should be more painfully clear than ever that people in this country who get their hands on the levers of power will try to get away with absolutely anything they don't believe they're likely to be appropriately punished for. The perpetrators and their enthusiasts are, of course, the very same people who are wont to lecture the rest of us about the importance of law and order. I'd laugh if it was funny.

You've got to congratulate the attorney general for what amounts to a lose-lose proposition. His move is likely to be fairly unpopular politically among Americans who haven't been helped to understand why prosecuting government lawbreakers is so important (the standard explanation for why so little serious investigation of Bush era criminality has been investigated), as well with members of supporters of the president who don't understand why his administration doesn't grasp this either, while at the same time accomplishing hardly anything toward correcting the problem of government machinery that approved and executed a torture policy.

Hey, I'm just improvising here, but maybe in the future we can just make sure the people who carry out our torture policies aren't government employees. Maybe we could hire, like, contractors to do our dirty work for us, beyond the reach of the law.

The pathetically limited reach of the law, I should have said.

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