If you want to have a truly dispiriting, soul-shrinking experience, read Justice Department official David Margolis’s decision to let Jay Bybee and John Yoo off the hook for any professional misconduct in authoring “torture memos” for the Bush White House.
The sad thing is, Margolis’s disagreements with the recommendations of the Office of Professional Responsibility seem reasonable. He takes a critical view of the memos in question. Here’s what he has to say, for example, about Yoo:
I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the Office of Legal Counsel. While I have declined OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client. These memoranda suggest that he failed to appreciate the enormous responsibility that comes with authority to issue institutional decisions that carried the authoritative weight of the Department of Justice.
Read further, and Margolis describes a process in which the OPR – going through drafts and responses from the principals – struggles to see how the Bush lawyers’ conduct might violate various ethical and professional codes of the Justice Department, the DC Bar, and other associations. In one of his responses, Yoo taunts the OPR for doing what it says he was doing: trying to make the code fit a predetermined conclusion. Ultimately, Margolis concludes that the standards they were compelled to follow were simply too low:
I conclude the DC rules created an unambiguous obligation on Yoo and Bybee to not provide advice their client that was knowingly or recklessly false or issued in bad faith. While the OLC best practices may require more, failure to meet those standards should result in poor evaluations or administrative disciplinary action, but not bar referrals.
So Yoo and Bybee were not lying or acting in bad faith. They were sincere in their perfidy! And even if they violated the higher standard, it doesn’t rise to the level of disciplinary action from the bar.
The problem here is not that Margolis has an overly bureaucratic sensibility, or even lawyers writing codes of conduct that protect lawyers and lawyerly institutions and not the public trust. It’s that a departmental disciplinary procedure is a terrible venue for adjudicating this issue. And it’s pathetic that we’re stuck looking to this arcane bureaucratic process for some measure of corrective justice here. Of course the result – whatever it was – was going to fall short.
There are many questions here that demand answers. The lack of resolution on torture is a kind of open wound in the body politic. It will fester if left alone. We ought to look backward. Can we determine exactly what went wrong, who was responsible, who violated domestic or international law, and what, if any punishment, they deserve? Is Yoo the villain here? Dick Cheney? Bush? Can we, as a society, agree that something went seriously wrong here? This gets us into the realm not of departmental hair-splitting but South Africa-style truth commissions.
Of course, that’s not going to happen. The more likely outcome is this fades into the background until the next big terror attack. Then all the unresolved issues will erupt in our faces. The intense pressure to “get tough” on prisoners will resume. Ticking time bombs will once again fill our op-ed pages. And because we lack clarity on exactly what the law allows, how institutions should behave, there may be nothing to stop them from going dangerously awry again.