David Kirkpatrick

February 23, 2010

Justice Department on the torture memos

If you’re following the current story on the John Yoo and Judge Jay Bybee torture memos you know the Office of Professional Responsibility report found the memos shameful, but Associate Deputy Attorney General David Margolis has recommended the Justice Department will not refer a finding of professional misconduct. With this announcement many talking heads on the right, often ex-officials of the Bush 43 administration, have gone on the attack claiming all this news totally exonerates Yoo and Bybee. Not so. Margolis basically says their legal advice was very questionable and essentially straddles the line of misconduct enough he can’t rule against them.

One thing the OPR report does illuminate is simply how shameful and shameless the United States government, particularly the executive branch and Department of Justice, behaved during the Bush years. These individuals may escape personal and professional repercussions, but history will not be kind to anyone who is associated with dragging America down into the ranks of states that torture.

Jack Balkin offers a great explanation/take-down on just how low of bar Yoo and Bybee barely escaped through Margolis’ decision not to find for professional misconduct.

Here’s a quick sample:

Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.

And here’s Balkin’s excellent concluding graf:

Whether or not the DOJ refers Yoo and Bybee for professional discipline, no one should think that either man behaved according to the high standards we should expect of government attorneys. They, and the government officials who worked with them, shamed this nation. They dragged America’s reputation in the dirt. They severely damaged our good name in the eyes of the world. They undermined the values this country stands for and that the legal profession should stand for. Nothing the DOJ does now–or fails to do–will change that.

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