On Torture, New York Times Calls for Bush Officials to be Held to Account

26.2.10

The New York Times buildingIn a principled editorial on Wednesday, the New York Times responded to the internal Justice Department report on the conduct of lawyers in the Office of Legal Counsel, in which the authors’ findings — that John Yoo and Jay Bybee were guilty of “professional misconduct”, and should be referred to their respective bar associations for disciplinary action — were watered down by David Margolis, a veteran DoJ lawyer, so that both men were, instead, merely reprimanded for exercising “poor judgment.”

As I explained in my own article on the report, “poor judgment” is not a valid explanation for the work of lawyers, entrusted with providing impartial advice to the Executive branch, who, instead, shamelessly twisted the law out of shape in an effort to redefine torture and to approve its use by the CIA and the US military.

I’m pleased to report that the New York Times’ editors have a similar view, recognizing that Margolis’ primary excuse on Yoo and Bybee’s behalf — “that everyone was frightened after Sept. 11, 2001, and that they were in a hurry” — is risible, and encouraging Attorney General Eric Holder to “expand the investigation into ‘rogue’ interrogators he initiated last year to include officials responsible for facilitating torture.” As the editors conclude, “The quest for real accountability must continue. The alternative is to leave torture open as a policy option for future administrations.”

This is in marked contrast, it should be noted, to a disgraceful editorial in the Washington Post the day before, which commended Margolis for having “correctly and courageously overturned a skewed recommendation by the department’s Office of Professional Responsibility that the lawyers be referred to their respective bar associations for disciplinary action.”

The Times’ editorial is posted below, and those who share this crucial point of view are encouraged to check out the Times’ website, where there are many constructive comments.

The Torture Lawyers
New York Times editorial, February 24, 2010

Is this really the state of ethics in the American legal profession? Government lawyers who abused their offices to give the president license to get away with torture did nothing that merits a review by the bar?

A five-year inquiry by the Justice Department’s ethics watchdogs recommended a disciplinary review for the two lawyers who produced the infamous torture memos for former President George W. Bush, but they were overruled by a more senior Justice Department official.

The original investigation found that the lawyers, John Yoo and Jay Bybee, had committed “professional misconduct” in a series of memos starting in August 2002. First, they defined torture so narrowly as to make it almost impossible to accuse a jailer of torturing a prisoner, and they finally concluded that President Bush was free to ignore any law on the conduct of war.

The Justice Department’s Office of Professional Responsibility said appropriate bar associations should be asked to look at the actions of Mr. Yoo, who teaches at the University of California, Berkeley, and Mr. Bybee, who was rewarded for his political loyalty with a lifetime appointment to the federal bench. It was a credible accounting, especially since some former officials, like Attorney General John Ashcroft, refused to cooperate and e-mails from Mr. Yoo were mysteriously missing.

But the more senior official, David Margolis, decided that Mr. Yoo and Mr. Bybee only had shown “poor judgment” and should not be disciplined. Mr. Margolis did not dispute that Mr. Yoo and Mr. Bybee mangled legal reasoning and produced work that ultimately was repudiated by the Bush administration itself. He criticized the professional responsibility office’s investigation on procedural grounds and excused Mr. Yoo and Mr. Bybee by noting that everyone was frightened after Sept. 11, 2001, and that they were in a hurry.

Americans were indeed frightened after Sept. 11, and the Bush administration was in a great rush to torture prisoners. Responsible lawyers would have responded with extra vigilance, especially if, like Mr. Yoo and Mr. Bybee, they worked in the Justice Department’s Office of Legal Counsel. When that office renders an opinion, it has the force of law within the executive branch. Poor judgment is an absurdly dismissive way to describe giving the green light to policies that have badly soiled America’s reputation and made it less safe.

As the dealings outlined in the original report underscore, the lawyers did not offer what most people think of as “legal advice.” Mr. Yoo and Mr. Bybee were not acting as fair-minded analysts of the law but as facilitators of a scheme to evade it. The White House decision to brutalize detainees already had been made. Mr. Yoo and Mr. Bybee provided legal cover.

We were glad that the leaders of the House and Senate Judiciary Committees, Representative John Conyers Jr. and Senator Patrick Leahy, committed to holding hearings after the release of the Justice Department documents.

The attorney general, Eric Holder Jr., should expand the investigation into “rogue” interrogators he initiated last year to include officials responsible for facilitating torture. While he is at it, Mr. Holder should assign someone to look into the disappearance of Mr. Yoo’s e-mails.

The American Bar Association should decide whether its rules are adequate for deterring and punishing ethical failures by government lawyers.

The quest for real accountability must continue. The alternative is to leave torture open as a policy option for future administrations.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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