Today’s reading provides another example of why I consider the New York Review of Books to be one of the best American magazines. This excerpt gives only a snippet of the full subscription-only article. It relates the latest chapter in our embrace of evil. Please read it.
“They Did Authorize Torture, But…“
By David Cole, New York Review of Books, 8 April 2010 — A review of the following books…
Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists, a report by the Department of Justice’s Office of Professional Responsibility, 289 pages, released 19 February 2010
Memorandum for the Attorney General, by Deputy Attorney General David Margolis, 69 pages, 19 February 2010
About the DOJ report
Whatever else you might say about John Yoo, the former Justice Department lawyer who drafted several memos in 2002 authorizing the CIA to commit torture, you have to admit that he’s not in the least embarrassed by the condemnation of his peers. The Justice Department on February 19 released a set of previously confidential reports by its Office of Professional Responsibility (OPR) excoriating Yoo’s legal work — but stopped short of referring him for professional discipline by his state bar association.
Since then Yoo has written Op-Eds for The Wall Street Journal and The Philadelphia Inquirer trumpeting his “victory.” In the Wall Street Journal piece, entitled “My Gift to the Obama Presidency,” Yoo argued that President Obama owes him a debt of gratitude for “winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe.” Four days later, in The Philadelphia Inquirer, Yoo called the decision not to refer him for bar discipline “a victory for the people fighting the war on terror.”
This is a bit like a child coming home with an F on his report card and telling his parents that they should congratulate him for not getting suspended, or President Clinton proclaiming to Hillary that Congress’s failure to impeach him was a vindication of his affair with Monica Lewinsky. The one thing practically everyone interviewed by the OPR agreed about was that Yoo’s legal work on the torture memos was atrocious. Bush’s Attorney General Michael Mukasey called it “slovenly.” Jack Goldsmith, another Republican who headed the Office of Legal Counsel from 2003 to 2004, said that Yoo’s August 2002 memo justifying torture by the CIA was “riddled with error” and a “one-sided effort to eliminate any hurdles posed by the torture law.”
Daniel Levin, who headed the Office of Legal Counsel after Goldsmith left and, like Yoo, was a former clerk to Justice Clarence Thomas, described his reaction upon reading Yoo’s memo as “This is insane, who wrote this?” And Steven Bradbury, who became acting head of the OLC after Levin’s departure, also under President Bush, and who wrote several memos authorizing torture himself, said of Yoo’s arguments about presidential power, “Somebody should have exercised some adult leadership” and deleted his arguments altogether. These are the assessments not of human rights advocates or left-wing critics but of Yoo’s Republican colleagues at the Justice Department.
The OPR itself, which is comprised of career civil servants charged with monitoring ethics violations by department lawyers and is not known for being eager to discipline its own, decided before President Obama took office that Yoo and Jay Bybee, Yoo’s superior, had violated their ethical duties as attorneys. After considering responses from Yoo and Bybee, the OPR reaffirmed that Yoo had “put his desire to accommodate the client above his obligation to provide thorough, objective, and candid legal advice, and…therefore committed intentional professional misconduct.” It found that Bybee, who signed the 2002 torture memos and is now a judge on the US Court of Appeals for the Ninth Circuit, had acted in “reckless disregard” of the same professional obligation. It recommended that both lawyers be referred to their respective state bar associations for discipline.
So how can Yoo portray this process as a victory? Only because a single Justice Department official, Associate Deputy Attorney General David Margolis, overruled the OPR’s considered opinion, finding that while Yoo and Bybee exercised “poor judgment,” they did not knowingly provide false advice, and therefore were not guilty of professional misconduct.
The vital omission
In a more fundamental sense, however, both the OPR and Margolis failed to confront the real wrong at issue. They focused exclusively on the manner by which Yoo and Bybee arrived at their result, rather than the result itself. What is most disturbing about the torture memos is not that they employ strained reasoning or fail to cite this or that authority, but that they do so in the name of authorizing torture and cruel, inhuman, and degrading treatment of human beings. Remarkably, neither the OPR nor Margolis directly considered the illegality of the conduct that was authorized by the memos. The OPR stated that it “did not attempt to determine and did not base our findings on whether … the Memos arrived at a correct result.” Margolis also did not address whether the conduct authorized was illegal. But surely that is the central issue.
… Yoo and Bybee are in some sense easy targets. Their memos were the first to be written, and they employed less polished rhetoric than those that followed years later. But surely what was wrong, at bottom, was the legal approval of conduct that, under any reasonable understanding of the terms, amounted to torture or cruel, inhuman, and degrading treatment, all of which the United States has solemnly committed to abjure. That conclusion was apparently too dangerous for either Margolis or the OPR, since it would have implicated everyone who had approved the CIA interrogation program, not just Yoo and Bybee. But responsibility for the illegal brutality inflicted on CIA and Guantánamo detainees cannot be limited to Yoo and Bybee. It extends to all those who approved the tactics—even those so eager later to condemn Yoo’s reasoning. And unless we as citizens demand some form of accountability for the wrongs done in our name, it extends to all of us, too.
… We must continue to insist on accountability—whether in congressional hearings, citizens’ commissions, civil lawsuits, or the marketplace of ideas. The essential lesson must be that torture and cruel treatment are not policy options—even when a lawyer is willing to write an opinion blessing illegality.
My opinion of these things
IMO opinion these people should be tried as we tried NAZI’s for similar war crimes. If there is a God, I wonder if these people will rot in Hell for their deeds — and staining the name and honor of the United States.
Other valuable articles about torture by America
- The bureaucratic steps that took us to this dark place: “A Torture Mystery – How Did the CIA Come to Use Stress Positions for Sleep Deprivation?“, Spencer Ackerman, Washington Independent, 29 April 2009.
- “What Torture Never Told Us“, Ali H. Soufan (FBI special agent 1997 – 2005), op-ed in the New York Times, 6 September 2009
- Comments about Soufan’s article and torture in general, Patrick Lang (Colonel, Special Forces, retired), posted at his Sic Semper Tyrannis, 6 September 2009
- Book deals for the men: “A Man Who Knows The Secrets: Veteran CIA Lawyer Seeks Book Deal“, blog of Newsweek, 10 January 2010 — Unlike private criminals, government criminals can profit from their deeds.
- “Getting Away with Torture“, David Cole, NY Review of Books, 14 January 2010
- “Meet the Real Jack Bauers“, Marc A. Thiessen, National Review Online, 18 January 2010 — “In Courting Disaster, the real CIA interrogators explain why their methods bear no resemblance to what you see on Fox’s 24.”
- Now that it has done its work and convinced many Americans that torture is OK (for us, evil when done by others), the lies slowly get exposed: “CIA Man Retracts Claim on Waterboarding“, Foreign Policy, 26 January 2010 — Will we see retractions from conservatives who trumpeted his testimony?
- “If Marc Thiessen Doesn’t Want to be Compared to the He Should Stop Advocating Torture Techniques Used in the Spanish Inquisition“, Matthew Yglesias, ThinkProgress, 8 February 2010
- “The Weak Arguments Offered by Waterboarding Apologists“, Conor Friedersdorf, The American Scene, 20 February 2010
- A bit of background for the above article: “No One Expects The Spanish Inquisition“, Matthew Yglesias, ThinkProgress, 8 February 2010 — Good news! We’re not as bad as the the S.I.
- Another claim by Marc Thiessen about torture success Proved False, Adam Serwer, blog of the American Prospect, 22 February 2010
- Torture cover-up was planned: “Destroying C.I.A. Tapes Wasn’t Opposed, Memos Say“, New York Times, 22 February 2010 — “At a closed briefing in 2003, the chairman of the Senate Intelligence Committee raised no objection to a C.I.A. plan to destroy videotapes of brutal interrogations, according to secret documents released Monday.”
- “Courting Fear“, Slate, Matthew Alexander, Slate, 3 March 2010 — “A former military interrogator unpacks the errors and fear-mongering in Marc Thiessen’s Courting Disaster.”
- “The Fundamental Trick: Pretending That ‘Torture’ is a Technical Term“, David Luban, Balkinization, 26 February 2010 — “Taylor’s argument is built on what I have come to think is the fundamental trick used by the torture lawyers: pretending that the legal definition of ‘torture’ is something technical rather than “colloquial.” Because it’s technical, only lawyers can figure out what it means, using The Powerful Methods Of Legal Analysis. This is nonsense.”
- Torture with MD’s assisting, just like in the movies: “Doctors Without Morals“, Leonard S. Rubenstein and Stephen N. Xenakis, op-ed in the New York Times, 28 February 2010
For links to studies and reports about torture see So many Americans approve of torture; what does this tell us about America? That’s a deeper analysis of the subject.
For more information on the FM website
To read other articles about these things, see the FM reference page on the right side menu bar, including About the FM website page. Of esp relevance to this topic:
- America – how can we reform it?
- America’s national defense strategy and machinery
- Military and strategic theory
Other posts about torture:
- Something every American should read, 25 March 2009
- We close our eyes to torture by our government. The Brits are stronger., 9 April 2009
- So many Americans approve of torture; what does this tell us about America?, 30 April 2009
- The Reverse Nuremberg Defense – “We were just giving orders“, 20 May 2009
- Our government does torture, but it is just like the treatment of young reporters by newspapers, 16 February 2010
- The US government at work, doing dark deeds in our name, 13 March 2010
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