The Flailing Falsehoods of America's War Criminals

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Salon.com

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 -- rejecting the findings of the Office of Professional Responsibility (OPR) of ethical misconduct against John Yoo and Jay Bybee -- that it's hard to know where to begin.  They devote paragraph after paragraph to hailing the intelligence and integrity of the report's author, career DOJ prosecutor David Margolis, in order to pretend that he defended Yoo and Bybee's work, claiming that Margolis "officially exonerated Bush-era lawyers John Yoo and Jay Bybee" and that "Margolis rejected OPR's recommendation and most of its analysis."  Perhaps the most deceitful claim is this one:

So, in one corner we have a legal all-star team of Mukasey, Filip, Estrada, Mahoney, Goldsmith [all right-wing Bush lawyers], and Margolis. In the other corner, we have OPR operating far outside its comfort zone and area of expertise. This shouldn't have been close -- and it wasn't, on the merits.

Compare that to what Margolis actually said (p. 67):

For all of the above reasons, I am not prepared to conclude that the circumstantial evidence much of which is contradicted by the witness testimony regarding Yoo's efforts establishes by a preponderance of the evidence that Yoo intentionally or recklessly provided misleading advice to his client.  It is a close question.  I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel.   While I have declined to adopt OPR's finding 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 adopt opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client.

Just think about that for a minute.  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."  As Yale Law Professor Jack Balkin so clearly explained, 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." As a result, Margolis could not ultimately conclude that Yoo -- as shoddy and misleading as his torture authorizations were -- purposely lied because Yoo "was an ideologue who entered government service with a warped vision of the world in which he sincerely believed."  Does that remotely sound like exoneration?  

Burck and Perino also include this, a common myth among American elites who do not believe the rule of law should apply to them:

For years now this principle [that "honestly held legal and policy opinions are not cause for prosecution or professional discipline"] has been under sustained attack by hard-core left-wing congressional partisans such as Rep. John Conyers and Sen. Patrick Leahy. It's not much of a stretch to imagine some of the more wild-eyed among them searching for ways to revoke the law licenses of conservative Supreme Court justices. Fortunately, this country is not Venezuela - at least not yet; we should not rest easy.

This oft-repeated notion -- that prosecuting political officials and high-levels lawyers when they commit crimes in office is the hallmark of the "banana republics" of South and Central America -- is exactly the opposite of reality.  As leading political scientists have long documented, the actual hallmark of under-developed and backward nations is the immunity which political elites enjoy from the rule of law no matter how serious their crimes (Thomas Carruthers, Foreign Affairs, 1998:  "Rule-of-law reform [in the Third World] will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law . . . . entrenched elites cede their traditional impunity and vested interests only under great pressure").  What makes a backward country backward is the confederation of elites insisting that investigations and prosecutions are only for the dirty people on the street corner, not for them.

As for the extent to which the U.S. is comparable to Venezuela, let's look to the Bush State Department's 2008 Human Rights report, which calls that country a "constitutional democracy" and then notes:

Although the constitution states that no person shall be subjected to cruel, inhuman, or degrading punishment, there were credible reports that security forces continued to torture and abuse detainees. . . .PROVEA reported that in the 12 months prior to September, it received 17 complaints of torture (an increase from 11 the previous year), and 573 complaints regarding cruel, inhuman, and degrading treatment, a decrease from the 692 cases reported in 2007. PROVEA defines "torture" as methods used by state security forces to extract information from victims and "cruel and inhuman treatment" as methods used by members of state security forces in order to punish or intimidate victims. . . .

 

The government did not authorize independent investigation of torture complaints. Human rights groups continued to question the attorney general and the human rights ombudsman's commitment to oversee neutral investigations. There was no data available on convictions in cases of alleged torture. . . .

A warrant is required for an arrest or detention. . . . . A person accused of a crime may not be detained for longer than the possible minimum sentence for that crime nor for longer than two years, except in certain circumstances, such as when the defendant is responsible for the delay in the proceedings. Detainees were promptly informed of the charges against them. . . . Detainees were provided access to counsel and family members.

So, other than the fact that (a) the number of torture complaints in Venezuela is miniscule when compared to what the U.S. did (there were at least 100 deaths of detainees in U.S. custody alone); (b) all detainees in Venezuela were criminally charged and provided access to counsel and family, and (c) nobody has accused Venezuela of invading and bombing other countries and abducting people off the street and shipping them around the world to be tortured, what is happening in Venezuela actually sounds quite similar to what Burck, Perino and their friends did and continue to advocate and justify.

That Bush officials have to cling to the harsh condemnations of Margolis as "vindication" reveals just how wretched and lawless their conduct was.  Essentially, the current posture of the U.S. to the world is this:

Yes, we implemented a worldwide torture regime that we justified with lawyers' memoranda that were false, wrong, shoddy, lawless, sloppy and extremist, but because those lawyers were such warped radicals, they probably believed what they were saying at the time, so we're going to declare that we had the right to do what we did and are shielded from all consequences, even though we've signed treaties agreeing to prosecute anyone who authorizes torture and demanded that other nations prosecute their own torturers.  Besides, we have important things to do and thus want to Look Forward, not Backward.

Doesn't that make you proud?

* * * * *

How will media stars and right-wing polemicists justify their claim that only fringe Far Leftists care about and oppose "enhanced interrogation techniques" now that General David Petraeus has joined so many other military leaders in resoundingly rejecting the morality, legality and wisdom of those tactics?

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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