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?