Well, the long-awaited, and long-delayed Office of Professional
Responsibility [OPR] report
on the writing of the "Justice" Department Office of (Il)Legal Counsel
torture memos came out Friday. The report in its three drafts can be
found here.
No surprise that the Obama administration manages
to say "naughty" without any semblance of accountability.
The torture memo author John Yoo is excused, according to DoJ hack David Margolis, because he simply demonstrated "poor judgment" in claiming that the abhorrent and patently illegal was legal. Jay Bybee was excused because he, according to Margolis, didn't pay attention when he signed off on torture.
The circle is now closed and smoothed:
- White House desires torture
- CIA demands legal cover
- OLC asked to provide legal rationale
- CIA and White House tell what they want OLC memos to say; CIA provides the so-called "evidence" of safety of torture techniques
- OLC writes the memos, following instructions
- Obama White House then says no one can be prosecuted because they followed the memos
- Memo authors are immune because there was no standard saying that incompetent work on demand designed to legalize hitherto illegal activities is unethical
- Thus, patently illegal activities are able to carried out with no legal culpability for anyone
A beautiful job, now completed by Obama-Holder Justice Department hack Margolis. Future lawless administrations now have a ready template to use to provide legal rationale for any abuses they desire.
This clearing of the torture lawyers is not the first time the Justice Department has covered over abuses by its attorneys Department prosecutors repeatedly withhold exculpatory evidence from defense attorneys. In fact, Department protection of its unethical lawyers happens so often that the OPR is referred to as the "Roach Motel, because, as Boston attorney Harvey Silverglate explains: "cases go into the Roach Motel and never come out."
However, we shouldn't believe that the (In)Justice Department is unconcerned with problematic actions by its attorneys. Rather, they appear to prefer going after those who put professional ethics above institutional loyalty. While closing its eyes to abuses committed by those providing the legal rationale for torture, DoJ "ethics" hawks were ever vigilant in persecuting former DoJ attorney Jesselyn Radack for the crime of correctly telling field operatives that John Walker Lindh was entitled to an attorney and for refusing to go along with official lies afterward.
On December 7, 2001, I fielded a call from a Criminal Division attorney named John DePue. He wanted to know about the ethical propriety of interrogating "American Taliban" John Walker Lindh without a lawyer being present. DePue told me unambiguously that Lindh's father had retained counsel for his son. I advised him that Lindh should not be questioned without his lawyer....
I was forced out of my job, fired from my subsequent private sector job at the government's behest, placed under criminal investigation without any charges ever being brought, referred for disciplinary action to the state bars where I'm licensed as a lawyer, and put on the "No-Fly" List.
In an interview by Scott Horton, Radack explains the contrast between her treatment and that of the torture memo writers:
action stemming from advice I gave in a terrorism caseand my advice was to permit an American terrorism suspect to have counsel.
Contrary to OPR's own policies, it hastily and vindictively forwarded my case to the state bars in which I'm licensed, absent a finding of "professional misconduct," much less a finding of "intentional misconduct or reckless disregard of an applicable standard or obligation"the benchmark that OPR uses. Instead, OPR referred me to the bar disciplinary authorities for "possible misconduct." Moreover, I was referred based on a secret report to which I did not have access. Finally, I was referred for conduct I engaged in as a private citizen, not as a public servant, after I had left the employ of the Justice Department.
To the extent that OPR holds itself out as an internal watchdog of the Justice Department, that is belied by the fact that David Margolis, a single senior career attorney who has been with the Department for more than 40 years, has the unilateral power to override anything OPR does. Like most career bureaucrats, he obviously has a vested institutional interest in legitimizing Department conduct. Margolis's take-away message is that it's okay to ignore the rules of professional conduct if you're scared or in a hurry, failing to realize, perhaps because he's a government attorney, that stress and deadlines are the status quo for most lawyers.
Although entirely predictable, the Justice Department's decision to give Yoo and his cohorts a pass should offend all lawyers. It is now incumbent upon the legal profession, which is entirely self-regulated, to provide oversight and accountability within its own ranks and to the public.
The so-called "Justice" Department is clearly broken and in need of major reform. The first reform should be to abolish the OPR and submit all investigations of ethics violations to an independent Inspector General, as occurs in almost all other government agencies. The DoJ can no longer be allowed to investigate itself, placing the needs of institutional survival and comfort above the law and ethics. Unlike the OPR, the IG must have subpoena power to compel testimony from retired officials and obtain documents that are being deliberately withheld. IG decisions must not be allowed to be overruled by Department career hacks.
Additionally, Justice Department ethics rules need to be strengthened. Prosecutors and OLC lawyers who officially interpret the law should be held to higher standards regarding competent, independent, performance and loyalty to the law rather than administrations or the Department. Rules should makes sure that OLC lawyers can never again be protected by claims extreme partisanship excuses their incompetent legal interpretations. Prosecutors must be severely punished for withholding exculpatory evidence from defense attorneys.
As long as the Justice Department operates independent of any commitment to justice, no one is safe. When convenient, it will persecute the ethical and protect the guilty. Only the ethical have to fear in that case.
