A Torturous Compromise

[DarrinS]

http://www.nytimes.com/2009/04/29/opinion/29friedman.html




Weighing everything, President Obama got it about as right as one could when he decided to ban the use of torture, to release the Bush torture memos for public scrutiny and to not prosecute the lawyers and interrogators who implemented the policy. But there is nothing for us to be happy about in any of this.

After all, we’re not just talking about “enhanced interrogations.” Lawrence Wilkerson, the former chief of staff to Secretary of State Colin Powell, has testified to Congress that more than 100 detainees died in U.S. custody in Iraq and Afghanistan, with up to 27 of those declared homicides by the military. They were allegedly kicked to death, shot, suffocated or drowned. Look, our people killed detainees, and only a handful of those deaths have resulted in any punishment of U.S. officials.

The president’s decision to expose but not prosecute those responsible for this policy is surely unsatisfying; some of this abuse involved sheer brutality that had nothing to do with clear and present dangers. Then why justify the Obama compromise? Two reasons: the first is that because justice taken to its logical end here would likely require bringing George W. Bush, Donald Rumsfeld and other senior officials to trial, which would rip our country apart; and the other is that Al Qaeda truly was a unique enemy, and the post-9/11 era a deeply confounding war in a variety of ways.

First, Al Qaeda was undeterred by normal means. Al Qaeda’s weapon of choice was suicide. Al Qaeda operatives were ready to kill themselves — as they did on 9/11, and before that against U.S. targets in Saudi Arabia, Kenya, Tanzania and Yemen — long before we could ever threaten to kill them. We could deter the Russians because they loved their children more than they hated us; they did not want to die. The Al Qaeda operatives hated us more than they loved their own children. They glorified martyrdom and left families behind.

Second, Osama bin Laden and Al Qaeda aspired to deliver a devastating blow to America. They “were involved in an extraordinarily sophisticated and professional effort to acquire weapons of mass destruction. In this case, nuclear material,” Michael Scheuer, the former C.I.A. bin Laden expert, told “60 Minutes” in 2004. “By the end of 1996, it was clear that this was an organization unlike any other one we had ever seen.”

Third, Al Qaeda comes out of a stream in radical Islam that believes that it has religious sanction for killing absolutely anyone, including fellow Muslims. Al Qaeda in Iraq has blown up Muslims in mosques, shrines and funerals. It respects no redlines or religious constraints. One of its leaders personally severed Daniel Pearl’s head with a butcher knife — on film.

Finally, Al Qaeda’s tactics are designed to be used against, and to undermine, exactly what we are: an open society. By turning human beings into walking missiles and instruments from our daily lives — cars, airplanes, shoes, cellphones, backpacks — into bombs, Al Qaeda attacks the very feature that keeps our open society open: trust. If you have to fear that the person next to you on a plane or in a theater might blow up, there can be no open society.

And therefore, the post-9/11 environment remains perilous. One more 9/11 would close our open society another notch. One more 9/11 and you’ll be taking off more than your shoes at the airport. We have the luxury of having this torture debate now because there was no second 9/11, and it was not for want of trying. Had there been, a vast majority of Americans would have told the government (and still will): “Do whatever it takes.”


So President Obama’s compromise is the best we can forge right now: We have to enjoin those who confront Al Qaeda types every day on the frontlines to act in ways that respect who we are, but also to never forget who they are. They are not white-collar criminals. They do not care whether we torture or not — bin Laden declared war on us when Bill Clinton was president.

I believe that the most important reason there has not been another 9/11, besides the improved security and intelligence, is that Al Qaeda is primarily focused on defeating America in the heart of the Arab-Muslim world — particularly in Iraq. Al Qaeda knows that if it can destroy the U.S. effort (still a long shot) to build a decent, modernizing society in Iraq, it will undermine every U.S. ally in the region.

Conversely, if we, with Iraqis, defeat them by building any kind of decent, pluralistic society in the heart of their world, it will be a devastating blow. Odd as it may seem, the most dangerous moment for us is if Al Qaeda is beaten in Iraq. Because that is when Al Qaeda’s remnants will try to throw a Hail Mary pass — that is, try to set off a bomb in a U.S. city — to obscure its defeat by moderate Arabs and Muslims in the heart of its world.

So, yes, people among us who went over the line may go unpunished, because we still have enemies who respect no lines at all. In such an ugly war, you do your best. That’s what President Obama did.

[ElNono]

I don't think you need to bring them to trial in the context that it would cause a huge tear in the political landscape, and it would certainly divide the country more, when we should work together for unity.
But it needs to be condemned. And steps need to be taken, by Congress and this Executive, to ensure this kind of shit will not happen ever again.

And the "we're fighting an uncommon enemy" cop-out needs to end. Countries like Spain and Ireland have fought terrorism for decades, without needing to resort to Guantanamo or Military Tribunals.

[RobinsontoDuncan]

How would Don Rumsfeld going to prison rip our country apart?

[ElNono]

How would Don Rumsfeld going to prison rip our country apart?

Because it would look like political shenanigans. Then we would need to deal with the whole 'political prisoner' bullshit. If it were up to me, Rummie and Gonzales need to be locked up for the benefit of humanity as a whole.
But the political cost would be real high. And the Dems seem to be in control right now, so they won't gamble their lead away.

[FaithInOne]

Just outsource the torture to Egypt like the old days.

[boutons_deux]

"political shenanigans"

only because the Repugs and conservative would try to cover the crimes of their dubya/dickhead regime by calling prosecutions partisan.

[FaithInOne]

Boutons, are you as equally outraged that the dems are in league with lobbyists while drafting bills like DubDubDubya?

http://www.washingtontimes.com/news/2009/may/04/green-lobby-guides-democrats-on-climate-bill/

[Winehole23]

You seem to be unfamiliar with boutons. He's an equal opportunity hater.

[Goliadnative]

http://tbn3.google.com/images?q=tbn:cpkHIT4K1P2eTM:http://1.bp.blogspot.com/_2GtCAPHC5ng/SWyagP_mGmI/AAAAAAAAANE/oXywflsOrq0/s320/yosemite_sam_stressed.jpg

This is what I imagine when I read boutons' posts.

[RobinsontoDuncan]

So Donald Rumsfeld, one of the least popular public officials in decades, a man who has almost no credibility with the public and is largely believed to have played a major role in misleading this country into war, would throw this country into chaos if prosecuted?

I ain't buying that Bull Shit! None of the officials in question here have a lot of credibility with the American public, so this odd claim the right continues to invoke about partisan witch hunting, etc. seems a bit off to me.

If these people contributed to crimes against humanity, then they need to be prosecuted. I don't care if GOP sympathizers would have their feeling hurt in the process. I would say the same thing to Democratic politicians and pundits that tried to block prosecution over fears of partisan "revenge" theater. This isn't a return to McCarthyism, it's an attempt to enforce the established laws of the US Federal Government.

[Winehole23]

Rule of law is a quaint, pre-9/11 curio. The solemn oaths pols take to uphold it mean nothing.

Candy Mountain, Charlie.

[ElNono]

So Donald Rumsfeld, one of the least popular public officials in decades, a man who has almost no credibility with the public and is largely believed to have played a major role in misleading this country into war, would throw this country into chaos if prosecuted?

I ain't buying that Bull Shit! None of the officials in question here have a lot of credibility with the American public, so this odd claim the right continues to invoke about partisan witch hunting, etc. seems a bit off to me.

If these people contributed to crimes against humanity, then they need to be prosecuted. I don't care if GOP sympathizers would have their feeling hurt in the process. I would say the same thing to Democratic politicians and pundits that tried to block prosecution over fears of partisan "revenge" theater. This isn't a return to McCarthyism, it's an attempt to enforce the established laws of the US Federal Government.

It would give the Republicans a 'persecuted' meme. Something they can translate into votes. People sympathize with the oppressed and persecuted.
That how politics are played. It's a dirty world out there.

[DarrinS]

So Donald Rumsfeld, one of the least popular public officials in decades, a man who has almost no credibility with the public and is largely believed to have played a major role in misleading this country into war, would throw this country into chaos if prosecuted?

I ain't buying that Bull Shit! None of the officials in question here have a lot of credibility with the American public, so this odd claim the right continues to invoke about partisan witch hunting, etc. seems a bit off to me.

If these people contributed to crimes against humanity, then they need to be prosecuted. I don't care if GOP sympathizers would have their feeling hurt in the process. I would say the same thing to Democratic politicians and pundits that tried to block prosecution over fears of partisan "revenge" theater. This isn't a return to McCarthyism, it's an attempt to enforce the established laws of the US Federal Government.



You're serious, aren't you?

By the way, the author of that op ed piece is not a conservative.

[LnGrrrR]

"Rip our country apart"? Nice hyperbole there. It didn't "rip our country apart" when Clinton went on trial, did it?

[LnGrrrR]

We have the luxury of having this torture debate now because there was no second 9/11, and it was not for want of trying. Had there been, a vast majority of Americans would have told the government (and still will): “Do whatever it takes.”

Then a vast majority of Americans are idiots.

We are a nation bound by laws, not mob rule.

[DarrinS]

Then a vast majority of Americans are idiots.




I don't disagree with you on that point.

[Winehole23]

By the way, the author of that op ed piece is not a conservative.So what? His argument sucks regardless.

[DarrinS]

So what? His argument sucks regardless.


I just think he sees the gray areas in this and also sees the political fallout that would happen if this witch hunt is pursued. If the Obama admin does pursue this in some effort to appease the foaming-at-the-mouth Olbermann-esque left, I think it would be a big mistake.

[Winehole23]

How about appeasing law and order constitutionalists like me?

[Ignignokt]

How about appeasing law and order constitutionalists like me?

:lol:lol:lol, selective law and order constitutionalist more like it.

[DarrinS]

How about appeasing law and order constitutionalists like me?


Then, by all means, let's have Nuremberg-style trials for Bush, Cheney, Rumsfeld, et. al. I think it would be a great idea, don't you?

[Winehole23]

Then, by all means, let's have Nuremberg-style trials for Bush, Cheney, Rumsfeld, et. al. I think it would be a great idea, don't you?Too soon to say. You follow the trail wherever it leads, even if it's inconvenient. Justice is a bitch.

[Winehole23]

selective law and order constitutionalist more like it.Prove it.

[ElNono]

Then, by all means, let's have Nuremberg-style trials for Bush, Cheney, Rumsfeld, et. al. I think it would be a great idea, don't you?

I wouldn't be opposed to that actually. I mean, if they're innocent and they didn't commit any crimes, they shouldn't worry about it, right?

[Winehole23]

Iggy and Darrin can't conceive that there's a conservative critique of torture and arbitrary detention. It's because they're ignorant of history generally, and conservatism more specifically. Oh, and judeo-christian values too.

[PixelPusher]

We have the luxury of having this torture debate now because there was no second 9/11, and it was not for want of trying. Had there been, a vast majority of Americans would have told the government (and still will): “Do whatever it takes.”
So we're one more major terrorist attack from flushing our luxurious Bill of Rights down the toilet completely? We should just be happy that the Executive Branch gets to temporarily skirt around it in emergencies...but when does the "emergency" of the threat of terrorism end?

[Winehole23]

So we're one more major terrorist attack from scapping our luxurious Bill of Rights down the toilet completely? Probably. Look what happened after 9/11. The American people don't have the sense God gave a goose.


We should just be happy that the Executive Branch gets to temporarily skirt around it in emergencies...Oh I'm still pissed about that, but yeah, we should be so lucky.


...but when does the "emergency" of the threat of terrorism end?The sovereign decides the state of the exception (to normal constitutional order.)

Apparently, SpursTalk conservatives want a Marxist tyrant who wants to destroy "The Heart of America" -- to have the power to torture and detain at whim, for as long as he wants.

[DarrinS]

I only respect another person's opinion when it comports with my own and I resort to name calling when I run out of ideas.


ok

[DarrinS]

So we're one more major terrorist attack from flushing our luxurious Bill of Rights down the toilet completely? We should just be happy that the Executive Branch gets to temporarily skirt around it in emergencies...but when does the "emergency" of the threat of terrorism end?



There's a balance between national security and civil liberties. The Bill of Rights is not a suicide pact.

In a 1997 interview with John O'Neill (video here) -> http://www.pbs.org/wgbh/pages/frontline/shows/knew/view/interview_hi.html

he describes this concept of "ordered liberty"

[Winehole23]

You're a security freak. Me, a liberty freak.

Being humane to prisoners isn't a gun to your head, unless you think reality is a TV show.

[ChumpDumper]

Did O'Neill torture anyone?

[Winehole23]

I only respect another person's opinion when it comports with my own and I resort to name calling when I run out of ideas. I respect people who can make their own case, in their own words. It's really more that your case sucks than that I disagree. You can't even carry your own brief most of the time.

Also, smugness doesn't pair too well with parroting flawed sources you didn't bother to read to begin with.

[LnGrrrR]

Then, by all means, let's have Nuremberg-style trials for Bush, Cheney, Rumsfeld, et. al. I think it would be a great idea, don't you?

I dont' see why not. Republicans should love it too. If Bush goes free, they can say they were right all along, and he was vindicated by the law.

[DarrinS]

I dont' see why not. Republicans should love it too. If Bush goes free, they can say they were right all along, and he was vindicated by the law.


You guys still don't get that I don't care if Bush/Cheney/Rumsfeld fry. I just think it's potentially a very big political mistake by this admin.

[Winehole23]

You guys still don't get that I don't care if Bush/Cheney/Rumsfeld fry. I just think it's potentially a very big political mistake by this admin.I think Obama would like to shut it all down, but he can't. He doesn't control the DOJ or the US Congress.

[DarrinS]

I think Obama would like to shut it all down, but he can't. He doesn't control the DOJ or the US Congress.


That box got opened and I don't think you can shut it now.

[Winehole23]

Like CD said, the Obama tack seems to be a steady dribble of selective declassification. Maybe AG Holder will defer to his boss, though he is not really supposed to. Congress probably will do whatever it wants.

[ChumpDumper]

Bush/Cheney/Rummy can plead ignorance of the law and throw Yoo and Bybee under the bus. I think we'll get the latter two in front of a congressional panel and de-pant them publicly, but that would be about it.

[DarrinS]

Like CD said, the Obama tack seems to be a steady dribble of selective declassification. Maybe AG Holder will defer to his boss, though he is not really supposed to. Congress probably will do whatever it wants.


The Dem-controlled congress can anything they want. But do they REALLY want to do this? My bet is that a couple of high ranking Dems with dirt on their hands will put on the brakes.

[Winehole23]

The Dem-controlled congress can anything they want. But do they REALLY want to do this? My bet is that a couple of high ranking Dems with dirt on their hands will put on the brakes.Maybe. It wouldn't surprise me that much, but I'm inclined to think they will investigate.

[ChumpDumper]

Heh, I didn't know how right I was. Turns out the Bush administration was already scheduling the bus route for Bybee and Yoo -- though some members are now backtracking since they are out of power.


Former Bush administration officials are launching a behind-the-scenes lobbying campaign to urge Justice Department leaders to soften an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics, according to two sources familiar with the efforts.

In recent days, attorneys for the subjects of the ethics probe have encouraged senior Bush administration appointees to write and phone Justice Department officials, said the sources, who spoke on condition of anonymity because the process is not complete.

A draft report of more than 200 pages, prepared in January before Bush's departure, recommends disciplinary action by state bar associations, rather than criminal prosecution, against two former department attorneys in the Office of Legal Counsel who might have committed misconduct in preparing and signing the so-called torture memos. State bar associations have the power to suspend a lawyer's license to practice or impose other penalties.

The memos offered support for waterboarding, slamming prisoners against a wall and other techniques that critics have likened to torture. The documents were drafted between 2002 and 2005.

The sweeping investigation, now in its fifth year, could shed new light on the origins of the memos. Investigators rely in part on e-mail exchanges between Justice Department lawyers and lawyers at the CIA who sought advice about the legality of interrogation practices that have since been abandoned by the Obama administration.

Two of the authors, Jay S. Bybee, now a federal appeals court judge in Nevada, and John C. Yoo, now a law professor in Southern California, faced a deadline of yesterday to respond to investigators.

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/05/AR2009050502219.html

These guys are boned, and from what I've seen, deservedly so.

[LnGrrrR]

I think the innocent politicians on the Dem side want to do this. So that's like... 3 people.

[Winehole23]

The patsies have been identified. What GWB did to the CIA will now happen to his OLC. The puppetmasters will say: we relied on bad advice

[Winehole23]

It seems Bush made a lot of bad hires. The excuse that they relied on crap advice is getting a little tired.

[ChumpDumper]

Wow.

Who would have expected crickets from the board Republicans after they discovered the Bush administration admitted its lawyers fucked up?

[DarrinS]

Wow.

Who would have expected crickets from the board Republicans after they discovered the Bush administration admitted its lawyers fucked up?


Bush was a bad president and he appointed a lot of incompetent people. But, that's not really enough, is it? We need some fucking heads to roll. Am I right?

[Winehole23]

The NYT peek at the DOJ memo recommends against prosecution but leaves open the possibility of referral to the legal Bar for disciplinary sanctions.

It seems a rather minimal punishment to me for crafting a policy that had no legal basis, was tantamount to a war crime under our own law, and brought our country into universal disrepute, but that said, it also seems completely appropriate to disbar Bybee and Yoo.

Shouldn't incompetent lawyers be disbarred?

[Winehole23]

We need some fucking heads to roll. Am I right?Beheading would be an more edifying spectacle for officialdom, no doubt, but it is contrary to our foundational document and repugnant to enlightened modernity.

We don't do cruel and unusual, right?

[Winehole23]

So instead we'll have Congressional show trials and paroxysms of public shame, sans any legal consequence.

[DarrinS]

Beheading would be an more edifying spectacle for officialdom, no doubt, but it is contrary to our foundational document and repugnant to enlightened modernity.

We don't do cruel and unusual, right?


Damn. I wasn't even going there, WH.

[Winehole23]

I know Darrin, but your figure of speech opened the door, so I had a little fun with it.

Does disbarment seem like too much to you?

[DarrinS]

I know Darrin, but your figure of speech opened the door, so I had a little fun with it.

Does disbarment seem like too much to you?


As long as their quest to punish these "evil doers" doesn't take away resources from more pressing issues, I don't care.

[LnGrrrR]

Bush was a bad president and he appointed a lot of incompetent people. But, that's not really enough, is it? We need some fucking heads to roll. Am I right?

That's usually what happens when people in high positions fuck up. Or do you want to coddle them? Tell them it's ok they messed up, they didn't know any better, want a bottle?

[Winehole23]

As long as their quest to punish these "evil doers" doesn't take away resources from more pressing issues, I don't care.I asked about disbarment, not the show trials. The State Bar Associations get by on member fees, not public money.

Are you for or against disbarment of Bybee and Yoo?

[DarrinS]

That's usually what happens when people in high positions fuck up. Or do you want to coddle them? Tell them it's ok they messed up, they didn't know any better, want a bottle?


No, that's the new and improved interrogation technique. Brisk genital massages followed by a stern talking to.

[ChumpDumper]

I was waiting for Yoni to attack the Bush administration's review and loudly proclaim that they are trying to tear the country apart by saying Yoo and Bybee's torture memos amount to legal malpractice.

[Yonivore]

I was waiting for Yoni to attack the Bush administration's review and loudly proclaim that they are trying to tear the country apart by saying Yoo and Bybee's torture memos amount to legal malpractice.
Actually, Chumpy, the investigation is being conducted by non-Bush appointees in the Office of Professional Responsibility. But, I'm glad you pointed out the news because, I've got a couple of articles for you. One (which I'll save for last) shows that Bush administration interrogation techniques were not a departure from those practiced by other administrations (including Bill Clinton's instituted "torture-by-proxy" policy of so-called extraordinary rendition) since, at least, World War II and only became an issue because traitors in the intelligence community decided to try and take down Bush by leaking classified information to get idiots like you to be the screaming al Qaeda apologists you've become. Nice job.

The first is an article demonstrating the Obama administration is trying to make the same argument for deporting John Demjanjuk, a Nazi collaborator, [who claims his deportation amounts to torture] as did Bybee and Yoo in finding the harsh interrogation techniques did not amount to torture.

I know, what follows is a lot of words for you but, please, try to read them and debate the content instead of dismissing out of hand and jumping back into your regular nonsense.

Up first:

The Justice Department’s Torture Hypocrisy (http://article.nationalreview.com/print/?q=NjRhNWQ2YTRlYWI2NzU0Yjc0NmFlN2FjMmI2YzYyODU=)


The Obama Justice Department is engaged in the worst type of hypocrisy. Its Office of Professional Responsibility (OPR) is nearing completion of a 220-page report which will recommend that Attorney General Eric Holder refer former Bush administration lawyers to their state bar disciplinary committees over purported ethical lapses in the legal analysis those lawyers drafted to justify harsh interrogation techniques that critics — including President Obama himself — have labeled “torture.” The draft report, which is not public, was nevertheless reported on last night by the Washington Post and New York Times — apparently based on leaks from the Justice Department (in an ethics case, no less). Such bar referrals could result in profound professional and financial damage, potentially including disbarment — all due to actions the lawyers took in defense of the United States after the 9/11 attacks.

Yet, even as the OPR report is being finalized, even after Obama declared himself open to the possibility of criminal prosecution against the Bush officials, and even after Holder promised to conduct an investigation that would “follow the evidence wherever it takes us, follow the law wherever that takes us” (emphasis added), the Obama Justice Department is relying on the very same legal analysis in order to urge a federal appeals court to reject torture claims. In fact, as the Obama Justice Department argued to that appeals court a little over a week ago, the torture law analysis in question has already been adopted by another federal appeals court.

The legal analysis was first developed in 2002 by two lawyers from the Bush Justice Department’s Office of Legal Counsel (OLC): Jay Bybee, the former OLC chief who is now a federal appeals court judge in California, and John Yoo, Bybee’s deputy who is now a law professor at Berkeley. Construing federal anti-torture law — which is derived from the United Nations Convention Against Torture (CAT) — Bybee and Yoo’s memoranda stressed that torture is a “specific intent” crime. As the lawyers concluded after studying the relevant history, this means it was narrowly drawn by Congress and the ratifiers of CAT to make certain that only those who had an evil motive to inflict severe pain and suffering could be prosecuted. That is, even if the victim of government abuse would surely feel severe pain and suffering, there could be no finding of torture unless the responsible government official was acting with a deliberate and conscious purpose to torture him. It is this theory that has provoked howling on the antiwar Left, which alleges that it was the lawyers’ clever way of green-lighting unlawful prisoner abuse.

Yet, this very theory is now being advanced by the Justice Department under Attorney General Holder. On April 23 of this year, only a day after Holder — taking his lead from the president — promised to investigate Bybee, Yoo, and other government lawyers, the Justice Department filed a brief in a case called Demjanjuk v. Holder in the U.S. Court of Appeals for the Sixth Circuit in Ohio. The brief urges the federal courts to consider the same torture analysis over which Holder is targeting the Bush lawyers with such fanfare. You can read the brief here. [A PDF will have to do: After discussing the Justice Department’s hypocrisy on NRO’s Off the Page, I can no longer locate the brief on the site where I first found it on Sunday.]

The case involves John Demjanjuk, a Nazi collaborator who has been fighting his removal from the United States for years. In a last gasp, Demjanjuk now claims, under the CAT, that his extradition would violate U.S. and international torture law. Given his advanced age, failing health, and expectations of abuse, he contends that extradition to Germany for trial and incarceration will cause him severe pain and suffering.

This claim may seem frivolous, but the government nevertheless undertook to respond to it. In so doing, prosecutors argued to the court that even if Demjanjuk were put in severe pain, there could be no torture unless he could establish that government officials had an evil motive to inflict severe pain and suffering on him. As the Holder Justice Department puts it on pp. 20–21 of the elusive DOJ brief:


[T]orture is defined as “an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. . . . ” 8 C.F.R. § 1208.18(a)(2). Moreover, as has been explained by the Third Circuit, CAT requires “a showing of specific intent before the Court can make a finding that a petitioner will be tortured.” Pierre v. Attorney General, 528 F.3d 180, 189 (3d Cir. 2008) (en banc); see 8 C.F.R. § 1208.18(a)(5) (requiring that the act “be specifically intended to inflict severe physical or mental pain or suffering”); Auguste v. Ridge, 395 F.3d 123, 139 (3d Cir. 2005) (“This is a ‘specific intent’ requirement and not a ‘general intent’ requirement” [citations omitted.] An applicant for CAT protection therefore must establish that “his prospective torturer will have the motive or purpose” to torture him. Pierre, 528 F.3d at 189; Auguste, 395 F.3d at 153-54 (“The mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. The difference goes to the heart of the distinction between general and specific intent.”) [my bold italics and brackets]. . . .
The Justice Department brief goes on to elaborate that, even accepting for argument’s sake all his claims of anticipated physical abuse, Demjanjuk had failed to state a legal torture claim because he had not shown that German officials had deliberately created and maintained conditions that were specifically intended to cause severe pain and suffering: “To the extent that German authorities may inadvertently cause Petitioner to experience any degree of discomfort during the course of a criminal prosecution or incarceration, this is not cognizable under CAT. See 8 C.F.R. § 1208.18(a)(5) (act causing unintended or unanticipated severity of pain and suffering not torture).”

This is precisely the theory that Bybee and Yoo outlined in the memos that the Justice Department is now citing as a premise for subjecting them to ethical rebuke — and that Obama and Holder have intimated may be grounds for prosecution. Bybee and Yoo reasoned that unless CIA interrogators specifically meant to inflict severe pain and suffering on the high-level al Qaeda detainees they were interrogating, there could be no legally viable claim of torture.

It is, moreover, highly significant that the Justice Department, in its Demjanjuk brief, so heavily relied on the Third Circuit’s Pierre case. Pierre was a decision of the entire Third Circuit federal appeals court sitting en banc (i.e., all 13 judges). The case involved a refugee under an order for deportation to his native Haiti for imprisonment. He fought removal under the CAT, claiming that, due to various maladies, he would suffer excruciating pain and die if sent to a Haitian jail, where he would unquestionably be denied necessary medical care. The Justice Department did not seriously dispute Pierre’s allegations. But it countered that, even assuming their validity, there could be no torture because a government official’s knowledge that an action, such as denying treatment, “might cause severe pain and suffering” is insufficient under governing law. To establish torture as a matter of law — as opposed to a matter of demagoguery — an additional showing of a deliberate purpose to cause severe pain and suffering is required.

By a whopping 10–3 margin, the Third Circuit judges agreed with that argument. The “knowledge that pain and suffering will be the certain outcome of conduct,” the Pierre majority held, was “not enough for a finding of specific intent” to torture — the exactingly high mental state prescribed in the CAT and the torture statute. To prove torture, it would be necessary for a prosecutor to show “the additional deliberate and conscious purpose of accomplishing” severe pain and suffering. Without an evil motive to torture the victim, there is no torture even if great pain and suffering result.

That this was the controversial Bybee/Yoo theory was not lost on the Pierre Court. The three minority judges pointed out that the majority was adopting it even though the Justice Department’s OLC, under new management in 2004, had withdrawn the 2002 Bybee/Yoo guidance. That point, however, only underscores the persuasiveness of the Bybee/Yoo position. The 2004 OLC’s retraction declined to condemn the Bybee/Yoo guidance — it just refused to stand behind it and opined, after some hemming and hawing, that it was not “useful to try to define the precise meaning of ‘specific intent’ ” for torture. To the contrary, the Pierre court determined — as had Bybee and Yoo — that this was exactly the difficult question that needed answering. Looking at much of the same law and ratification history that Bybee and Yoo had studied, the ten judges in the Pierre majority came to precisely the same conclusion: essentially, preferring the controversial 2002 OLC guidance to the 2004 OLC retraction. Furthermore, even the three judges who preferred to 2004 OLC analysis agreed that there could be no torture without proof that a government agent acted with the “knowledge or desire” that severe pain or suffering would result.

This Third Circuit legal theory is the exact same legal theory the Obama administration has urged the federal court to adopt in Demjanjuk, where it is fending off torture allegations. It is, simultaneously, the exact same legal theory developed by Bybee and Yoo — the legal theory that forms the basis for the Obama administration’s signaled determination to condemn morally, and potentially to prosecute criminally, its political adversaries.

Given that the Bush DOJ memos in question evince an assiduous effort not to cross the line into torture — i.e., they demonstrate the very opposite of the evil motive to inflict torture that the Obama DOJ has just told a top federal court is necessary to establish a violation — it is simply shameful for the Justice Department to be pursuing this partisan witch-hunt.
Investigate Bush lawyers’ torture analysis one day, cite it favorably the next.
Next up, a Yale Law Student write in the latest Yale Law Journal to show that Bush administration interrogation policies were not a departure from previous administrations.

Interrogation's Law (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1389511)

William Ranney Levi
Yale University - Law School

Yale Law Journal, Forthcoming

Abstract:

Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal more flexibility than the high-minded legal prohibitions of coercive tactics would suggest: all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before. The conventional wisdom thus elides an intrinsic characteristic of all former and current laws on interrogation: they are vague and contestable, and thus, when context so demands, manipulable.
Accepted Paper Series

You'll have to download the .pdf [at the link] and read it but, here is a relevant section:


This Note has shown that in times of national insecurity since World War II, the law has been interpreted to permit the authorization of highly coercive interrogation methods. The current debate over interrogation law and policy is not served by the erroneous historical framework to which even the opposing parties to this debate have subscribed, namely, that a dramatic break with the past occurred in the aftermath of 2001.

Interrogation's law -- the absolute bans on vaguely defined abuse -- has provided the latitude that has, in turn, permitted the authorization of coercive interrogation since World War II. To declare that the law's mandates were clear before 9/11 but grossly misconstrued -- even repudiated -- in its aftermath, and that if only properly acknowledged will be clear yet again, is to delegate the tough questions in future interrogation dramas to the executive branch agencies discussed in this Note.

This Note has shown how, prior to 9/11, responsible officials who wished to obey the law's uncertain boundaries found sufficient latitude to authorize highly coercive interrogation techniques. In light of the past, there is little reason to expect different practicies in times of future fear. If this is troubling, then a rethinking of interrogation law and policy is necessary.
As is stated, Bush administration interrogation policies do not represent a dramatic repudiation of and stark departure from American traditions. Indeed, Levi shows that, "every interrogation method allegedly authorized since 9/11, with the possible exception of waterboarding, "was authorized at times before 9/11 and was considered to be consistent with the reigning legal framework."

Levi shows that during the period from 1949 to 1973, the CIA authorized the use of, and used, such special interrogation techniques as truth drugs, LSD, heat and cold, "electric methods," and narco-hypnosis. Towards the end of this period, it begin to rely less on severe measures to lower the source's physiological resistance and more on ways to reduce their psychological capacity to resist. This meant increased reliance on isolation, threats, disruption of sleep patterns, and use of stress positions.

The armed forces also relied on narcotics and used LSD from 1958-1962. Even prisoners of war could be made to stand at attention when being interrogated and no time limit was placed on this technique. Sleep deprivation without limitation was also permitted. So was isolation. It should be noted that when these techniques were authorized for use by military interrogators in 2002, they were sanctioned only on a more limited basis and only for use on unlawful combatants, not prisoners of war.

After 1973, interrogation by proxy came to characterize U.S. policy on obtaining information from those who did not wish to give it up. The CIA continued to interpret the law as allowing the use of stress positions, disrupted sleep, solitary confinement, sensory deprivation, threats of violence, temperature manipulation, and examination of body cavities. However, with the agency under intense scrutiny at home and with the law being uncertain (international law on interrogation has been, and remains, short on specific definitions of that which it prohibits), the simplest solution was to farm out interrogations to others. Both the CIA and the U.S. military provided training in coercive interrogation techniques to its proxies.

By the early 1990s, with the end of the Cold War, both the CIA and the military had discontinued such training. But soon the challenges posed by terrorism caused the U.S. to develop a new proxy interrogation regime -- extraordinary rendition. According to Levi, starting in 1995 the rendition of terrorists from one state to another became routine. The CIA would assist with logistical support in the detention and transfer and then, in the words of its former inspector general, "use the fruits" of interrogations conducted by foreign intelligence services, such as the Egyptians and Saudis, employing whatever coercive techniques they chose to.

Thus, when Phillppe Sands (to take one particularly dishonest commentator on the subject) declares that "the U.S. military's long-established constraints on cruelty and torture dating back to President Lincoln in 1863, were. . .circumvented" and "discarded" and that the newly authorized interrogation program "turned its back on this tradition," he is not telling the truth.

But Levi also insists that what he calls "the Bush administration's flawed and careless legal work" also has contributed to the perception that something unprecedented was afoot. He argues, for example, that the "torture memo," with its dubious legal definition of torture and its argument that, as Commander-in-Chief, the president has complete discretion to authorize interrogation by torture despite a federal criminal statute to the contrary, "made it appear that for coercive interrogation to be considered lawful, the existing legal regimes had to be eviscerated. . ."

This too is false. The reality, Levi argues persuasively, is that "all former and present laws on interrogation. . .are vague and contestable, and thus, when context demands, manipulable." If this is problematic, he concludes, "then a rethinking of interrogation law and policy is necessary."

I'm sure you can get someone to help you with the big words.

[ChumpDumper]

Actually, Chumpy, the investigation is being conducted by non-Bush appointees in the Office of Professional Responsibility.
Democrats and liberal groups seem far from ready to close the books on the alleged wrongdoings of the Bush administration if an internal ethics report, as expected, recommends that Department of Justice lawyers who authored the so-called "torture memos" not face criminal prosecution.

In a matter of weeks, the DOJ could finalize its draft report, now 200 pages long, in an investigation that began five years ago.I'll definitely add the Office of Professional Responsibility if you like. Would that make you happy? The investigation started under Bush. Are you denying this?

The rest is just regurgitated blogs.

I called this shit way too easily.

I appreciate the fact that the blogs you ripped off also ignore existing case law, which is what this is all about. They might want to consider another line of work. Yoo and Bybee probably will have to soon enough.

[Yonivore]

I'll definitely add the Office of Professional Responsibility if you like. Would that make you happy? The investigation started under Bush. Are you denying this?
Nope but, many government Departments (DOJ included) have independent offices to investigate internal affairs. OPR is that office in DOJ.


The rest is just regurgitated blogs.

I called this shit way too easily.
Actually, it's not. One is a Yale Law Journal Note -- not a blog.

The other is an opinion article written by the man who prosecuted the first World Trade Center bombers.


I appreciate the fact that the blogs you ripped off also ignore existing case law, which is what this is all about. They might want to consider another line of work. Yoo and Bybee probably will have to soon enough.
You cited a law that relates to criminal prosecutions not enemy combatants.

Then, you say a recent court decision makes U. S. vs. Parker relevant, after the fact.

Got any other case law?

And, why is the DOJ now arguing -- using the same law as was used by Bybee and Yoo -- that deporting a Nazi collaborator to a place where he is certain to receive worse treatment than Khalid Sheik Mohammed ever did, isn't torture.

You didn't bother reading...just say it. You're illiterate. No shame in that.

[ChumpDumper]

You cited a law that relates to criminal prosecutions not enemy combatants.Wrong. The other relevant cases involving enemy combatants were covered.

Thanks for admitting you didn't read it.

[Yonivore]

Wrong. The other relevant cases involving enemy combatants were covered.

Thanks for admitting you didn't read it.
I must have missed it.

Are they cited in this thread?

[ChumpDumper]

Yep.

[Yonivore]

Yep.
Nope. Not in this thread.

Where did you cite this body of case law?

[ChumpDumper]

Sorry, I thought you asked if it was in the other thread in which the Texas case was discussed at length.

It's there.

Go read it for the first time.

[Yonivore]

Sorry, I thought you asked if it was in the other thread in which the Texas case was discussed at length.

It's there.

Go read it for the first time.
So, you misunderstood the simple question, "are they cited in this thread?"

[ChumpDumper]

I didn't pay you much attention since you obviously didn't read the other thread in the first place and probably won't read it now.

You just aren't that important to me.

[Yonivore]

Are these them? Or, are the more?

United States v. Parker et al, CR-H-83-66 (S.D. Tex., 1983)
United States v. Lee, 744 F.2d 1124 (5th Cir. 1984)

[ChumpDumper]

Seriously, are you looking up the entire case history in FindLaw?

Of course you aren't.

There is more than enough information there to find the actual case numbers if you want them. Since the only thing you will do with them is try to find a blog about them to rip off, it's not a priority of mine to give you the full citation. After all, you tried to deny the very existence of US v. Parker as a stalling tactic.

[Yonivore]

I didn't pay you much attention since you obviously didn't read the other thread in the first place and probably won't read it now.

You just aren't that important to me.
And, yet, you've responded to just about every post I've put up in the past few years.

If you go back, you can bet that most of my posts are immediately followed by one of yours...even when I had you on ignore.

Well played. Especially after I demonstrated that I went back to the thread and looked for your posting.

Incidentally, I do sleep and it isn't always practical to catch up on what drivel's been posted here during that time so, please, accusing someone of intentionally "not reading" as some sort of dodge is pretty lame in a forum that just seems to never sleep and can split topics up into multiple threads, get off topic, change the discussion of a thread, etc...

Well played, indeed.

[Yonivore]

Seriously, are you looking up the entire case history in FindLaw?

Of course you aren't.

There is more than enough information there to find the actual case numbers if you want them. Since the only thing you will do with them is try to find a blog about them to rip off, it's not a priority of mine to give you the full citation. After all, you tried to deny the very existence of US v. Parker as a stalling tactic.
I didn't see your post about FindLaw. Care to share or do I have to go back to a thread that rolled to page two and look again?

I'm sorry, unlike you with mine, apparently, I don't digest your every post.

[ChumpDumper]

And, yet, you've responded to just about every post I've put up in the past few years.

If you go back, you can bet that most of my posts are immediately followed by one of yours...even when I had you on ignore.Especially when I had you on ignore. There is really no difference from my point of view.


Well played. Especially after I demonstrated that I went back to the thread and looked for your posting.Then you have already found the other cases. Bully.


Incidentally, I do sleep and it isn't always practical to catch up on what drivel's been posted here during that time so, please, accusing someone of intentionally "not reading" as some sort of dodge is pretty lame in a forum that just seems to never sleep and can split topics up into multiple threads, get off topic, change the discussion of a thread, etc...

Well played, indeed.So the torture memo fiasco wasn't that important to you -- why do you keep droning on about it and vomiting multiple bloglets concerning it in multiple threads?

[ChumpDumper]

I didn't see your post about FindLaw. Care to share or do I have to go back to a thread that rolled to page two and look again?That WAS my post about FindLaw. Right there. Since you have found the thread, the cases are threre. If you are going to try to stall and claim they never happened again, that's your business.


I'm sorry, unlike you with mine, apparently, I don't digest your every post.I believe you don't understand much of anything and are just a blogbot.

[Yonivore]

Especially when I had you on ignore. There is really no difference from my point of view.
So, why do you respond?


Then you have already found the other cases. Bully.
No. Was the post later or earlier than the one in which you listed the two cases I just copied from that thread?


So the torture memo fiasco wasn't that important to you -- why do you keep droning on about it and vomiting multiple bloglets concerning it in multiple threads?
This is fucking forum. Do you honestly believe anything we do here is important or will have absolutely any impact on the outcome of the topics discussed?

It's not that topics are unimportant; it's that we're unimportant.

[ChumpDumper]

So, why do you respond?It's fun watching you squirm -- like when you pretended not to be yourself with that other screen name.


No. Was the post later or earlier than the one in which you listed the two cases I just copied from that thread?Keep looking. I'm not going to hold your hand.



This is fucking forum.ducks?


Do you honestly believe anything we do here is important or will have absolutely any impact on the outcome of the topics discussed?

It's not that topics are unimportant; it's that we're unimportant.I never said you weren't unimportant.

[Yonivore]

That WAS my post about FindLaw. Right there. Since you have found the thread, the cases are threre. If you are going to try to stall and claim they never happened again, that's your business.

I believe you don't understand much of anything and are just a blogbot.
So, again, those are the only two cases you're relying on when you state, "The other relevant cases involving enemy combatants were covered."

I'm guessing U. S. v. Lee is a case "involving enemy combatants?" But, even if so, since we know U. S. v. Parker doesn't but, instead, involves law enforcement and custodial suspects where are the other case(s) that would be covered by your statement, "The other relevant cases involving enemy combatants?

[ChumpDumper]

Feel free to bump that thread if you have anything relevant to say in it.

[Yonivore]

It's fun watching you squirm -- like when you pretended not to be yourself with that other screen name.
Squirm? For the past several months, I've had absolutely no idea what you were posting -- except for when someone quoted you in their posts.


Keep looking. I'm not going to hold your hand.
Like I've said, our debate is just not that important and, further, settles nothing. It's not worth the time.

If you're interested in continuing you'll restate your case. I'm not going back to read the entire thread.



ducks?
Nope.


I never said you weren't unimportant.
Nobody in this forum is important to the topics discussed. If we were, we damn sure wouldn't be in here talking about them.

[ChumpDumper]

So, again, those are the only two cases you're relying on when you state, "The other relevant cases involving enemy combatants were covered."Oh no. The other cases are there. I didn't give a full citation. There is no reason to.


I'm guessing U. S. v. Lee is a case "involving enemy combatants?"Wrong. Seriously, you just confirmed why there is no reason for me to give a full citation. You aren't going to do anything with it, so why bother?

I stated the facts of the other cases. Parker is significant for its definition of torture, its relative recency and the administration under which that case was tried. You can see the relevance of the others if you try really hard or get someone else to help you. Right wing blogs are staying away from these cases like the plague, so don't expect much help from them.

[ChumpDumper]

Squirm? For the past several months, I've had absolutely no idea what you were posting -- except for when someone quoted you in their posts.Ignoring is like a long-term squirm. Still fun for me.



Like I've said, our debate is just not that important and, further, settles nothing. It's not worth the time.Which is why you continue it.


If you're interested in continuing you'll restate your case. I'm not going back to read the entire thread.No need to. Looks like you are already reading it. I can't help you if you don't get it, but I can understand if you feel at such a disadvantage you want to quit.


Nobody in this forum is important to the topics discussed. If we were, we damn sure wouldn't be in here talking about them.I'm not sure why you are whining about this particular point.

[Yonivore]

Ignoring is like a long-term squirm. Still fun for me.
Wow! Okay. I was glad to provide you with enjoyment....I guess.


Which is why you continue it.
No, I continue it because it helps when I actually discuss these issues with real people in the real world.


No need to. Looks like you are already reading it. I can't help you if you don't get it, but I can understand if you feel at such a disadvantage you want to quit.
Okay.


I'm not sure why you are whining about this particular point.
Who's whining? Just stating the facts. You are absolutely an insignificant, nonexistent, player in the the topic of deciding whether or not the Bush Administration engaged in torture. I'd bank on it.

[Yonivore]

Like I said, our argument makes no difference. Besides, we've been arguing the wrong issue all along.

Obama has already decided not to seek prosecution of those who committed the enhanced interrogation. He was going after lawyers for merely doing their job and offering an opinion on the law. Since when is that a crime?

It's all moot anyway, Obama is moving on...


The "torture" controversy is winding down, with the Obama administration letting it be known that the lawyers who wrote memos interpreting Congress's broad prohibition of "torture" won't be criminally prosecuted. (Nor will the Congressional Democrats who knew all about the interrogation techniques and endorsed them.) Of course not: the idea that they could convince a court that writing a legal analysis with which Eric Holder disagrees could be a criminal act, or convince a jury to convict, was ludicrous from the beginning. Instead, the administration says it may refer the matter to various state bar associations to see whether their ethics arms might want to impose some penalty on the offending lawyers. That's a little more like it: it is at least barely possible that some state bar's ethics committee might be staffed with liberals who would make a politicized decision to impose some sort of discipline. The real purpose, of course, is to discourage lawyers and others from serving in any future Republican administration.

Meanwhile, far from actually believing that the most notorious "torture memo," written by Jay Bybee and John Yoo in 2002, was a criminal act, the Obama Justice Department has just filed a brief in the Sixth Circuit Court of Appeals in which is adopts and endorses the Bybee/Yoo thesis. Andy McCarthy (http://article.nationalreview.com/?q=NjRhNWQ2YTRlYWI2NzU0Yjc0NmFlN2FjMmI2YzYyODU=&w=MA==) [posted earlier -y.] has the details. Of course, it shouldn't be surprising that DOJ has adopted the Bybee/Yoo analysis as correct, since the same approach was endorsed by the Third Circuit Court of Appeals in Pierre v. Attorney General, on a 10-3 vote. So the "criminal" policy of the Bush Justice Department is also the law as elucidated by the Third Circuit, en banc, and the policy of the current Department of Justice.

What we're witnessing here goes far beyond mere hypocrisy. In three months, Barack Obama and Eric Holder have succeeded in politicizing DOJ and bending it to their partisan ends, to the point of threatening their predecessors with baseless criminal prosecution as a form of political harassment.

Most Americans, fortunately, are having none of it. CNN (http://politicalticker.blogs.cnn.com/2009/05/06/poll-dont-investigate-torture-techniques/#more-50609) finds that by a 50 percent to 46 percent margin, Americans approve of the use of waterboarding, etc., in interrogating terrorists.
I think I'll move on...

Until, of course, it is discovered this administration has used some questionable techniques to extract or control terrorism. Then, we'll see how you feel about it.

Unfortunately, I think we're more likely to be attacked first.

[ChumpDumper]

Like I said, our argument makes no difference. Besides, we've been arguing the wrong issue all along.

Obama has already decided not to seek prosecution of those who committed the enhanced interrogation. He was going after lawyers for merely doing their job and offering an opinion on the law. Since when is that a crime?Legal malpractice is certainly subject to discipline by the appropriate bodies, which is exactly what is being recommended. On top of that, there are the several instances of testimony before Congress and the like by Yoo and Bybee, which will now be gone over with a fine toothed comb.

[ChumpDumper]

I think I'll move on...Good plan -- you were getting quite the beatdown.


Until, of course, it is discovered this administration has used some questionable techniques to extract or control terrorism. Then, we'll see how you feel about it.Your support of this form of torture is clearly partisan. My opposition to it is not.


Unfortunately, I think we're more likely to be attacked first.Keep praying for the worst, Yoni. It's all you guys can do.

[Yonivore]

Legal malpractice is certainly subject to discipline by the appropriate bodies, which is exactly what is being recommended.
But, it's not a crime as has been represented for the past several years. And, besides, see below, it appears the Obama administration has fucked up their chances of even getting sanctions.


On top of that, there are the several instances of testimony before Congress and the like by Yoo and Bybee, which will now be gone over with a fine toothed comb.
Yeah, well good luck with that.

The Torture Follies — Just When You Thought It Couldn't Get Worse ... (http://corner.nationalreview.com/post/?q=ZmQ1MTI3Y2I2ZjQzMzU2MjVmYmM5YzY3NTU1MjkyNjc=)


As K-Lo notes (http://corner.nationalreview.com/post/?q=MTY0MDM0ODY3MDI1NDg1ZjExMDc3ZjQxYWFiMzFiNWI=), I have an article (http://article.nationalreview.com/?q=NjRhNWQ2YTRlYWI2NzU0Yjc0NmFlN2FjMmI2YzYyODU=) (posted on the homepage this afternoon) which recounts how the Obama administration is urging the Sixth Circuit U.S. Court of Appeals to adopt the same interpretation of federal torture law that it is investigating former Bush administration lawyers for developing. (And why shouldn't AG Eric Holder rely on the memo written by Jay Bybee and John Yoo in 2002? After all, the Third Circuit Court of Appeals already adopted it as the law of the United States in a ruling last year — as I also recount in the article).

But now there's more. As Jan Crawford Greenburg reports (http://blogs.abcnews.com/legalities/2009/05/tortured-timing.html) at her ABC News blog, Legalities, the Justice Department's Office of Professional Responsibility — by playing partisan politics — has blown the critical filing deadline for referring Prof. Yoo for professional sanctions. Don't get me wrong, this is a very good thing — as I've been arguing, there is no legal or ethical basis to pursue this cockamamie investigation. But this is an episode that should be studied given all the blather about how it was Republicans who politicized the Justice Department.

OPR, like the Civil [ACM CORRECTION:] RIGHTS Division, is largely a bastion of the Left at DOJ. But to get some things done, the career lawyers need sign-offs from political appointees, so they butt heads with the brass from time to time if a Republican administration is in power. Patently, they slow-walked the ethics investigation of Yoo and Bybee for years, waiting for President Bush to be on his way out and a more agreeable Democrat administration to come in. In the waning weeks of the Bush administration, they tried to slide their report by AG Michael Mukasey — perhaps figuring he was on his way out the door and wouldn't pay it much attention. Wrong! As Jan Greenburg Crawford recounts:


It appears John Yoo cannot be disciplined or disbarred for writing those memos, even if the Office of Professional Responsibility says it has evidence he should be.

That’s because OPR’s five-year investigation—carefully timed for release only as Bush was leaving the White House and Obama was coming in—dragged on too long. As a result of that timing, OPR blew the deadline for referring possible misconduct allegations against Yoo.

John Yoo is admitted to the bar in Pennsylvania. But the Pennsylvania Disciplinary Board, which would investigate any complaints against him, imposes a four-year limitation for complaints.

Yoo wrote the memos in 2002 and 2003. This is 2009. You do the math....

This is a huge issue for current DOJ officials and Attorney General Eric Holder. Because if Yoo—who wrote the memos and has been vilified as responsible for approving the interrogation program—can’t be disciplined under state bar rules, why then would OPR even refer the matter to state bar officials in the first place?

And what about Bybee? Now a federal appeals court judge, Bybee is admitted in DC and Nevada—those jurisdictions don’t have comparable limitations periods. But how strange would it be to only refer Bybee, when his involvement largely amounted making a few edits and signing Yoo’s legal work?

Then there’s the report itself. The bar for disciplinary action is incredibly high. Legal ethics experts, like Geoffrey Hazard at the University of Pennyslvania, say they expect nothing to happen, even if the state disciplinary boards were to investigate. Hazard says Yoo and Bybee have a number of strong available defenses, and that it’s awfully hard to say the memo was so “outside the range of plausible lawyered judgment that no reasonable lawyer could render it.” Without that, he says, there’s no ethical violation.

When Mukasey read the report, he was so dissatisfied, he demanded Yoo and Bybee be allowed to comment—as [Michael] Isikoff also reported back in February.

Mukasey then wrote a detailed response, also signed by Deputy Attorney General Mark Filip, that was harshly critical of OPR’s efforts, which he said veered far afield into matters that were irrelevant to whether Yoo and Bybee gave bad legal advice. What would be the relevance, for example, of details of at least one CIA interrogation that went horribly wrong—if that interrogation had gone beyond what the memos approved in the first place?

So all the talk about referrals, all the leaks about how the two men erred in judgment, starts to feel a little bit like old-fashioned politics. Especially when you think about the timing of the report—as Mukasey was packing up his office and a new administration coming in—and big-time blown deadlines.

[ChumpDumper]

And what about Bybee? Now a federal appeals court judge, Bybee is admitted in DC and Nevada—those jurisdictions don’t have comparable limitations periods. But how strange would it be to only refer Bybee, when his involvement largely amounted making a few edits and signing Yoo’s legal work?When he signed it, he made it his legal argument.

I don't even know if Yoo practices at all anymore, but it's good to know you are a fan of shitty lawyering and bad government. You have zero credibility in any future complaints regarding either.