In the Clear

Newsweek reports that the Department of Justice’s Office of Professional Responsibility will issue a report that exonerates Jay Bybee and John Yoo of professional misconduct in connection with their authorship of legal memoranda that argued or implied that waterboarding and other enhanced interrogation methods were legal. This represents a softening of the initial draft of OPR’s memo, which would have found such misconduct, requiring referral to state bar associations for possible discipline, potentially including disbarment. According to Newsweek’s report, the final version of the OPR report finds that Bybee and Yoo used “poor judgment” in defending aggressive interrogation tactics.
That’s good, I guess. But it is still an outrage that a lawyer who writes a memorandum arguing a legal position with which a subsequent administration disagrees can be threatened with disbarment. In my opinion, the Bybee-Yoo memoranda were mostly or entirely correct. You can access the principal memorandum here. It undertook the difficult and unpleasant task of defining what constitutes “torture;” it also adopted an expansive, but historically well-supported, view of the President’s war-fighting powers. As I’ve said before, I think that waterboarding, the most aggressive of the enhanced interrogation techniques that have been used in the current conflict, is a humane alternative to torture. It lasts for only a few minutes, is nearly always effective, and does no–zero–physical harm.
Lawyers and others can argue about the statutory definition of “torture” and about the constitutional powers of the executive and legislative branches. But what is going on now is not a legal argument. Rather, those currently in power are committed to an ideology that makes the conclusions of the Bybee-Yoo memos inconvenient. The persecution of those individuals is a political witch-hunt of the worst sort. Worse, it is emblematic of our establishment’s reversion to a pre-September 11 mentality.

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