The Obama-Holder Justice Department has concluded that the Bush administration lawyers who wrote and signed the so-called torture memos will not face discipline. The Department finds, however, that these lawyers “exercised poor judgment.”
The investigation was ill-conceived, to put it as kindly as I can. To put it less kindly, the investigation was a politically-motivated witch hunt.
The incoherence of the Justice Department’s exercise can be gleaned from this statement by Assocate Deputy Attorney General David Margolis, who apparently made the final decision, and who reportedly regarded the question of whether to impose discipline as a close one:
I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligations to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power.”
I happen to disagree with some of Yoo’s views regarding the executive’s power under the law. But wasn’t Yoo’s obligation to provide his client with his sincere view on that question?
Ironically, one of the two charges against Yoo is “failure to provide candid legal advice.” Having concluded that Yoo was candid to a fault, Margolis obviously must not think the question of imposing discipline was “close” as to this charge.
Margolis apparently believes that Yoo’s sincere view of what the law permits the executive to do was influenced by “his own ideology and convictions.” But the same might be alleged against Margolis or any other lawyer who offers a legal opinion on a politically-charged issue. If we’re going to start probing how ideology influences the legal opinions of government lawyers, we’re headed down a long, dangerous, and ultimately futile path.
A future Justice Department might, for example, wish to examine the role of ideology and convictions in the legal analysis performed during the investigation of Yoo and his then-boss Jay Bybee in this instance. It is reported that the Justice Department lawyers involved “repeatedly shifted their own views and analysis in the course of multiple drafts.” Were these shifts solely the result of an evolving objective, non-ideological analysis, or were other factors at work?
It is also clear, as devastatingly shown in a letter from then-Attorney General Mukasey (about which more later), that a draft report Justice Department officials originally intended to release as final was full of basic errors, despite being four years in the works. Were these errors the product of incompetence or bias?
Never mind. I’d like to know, but I don’t want an investigation.