The Washington Post editorial board must have considered itself awfully high-minded when it called for “fairness in the torture probe” — the Post’s label for a Justice Department investigation into whether two Bush era Justice Department lawyers, Jay Bybee and John Yoo, should be punished for the legal opinions they rendered on issues relating to the interrogation of terrorist detainees. For the Post, fairness is to be achieved by releasing to the public all documents relating to the DOJ investigation, though apparently not the documents Vice Cheney wants released that he says show the value of the harsh interrogation methods about which Bybee and Yoo opined in preventing deadly attacks on the U.S.
In addition, as I noted yesterday, the Post’s notion of fairness does not encompass investigating the criminal misconduct of Justice Department officials who unlawfully leaked details of a preliminary version of their report concerning Bybee and Yoo. The Post’s remedy for this misconduct is the passive voice — “the existence of the investigation and many details of the. . .report have already found their way into the public arena.” The Post might have added that this material “found its way into the public arena” through a criminal violation of the Privacy Act as to which the Post was an accessory after the fact, or very possibly before.
Moreover, the Post doesn’t explain how the document dump it proposes would alleviate the unfairness of branding lawyers “unethical” based on an ex post facto disagreement with the quality of their analysis. Having the relevant documents in the public domain would, in theory, enable “the public” to judge for itself. But “the public” will not wade through these materials. The documents would enable bloggers like us to attack specific findings and would enable the Post to write the expected “on-the-one-hand, on-the-other-hand” editorial. But all of this will be sound and fury signifying nothing compared to the stigma resulting from a finding that lawyers acted unethically in reaching legal conclusions with which those now in power strongly disagree.
The Post all but ignores this problem. The best if can do is this: “After all, a lawyer could act in ‘good faith’ in rendering advice, thus meeting ethical and legal obligations, and still be guilty of exercising bad judgment.”
No kidding. As Bill Otis puts it:
All you have to do is read a few 5-4 Supreme Court opinions to understand that the most adroit of lawyers can come to wildly differing conclusions on matters of life and death and of national security. Should we impeach the dissenters in Hamdan v. Rumsfeld, the same way the Left wants to impeach Bybee? The Post thinks the death penalty is also “immoral.” So maybe we should investigate those in the Criminal Division who approve seeking it.
At some point we need to say out loud what’s really going on here: This is not “accountability.” It’s revenge, plain and simple. . .borne of. . .thug impulses. . . This is banana republic stuff. The Post says that Yoo and Bybee should not be punished on the basis of “policy disagreements,” but exactly such punishment is what this is all about.
The Post would be the first to denounce government efforts see lawyers punished for their legal analysis in the unlikely event that Republicans were to attempt such an unprecedented thing. But all it can do when Democrats attempt this is call for the release of documents and express mild displeasure about criminal leaks to which it is a party.
High-minded this is not.
JOHN adds: The Democrats would do well to bear in mind that they will not be in power forever, and the ones who are in power after them will be Republicans. One might think that impulses of justice, combined with prudence, would restrain the Democrats. In doing so, one would overrate the Democrats on both counts.
PAUL adds: Good point. But keep in mind that the report on Bybee and Yoo is being written (I assume) by career bureaucrats, an overwhelmingly Democratic cohort. These folks don’t need to be pressured to seek vengeance on Republican appointees , while illegally gloating to the Washington Post about their efforts. In a Republican administration, these bureaucrats would have to be pushed to take such action against Democratic appointees. Republicans may or may not be too ethical to attempt this, but I hope they would be too smart to do so.