January 31, 2010

No One Is Responsible

Amidst all the failure of the George W. Bush administration, nowhere was more damage done than to the rule of law and the aspiration to equal justice for all.  Worse, in almost every aspect of Mr. Bush's assault on American values - from politicizing the Justice Department to warrantless wiretapping to using torture as official policy - there have been, for all intents and purposes, no repercussions for the perpetrators.   Unfortunately, recent news indicates that's not going to change anytime soon.

At the end of 2008, a report by the Justice Department's Office of Professional Responsibility (OPR) found that attorneys Jay Bybee and John Yoo - the principle architects of Bush torture policy -  had violated their professional responsibility:
An investigation by H. Marshall Jarrett, head of the Justice Department’s Office of Professional Responsibility, reached “damning” conclusions about numerous cases of “misconduct” in the advice from John Yoo and other lawyers in the Office of Legal Counsel (OLC) during the Bush administration, according to legal sources familiar with the report’s contents.

OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.

One part of the OPR report criticized Yoo’s use of an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding and other acts that have historically been regarded as torture under U.S. law, the sources said.

The report also criticizes Yoo’s legal theories that the President of the United States had the right to suspend Fourth Amendment protections against unreasonable searches and seizures, the sources said. It is believed that Yoo’s legal theories led to a warrantless wiretap program after 9/11.

The OPR report was completed late last year but was kept under wraps by Attorney General Michael Mukasey while Bush finished out his days in office, the sources said.
This was cause for optimism that justice might be served, since OPR's findings would have triggered a referral to state bar associations for potential disciplinary action.  In the case of Mr.  Bybee - who now serves as an appellate judge - it could even have led to an impeachment inquiry.

Lamentably, it appears that the men who were directly responsible for providing the legal cover necessary to make waterboarding an official U.S. policy are about to escape serious punishment or even inconvenience.  David Margolis, the point man for the final review of OPR's investigation of Bybee and Yoo has reportedly downgraded the final assessment to "poor judgment". Under Justice Department rules, poor judgment does not constitute professional misconduct, and this means that not only is Mr. Bybee likely to remain on the bench, but that Mr. Yoo will retain his position as - and you can't make this up - a constitutional law professor at Berkeley.

All of this reminds me of an article that appeared in Sports Illustrated back in pre-9/11 2001, just before Super Bowl XXXV between the New York Giants and the Baltimore Ravens. In it, columnist Rick Reilly called attention to the fact that, while two men had been killed in an altercation with Ravens' star linebacker Ray Lewis and his friends a year earlier, a host of incriminating circumstantial evidence was ignored, and no one was ever convicted of the slayings. As Reilly put it:
Because on Sunday, while the media are making Lewis into a god, it would be really unfair to bring up Richard Lollar and Shorty Baker, right?

You don't remember Richard and Shorty? They're the two guys nobody killed, according to a Fulton County jury.
Apparently, we don't remember the torture policy that no one justified legally, either.

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