OPR Report: Blame Clients, Not Just Lawyers

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It's only, really, truly "poor judgment" when your client thinks it is.

Whatever else the controversial Office of Professional Responsiblity report on Bush era torture authority means, it is an extraordinary paean to the dismaying proposition that lawyers will almost always bend over backwards to protect themselves and promote their clients' needs, no matter how constitutionally warped or extralegal they may be. What's worse, they'll continue to do it not just with the tacit permission of those clients but with their aid and abettance as well.

The final report, authored by a government lawyer, criticizes other government lawyers for their prior criticism and judgment of still more government lawyers. The net result is a love tap and not a hard rap for John Yoo and Jay Bybee, two former Office of Legal Counsel lawyers who disgraced themselves, their profession, and the country by ginning up legal arguments designed to secretly skirt federal prohibitions against torture. Not only will these men and others never be held fully accountable in a court of law for their transgressions, not only will the American people never fully know the truth about what they did and why, the official view of the United States now is that their "poor judgment" didn't even rise to the fairly tepid level of "professional misconduct" warranting civil sanctions.

David Margolis, the Associated Deputy Attorney General who signed the final OPR report, has earned both scorn and praise for his judgment and conclusions. From me, he'll get neither. The fault lies not in his analysis--which is reasonable--or in the politics of the matter--which is putrid--but in the self-sustaining, self-protecting nature of lawyers, clients and government. Remember, the OPR isn't a genuine check and balance against the excesses of executive branch lawyers; the OPR is the executive branch. And the people who run the OPR are lawyers. Should we really be surprised then that the final result here is so desultory compared with the startlingly destructive analysis which spawned it?

Margolis let Yoo and Bybee off the hook in part because he determined that the OPR didn't have clearly defined standards about what constitutes misconduct on the part of government lawyers. You can't be faulted for failing to follow a standard that didn't exist when you acted, Margolis concluded, echoing arguments made both by Yoo and Bybee in their "defense" submissions. But how, you might reasonably ask, could the OPR after all these years not have such defined misconduct standards?  

How indeed. The moving parts here--the White House, the Justice Department, the OLC and the OPR--all have great incentives to leave muddy the definition of what constitutes "professional misconduct" on the part of government lawyers. No one in power knows for sure if and when they'll want or need their own government lawyer to cheat the rule of law in the future to achieve a political, diplomatic or military goal. So much of official Washington--the biggest client in the country--is naturally delighted and relieved to be able to fall back on Margolis's rationale. This is so even though the takeaway from the OPR report is really just an old judge's trick in disguise: you criticize the substance of the act while exonerating the accused based upon some procedural defect.

Yoo and Bybee have long claimed they were operating in a gray zone in the law when they created a legal justification for torture. But they knew they were pushing past accepted legal prohibitions against torture--indeed, their premedation and intent was necessary to carry out the exercise. The clients--our former elected officials and their apparatchiks--wanted legal cover for "enhanced interrogation tactics" and ordered their ideologically-willing, partisanly-screened lawyers to make some up. Yoo and Bybee did their job remarkably well given the mandate they were given, don't you think?

When "regular" lawyers play these sorts of games they get sanctioned, punished, disbarred or sued for malpractice. When OLC lawyers do this, evidently, they evade punishment and become federal judges and highly-paid professors. This is how bad governance is perpetuated, year to year, generation to generation. This is how the rule of law was subverted for years by the Bush administration; this is how the Obama administration has put political expediency ahead of legal responsibility.

So this time don't blame the lawyer, Margolis, for a sorry and unfulfilling result. Blame two successive administrations. Blame Bush and Obama. Blame Ashcroft, Gonzales, Mukasey and Holder. And blame yourself, too, because, ultimately, you are the real client here. Torture was done in your name, remember, even as our best and brightest lawyers now generate a smokescreen of dissonance surrounding it that will continue to preclude genuine justice.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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