The NYT has a basic outline of what the Justice Department report into the legal quality of the memos ordered up by Bush and Cheney to provide legal cover for illegal acts of torture. But it is not exactly earth-shattering news that the report itself does not allegedly recommend criminal prosecution. The report will be studied closely for what it reveals and there are some tantalizing hints at future revelations:
The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency.
If those emails can be interpreted reasonably as the stitch-up many of us suspect - in effect instructing the lawyers how to craft memos making what was illegal "legal" - then the focus will rightly go back to the White House. Anyone even without a legal training can see that the OLC Memos are, as Kinsley elegantly put it, "fatuous". But the report is apparently damning:
The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.
The reason this is vital is that it gets to the core of the question of good faith in authorizing the elaborate torture program that Bush and Cheney constructed as their central weapon in the war against Jihadist terrorism. If we can see that the memos were transparent attempts not to explicate the law in good faith to guide the executive branch - but were emanations of the executive branch to provide phony and flawed legal cover for already-decided illegal acts, then we have a conspiracy to commit war crimes.
That's what's at stake here.
It is the motherlode. And we don't yet know what's in the report. But if it contains a judgment that the legal analysis is so shoddy that it should lead to professional disbarment for its authors, then the critical question becomes even more pressing: was this deliberate shoddiness to give the Decider what he had already decided to authorize?
I know, given the full extent of the torture program, its systematic nature, its plain illegality, and its obvious contempt for the spirit and intent of the prohibition on torture, what I suspect. And if this report finds gross misconduct by the government lawyers doing the president's bidding, then the case is not closed. Far from it, it has just begun. And the real war criminals - Bush and Cheney - are getting closer and closer to justice.
(Photo: John Yoo/Mandel Ngan/Getty.)
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