We will be posting on the OPR report throughout the day. The opponents and defenders of the Bush administration's torture policies could not have more different readings of the OPR report. Marcy Wheeler is going line by line through the report. She compares the first and second drafts of the OPR memo here. Julian Ku:
Does this mean the end of the war over the “torture memos”? Uh, hardly. Congress is going to go over these memos again. But it is the beginning of the end. The chance of a criminal prosecution of the Bush attorneys in the U.S. is now, effectively, zero. (I argued this point in this essay here and I am glad that I will be proven right) Civil suits are going to face some serious problems, if the analysis in these documents is accepted. Even international prosecutions are going to have to take seriously the fairminded analysis in the Margolis memo, which drew tough but persuasive distinctions between good faith legal analysis and professional misconduct. It would be odd for something that wouldn’t even qualify as an ethics violation in the U.S. to be the basis for criminal liability under a theory of universal jurisdiction. But then again, I’m not Judge Garzon.
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' 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.
What's odd about Margolis's conclusion is that it implicitly relies upon a necessary assumption that he elsewhere explicitly contradicts. Early in the memo he notes that Yoo is a distinguished lawyer with sterling credentials (SCOTUS law clerk, Berkeley professor). But Margolis's conclusion makes sense only if we assume that Yoo is an incompetent lawyer...Given the patent weakness of his legal analysis, there are two possible alternatives: Yoo is an incompetent lawyer or he intentionally or recklessly distorted the law. Margolis makes two pivotal assertions--that Yoo is a highly qualified lawyer and that Yoo is an ideologue with extreme views...
Whether John Yoo and Jay Bybee face professional sanctions (that's now up to their respective state bars) is far less important than whether we get to the bottom of what really happened at the Bush White House: who ordered these lawyers to come up with legal reasoning to justify torture? The OPR report suggests that David Addington, Chief of Staff to Vice President Dick Cheney, played a significant role. Who was he getting his orders from?
Adam Serwer compares the Bush administration to al Qaeda:
The theological justification for al Qaeda's wholesale slaughter of civilians was provided by Sayyid Imam al-Sharif, also known as Dr. Fadl, one of the founding fathers of al Qaeda. Because the murder of innocents is forbidden in Islam and the murder of Muslims in particular, Ayman al-Zawahiri and Osama bin Laden required some sort of theological framework for justifying terrorism. This was provided by al-Sharif, who essentially argued in his book, "The Compendium of the Pursuit of Divine Knowledge," that apostates could be murdered, and that approach, takfir (which has come to be known as takfirism) allowed al Qaeda to, for all intents and purposes, kill anyone they wanted without violating the laws of Islam by declaring them to be apostates. In other words, Dr. Fadl helped provided a theological justification for something that everyone involved knew was wrong.
The legal memos justifying torture aren't very different in terms of reasoning--it's clear that John Yoo and his cohorts in the Office of Legal Counsel saw their job not as binding the president to the rule of law, but to declare legal any tactic that the executive branch believed necessary to fight terrorism.
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