More on OPR, Margolis, selective morality, and drones

Following this and this previous posts:

1) Searchable PDFs. The huge PDF versions of the Office of Professional Responsibility report condemning John Yoo and Jay Bybee, and David Margolis' memo overruling the OPR recommendations, had the disadvantage of being image files only. You couldn't search by keyword -- for instance, "organ failure." Searchable versions of both of these reports, along with many other torture-memo-related documents, are now available here. These allow you to determine quickly that discussion of the Yoo/Bybee "organ failure" standard (for what constitutes torture) occurs at 14 points in the OPR report. Thanks to reader MC for the tip, and to the creator of the searchable-PDF site, who is a commenter at Marcy Wheeler's ongoing discussion of OPR and related info.

2) What Margolis said. A reader writes:

"I disagree with your reading of the Margolis memo.  It's true that he argues that the period after 9/11 was a different time, and that normal standards about caution might therefore not apply.  But that is far from his main point.  Rather, his point is that the OPR report doesn't even *have* a consistent standard---the very rule under which it finds Yoo and Bybee guilty of misconduct requires them to have intentionally or recklessly violated a known, unambiguous obligation or standard, and OPR never quite manages to identify such a standard, let alone to defend it.

"In fact, in the original drafts which OPR was prepared to release to the public in early 2009, the report failed to even mention the office's own analytical framework for professional misconduct.  It tacked on that analysis after criticisms from Yoo and Bybee themselves, without changing the conclusions, giving a disturbing impression of exactly the practice the report argues Yoo and Bybee engaged in: fitting the arguments to the conclusion rather than vice versa.  This is not the performance that those of us were looking for who had hoped for some professional consequence to fall upon at least a few of those who squandered our nation's moral standing and made our leaders liars when they declare before the world that America does not torture."

I agree with this reader that the "no established standards" argument was an important part of Margolis' case. But on re-reading the (searchable!) version of the memo, I'm still struck by the same thing I originally mentioned: how much of his analysis depends on the political/cultural assessment that in the months after 9/11, normal standards of judgment were suspended. Read and decide for yourself.

3) Selective morality: what about the drones? A reader with a military background writes:

"I have not read the OPR report and will not argue with your conclusions.  But I do find disconcerting and disconnected this outrage with torture and the quiet and evidently total acceptance of drone attacks in non combatant areas that result in civilian deaths.  As set forth by Jane Mayer in The New Yorker and a few articles by others, it appears indisputable such drone attacks have killed over 500 civilians including women and children.  All attacks were cleared by a lawyer. Should the judgment of these lawyers be held accountable?  Evidently not, since these attacks are applauded as a great success and heralded by the Obama Administration.

"As onerous as torture is, the tactics of drone attacks killing civilians in non combatant areas and the bombing of Hiroshima seem to have more in common than a comparison of torture to Hiroshima.

"I find this acceptance of the drone civilian deaths quietly accepted while a mistake by a 19 year old soldier in attacking a compound where he believes there to be an enemy is subject to a court martial as well as roundly condemned to be confounding."

My first reaction is: the drone attacks, with attendant death of innocents, are part of the "normal" moral calculus and compromise of war. "Just war" theory recognizes that often war's objective* is to kill leaders or soldiers of the other side, and that inevitably this has meant death and suffering for civilians as well. That is why I described the A-bomb question as an extreme case of the moral-war debate: because so many non-combatants were so deliberately killed. The drone attacks are thus a new instance of a familiar tragic dilemma and debate. Torture is something else, which is why it has been condemned even by societies that recognize the morality of certain kinds of war. Still, I agree, the drones deserve more debate than they've been getting.

* Of course, a war's real "objective" is advancing your side's interests and forcing the other side to capitulate. Achieving that goal without fighting is the best kind of war, as theorists from Sun Tzu onward have pointed out.