When the Obama administration declassified the torture memos, it created an ethical obligation for itself that the previous administration had denied. The Bush administration had maintained that torture done by Americans was legal as long as the Justice Department's Office of Legal Counsel rubber-stamped it. Therefore, the Bush administration was under no obligation to hold the legal architects of torture "accountable," because they denied they had done anything wrong -- and indeed, the OLC, by rubber-stamping torture, was only giving the White House what it wanted.
But by revealing how shoddy and selective the reasoning of the authors of the torture memos was, the Obama administration obligated itself to hold those responsible for giving legal cover to torture accountable. However, the Obama administration was unwilling to face the political consequences of doing so. It therefore had to find some legal and political rationale for shielding those responsible from accountability. The big irony is that while the Obama administration was shielding their political enemies for accountability over torture, those same political enemies were mainstreaming approval of torture as policy and then attacking the Obama administration for being weak on national security.
Given that, the Office of Professional Responsibility's readiness to clear the Bush lawyers who provided the legal "justification" for torture isn't surprising:
While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.
We already knew that the original report was much harsher -- Marcy Wheeler has been writing about this for a long time. But we also know that, according to a DoJ letter written to Sen. Dick Durbin, then-Attorney General Michael Mukasey and then-head of the OLC Steven Bradbury (who was himself a subject of the investigation) were given access to the report and made "recommendations." The report was "revised" to reflect those suggestions.
There's a consistent theme here that is both bipartisan and supported by elite opinion-makers in the press: The powerful should never be held accountable for their lawbreaking. Whether it was the Bush administration's lawyers ensuring that their colleagues would be protected not just from legal accountability but from professional sanction, or the Obama administration's "looking forward," we now have an unassailable culture of impunity for government lawbreaking in the name of "national security" -- whether such lawbreaking furthers national security interests or not. The rationale here is dangerous, supported by the notion that the powerful should be immune to sanction for abuses of power because of the responsibilities they shoulder. The opposite is true: It is precisely because they are so powerful that accountability is essential.
Now, the Obama administration is struggling to defend itself against right-wing demands that detainees in their custody be tortured. And why not? Whatever their anti-torture rhetoric, the administration's actions have given the public the impression that no laws were broken, and no one did anything wrong or deserved of punishment.
-- A. Serwer
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