Dispatches from the Creation Wars

The Washington Post had an op-ed the other day endorsing that we need to have investigations and prosecutions over torture during the Bush administration — but only for those “rogue” interrogators who went beyond what the Yoo memos pretended they could legally do.

We reject the distorted interpretations that underpin the OLC memos and that serve as legal justification for harsh interrogation techniques that either border on or constitute torture. But those who relied on the memos and shaped their behavior in the good-faith belief that they were following the law should not be subject to prosecution. It is an entirely different story for those who went well beyond the often-extreme measures authorized by the memos.

Glenn Greenwald rightly blasts the Post for their predictable but absurd position:

That, in a nutshell, is the twisted Washington mentality when it comes to lawbreaking: when political crimes become so blatant and extreme that they can no longer be safely excused (Watergate, Iran-contra, Abu Ghraib), then it’s necessary to sacrifice some underlings who carried out the crimes by prosecuting them, but — no matter what else happens — the high-level political officials responsible for the crimes must be shielded from all accountability. In ordinary criminal justice, what typically guides prosecutions is the opposite mindset: namely, a willingness to immunize low-level soldiers in order to ensure that the higher-level criminals suffer the consequences of their crimes. But when it comes to crimes committed by political officials in America’s Versailles culture, only the pawns are subjected to the rule of law while the monarchs and their highest royal court aides are immunized.

Note the distortions on which the Post Editors rely in order to justify their two-tiered justice system. DOJ torture-authorizing memos should shield those who acted in accordance with them because they were created and followed in “good faith.” That assertion is groundless and false. The Post itself this morning reports what has long been known: that a DOJ ethics reports due in the next several weeks will not only “renounce Yoo’s approval of harsh CIA interrogation practices [but also] recommend that he and Jay S. Bybee, a former colleague, be referred to their state bar associations for discipline.” The necessary conclusion of that DOJ recommendation is that the torture-authorizing memos were written in bad faith (i.e., not merely wrong, but entirely groundless and produced with bad intent), since only a finding of “bad faith” (not mere error) could justify ethics proceedings against these lawyers.

A recently released report from five Inspectors General makes clear that Dick Cheney and David Addington selected Yoo to write these memos because they knew in advance that he’d approve of whatever they wanted to do. This process was the opposite of “good faith”: what happened was that the highest-level political officials wanted to break the law, and so they found a hardened ideologue at the DOJ willing to write memos to classify those crimes as legal. To describe that process as “good faith” is to twist that phrase beyond recognition. It was blatant criminality accompanied by advanced bureaucratic cover from John Yoo — the same person who wrote memos advising the President that not even the Bill of Rights could constrain his actions.

For all the talk about how Bush/Cheney executive power theories created a lawless presidency, the “principle” about to be institutionalized — and that the Post Editorial Page today expressly endorses — will do more to spawn presidential lawlessness than all of those DOJ memos combined. We now apparently believe that Presidents are free to break the law as long as they can find a low-level DOJ functionary to write a memo justifying that conduct in advance. It’s impossible to imagine any President — occupying the most powerful political office in the country and commanding blind loyalty from all sorts of operatives — who would be unable to find a lawyer-underling willing to endorse whatever he wants to do. Richard Nixon had lawyers defending what he did in Watergate. Ronald Reagan had lawyers defending what he did in arming Iran in order to fund the Nicaraguan contras in violation of the law. George Bush had lawyers justifying his spying on Americans without warrants even though FISA criminalized exactly that. And Dick Cheney had lawyers justifying his torture regime. That’s always going to be true.

Dead on in every respect. This whole notion of “good faith” is absurd in this situation. Ironically, the only ones who can plausibly be excused because they acted in good faith on the assumption that the legal opinions they were given were reasonable and valid are those that are most likely to end up being prosecuted – the foot soldiers and low-level interrogators.

No one above their level acted in good faith at all. Bush and Cheney solicited the legal advice in bad faith, knowing that what they did was illegal. They handpicked the legal flack to write the memos justifying their actions precisely because they knew he would validate what they wanted to do despite its clearly illegal nature. Yoo ignored every rule of legal analysis to reach a strained and ridiculous conclusion. Those are the people who should be held responsible. If they are not, then all our talk of being a nation of laws and not of men is bullshit.