Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Here's a very disturbing report from Newsweek that explains why the Office of Professional Responsibility report on John Yoo and Jay Bybee has taken so long to be released: It's been rewritten, its original conclusions changed.
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.
What, exactly, is the point of having an Office of Professional Responsibility to investigate and reach conclusions on the actions of DOJ officials if other DOJ officials can simply dismiss their conclusions and rewrite their reports? Of course DOJ attorneys don't like the idea of other DOJ attorneys being held responsible for their unethical actions; that precedent could just as easily be used on them.
And to show you just how dishonest this entire process was:
The report, which is still going through declassification, will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process, say two sources who have read the report but asked for anonymity to describe a sensitive document. Two of the most controversial sections of the 2002 memo--including one contending that the president, as commander in chief, can override a federal law banning torture--were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice's criminal division, refused the CIA's request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney's chief counsel, and then-White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief's wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in "self-defense" to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.
Not to mention by the Nuremberg Trials. The DOJ claims that all of this happened without any input from Eric Holder or any other Obama political appointees. That may be true but I find it highly doubtful. The original report would have caused serious problems for them in a number of ways.
This is pretty much identical to the situation with prosecutorial immunity. The Obama administration, like the Bush administration, took the position in favor of absolute immunity for one obvious reason - they didn't want their own prosecutors to be held liable even if they broke the law.
I think the same is true here. They don't want Yoo and Bybee to be held culpable for their unethical actions because that puts their own DOJ officials at risk in the future. And justice be damned, it's really all about protecting our turf, not about doing the right thing.
Politics
Comments
Politicians care for each other before they attend to the needs of their constituents.
Posted by: klm | February 1, 2010 9:30 AM
Bingo.
I can't believe Yoo's going to get off. After that naked display of total authority-humping boot-licking contempt for democracy. Awful.
Posted by: KristinMH | February 1, 2010 9:36 AM
KristinMH, one of us has a dirty mind and I'm honestly not sure which.
Posted by: Abby Normal | February 1, 2010 10:08 AM
It's about doing the right's thing, not the right thing. /snark off
Posted by: Athena | February 1, 2010 10:27 AM
The law only applies to common folk. I wish I could say that in jest.
Posted by: Johnny Clamboat | February 1, 2010 10:48 AM
"authority-humping boot-licking contempt for democracy" just became my favorite phrase.
Posted by: Ed Brayton | February 1, 2010 10:52 AM
The Congressional Democrats could show they are marginally superior to the Republicans by taking on this issue rather than enabling the Administration which shares their party affiliation like we continuously encountered with the Republicans. Anyone heard of such an effort?
Are there any other available checks on this outcome? Who could sue the DOJ on this matter?
Posted by: Michael Heath | February 1, 2010 10:53 AM
This really isn't a domestic political issue, it's an international one. Oh, sure, in theory there are the usual three co-equal branches and all that but in practice all three are in favor of the ruling class having power with minimal constraints and maximal immunity.
The check on international political issues, as with Nuremberg and Kosovo, is the pressure from other nations. In particular, other nations which are either individually or collectively more powerful than the transgressor -- after all, that's the whole point in having a treaty against torture.
So, to answer your question: the DOJ will be reined in when China and/or Saudi Arabia get sufficiently fed up with the US' human rights cesspit to use their economic and military leverage to make us toe the line.
Posted by: D. C. Sessions | February 1, 2010 2:23 PM
If the cops have a thin blue line, lawyers have a thin pinstripe line.
Posted by: James Hanley | February 1, 2010 2:49 PM
I work for a federal agency under the executive branch, and one that was severely obstructed under the Bush administration.
I don't know if it applies in this specific case, but one thing to keep in mind is that Bush had 8 years to put his people in place, who put their people in place, who put their people in place...etc. Eight years of that and you end up with Bush/Cheney style neo-Cons embedded all the way down to the local office level. Guess what? Those people are still there.
So when Obama gets elected and picks his Secretary-level positions, if he doesn't appoint a "ass-kicker" who will come in and clean house, the end result is a federal agency that still has the same "culture" and functions very much as it did under Bush. So if that is the case here, it's not at all surprising that a report would get released without having any input from Obama's people.
That's why several of my more experienced (read: old) co-workers supported Hillary. They argued that she understood how federal, executive government works, and Obama didn't. Thus, she would appreciate the need to clean house where possible.
Also, a few of them are positing that Bush/Cheney hired federal employees are intentionally doing wrong to make the Obama administration look bad. I don't know if that's true, but it's an interesting concept.
Anyways, this is one thing that's kind of bugged me about some of your posts Ed. You have to understand how federal government works, and that in most cases, it's damn-near impossible to remove a federal employee, especially if it's for no other reason than "He was hired under Bush". The agency I work for still maintains the same capitulating-to-corporate/economic-concerns-and-stay-out-of-the-way culture imposed on it under Bush. The same people who were running the show the last 8 years are still running the show now. Obama has had 1 year. It typically takes at least 2 before things really start to change, and that's if the administration is aggressive about it.
Posted by: Jason F. | February 1, 2010 3:47 PM
Ed - aw, you're making me blush.
Abby - It's you, obviously. All I'm advocating is that Yoo and Bybee be smacked repeatedly by the firm, masculine hand of authority. What's dirty about that? ;p
Posted by: KristinMH | February 1, 2010 3:50 PM
From "should be disbarred" to "hey, anyone could have made that mistake - it's nuthin'". The criminals are influencing the judicial system - how ironic.
Posted by: MadScientist | February 1, 2010 3:57 PM
Jason F. @ 10 - your point in general is a good one but not applicaple on this point nor do I think Ed has displayed naivety that you assign me. As these types of results came to light, it wasn't the process that created these results that Ed critiqued after Obama took office, but instead that Obama's political appointees either enabled or even continued to promote the same outcome as the Bush administration rather than intervening.
Let's also remember that the process resulted in a good decision, but then an intervention by one person radically changed its outcome. We know who made this decision as does the AG and the President. This is now a matter of political will by political appointees.
Posted by: Michael Heath | February 1, 2010 6:04 PM
Can someone please explain to me again how Obama is a radical liberal who is making it easier for terrorists to kill us all through his diabolical reversals of the Bush administration policies?
I really want to know, on what freakin' planet is Obama a radical liberal? And, if he is a radical liberal, what the hell do you call members of the Green Party, or Socialist Party?
Posted by: dogmeatib | February 1, 2010 6:51 PM
dogmeatb,
I'm with you. Liberal how, exactly?
Posted by: BaldApe | February 1, 2010 8:01 PM
Michael,
Ed states in the post, "The DOJ claims that all of this happened without any input from Eric Holder or any other Obama political appointees. That may be true but I find it highly doubtful."
If you understand federal agencies, and specifically how Bush/Cheney style neo-cons operate, it's not only possible that Holder et al. didn't see the report, I would say it's quite likely and very consistent with the way many agencies operated under the previous administration.
Posted by: Jason F. | February 2, 2010 12:27 PM