Also in Slate, David Luban writes that David Margolis was wrong to reject recommendations that John Yoo and Jay Bybee should be referred to their state bars for discipline.
So Yoo isn't to blame for the fact that—as the report shows—he believes the president could, for instance, order the massacre of an entire village. This proves he wasn't a bad lawyer, he was just really, really sincere in his immoderate legal views. Yoo is simply, as Margolis concludes, a victim of the fact that "loyalty to his own ideology and convictions clouded his view of his obligation to his client." To parse these legal ethics standards further: Bybee was too checked out to care if there was a floor to the president's power to torture. And Yoo isn't responsible because he was hired with the full knowledge that he didn't think the floor even exists.
Margolis urges that once all the relevant documents are released, the public should "make its own judgments about these documents and ... learn lessons for the future." It's unclear how that latter part is going to come about: Conservatives crowed over the weekend that Margolis properly spared Yoo and Bybee a partisan witch hunt. Liberals expressed disgust that evidently nobody will ever be held responsible for the decision to torture men in our custody. Politics is absolutely the wrong way to frame questions about whether we should abuse our prisoners going forward. The only thing that should matter to us right now is whether there is a floor; whether we can trust our legal system and the lawyers who inhabit it to defend a line beneath we will never descend.
As Mattew Alexander * argues here, it's staggering to suggest that OLC lawyers should receive a get out of ethics jail free card because those post 9/11 days were really scary. For one thing, there was nearly a year for sober reflection between 9/11 and the writing of the torture memos in August 2002. But more importantly, we don't have one set of legal standards for crisis times and another for happy times. Margolis has codified the principle that we can make up new ethics standards depending on who the lawyers in question are and the exigency of the national security crisis, which isn't all that different from making up new interrogation standards depending on who the prisoner is, and the exigency of the national security situation.
The floor has disappeared so quickly, America can't even see that it's gone. A 2009 poll revealed that 53 percent of the public believes torture is at least sometimes justified to gain important information from terror suspects. These numbers rise every few months, and the next poll will probably find it climbing yet again. Even the Bush administration used to promise that America doesn't torture. But say that today and you get booed. The problem with doing away with the floor is that sooner or later you're so far below it, you can't see anything at all.
Correction, Feb. 22, 2010: The orginal version mistakenly referenced Matthew Arnold. (Return to the corrected sentence.)