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.
The rule of law requires that there be a floor. For decades most of us believed that Common Article 3 of the Geneva Conventions was such a floor. Its bar against "[o]utrages upon personal dignity, in particular, humiliating and degrading treatment," was clearly meant to apply not just to POWs or battlefield soldiers in uniform but to all captives. Common Article 3 was intended to be the lowest we went, as Aziz Huq has written: "the point beyond which no nation can go without losing its claim to dignity and honor." But then along came the Bush lawyers, and they managed to saw into the floorboards. A sub-basement for prisoners at Abu Ghraib and Guantanamo opened beneath us, and our dignity and honor disappeared into it.
We in this country have known for decades that water-boarding is torture. The United States has long treated water-boarding as a war crime and prosecuted Japanese soldiers for water-boarding U.S. soldiers during World War II. The torture tactic violates the U.N. Convention Against Torture, the U.S. Constitution, and domestic law. As Scott Horton has explained, "Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques." Eric Holder testified at his confirmation hearing that water-boarding is torture. John McCain agrees. So do members of the military. But among Bush lawyers such as John Yoo and Jay Bybee and David Addington, the legality of both torture and water-boarding were parsed and redefined so that where once there was a floor now there is none.
So murky is the line between torture and tough talk that Dick Cheney can now admit to having endorsed water-boarding on national television. Mark Thiessen, the Bush speechwriter turned Washington Post columnist, can appear on a Catholic television program, not merely to defend torture but to find it consistent with Catholic teachings. Thiessen excoriated CNN's Christiane Amanpour for even calling what we did to prisoners "water-boarding" since we don't, after all, use a big box. And when Bob Barr, former U.S. attorney for the northern district of Georgia and a member of the House of Representatives, suggested at CPAC this past weekend that water-boarding is plainly torture, he was booed. Because it's become an article of faith that whatever Americans do cannot be torture. That's not a legal definition. It's magical thinking. Today there is plenty of room for water-boarding in our sub-basement, and we've thrown in a pinball machine and a jukebox so CPAC can party down there.
And now here comes the long waited report from the Justice Department's Office of Professional Responsibility, pushed out late Friday, Timid Mean Time, after having been drafted and redrafted and then papered over with legal analysis that shows that the lawyers tasked with advising the president on the legal floor for torturing prisoners were not fully responsible for being unable to locate it. And because there can be no legal boundaries unless lawyers locate and police them, the conclusion is inescapable: If there is no lawyer competent to identify it, there is no longer a floor at all.
For reasons mostly bad, as David Luban explains in Slate today, DoJ career lawyer David Margolis argued for downgrading OPR's conclusion that the Bush lawyers committed professional misconduct to the far lesser sin of "poor judgment." That means that while Tiger Woods apologized to the nation for his personal marital infidelity, there will never be an apology from anyone for the humiliation and abuse of our captives. According to Margolis, Yoo and Bybee made some bad calls, but, to paraphrase Prof. Jack Balkin, since lawyers are weasels and write their own rules, how much could we really expect from the Bush legal team? In declining to refer Bybee and Yoo for disciplinary proceedings, Margolis determined that the standard for professional misconduct for a lawyer is both ambiguous in theory and astonishingly low in practice.
Margolis' justifications for letting Bybee and Yoo off the hook are telling. In effect, he exonerates Bybee because he acted only in a "supervisory role." And what of Yoo, the principal author of memos that allowed torture without citing opposing arguments, misstated relevant case law and time after time delivered precisely the conclusion the White House and the CIA sought? He is off the hook because he was already a blistering ideologue when he took the job. As Margolis puts it "Yoo's expansive view of executive power did not begin when he was hired at OLC." He had been writing for years that the president could do whatever he wants.
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