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.
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.)