Thursday, May 7, 2009

Reality, Hypocrisy & Politicizing Policy Differences

A fine piece of legal research out of Yale Law School answers the questions, how have the laws of torture been interpreted by prior administrations and what interrogation techniques have they viewed as lawful under those interpretations? And in an act far transcending "mere hypocrisy," the Justice Dept. will refer two of the drafters of the Bybee memo to their state bar associations for consideration of discipline up to and including the loss of their right to practice law. Yet even as they do this, the Justice Dept. is arguing in a seperate case that a court adopt the central legal theory espoused by the writers of the 2002 memo. It would be hard to imagine an act of greater hypocrisy.

Compliments of Powerline, we now are able to access an impressive piece of legal research on the history of our interpretation of the law of torture and the history of our post-WWII interrogation programs. From Powerline:

The Yale Law Journal Note on interrogation law and policy by William Ranney Levi has received considerable attention, plus requests for the link. I understand that the Note has not been published yet, but it can be downloaded from this link. Click on "download." If that doesn't work, click on "SSRN" on the next screen you see.

I would strongly recommend taking a look at this document. It is rather lengthy. Ultimately, the well documented conclusions of the author are that: a) the law of torture sets an unclear line that is subject to a range of possible interpretations, though history shows that in times of need, all prior administrations have taken an expansive view of what was allowable under the law; and 2) the enhanced interrogation techniques used by the Bush Administration do not amount to any significant change from prior types of interrogation techniques deemed legal by past post-WWII administrations.

Indeed, to the extent that we see any break with traditional interpretations of what was deemed allowable under the law, it has come from President Obama and the extreme limits he has now placed on interrogation of terrorists. Powerline has more, here and here.

According to reports released yesterday, the Justice Department's Office of Professional Responsibility is now recommending that two of the authors of the Bybee Memo - Justice Bybee and John Yoo - be referred to their state bar associations for possible discipline. There will be no direct criminal prosecution of any of the OLC lawyers, but this end result still amounts to the criminalization of policy differences. Both Yoo and Bybee are still in danger of losing their livelihoods, it's just that Obama has now kicked the responsibility for doing so to the states. (Apparently Obama does hold some belief in federalism - who knew?) This is not over by any means. And there is still the issue of the Obama Justice Dept. vowing to cooperate with a Spanish Court in that court's criminal investigation of these individuals.

All that said, what takes this to a whole new level is that the Obama Justice Dept. is currently arguing before a court that one of the central legal theories articulated in the Bybee Memo should be adopted as controlling law. This from Powerline:

Meanwhile, far from actually believing that the most notorious "torture memo," written by Jay Bybee and John Yoo in 2002, was a criminal act, the Obama Justice Department has just filed a brief in the Sixth Circuit Court of Appeals in which is adopts and endorses the Bybee/Yoo thesis. Andy McCarthy has the details. Of course, it shouldn't be surprising that DOJ has adopted the Bybee/Yoo analysis as correct, since the same approach was endorsed by the Third Circuit Court of Appeals in Pierre v. Attorney General, on a 10-3 vote. So the "criminal" policy of the Bush Justice Department is also the law as elucidated by the Third Circuit, en banc, and the policy of the current Department of Justice.

What we're witnessing here goes far beyond mere hypocrisy. In three months, Barack Obama and Eric Holder have succeeded in politicizing DOJ and bending it to their partisan ends, to the point of threatening their predecessors with baseless criminal prosecution as a form of political harassment.

Read the entire post. We are well on our way to banana republic status. If Obama has been able to do this much mischief to our nation in the first 100 days, imagine what might be in store in the next 1350 or so?


cdor said...

It is unclear which state bar or bars would be involved in this witchburning. When I google Bybee, I see amongst the hundreds of articles calling for his impeachment (including one at Findlaw which I had hoped would be objective, but alas quotes, of all people, Harold Koh as an expert) that he is in the ninth circuit. John Yoo is a professor at UCal Berkeley. I assume therefore that the California Bar would be their judges and jury.

Not being a lawyer, I don't know if a recommendation by Holder is all that is needed for the bar to take the gauntlet.

I pray it doesn't happen. But if it does, they are screwed. What a shame. If God is still blessing this great country, the worm will turn. If and when that does happen, I, for one, will find it very difficult to restrain my very un-Christian, desire for revenge.

suek said...


"Do unto others as they have done unto you"