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David Cole, reviewing the Department of Justice ethics reports on the torture lawyers, says that the almost exclusive focus on John Yoo and Jay Bybee is inappropriate. The report lets Yoo’s and Bybee’s successors off the hook, concluding that even though they approved pretty much the same torture techniques, they approved them in a manner consistent with the ethics standards applicable at the Department of Justice. (Both the OPR memo and the Margolis review have a lot of trouble identifying any ethics standards that are applicable at the Department of Justice, but that’s another matter.)
What is most disturbing about the torture memos is not that they employ strained reasoning or fail to cite this or that authority, but that they do so in the name of authorizing torture and cruel, inhuman, and degrading treatment of human beings. Remarkably, neither the OPR nor Margolis directly considered the illegality of the conduct that was authorized by the memos. The OPR stated that it “did not attempt to determine and did not base our findings on whether…the Memos arrived at a correct result.” Margolis also did not address whether the conduct authorized was illegal. But surely that is the central issue.
Why, then, did the OPR and Margolis fail to take up the question of the legality of the brutality itself? Almost certainly because doing so would have implicated not only John Yoo and Jay Bybee, but all of the lawyers who approved these methods over the five-year course of their application, including, within the Justice Department, Jack Goldsmith, Daniel Levin, and [Steven] Bradbury, Bybee’s successors as head of the Office of Legal Counsel, and the two attorneys general, John Ashcroft and Alberto Gonzales. Notwithstanding their criticism of Yoo’s errors, all of these men concurred with the basic conclusion of the Yoo and Bybee memos that the tactics being used by the CIA were legitimate.
The analytical device used by the torture memo writers is simple. Congress chose to outlaw only torture. None of the techniques proposed and used constitute “torture” under the Congressional statute, they conclude. They brush to the side the question of techniques being cruel, inhuman, and degrading treatment, also outlawed under the Convention Against Torture, saying that Congress chose not to outlaw them. That more than doubtful legal analysis avoids the fact that the executive signed the Convention, agreed to uphold and be bound by it, and therefore should be guided by the Convention in its conduct, as well as the fact that the United States previously prosecuted state actors who applied cruel, inhuman, and degrading techniques. Cole is correct: “Responsibility for the illegal brutality inflicted on CIA and Guantánamo detainees cannot be limited to Yoo and Bybee. It extends to all those who approved the tactics—even those so eager later to condemn Yoo’s reasoning.” The idea that Bradbury is less culpable than Yoo and Bybee is ridiculous.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
I recently spent a semester teaching writing at an elite liberal-arts college. At strategic points around the campus, in shades of yellow and green, banners displayed the following pair of texts. The first was attributed to the college’s founder, which dates it to the 1920s. The second was extracted from the latest version of the institution’s mission statement:
The paramount obligation of a college is to develop in its students the ability to think clearly and independently, and the ability to live confidently, courageously, and hopefully.
Let us take a moment to compare these texts. The first thing to observe about the older one is that it is a sentence. It expresses an idea by placing concepts in relation to one another within the kind of structure that we call a syntax. It is, moreover, highly wrought: a parallel structure underscored by repetition, five adverbs balanced two against three.
Percentage of Britons who cannot name the city that provides the setting for the musical Chicago:
An Australian entrepreneur was selling oysters raised in tanks laced with Viagra.
A naked man believed to be under the influence of LSD rammed his pickup truck into two police cars.
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“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”