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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:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Years ago, I lived in Montana, a land of purple sunsets, clear streams, and snowflakes the size of silver dollars drifting through the cold air. There were no speed limits and you could legally drive drunk. My small apartment in Missoula had little privacy. In order to write, I rented an off-season fishing cabin on Rock Creek, a one-room place with a bed and a bureau. I lacked the budget for a desk. My idea was to remove a sliding door from a closet in my apartment and place it over a couple of hastily cobbled-together sawhorses.
Average number of bacteria living in a pound of U.S. mud:
Canadian doctors saved a baby from drowning in his own drool by using Botox on his salivary glands.
A black bear named Pedals, famous for walking upright on his hind legs through Rockaway Township, New Jersey, was reported killed by a hunter, and a hiker in California was attacked after he interrupted two bears mating. It was a “pretty good bear attack,” said the local police chief.
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"She never thanked me, never looked at me—melted away into the miserable night, in the strangest manner I ever saw. I have seen many strange things, but not one that has left a deeper impression on my memory than the dull impassive way in which that worn-out heap of misery took that piece of money, and was lost."