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The Many Deficiencies of the OPR Report

danps's picture

No Associated Press content was harmed in the writing of this post

The Department of Justice's (DOJ) Office of Professional Responsibility (OPR) report on its ethics investigation for torture-approving lawyers has already generated some remarkable reactions. One of the few defenses came from former deputy counsel to George W. Bush Bill Burck and Bush's former press secretary Dana Perino; it is an amazingly weak effort. For instance, they cite the counsel of one of the lawyers under investigation as an analyst, quote her defense of her client, and conclude she is "someone whose credentials and experience as a top-flight lawyer cannot be seriously doubted." To which I can only respond, clownish is as clownish does.

They only address the issues in the report peripherally: "What makes this whole affair even more pointless is that OLC [Office of Legal Counsel] itself withdrew or superseded the relevant opinions of Yoo and Bybee during the Bush years." That is, the fact that alleged lawbreaking ceased before the investigation obviates the need of it. Once wrongdoing stops there is no reason to pursue it; instead we need to move on and look forward. (Remember when conservatives used to accuse liberals of moral relativism?) They never try to address the central point though - what responsibility do the authors bear for helping construct our torture bureaucracy?

The closest they come is in citing former OLC head Jack Goldsmith - who withdrew the memos - as believing that "none of the interrogation techniques, including waterboarding, violated U.S. law. He also believed that Yoo had come to his views honestly and did not merely use them as a cover to justify torture." That is simply obfuscation. The whole issue can be summed up as follows: Is waterboarding torture? (Yes.) Did the US waterboard? (Yes.) Is the US a signatory to the Convention Against Torture? (Yes.) Does the Convention require that any credible allegations of torture - even one time, even against an avowed enemy of the state, even against evil incarnate - be investigated? (Yes.)

The fact that Goldsmith believes waterboarding is not torture is irrelevant. Waterboarding is torture. There is abundant case law supporting that. Yoo could not honestly have come to another belief because it would have required willful ignorance of precedent. That seems to be the route Yoo actually took, but rather than exonerating him it only makes him more culpable. Yet even that is largely irrelevant; it might matter when it comes to establishing intent, but that only goes so far. Ignorance of the law is no excuse, which you can verify yourself if you've ever tried to talk your way out of a speeding ticket.

It is simply astounding that this is the best defense torture apologists can come up with: launch substance-free character attacks against the other side, insist any action amounts to criminalizing political differences, call for impunity in the name of looking forward and claim the kids really meant well. It is basically an entirely insubstantial response.

A wide variety of commentators have pointed out crippling deficiencies in the report. First, an in-house investigation should not inspire confidence even under the best circumstances. In the immortal words of Willem Buiter, self-regulation is to regulation as self-importance is to importance. On those lines, bmaz posted several links about the author and concluded: "It seems David Margolis has his own institutional interests that present an appearance of conflict with his duties to protect the public from malevolent lawyering by DOJ attorneys, especially high ranking ones."

Jack Balkin wrote that this cozy review was done according to a standard that would only have found fault under almost impossibly extreme circumstances. (He followed up with this as well.) Scott Horton noted that redactions in the report were "made to protect political figures at the White House and CIA, and potentially other agencies, from embarrassment" instead of from national security concerns (and it partially failed there too). David Cole, correctly predicting the exoneration in the report a couple of weeks ago, contrasted its characterization of the torture lawyers as having used "poor judgment" with the more reasonable treatment of their actions as war crimes by a Spanish judge.

The report is simply a mess. It was constructed under terrible conditions using a compromised process by a professional whitewasher. That is not an accident; there is an irreconcilable tension between those inside the DC establishment and those outside it. Many in the Beltway's political and media elite stand to look very bad, if not criminally liable, for America's barbaric treatment of detainees. It is obvious they want the issue to just go away. The OPR report is the latest example of something that could have started to chip away at the stonewalling, but failed. Instead it just slapped a few more bricks into place.

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