That’s quite a defense, but it’s hard to disagree with that headline. If you haven’t been following this, it’s regarding the investigation of DOJ lawyers who provided the White House and DOD legal cover to torture detainees as long as it didn’t result in death or permanent injury:
But Margolis argues that the Office of Professional Responsibility chose too high a standard to judge the professional responsibility of Yoo and Bybee. The OPR argued that Yoo and Bybee had “a duty to exercise independent legal judgment and to render thorough, objective, and candid legal advice.” This standard, Margolis explained, is much too high a requirement and not one that Yoo and Bybee were previously warned was the standard to which they would be held.
I know what you are probably saying: shouldn’t every government lawyer have to live up to this standard? Of course, they should, but the point is that this is a disciplinary proceeding. It’s not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions.
Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.
Margolis concludes that Yoo and Bybee exercised poor judgment and made bad legal arguments. But lawyers often make arguments that are bad or even laughably bad, and this by itself does not violate the very low standard set by rules of professional responsibility. These rules are set up by jurisdictions to weed out the worst offenders, leaving the rest of the legal profession to make entirely stupid, disingenuous and asinine arguments that normal people with functioning moral consciences would not make. That is to say, rules of professional misconduct are aimed at weeding out sociopaths and people driven to theft and egregious incompetence by serious drug and alcohol abuse problems; they do not guarantee that lawyers will do right by their clients, or, in this case, by the Constitution and laws of the United States of America.
It’s hard to say how much our national interests were damaged by abandonment of various international treaties (like the Geneva Conventions or the United Nations Convention Against Torture) and American laws. Under the cover provided by Yoo and Bybee or government adopted the interrogation techniques and rhetoric of Nazi Germany, Imperial Japan, the Khmer Rouge and the Soviet Union.
Our institutions and leaders have decided that this is just fine, we can do exactly what we hanged Japanese Officers for after World War II. The argument is that it protected us and is therefore OK. This is the ultimate “the ends justifies the means” argument and is completely divorced from moral grounding.
Many have pointed out that there isn’t one terrorist plot foiled by this barbaric behavior. The Los Angeles Library Tower plot is trotted out as proof despite it being provably false. Dick Cheney loves to mention that, you can’t let the truth get in the way of a good story, especially if it’s part of an effort to cover you own ass.
For me it all comes down to this: either we are better than the terrorists that would destroy us or were not. Democracies don’t use the kind of techniques the former VP champions, we necessarily take certain behaviors off the table. This is as it should be, we keep the moral high ground. Fans of torture have no problem dragging us down to lowest levels of human conduct.
I say we can take these assholes without destroying the rule of law or lowering ourselves to their level. These religious fanatics are not now, nor have they ever been, an existential threat to our country. They should be treated as the thugs and criminals they are.
