The Obama Justice Department has now found that John Yoo and Jay Bybee did nothing wrong- not even enough to warrant referral to their State Bar associations for delicensing or other discipline. One might conclude that lawyers are routinely expected to do what they did- to recommend flat violations of law, humanity, and ethics at the behest of their employers. That this goes on in the interests of crime syndicates is not news. But as a matter of official US policy? The US is signatory to the UN convention against torture, just to name the first thing that comes to mind.
The decision scuttles the findings of the Justice Department's Office of Public Responsibility (OPR) report (large PDF), which highlighted:
"Much of the OPR report tries to show—at elaborate length—that the arguments in the torture memos are so bad and so tendentious that lawyers of this caliber could not have produced them in good faith."
"But the OPR report informs us that "most of Yoo's emails had been deleted and were not recoverable.""
We are left with a government that fails to be accountable to the law or to any notion of professional ethics. Those who torture are protected as following orders, those who order it are protected as following legal opinions given in good faith, and those giving the opinions are protected by a sort of freedom of speech or legal advice- that they offered merely opinions, dressed with legal reasoning, however spurious and mercenary. Where does this end, and what does this say about our imperial presidency, and about the accountability of our institutions?
It says that we are leaving the realm of lawful civilizations. When decent people are put in charge, the results may be acceptable. When not, then there is no telling what might happen, or what did happen. One striking aspect of the record of Abraham Lincoln, aside from his poetic and moving rhetoric, is his punctilious adherence to law, in both spirit and letter, even in the most dire moments of the Republic. He took extraordinary powers, but in a constitutionally justified, and, when possible, congressionally authorized, way (abetted by the secession of the Southern bloc in congress).
To read the decisions of that time puts ours in a rather unfavorable light. Lincoln got congressional approval for impositon of martial law throughout the US, after which the Supreme Court struck it down as overly broad, in light of the fact that in most places courts were in regular operation, making martial law unnecessary. Thus chastened, Lincoln continued the war with martial law restricted to areas actually at war. The war raised countless other constitutional issues, which show the quality of Lincoln's reasoning and attention to the law.
In our age, we receive a relative pinprick from a band of pathetic malcontents, and flee, panic-stricken, from our civil liberties and sense of ethics. We have been lulled into complacency, then infantilism, by our long reign as a super-power, and are shocked by the reality of mortality and of people who fail to share our interpretation of the American dream.
If the goal is American and global security, we are only shooting ourselves in the feet by scuttling the rule of law, especially international law. The US will not be the hegemonic superpower forever, so with an eye to the future, we should be paving the way to truly effective and humane international law, locking in place the ethics and processes that have succeeded so well in the West, at least to date.
- And this issue of legality and extra-legality is relevant elsewhere.
- Rev. Dr. Peter Hearty out-does himself.
- Glenn Greenwald nails the NYT.
- Honor where honor is due, IRS-wise.
- Have the banks won?
- Some more ominous signs on Afghanistan. As usual, the issue is whether the government is any good- is it better and less corrupt than the Taliban?
- Who knew that Rachmaninov wrote meltingly beautiful choral music?
- Bill Mitchell quote of the week:
"No taxpayer will have to foot the bill for any of the government spending [i.e. debt]. He is talking about a government that is not financially constrained although he doesn’t realise that.
Taxes are paid and people don’t like paying them – that is clear. But what they don’t like is that the tax payments reduce their disposable income which means that taxation reduces the private command over real goods and services. There has to be “space” for public spending for a given real output capacity. Otherwise inflation becomes the threat."
"The progression in tax systems merely reflects the fact that you try to deprive those with the most purchasing power more than those with less – so-called equity ambitions. It is a way of more fairly sharing the burden of the price stability."