Legal Commentary

A culture of abuse

By Tom Kirkendall

The big legal news over the weekend is the Department of Justice?s decision not to recommend disciplinary proceedings against Cal-Berkeley law professor John C. Yoo and federal appellate Judge Jay S. Bybee for their participation in a series of DOJ memos that provided the dubious legal basis for the use of torture against enemy prisoners after the attacks of September 11, 2001. John Steele has done a great job of cataloging the blogosphere?s reaction to the DOJ?s decision.

The DOJ?s report outraged Jack Balkin, who opined that ?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.? On the other hand, the Wall Street Journal contends that the report vindicates Yoo and Bybee. Yoo provides his own defense here.

Although the DOJ?s report paints a fairly clear case of Yoo and Bybee providing a colorable legal cover for what the interrogation tactics that the Bush Administration wanted to pursue come hell or high water, that conduct is utterly unsurprising. The DOJ has been engaging in torture-like treatment over the past year of Allen Stanford, who is still awaiting trial. Similarly, the DOJ has regularly engaged in other astonishing abuses of power in connection with the prosecutions of Jeff Skilling, Jamie Olis and many others.

Our failure to hold governmental officials responsible for abuse of power toward our fellow citizens helped create the culture in which the leap to sanction torture against enemy combatants was a small one. That culture will be very difficult to change.

Full post as published by Houston's Clear Thinkers on February 22, 2010 (boomark / email).