The OPR’s Torture Memo report will be an assault on the rule of law

According to Newsweek’s Michael Isikoff and Daniel Klaidman, the DOJ’s Office of Professional Reponsibility (OPR) is about to release an investigation that lets off the 2002 Torture Memo’s authors, John Yoo and Jay Bybee, with no more than a mild rebuke.

The report originally criticized them strongly for misconduct in producing that brief for torture with reckless disregard for legal precedent. But Bush’s Attorney General, Michael Mukasey, didn’t care for that finding. First he and then Eric Holder allowed the CIA to weigh in on the OPR draft report, whose criticisms of Yoo and Bybee were then toned down radically.

Reportedly the final draft will charge them only with showing “poor judgment”, a finding so flaccid that it does not even require a DOJ referral to state bar associations for disciplinary action against Yoo and Bybee. Bybee, a federal judge, could have faced impeachment.

The dumbing down of the findings clearly have politicized the OPR report, which is remarkable given that Yoo and Bybee stand accused of tailoring their legal opinion to suit the wishes of top Bush administration officials. It amounts to another searing searing indictment of the Holder Justice Department for failing to hold any high ranking officials accountable for the torture of prisoners under the Bush administration.

Perhaps worse, it encourages future presidents to develop further the Bush administration’s diabolical experiment in indemnifying government officials against gross lawlessness. What Bush’s lawyers were busy doing in the aftermath of 9/11, essentially, was generating junk legal opinions as a smokescreen behind which the CIA and others could operate with impunity no matter how egregiously and transparently illegal their activities. If they were ever threatened with prosecution, they could claim that they acted in good faith based upon these (junk) opinions. Now the OPR, by failing even to recommend that Yoo and Bybee be disbarred for their handiwork, is about to wink at that practice. It’s an assault upon constitutional democracy.

I’ll have more later on this subject. In particular I wish to highlight something that appears to be overlooked in commentary so far. That is, the revision of the report shields not only Yoo and Bybee, but also Alberto Gonzales and David Addington. It may well be that protecting the latter two (and thus their patrons, Bush and Cheney) was the main object in blunting OPR’s findings.