No Crime, Just Bad Counsel? Justice Department Conducts Internal Ethics Review on the Torture Memos

Despite confirmation of waterboarding by the Administration and the existence of a torture program, Attorney Michael Mukasey continues to refuse to acknowledge that waterboarding is a crime and has blocked any criminal investigation that would implicate the President in the commission of a war crime. Now, Democrats are heralding an internal investigation that promises nothing beyond a low-grade ethics review with no likely action against individual lawyers.

At the request of Democrats (including Democratic Sens. Dick Durbin of Illinois and Sheldon Whitehouse of Rhode Island), the Justice Department’s Office of Professional Responsibility (OPR) has opened an investigation into the role of lawyers in approving the torture of detainees. The OPR has long been viewed as a paper tiger, which is most often used to create the appearance of investigation to clear its own attorneys. The only value of an OPR investigation would be to give the appearance of investigation without any substantive action.

While Durbin and Whitehouse have been more active than most of their colleagues (who refuse to even utter the word “torture”), leading democrats have worked behind the scenes to block any serious criminal investigation into either the torture or unlawful surveillance programs — which both Democrats and Republican members knew about for years. For a prior entry, click here.

The suggestion of an internal investigation as a substitute for a criminal investigation is laughable. President Bush intentionally surrounded himself with lawyers and law professors like Steven Bradbury, Viet Dinh, and John Yoo who held extreme views of executive powers. They told him what he wanted to hear and gave him the legal cover to claim legal authority. Mukasey used that advice to refuse to allow any criminal investigation into the torture program under a classic “he-was-just-following-advice-of-counsel” defense for the commission of a war crime.

On Aug. 1, 2002, lawyers like then-Assistant Attorney General Jay Bybee wrote the infamous torture memo for then-White House Counsel Alberto Gonzales, who blindly signed it. Bradbury recently used language that mirrored aspects of that memo in terms of painful techniques that do not cause permanent or lasting injury.

Notably, Mukasey himself testified implausibly under oath at his confirmation that he did not know what waterboarding was. When he was told, he still refused to acknowledge that international and domestic courts have long defined waterboarding as torture. Democratic Sens. Chuck Schumer and Dianne Feinstein saved his confirmation and allowed him to avoid answering the question. Once in office, he then promptly refused to answer the question at all. To state the obvious (that waterboarding is torture) would trigger an immediate criminal investigation implicating the President himself.

Not only is Mukasey refusing to answer this question before Congress, he is seeking the promotion of one of the lawyers responsible for the bad advice, Bradbury. Click here

Is an OPR review going to go after Mukasey’s continued obstruction or Bradbury’s role? I doubt it. The more likely result is some mild rebuke with no action taken against any lawyer (a classic OPR response to such scandals). Even if OPR surprises the legal world with concrete sanctions, it would only be used by members of Congress and the Administration to distract from the fact that no serious criminal investigation was allowed in either the legislative or executive branches.

Even the statement by Durbin appeared to focus on establishing a political point. He noted that the “answer was preordained and the department was driven by politics and obedience, not law and independence.” It is obviously an important question, but what if OPR came to the same conclusion? These officials will still have succeeded in committing federal and international crimes without any personal penalty. In some ways it is worse for the Justice Department to create a record of dealing with such crimes as simply breaches of professional judgment rather than crimes.

The collusion of Congress to avoid criminal investigation of the torture and unlawful surveillance programs challenges many of the assumptions of the Framers in creating the tripartite system. They assumed that there would be people in either house who would never allow a president to commit criminal acts without a check and balance from the legislative branch. Our modern legislators have defied such logic. For personal reasons, they have found it entirely inconvenient to force a confrontation over these criminal programs — working not just to block serious investigations of these programs but to actually extend immunity to the telecom companies who assisted in the unlawful surveillance program.

This is why the OPR investigation is like salt in the wound for civil libertarians. It is like witnessing a bank robbery and proudly proclaiming that you might issue a speeding ticket to the get-away car. At some point, this political posturing becomes a insult to the intelligence of voters. It is certainly an insult to our constitutional traditions.

For the latest story, click here.

6 thoughts on “No Crime, Just Bad Counsel? Justice Department Conducts Internal Ethics Review on the Torture Memos”

  1. Rafflaw,

    I think the events of 9’11 paralyzed all opposition to the administration’s green light on information gathering via any and all means. Everyone wanted to hunt down the perpetrators and scotch any further such attacks, and at that time squeamishness was put to the side by almost everyone.

  2. I don’t understand why the fact of the previous convictions of Japanese soldiers after World War II and of American personnel from the Vietnam War for the crime of waterboarding is not spread across every newspaper in the land. I don’t understand why Feinstein and Schumer’s role in allowing Mukasey’s nomination to go forward is not held up for scorn by every progressive blogger in the land. Our nation has been duped for 8 years by the Bush Administation and it may take their departure from office to give Congress and a truly impartial Justice Department to hold them criminally responsible for their many crimes.

  3. From a forensic science perspective the integrity of this crime scene has been dramatically compromised. This is further compounded by the conflation of injured parties and co-conspirators.

    This eventually all sounds like noise to the majority of the American public. Norm Crosby couldn’t possibly have made this any more confusing while shrugging his shoulders in apparent amazement that it isn’t as obvious as the 200 lbs Justices Scalia and Thomas have gained collectively since their appointments to the Supreme Court.

    Most not only immediately mistrust the alleged perps …. but indeed mistrust any other body declaring “J’Accuse!” with anything short of Emile Zola’s credentials. The facts transform into irrelevant annoyances because our regard for the Constitution or rather disregard for the Constitution is replaced with political collateral Our guidebook to prevent monarchy has been the knotted rope in a tug-o-war of ideologues – fighting for their own lexicon in order to put definitive words into the framers mouths, posthumously.

    This eventually leads one to believe that there has to be a better way to perfect our Constitution other than continuously changing the rules by rearranging the words and those speaking them compared to the last time we heard them and that outcome based on who was in the room. I don’t mean to reap scorn by reducing the great study of law to an elaborate game of “Yeah … BUT!!!”

    On the other hand, it shatters the confidence of the Nation when a buffoon is permitted to propose buffoons to sit on the most important Bench in town, only to be accepted or rejected for a plethora of suspicious reasons by another gallery of buffoons all claiming to regard above all – Lady Justice. Then in an act of utter obstruction, another buffoon is put in charge of the door.

  4. DW, I fully agree with both JT’s and your words, but I have to wonder WHAT, if anything, can be done at this point. JT has already said it, those at the top levels of our Justice Department, whom we have counted on to launch necessary criminal investigations, have refused to do so. Which says, to me anyway, that they have in effect given a mass pardon to those who should have been charged with these crimes long ago. And by so doing, they have virtually abandoned the American people in the process, leaving us all to the “mercies” of a callous and indifferent government, who in turn can imprison just anyone on a whim. It is a frightening direction this country has taken. I honestly don’t know what those of us with little or no power can do when our elected officials with the most power have refused to do anything.

  5. I could write the response of a civil libertarian to this news, but Professor Turley has pre-empted me and said what needs to be said far more eloquently and at greater detail then ever I could.

    Professor, I wish I were reading this on the op-ed page of both the Post, the Times, and the LA Times, (throw in the Trib for your hometown). Can you get them to print this?

    More people than just the readers of this blog need to read the above.


    Everyone is used to me dusting off old Court decisions but I will give it a rest here. Over the last months we have all been exposed to the numerous rulings and statutes that made torture illegal. We know the cases dating back to the Spanish American war and the war crimes tribunal, and UNCAT, and Hilao v Marcos, and the police interrogation cases of the forties and fifties.

    There is one unified, unbroken thread: neither the courts nor the congresses have ever condoned agents or our democratic government torturing human beings of any legal category, and every the practice was brought before them, they struck it down.

    Frankfurter talked about brutalizing the “temper of society”. This piece of insubstantial window decoration “investigation” is a sign of the brutalization of our government.

    I sometimes visualize the Framers coming back to latter-day Washington and surveying the current scene and considering how their children have carried out their vision.

    In my little fantasy, they are somewhat larger than life in stature, maybe 8 feet or so and they go striding through the halls of Congress and the DOJ and the office buildings gathering up Durbin, and Rockefeller, Mukasey and Bradbury, Feinstein and McConnell, Reid and Pelosi, Bush and Cheney, and on and on, carrying them under their arms and then pitching the little latter-day midgets into the Potomac.

    John Marshall and Joseph Story are in the crew and they emerge from the Supreme Court with Scalia and Thomas under their arms and pitch them into the river as well.

    But they won’t appear, and we must do what we can in their stead. And for our grandchildren so we will be the fit subjects of the dreams of the future generations and not be the ignoble players in the dramas yet to come in minds, yet unborn.

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