[The DOJ’s Office of Professional Responsibility is winding up their investigation of the Bush-era Office of Legal Counsel at the DOJ. Leaks are flowing, and they suggest that the biggest sanction that OPR will recommend is that Bradbury, Bybee, and Yoo face disciplinary hearings with their various bar associations.

Sorry, but this is not acceptable.

What is needed is a criminal prosecution.

Since the DOJ is shorthanded right now (what with the various sub-cabinet level appointees like Dawn Johnson being held up in the Senate), I thought I might give the DOJ a hand and — with the help of the fine legal team at FDL and EW — draft an opening statement for the Government in the case of United States v Bradbury, Bybee, and Yoo.

For the record, I never attended law school. Also for the record, neither did Justice Jackson only attended for one year. [corrected]

May it please the court.

Torture is a war crime, and it is clear from the reports and memos that have been released (see here (pdf), here (pdf), here, here (pdf), and here), that it was practiced at US detention facilities at Guantanamo Bay and elsewhere by agents of the United States government. Media reports of other still-classified memos and reports only add color to the already vivid picture.

The International Committee of the Red Cross (pdf) calls it torture, Physicians for Human Rights calls it torture, the U.N. special investigator for human rights and counterterrorism calls it torture (link), the medical professionals at the Center for Victims of Torture (pdf) call it torture — everyone calls it torture.

Everyone, that is, except Messrs. Bradbury, Bybee, and Yoo, and their superiors in the Department of Justice and the George W. Bush White House.

And They. Are. Wrong.

But they are more than just wrong. This is not a simple case of a professional disagreement between lawyers who came to different legal conclusions on a thorny issue. No, this is a case in which these high-ranking DOJ attorneys knew the practices their superiors wanted them to justify, and they willfully turned their eyes away from anything that would have prevented them from reaching their pre-determined end result. These are not incompetent lawyers, who somehow wrote a set of very poor legal opinions for the rest of the executive branch to use. These are very careful lawyers who painstakingly tailored their advice so as to enable and endorse torture.

These lawyers did not pour the water on the faces of those who were strapped to boards — but they gave the unholy practice the blessing of the US government. These lawyers did not put detainees in stress positions for extended periods of time, deprive them of sleep, or lock them in small confined spaces — but they gave an official seal of approval to these practices, and in a move worthy of Orwell, they called them not torture but "enhanced interrogation techniques."

We’re going to show you the evidence that makes it crystal clear that these are not poor lawyers who drafted some bad legal advice, but good lawyers so anxious to please that they willfully departed from the law. For example:

Selective citations in legal memos. Selective and misleading notification of Congress. Obstructing legitimate oversight. Attempting to sweep the record of the OLC out the door. This is the pattern of careful attention to detail exhibited by of the Office of Legal Counsel under Attorneys General Ashcroft and Mukasey.

These high ranking DOJ lawyers put "getting ahead" and "pleasing the boss" ahead of their duty to the Constitution of the United States and their own obligations as lawyers to follow the law where ever it leads. They sold their legal souls by providing the cover of law to practices so abhorrent that they are called not crimes against the state but crimes against humanity.

Our own humanity demands that we hold them accountable for what they enabled: the acts of torture that were carried out in our names.



I'm an ordained Lutheran pastor with a passion for language, progressive politics, and the intersection of people's inner sets of ideals and beliefs (aka "faith" to many) and their political actions. I mostly comment around here, but offer a weekly post or two as well. With the role that conservative Christianity plays in the current Republican politics, I believe that progressives ignore the dynamics of religion, religious language, and religiously-inspired actions at our own peril. I am also incensed at what the TheoCons have done to the public impression of Christianity, and don't want their twisted version of it to go unchallenged in the wider world. I'm a midwesterner, now living in the Kansas City area, but also spent ten years living in the SF Bay area. I'm married to a wonderful microbiologist (she's wonderful all the way around, not just at science) and have a great little Kid, for whom I am the primary caretaker these days. I love the discussions around here, especially the combination of humor and seriousness that lets us take on incredibly tough stuff while keeping it all in perspective and treating one another with respect.

And Preview is my friend.