No Accountability for Yoo and Bybee

We may have hoped for a better result, but this is what we get.

Bybee and Yoo should be disbarred for their professional misconduct. The Justice Department has punted. Now there is only the unlikely disbarment process from the State Bar Associations.

We get terrible public policy if there is no accountability. These people provided legal cover for the US government to violate the Geneva Conventions and the Convention Against Torture.

One other option for accountability exists through prosecution through the International Criminal Court. That path would test the concept of American exceptionalism.

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How to keep future John Yoos under control

During the long years that the Justice Department was investigating Jay S. Bybee and John C. Yoo, it was tempting to view the torture memos as if they were momentary aberrations in the life of the modern presidency. But in clearing the Bush administration lawyers who authored the memos of all charges of unprofessional conduct, the department invites future John Yoos to rubber-stamp future presidential abuses at moments of (real or imagined) crisis.

The torture memos are an entirely predictable product of an institutional set-up that puts the meaning of national security law at the mercy of a politicized Office of Legal Counsel and a super-politicized legal staff in the White House. There is a compelling need to reform that structure.

Forty years ago, the Office of Legal Counsel was dominated by career lawyers. But by the time George W. Bush was elected, the office had only a handful of seasoned professionals, and all the leading positions were held by political appointees who, like Bybee and Yoo, were predisposed to support their president.

Given this political transformation, the exoneration of Bybee and Yoo creates a dangerous precedent. Consider the department’s discussion of the torture memo’s claim that the president, as commander in chief, can defy Congress’s statutory prohibition on torture and order the military or CIA to engage in any and all forms of abuse. The department concedes that Bybee and Yoo presented an “incomplete and one-sided” argument in support of this remarkable legal conclusion and that the next head of the OLC, Jack Goldsmith, found that this claim had “no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law.”

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