-- Opening Statement of the Chief Prosecutor, Supreme Court Justice Robert H. Jackson, at Nuremberg, from the website of the Robert Jackson Steering Committee, lawsnotmen.org

To read the contents of the first OPR report, the subsequent reports, and then the DOJ conclusions, is to read an account of a classic whitewashing process, one that has been exercised often since the Iran-Contra hearings and before. The first report presents the real evidence, a parade of enumerated horribles that, by the final report by Margolis, have been erased or minimized according to the interests that the reviewing parties want to protect. The end result is always the same: no accountability for laws broken. These were not little legal infractions committed by the OLC lawyers. These were infractions that destroy the very fabric of our democracy.

We deplore the fact that David Margolis, speaking for the department, has gone very far toward accepting Yoo and Bybee's argument that, in times of emergency, legal norms as fundamental as the absolute prohibition of torture may be violated with impunity by the President and other high officials. If that is to become official US policy, it will merely reinforce the international movement toward universal jurisdiction for particularly heinous crimes, instead of leaving it to American courts to deal with Americans accused of such crimes.

Justice Jackson at Nuremberg: I know the defense that defendants were "only following orders" came up a lot (and was always rejected), but I don't recall that we established a Nuremberg Loophole excusing war-crimes defendants who were "sincere."

I didn't think it was possible, but former Bush officials -- desperately fighting what they know will be their legacy as war criminals -- have become even more dishonest propagandists out of office than they were in office. At National Review, Bill Burck and Dana Perino so thoroughly mislead their readers about the DOJ report . . . that it's hard to know where to begin.







Margolis said that whether Yoo "intentionally or recklessly provided misleading advice to his client" when authorizing torture -- about the most serious accusation one can make against a lawyer, as it means he deliberately made false statements about the law -- "is a close question." That's the precise opposite of what Burck and Perino told National Review readers about Margolis' conclusion ("This shouldn’t have been close — and it wasn't, on the merits").



Moreover, Margolis repeatedly adopted the OPR's findings that the Yoo/Bybee torture memos -- on which the entire American torture regime was constructed and which media elites now embrace in order to argue against prosecutions -- were wrong, "extreme," misguided, and the by-product of "poor judgment."

He refers readers to



And remember, Margolis described his judgment about actionability against the Torture Boys as "a close question." So there is no remotely conceivable sense in which Yoo and Bybee can be said to have been "cleared" or "exonerated," any more than anyone under investigation by a prosecutor's office that declines to prosecute can be said to have been. Less, actually, because rarely does such a person have a judgment delivered that says, "The decision was oh so close, you know this close, to going the other way."



In fact, one reason that should have been given more weight is the consequence of failing to take action: the possibility that the proponents of rampant government criminality can claim their heroes to have been "exonerated."



But did that stop the Washington Post from editorializing ("



Actually, what the editorial says is that Margolis "correctly and courageously overturned a skewed recommendation by the department's Office of Professional Responsibility." Well, perhaps the final OPR report was skewed, but as those who have now read the redacted versions of the three OPR reports tell us, the skewing going on was all in the direction of watering it down, to make it more live-and-let-live Village-friendly.



Of course, by the time the "skewed" OPR report was scuttled by the Margolis one, it was a snap for the war criminals and their enthusiasts on the Right to claim "exoneration." I'm with Glenn on this one. You have to wonder, is there any lie those people won't tell to cover their butts?

# "Just think about that for a minute," says Glenn.He refers readers to Yale Prof. Jack Balkin's detailed analysis of the opinion on Friday, under the piquant head, "Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway." According to Balkin, says Glenn, "The only thing that saved Yoo in Margolis' eyes was that attorney ethical rules have been written by lawyers to protect themselves, and the bar is therefore so low that it basically includes only 'sociopaths and people driven to theft and egregious incompetence by serious drug and alcohol abuse problems.'"And remember, Margolis described his judgment about actionability against the Torture Boys as "a close question." So there is no remotely conceivable sense in which Yoo and Bybee can be said to have been "cleared" or "exonerated," any more than anyone under investigation by a prosecutor's office that declines to prosecute can be said to have been. Less, actually, because rarely does such a person have a judgment delivered that says, "The decision was oh so close, you know, to going the other way."In fact, one reason that should have been given more weight is the consequence ofto take action: the possibility that the proponents of rampant government criminality can claim their heroes to have been "exonerated."But did that stop the Washington Post from editorializing (" No punishment for torture memos' authors, but no exoneration, either "; at least they got the "no exoneration" part right) from claiming, "Mr. Margolis noted that the lawyers acted in 'good faith' under extremely difficult circumstances and with the benefit of several court decisions that could be read to support their approach"? Well, some stuff sort of along those lines is in there, but do you get the sense from this characterization that Margolis in fact described his decision -- hailed by the sleepy-at-the-wheel WaPo editorialist as "courageous" -- not to recommend action as "a close call"?Actually, what the editorial says is that Margolis "correctly and courageously overturned a skewed recommendation by the department's Office of Professional Responsibility." Well, perhaps the final OPR report was skewed, but as those who have now read the redacted versions of the three OPR reports tell us, the skewing going on was all in the direction of watering it down, to make it more live-and-let-live Village-friendly.Of course, by the time the "skewed" OPR report was scuttled by the Margolis one, it was a snap for the war criminals and their enthusiasts on the Right to claim "exoneration." I'm with Glenn on this one. You have to wonder, is therelie those people won't tell to cover their butts?

Tangled Up in Yoo

By David Swanson



Early one mornin' the sun was shinin',

Prisoners layin' in bed

Wond'rin' when the guards would come

And kick them in the head.

The folks who wrote the torture memos

Sure did have it rough.

They never got enough exercise.

The new condo wasn't big enough.

One victim standin' at the side of his cell

Blood dripping on his shoes

Admitted Iraq had WMDs

Lord knows that made the news but was it true,

Tangled up in Yoo.



Yoo was married to his belief

That nobody could force

A president to obey the law

And wartime only made that worse.

Yoo drove that point as far as he could

And overruled the rest

Of the lawyers who gave into him

All agreeing it was best.

He turned around to look upon

The damage he had done

I heard him whisper over his shoulder,

"They'll lock me up some day on the avenue,"

Tangled up in Yoo.



Yoo had a job training fascist youth

Writing up a book for a spell.

But he never did like it all that much

And one day the ax just fell.

So he drifted round to campuses

Wherever they would let him speak

About presidents crushing testicles

And disinheriting the meek.

But all the while he was alone

The past was close behind,

Yoo broke a lot of statutes,

Prison never escaped his mind, and he just knew,

Tangled up in Yoo.



Yoo was talkin' in a corporate place

And I stopped in to hear.

I just kept lookin' at the side of his face

In the spotlight so clear.

And later on as the crowd thinned out

I started calling John Yoo's name,

I handcuffed him to the back of his chair

Said to him, "Does it feel the same?"

Yoo muttered somethin' underneath his breath,

I read him his Miranda rights.

I must admit I felt a little uneasy

When he admitted it was the right thing to do.

Tangled up in Yoo.



Yoo left a bundle of memos behind, legalizing crimes.

"I thought you'd never come for me," he said

"And it really blew my mind."

Then he opened up a book of laws

And handed it to me

Written by all kinds of people

Over two or three centuries.

And every one of them words rang true

And glowed like burnin' coal

Pourin' off of every page

Like it was written purely so we'd indict Yoo,

Nothing else to do.



Yoo authorized aggressive war

and lawless imprisonment,

warrantless spying and torture techniques,

That was the way Yoo went.

Then he started into peddling lies

And something inside of him died.

He had to sell his heart and bones

And Yoo froze up inside.

And when finally the bottom fell out

Yoo became withdrawn,

The only thing he knew how to do

Was to sing his lying song, like a bird that flew,

Tangled up in Yoo.



So now Yoo's goin' to be tried,

The law got to him somehow.

All the people he used to know

They're co-conspirators now.

Some are ex vice presidents.

Some lead glamorous lives.

Don't know how it all got started,

I don't know what they're gonna tell their wives.

But me, I'm still on the road

Trying to make a point.

Yoo always did feel the same,

He just saw it from a different point of view,

Tangled up in Yoo

I really don't want to go into DoJ stooge David Margolis's 69-page report declining to take any legal action against should-be-disgraced former DoJ stooges Jay Bybee and John Yoo, the "Torture Boys," who disgraced the obligation of the Office of Legal Counsel (OLC) to provide the executive branch with accurate information about the law. (Of course it's a cosmic irony that after the Bush regime turned the OLC into a crime-covering travesty, the law-hating crime enthusiasts of the Right have blocked the nomination of the superbly qualified Dawn Johnsen to head the OLC, the very job that, so thoroughly bungled, catapulted Torture Boy Bybee onto the federal bench.)It sucks, of course. Some welcome heat is being generated by the lawyers and journalists of the Robert Jackson Steering Committee, which under the Freedom of Information Act secured the release of a host of DoJ documents -- unfortunately in heavily redacted form -- including the three versions of DoJ's Office of Professional Responsibility (OPR) report, all now overturned by the Margolis judgment. There is, for example, this comment from journalist Kristina Borjesson, an RJSC member:And there's this comment from RJSC lawyer Peter Weiss, who participated in the FOIA filing:But even the RJSC gets it wrong when it comes to characterizing the Margolis report: "The committee expressed grave concern that David Margolis, a senior lawyer in the Department of Justice, wrote a final opinion in January which completely exonerates the two lawyers for legally justifying the illegal torture of detainees."Deep breath.If you want to say it "lets them off," fine. But it's pretty unkind about the quality of their legal work.What it comes down to, if you read what Margolis actually wrote, is that he doesn't see that it's likely to be provable that Yoo and Bybee weren'tin issuing the legal opinions for which the Office of Professional Responsibility recommended they be referred to their respective bar associations for disciplining. That, in Margolis's mind, is the legal issue: As long as they sincerely believed the bullshit that torture, which is unambiguously illegal under international and U.S. law, can be massaged to cleanliness, and that the president of the United States can under certain circumstances do, for which there isn't a single word in the Constitution that provides the remotest hint of the shadow of a possibility of justification, but, it's difficult to prove that they recklessly rendered bad legal opinions or deliberately advocated contrary-to-law positions.Now if people as sensibly attuned to the issues as the RJSC folks slip into declaring the Boys "exonerated," you can probably imagine what's going on on the truth-be-damned Right. Or can you? Glenn Greenwald has already declared himself surprised, in a vintage GG piece, " The flailing falsehoods of America's war criminals ":Glenn, it appears, has actuallythe Margolis report. And on the issue of whether "Yoo intentionally or recklessly provided misleading advice to his client," he points out, Margolis writes, "It is a close question."

Labels: David Margolis, DOJ, Jay Bybee, John Yoo, Nuremberg trials, torture, war crimes