Touting Torture - Waterboarding and the Ethically Impermissible

The Department of Justice took out the trash on Friday, February 22nd, and dumped a little tidbit into a news cycle which perhaps it hoped would be missed between accounts of Britney's child visitation woes and Hillary's increasingly desperate attacks on Obama.

The New York Times reported Friday that the DOJ's internal ethics office is investigating the origins of the infamous Torture Memo which led to the equally infamous waterboarding and torture of terrorism suspects by the CIA.

H. Marshall Jarrett, head of the DOJ's Office of Professional Responsibility (who knew they had one?) responded to a letter from Senator Durbin of Illinois, and Senator Whitehouse of Rhode Island:

the legal advice approving waterboarding was one subject of an investigation into “the circumstances surrounding the drafting” of a Justice legal memorandum dated Aug. 1, 2002.

The document declared that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. The memorandum, drafted by a Justice Department lawyer, John Yoo, and signed by Jay S. Bybee, then head of the department’s Office of Legal Counsel, was withdrawn in 2004.

Mr. Jarrett said the investigation was also covering “related” legal memorandums prepared by the Office of Legal Counsel since 2002. That suggested the investigation would address still-secret legal opinions written in 2005 by Steven G. Bradbury, then and now the acting head of the Office of Legal Counsel, that gave legal approval for waterboarding and other tough methods, even when used in combination.

Mr. Jarrett said his office was “examining whether the legal advice in these memoranda was consistent with the professional standards that apply to Department of Justice attorneys.”

“Because of the significant public interest in this matter, O.P.R. will consider releasing to Congress and the public a nonclassified summary of our final report,” Mr. Jarrett wrote, using the initials for the Office of Professional Responsibility.

Justice Department officials said that the O.P.R. inquiry began more than three years ago and noted that it was mentioned in a Newsweek article in December 2004. It has since been expanded, the officials said, to cover more recent legal opinions on interrogation.

Mr. Jarrett’s letter, dated Monday, came in reply to a Feb. 12 letter from Mr. Durbin and Mr. Whitehouse to him and the Justice Department’s inspector general, Glenn A. Fine, seeking an investigation into the department’s legal approval of waterboarding.

“Despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal,” the senators wrote, “certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials.”

According to a Washington Post article

The memo was formally withdrawn in 2004 by Jack L. Goldsmith, who succeeded Bybee as head of OLC. Goldsmith concluded that legal opinions on the NSA program, torture and other issues were fundamentally flawed and told the Senate last year that the memos created "a legal mess."

Two other Justice memos that are known to have dealt with waterboarding and harsh tactics are still-secret opinions penned in 2005 by Steven G. Bradbury, who is currently the acting OLC chief. Administration officials have said those opinions authorized a number of techniques, including waterboarding, sleep deprivation and head-slapping.

Proving once and for all that crappy research skills and a willingness to overlook teeny-tiny ethical issues like whether coerced confessions violate the very basis of our system of justice don't necessarily pose an impediment to the ambitious and well-connected young persecutor prosecutor, it should be noted that John Yoo is a law professor at the University of California Berkeley College of Law and his co-conspirator former boss, Jay S. Bybee is now a federal judge sitting on the Ninth Circuit Court of Appeals. Yes, both men are examples of how those who disregard and flout the highest standards of the legal profession are punished rewarded for their perfidy.