February 24, 2010

As the Scooter Libby affair showed, no one circles the wagons like the Republican Party and its conservative allies. Now that Bush torture architects John Yoo and Jay Bybee barely escaped disbarment in the final version of the report from the Justice Department's Office of Professional Responsibility, the right-wing counterattack and near orgasmic celebration is well underway. Leading the clarion call is none other than John Yoo himself, who in his Wall Street Journal op-ed Wednesday proclaimed his legacy of unlimited war powers - and a virtually unlimited regime of detainee torture - "my gift to the Obama presidency."

Following the cheerleading from the usual Republican mouthpieces including the National Review, Commentary and the Wall Street Journal, Yoo took a victory lap Wednesday, stepping over the broken bodies of American prisoners and shattered national honor. Rewriting both the history of the OPR report and its conclusions, Yoo crowed:

Barack Obama may not realize it, but I may have just helped save his presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe...

Without a vigorous commander-in-chief power at his disposal, Mr. Obama will struggle to win any of these victories. But that is where OPR, playing a junior varsity CIA, wanted to lead us. Ending the Justice Department's ethics witch hunt not only brought an unjust persecution to an end, but it protects the president's constitutional ability to fight the enemies that threaten our nation today.

Of course, as the likes of Jack Balkin and Glenn Greenwald documented in detail, only by avoiding ultimate condemnation and exile from the legal community could John Yoo claim to have won "a drawn-out fight." As Greenwald pointed out, OPR's David Margolis assessment of Yoo's legal framework for the commander-in-chief's power to torture hardly constituted exoneration, let alone an endorsement. On page 67, Margolis concluded:

For all of the above reasons, I am not prepared to conclude that the circumstantial evidence much of which is contradicted by the witness testimony regarding Yoo's efforts establishes by a preponderance of the evidence that Yoo intentionally or recklessly provided misleading advice to his client. It is a close question. I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel. While I have declined to adopt OPR's finding of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to adopt opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client.

The shorter version is that David Margolis accepted Yoo's George Costanza defense of torture. That is, it's not a war crime, if you believe it.

That doesn't mean that anyone else should -or does. The overwhelming consensus of legal opinion remains that Yoo's edifice of presidential war powers cannot withstand either serious scrutiny or the test of time. As Greenwald concluded:

That Bush officials have to cling to the harsh condemnations of Margolis as 'vindication' reveals just how wretched and lawless their conduct was.

And to be sure, the Bush administration enabled by the likes of John Yoo engaged in activity that was both wretch and lawless. The horrors don't end with what he Bush regime actually did on Yoo's say so, horrific as waterboarding, enhanced interrogation techniques and illicit domestic surveillance were. The more frightening prospect may be the dystopian future Yoo's Presidents would be wrongly empowered to create. As Yoo himself insisted, from defining to torture as " equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death" (including the crushing of testicles of a suspect's child) to ordering the massacre of innocent civilians or even preemptively using nuclear weapons, there's nothing President Yoo couldn't do during wartime.

At the end of day, Yoo's legacy is a presidency theoretically enlarged but morally and legally diminished. Which makes criminal conduct and national shame the gift of John Yoo to the Obama presidency, the American people and the world.

(This piece also appears at Perrspectives.)

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