Tuesday, April 21, 2009

President Obama’s Tortured Disconnect


Attorney General Eric Holder’s pronouncements about the government’s recommitment to the “rule of law” and his boss’s pronouncements about the need for “reflection and not retribution” are fundamentally at odds. The Obama administration cannot have it both ways, and the case of torture enabler Jay Bybee has brought that into sharp focus.

Key Bush administration players knew that the torture regime pushed by Vice President Cheney was morally and legally wrong. This is why they sought to first keep it secret and then give it legal cover by going to the Justice Department’s Office of Legal Counsel where Bybee, as well as Stephen Bradbury and John Yoo, reverse engineered memos justifying the most vile forms of interrogation after the fact.

When the existence of the memos and their shabby justifications became known, Michael Mukasey, who in retrospect arguably was even worse than Alberto Gonzalez as attorney general because of his refusal to undo the harm Gonzo had wrought, argued that lawyers cannot commit crimes when they act under the orders of a president — and that a president cannot commit a crime when he acts under advice of lawyers.

Bush and Cheney are probably out of the reach of any U.S.-based tribunal and I have somewhat less problem with the CIA interrogators skating since they did, after all, rely on the OLC opinions no matter how perniciously self-serving they were. But Mukasey’s flimflammery notwithstanding, Bybee was a knowing enabler and as such is unfit to wear the black bathrobe of a U.S. Circuit Court judge.

While Bradbury and Yoo also have earned their day in the dock, Bybee must be impeached or forced to resign from the federal bench because he has proven himself in word and deed to be unfit to judge others.

Is Bybee a fall guy like Scooter Libby was? To an extent that is true, but he should not be forgiven his ill deeds any more than Cheney’s chief aide should have been forgiven perjuring himself and obstructing justice.


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