Fixing Legal Policy Around Political Objectives

There is a continued buzz over the results of an investigation by H. Marshall Jarrett, head of the DOJ's Office of Professional Responsibility, into the legal advice that the Bush Administration received on policies of torture. The Public Record is quoting "legals sources familiar with the case" in saying that the results of this investigation are "damning" and that there was "misconduct" on the part of John Yoo and other lawyers who were apart of the Office of Legal Council during the Bush Administration.

The issue here is not merely that Yoo and others gave the Bush Administration bad legal advice, but that their opinions were not in good faith and were actually fixed around the policy goals that the Administration wanted to accomplish. This report and the conclusions that it reaches, could be very destructive for the Bush Administration's continued defense of its torture policies. The Bush Administration has continually pointed to the legal opinions that they received in the form of the Yoo and Bybee memos in justifying the legality of their policies on torture, but if these legal opinions were indeed fixed around political objectives, then this justification (which was shaky to begin with) will disintegrate.

From the article:

One part of the OPR report criticized Yoo’s use of an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding and other acts that have historically been regarded as torture under U.S. law, the sources said.

The report also criticizes Yoo’s legal theories that the President of the United States had the right to suspend Fourth Amendment protections against unreasonable searches and seizures, the sources said. It is believed that Yoo’s legal theories led to a warrantless wiretap program after 9/11.

The OPR report was completed late last year but was kept under wraps by Attorney General Michael Mukasey while Bush finished out his days in office, the sources said.

While the question of why Former Attorney General Mukasey decided to suppress this report needs to be answered, it is interesting to take into account John Yoo's involvement in White House policy meetings at the same time that he was forming the legal opinions that allowed for said policies to be implemented. It is clear, as The Public Record points out, that Yoo's own writings provide evidence of his involvement in the shaping of policy. Perhaps two of the most interesting lines from Yoo's book War by Other Means state:

“Many at Gitmo are not in a state of calm surrender. Open barracks for most are utterly impossible; some al-Qaeda detainees want to kill not only guards, but their peers who might be cooperating with the United States. The provision of ordinary POW rights...is infeasible.”

“If Geneva Convention rules were applied, some believed they would interfere with our ability to apprehend or interrogate al-Qaeda leaders.”

These lines indicate not only Yoo's communication with those who believed that the Geneva Conventions should not be applied, but they indicate that Yoo's involvement with policy makers translated into legal results that allowed for this very policy to become justified. With this "damning" of a report, it becomes harder for both the Bush Administration to justify their actions on torture and for the Obama Administration to ignore the need for punishment of the arrogant law-breaking from the last eight years.