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February 22, 2010

A culture of abuse

doj_logo_today The big legal news over the weekend is the Department of Justice’s decision not to recommend disciplinary proceedings against Cal-Berkeley law professor John C. Yoo and federal appellate Judge Jay S. Bybee for their participation in a series of DOJ memos that provided the dubious legal basis for the use of torture against enemy prisoners after the attacks of September 11, 2001. John Steele has done a great job of cataloging the blogosphere’s reaction to the DOJ’s decision.

The DOJ’s report outraged Jack Balkin, who opined that “the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.” On the other hand, the Wall Street Journal contends that the report vindicates Yoo and Bybee. Yoo provides his own defense here.

Although the DOJ’s report paints a fairly clear case of Yoo and Bybee providing a colorable legal cover for what the interrogation tactics that the Bush Administration wanted to pursue come hell or high water, that conduct is utterly unsurprising. The DOJ has been engaging in torture-like treatment over the past year of Allen Stanford, who is still awaiting trial. Similarly, the DOJ has regularly engaged in other astonishing abuses of power in connection with the prosecutions of Jeff Skilling, Jamie Olis and many others.

Our failure to hold governmental officials responsible for abuse of power toward our fellow citizens helped create the culture in which the leap to sanction torture against enemy combatants was a small one. That culture will be very difficult to change.

Posted by Tom at February 22, 2010 12:01 AM |


You appear to be comparing Allen Stanford to ... Khalid Sheikh Mohammad? In any context that analogy is something sadder than pathetic, Tom.

You owe it to your readers to find another horse, because you have beaten the '"abuse" of corporate scoundrels' gluebucket to death.

Posted by: PDiddie Author Profile Page at February 22, 2010 7:32 AM

PDiddie, so are you saying that the national security concerns related to the torture of an enemy combatant raises that issue to a different and more important level than mere abuse of prosecutorial power against a citizen? If so, we are in agreement.

However, the analogy is that the resolution of the more important issue is an outgrowth of the way in which the less important one is handled. And once we sanction state misconduct in a less important area, then it's extremely difficult to reign it in when it takes place in connection with a more important one.

Posted by: Tom K. Author Profile Page at February 22, 2010 7:44 AM

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