John Hinderacker of Power Line, http://www.powerlineblog.com/, has more to say on the Justice Department's decision to clear John Yoo and Jay Bybee of professional misconduct, while finding them guilty of "poor judgment." Recall that Yoo and Bybee authored memos that argued or implied that waterboarding and other enhanced interrogation methods for high value al Qaeda prisoners were legal. John writes of DOJ's decision:
That's good, I guess. But it is still an outrage that a lawyer who writes a memorandum arguing a legal position with which a subsequent administration disagrees can be threatened with disbarment [as a finding of professional misconduct would have done]. In my opinion, the Bybee-Yoo memoranda were mostly or entirely correct. You can access the principal memorandum here. It undertook the difficult and unpleasant task of defining what constitutes "torture;" it also adopted an expansive, but historically well-supported, view of the President's war-fighting powers. As I've said before, I think that waterboarding, the most aggressive of the enhanced interrogation techniques that have been used in the current conflict, is a humane alternative to torture. It lasts for only a few minutes, is nearly always effective, and does no--zero--physical harm.
Lawyers and others can argue about the statutory definition of "torture" and about the constitutional powers of the executive and legislative branches. But what is going on now is not a legal argument. Rather, those currently in power are committed to an ideology that makes the conclusions of the Bybee-Yoo memos inconvenient. The persecution of those individuals is a political witch-hunt of the worst sort. Worse, it is emblematic of our establishment's reversion to a pre-September 11 mentality.
John makes a good point, and yet there is more. The current administration has abjured not only waterboarding, but, apparently, any aggressive interrogation practices. Indeed it has gone so far as virtually to invite al Qaeda prisoners to clam up, by telling them that they have the storied "right to remain silent" and will be given a lawyer to help make it stick.
If a terrorist's silence so induced turns out to deprive the government of actionable intelligence -- information that we could have used to prevent an attack, but that in our hypnotic obsession with Miranda, we deliberately failed to obtain -- and we wind up again with thousands of corpses underneath the rubble -- will, or should, those who fecklessly counseled giving Miranda warnings face disbarment? Or indeed, given the public outrage that is certain to follow such a preventable catastrophe, charges of treason?
Eric Holder and others in the administration afflicted with High Minded Platitudinitis should think long and hard before tut-tutting the report soon to be released.