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No punishment for torture memos' authors, but no exoneration, either

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Tuesday, February 23, 2010

JAY S. BYBEE was head of the Justice Department's Office of Legal Counsel and John C. Yoo was his deputy in 2002 when the CIA asked for a review of the legality of certain interrogation techniques for detainees. The circumstances could not have been more charged: Barely seven months after the Sept. 11, 2001, terrorist attacks, chatter about a forthcoming assault on American soil or on U.S. interests abroad was high.

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Mr. Bybee and Mr. Yoo approved a roster of techniques that included waterboarding and prolonged sleep deprivation. They asserted that interrogators would be on solid legal ground unless they acted with "specific intent" to inflict "severe pain," which they defined as pain equivalent to "death, organ failure or serious impairment of bodily functions." They also made the breathtaking argument -- later repudiated by a successor in the Bush Justice Department -- that the president, as commander in chief during a time of war, was essentially unconstrained by law in ordering measures he deemed necessary to protect the country.

Some seven years later, Mr. Bybee, now a federal appeals court judge, and Mr. Yoo, a law professor, have been cleared of charges of professional misconduct. It is the right decision. David Margolis, the Justice Department veteran who reviewed the matter, correctly and courageously overturned a skewed recommendation by the department's Office of Professional Responsibility that the lawyers be referred to their respective bar associations for disciplinary action. Mr. Margolis noted that the lawyers acted in "good faith" under extremely difficult circumstances and with the benefit of several court decisions that could be read to support their approach. "Different lawyers answering previously undecided legal questions often will produce different answers," Mr. Margolis wrote.

Yet Mr. Margolis also made clear that Mr. Bybee and Mr. Yoo at virtually every turn argued for the most extreme application of executive power -- a particular obsession of Mr. Yoo's -- and interpreted anti-torture provisions in the narrowest way possible. They failed to fully air arguments that cut the other way. Their work shows how quickly matters can go awry when ideology and fear drive decision-making during a crisis. The chances for profound mistakes are compounded when the executive branch employs extreme secrecy and fails to fully brief lawmakers. In the event, lawyers provided cover for reprehensible and abusive techniques that stained the country's reputation and diminished its moral standing in the world.


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