The flailing falsehoods of America's war criminals

Monday, Feb 22, 2010 08:23 EST

By Glenn Greenwald


I didn't think it was possible, but former Bush officials -- desperately fighting what they know will be their legacy as war criminals -- have become even more dishonest propagandists out of office than they were in office. At National Review, Bill Burck and Dana Perino so thoroughly mislead their readers about the DOJ report -- rejecting the findings of the Office of Professional Responsibility (OPR) of ethical misconduct against John Yoo and Jay Bybee -- that it's hard to know where to begin. They devote paragraph after paragraph to hailing the intelligence and integrity of the report's author, career DOJ prosecutor David Margolis, in order to pretend that he defended Yoo and Bybee's work, claiming that Margolis "officially exonerated Bush-era lawyers John Yoo and Jay Bybee" and that "Margolis rejected OPR’s recommendation and most of its analysis." Perhaps the most deceitful claim is this one:


So, in one corner we have a legal all-star team of Mukasey, Filip, Estrada, Mahoney, Goldsmith , and Margolis. In the other corner, we have OPR operating far outside its comfort zone and area of expertise. This shouldn’t have been close -- and it wasn’t, on the merits.


Compare that to what Margolis actually said (p. 67):


For all of the above reasons, I am not prepared to conclude that the circumstantial evidence much of which is contradicted by the witness testimony regarding Yoo's efforts establishes by a preponderance of the evidence that Yoo intentionally or recklessly provided misleading advice to his client. It is a close question. I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel. While I have declined to adopt OPR's finding of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to adopt opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client.


Just think about that for a minute. Margolis said that whether Yoo "intentionally or recklessly provided misleading advice to his client" when authorizing torture -- about the most serious accusation one can make against a lawyer, as it means he deliberately made false statements about the law -- "is a close question." That's the precise opposite of what Burck and Perino told National Review readers about Margolis' conclusion ("This shouldn’t have been close — and it wasn't, on the merits").

Moreover, Margolis repeatedly adopted the OPR's findings that the Yoo/Bybee torture memos -- on which the entire American torture regime was constructed and which media elites now embrace in order to argue against prosecutions -- were wrong, "extreme," misguided, and the by-product of "poor judgment." As Yale Law Professor Jack Balkin so clearly explained, the only thing that saved Yoo in Margolis' eyes was that attorney ethical rules have been written by lawyers to protect themselves, and the bar is therefore so low that it basically includes only "sociopaths and people driven to theft and egregious incompetence by serious drug and alcohol abuse problems." As a result, Margolis could not ultimately conclude that Yoo -- as shoddy and misleading as his torture authorizations were -- purposely lied because Yoo "was an ideologue who entered government service with a warped vision of the world in which he sincerely believed." Does that remotely sound like exoneration?

remainder here: http://www.salon.com/news/opinion/glenn_greenwald/2010/02/22/opr