In 2002, Jay Bybee and John Yoo, a thoughtful, conservative law professor of mine during his first year at Berkeley in the early 1990s, advised George W. Bush's administration that it could -- let's call it what it was -- torture terrorism suspects. In the years since then, we have learned much about what happened, including the memos themselves. We know that Justice Department lawyers approved a range of abusive techniques, including waterboarding, that violated domestic and international prohibitions against torture.
But what we haven't done is account for how such legal advice could have made its way to the most senior officials of the Bush administration in the first place. The story of that period is a cautionary one for any administration: Presidents and their most senior officials get advice from a system prone to politicized and occasionally ideologically-driven legal advice. Lawyers, for their part, must constantly guard against politicization and improper influence from the "client" -- the administration. I witnessed this as an attorney-advisor at in the State Department. And what I saw makes me certain that we need some form of accounting -- such as a commission of inquiry -- to account for the past.
To see why, look no further than the legal ethics report of the Justice Department's Office of Professional Responsibility (OPR), issued on February 19 of this year. Though OPR found grave ethical problems with the legal advice provided by Yoo and Bybee, its conclusions were softened to merely "poor judgment" by a senior Justice Department functionary. That angered many in the legal community, who were hoping for a tougher response.
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But even if Justice had come down hard on Yoo and Bybee, the focus on them, while appropriate for ethics purposes, encourages the public to see the torture scandal as a failure of particular lawyers. It was that, but it was also much more. It was the failure of an entire structure of government decision-making. There was a deliberate attempt to thwart the normal process of government legal advice. Quite apart from the substance of the advice, the process itself suggests that government officials conspired to commit torture.
Yoo and Bybee participated in a process that delivered only the advice that the client -- in this case the Bush administration -- wanted to hear. Attributing this phenomenon to the timing ("when the terrorist threat was quite palpable") as David Margolis, the Justice Department official who softened OPR's conclusions, did, would be plausible if the torture memos reflected a one-time breakdown of the system. But that's not what happened. Over the many months following the Sept. 11 attacks, the Bush administration systematically ignored the normal interagency legal process, one designed to hash out hard legal questions and make sure principals get not just the advice they want but the analysis they need.
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