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Saturday, February 20, 2010

Morons and Oxymorons: John Yoo, The Torture Memo and Outcome-Based Investigations

The latest chapter chronicling the sterling work at the Department of Justice during the administration of Bush the Younger (aka, the Reign of Error) was issued very late Friday afternoon with the release of a heavily redacted memorandum (pdf) (the "Margolis Memo") by Associate Deputy Attorney General David Margolis declining to pursue charges of "professional misconduct" against former Justice Department lawyers John Yoo (now a UC-Berkeley law professor) and Jay Bybee (now a federal judge) stemming from Yoo's April 2002 memorandum arguing that certain interrogation techniques were permissible.   The Margolis Memo was in response to an earlier July 2009 "Final Report" issued by the DOJ's Office of Professional Responsibility (OPR) which found Yoo and Bybee committed "professional misconduct."  The Margolis Memo took a "narrow" approach in what appears to be a whitewash-style dance designed to avoid confronting issues of "professional misconduct" that OPR earlier found Yoo and Bybee to have committed.   Margolis cited the absence of a "known, unambiguous standard" for evaluating these attorneys' work as the main reason for his decision not to adopt the OPR's "professional misconduct" findings. 
The timing of this, during the Winter Olympics, several hours after the Tiger Woods pseudo-mea-culpa announcement and at the close of business on a wintry Friday afternoon, screams of an effort to bury this as much as possible.   That is clear.   Less clear is whom this is supposed to benefit:  the Justice Department, or attorneys Yoo and Bybee.
As a refresher, these torture memos were used to justify certain interrogative techniques like waterboarding.   These techniques are commonly considered torture, and their use has resulted in grave embarassment to the United States internationally and, at least indirectly, endangered American servicemen and civilians throughout the world who may be subjected to harsher tactics and abuse from captors or corrupt local authorities.
Aside from the torture issue, the real danger is the use of the outcome-oriented investigation.   This phrase is an oxymoron.  It refers to an investigative process which starts with a conclusion and then works backward to justify the conclusion, often at all costs and often by disregarding or hiding all countervailing evidence.   Such a process is not an "investigation."   An investigation is a process of searching for the truth, either in the form of what happened, or with legal analysis, a process of candidly and thoroughly examining the applicable legal framework.   A bugus outcome-based investigation by definition is not an "investigation" or a search for the truth, or a true "analysis" of anything.   A conclusion-first, outcome-based investigation has more in common with Soviet-era show trials than anything worthy of inclusion in an American system of jurisprudence which we like to consider the most advanced (although still very needy of improvement) on the planet.  
It is difficult, and arguably troublesome but just as equally necessary, to second-guess these attorneys' work given the subject matter.   I argue today that it is just as necessary to evaluate how their work was developed.   The gravamen of my concern can be stated as follows:  Yoo and Bybee should have been allowed to approach the issue from the starting point of the question, "Can we do this?" as opposed to being given the conclusion and asked (or told) to work backwards to justify a perhaps wholly-unjustifiable conclusion.    If the memo was the product of a conclusion-first approach, the scholarship behind the memo deserved the strictest scrutiny and criticism and its authors roundly criticized.   Such criticism indeed was received by and unrelenting towards Yoo and to a lesser extent Bybee.  
However, if OPR or DOJ engaged in the same approach, the same critique must be made.  The entire process by OPR of evaluating Yoo's memo can be questioned on the basis of the same flaw, that of starting with the desired (in some quarters) conclusions that Yoo's memo was totally wrong, if not arguably criminal, and thus all participants in the memo (Yoo and Bybee) deserve to be punished as harshly as possible, and then working backwards to justify the conclusion.  
These conclusion-first investigations are not just inherently unjust and procedurally fatally flawed; they ignore the root causes of the problem at issue.   The people who advocate such conclusion-first investigations should be removed from their posts and prevented from engaging in such sham investigations in the future. 
These outcome-based investigations should be considered void ab initio.  They often are engendered by a flawed, defective or entirely unwholesome basis which could be political or personal animus.   The potential for abuse should be obvious, whether in the political world or the private sector.   There can be little value, or validity, in the results of any investigation which seeks to critique past work primarily because of its outcome or conclusion -- and pointedly, not because of the process which engendered it.   We must recognize that In such situations the real -- and often actively concealed -- reason for review is the unpopularity or undesirability of the position advocated, and the real -- and consciously hidden -- objective is to deter others in the future from advocating that undesired position by heaping as much abuse and punishment upon the original advocates to serve as a sufficient warning to others not to repeat the "mistake."    Make no mistake about it -- this is about power.   And such outcome-based investigations are started and prosecuted as an exercise in power, where the targets are political and/or personal and where the objective is more often than not to hide the truth rather than to reveal it.   Sometimes, this is done to cover up criminal or illicit activity; other times, it may be done to avoid shame or embarassment.   Maybe some people are trying to cover up and hide their mistakes.   Many people are reluctant to admit their mistakes and will go to great lengths to avoid having to apologize.   Do not underestimate this possibility.
None of my analysis should be viewed as a defense or advocacy of either the torture memos or their authors.  These are seriously flawed lawyers whose advancement within the Bush Justice Department (and with Bybee, wihtin the judiciary) should continue to raise many questions about exactly how and why the people who were hired and promoted during the Bush Administration got selected.  
Eric Dixon is an attorney practicing in New York and New Jersey.   Mr. Dixon provides strategic analysis and legal analysis in connection with various investigative matters for clients.   Mr. Dixon welcomes your comments, criticisms and inquiries at

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