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Let's Investigate the OPR For a Criminal Violation

By Jack M. Balkin

According to Michael Stokes Paulsen (fellow Balkinizer), the OLC lawyers who concluded that waterboarding is not "torture" did a bang up job. He argues in the Weekly Standard that it would be wrong to investigate Bybee and Yoo for possible criminal or ethical violations. Rather, they should be commended for their work. According to Paulsen, their analysis was correct:

Constitutional law, in addition to legal ethics, is one of my areas of teaching and scholarship. In my opinion, the most basic problem with any suggestion of incompetence is that the memos' essential legal conclusions are correct. There is a fundamental distinction in the law between what constitutes actual, legal "torture" under applicable standards and what may be harsh, aggressive, unpleasant interrogation tactics but not, legally, "torture." Reasonable people will come to different conclusions as to where that line is, but the Bush administration's lawyers' conclusions are certainly defensible and, I think, ultimately correct.

Paulsen does not tell us why the conclusion that waterboarding is not "torture" is "correct." We are left to trust his integrity and judgment about this. Never mind that the OLC's legal analysis entirely (uncritically, with no independent examination or verification) relied upon self-serving representations by the CIA that the degree of pain and suffering inflicted by these interrogation techniques did not rise to the level required by the torture statute. Never mind that the "legal" analysis in the memos approving waterboarding (combined with sleep deprivation) is completely circular.

Paulsen reminds us that he is a constitutional law and legal ethics professor and he assures us that Bybee's and Yoo's analysis is right. Nuff said.

Now we have three legal experts duly informing us that waterboarding is not "torture" in legal terms (even if something like this happens). The many people who think otherwise, including the top military lawyers who opposed the OLC legal analysis at the time, are simply misguided or wrong.

Paulsen also reminds us that the OLC lawyers were merely lawyers serving their clients (ignoring that the OLC occupies a special position that requires the lawyers to say "No" to their client if a correct reading of the law so dictates.)

In fact, Paulsen tells us, the Department of Justice investigators from the Office of Professional Responsibility (OPR) who reportedly concluded that the OLC lawyers possibly committed ethical violations should themselves be subject to a criminal and ethical investigation for leaking the Report (presumably he has some information that OPR lawyers were responsible for the leaks).

Paulsen's piece, entitled "Obama's Injustice Department," suggests that the OPR's negative finding and recommendations were political (which forgets that the OPR investigation was actually completed under the Bush Administration).

Paulsen's conclusion: The OLC lawyers who found that waterboarding is not "torture" under the anti-torture statute did fine work, while the OPR lawyers who examined the conduct of the OLC lawyers should themselves now be investigated.

I don't get it.

Full post as published by Balkinization on May 16, 2009 (boomark / email).