I'll bet a lot of folks charged with federal white collar crimes are feeling more than a little betrayed today. That's because the government has bared its teeth at claims of private wrongdoing while turning a blind eye to the suspected criminals in its midst.
John C. Yoo and Jay S. Bybee didn't even get their wrists slapped by the Justice Department. This after the department's office of professional responsibility reported that the men might well have violated both federal and international laws against torture. But that's okay with the Justice Department. Times were tough when the men endorsed the use of waterboarding and other forms of harsh interrogation, thus providing legal cover for CIA agents to take off the gloves with those suspected being al Qaeda operatives.
Jay S. Bybee is now a federal judge. And John Yoo teaches law at the University of California, Berkeley. These two men were the architects of the Bush administration's harsh interrogation policies. Judge Bybee and Professor Yoo placed their imprimatur on now infamous memoranda expanding the scope of executive power to an extent that would have stunned the Founders. Why revolt if we're simply trading one George for another?
Lawyers in the Justice Department's Office of Professional Responsibility concluded that the torturesome duo had engaged in "professional misconduct, and ignored legal precedent they didn't like to justify an outcome that was consonant with the idiosyncratic needs of the moment. Justice's tops lawyers looked the rule of law in the eye and they blinked.
But the Justice Department is now distancing itself from the conclusions of its own ethics counsel. The department resorts to a cheap species of the reasons of state doctrine. In a separate report prepared by David Margolis, a career lawyer at Justice, the OPR conclusions are dismissed as giving insufficient weight to the "climate of urgency" in which Yoo and Bybee acted. This is the sort of reasoning that illustrates just how fragile are our federal constitution's guarantees of liberty.
The Fourth Amendment prohibits unreasonable searches and seizures. Yet the terms of that amendment are by no means self evidence. In a famous Fourth Amendment case involving interception of telephone transmissions from a telephone booth, the Supreme Court held that two things were necessary to succeed in raising an claim that the Fourth Amendment had been violated. First, a person must show that he had a legitimate expectation of privacy. That is a subjective test. Next, the person must show that his subjective expectation is one which society is prepared to honor. That's the so-called objective test.
In the wake of the 9-11 attacks, many Americans were prepared to yield liberty for the sake of security. The "national climate of urgency" was a siren song for authoritarians. It is reasonable, is it not, to torture our enemies when a ticking time bomb threatens to explode any moment now? Thus the calculus of liberty was weighted with the constant need to feel safe at all costs. The result was Yoo, Bybee and the waterboarding good boys and girls at the CIA.
That the government now decides to blink at potential violations of the law by senior administration officials is paradoxical. Is the government saying that the perception of exigency justified the potential violation of law? Or did it merely excuse the misconduct? Of is the claim bolder still: that the exigencies of the moment made the misconduct necessary?
Justification, excuse and necessity are common law defenses to crime. These excuses rarely play for those accused of white collar crimes in the private sector. When a government liberty excuses its own misconduct by resort to these defenses troubling questions arise about whether the rule of law means more than picking and choosing which crimes to punish for reasons altogether political.
Representative John Conyers of Michigan got it right in his assessment of Justice's handling of Yoo and Bybee. The judge and the professor "dishonored their office and the entire Department of Justice."
