Saturday, February 20, 2010

Mighty Big of Them!

Mighty Big of Them!

So the mountain hath labored mightily and given birth to -- a mouse:

An initial review by the Justice Department's internal affairs unit found that former government lawyers Jay Bybee and John Yoo had committed professional misconduct, a conclusion that could have cost them their law licenses. But, underscoring just how controversial and legally thorny the memos have become, the Justice Department's top career lawyer reviewed the matter and disagreed....

[Assistant Deputy Attorney General David] Margolis, the top nonpolitical Justice Department lawyer and a veteran of several administrations, called the legal memos "flawed" and said that, at every opportunity, they gave interrogators as much leeway as possible under U.S. torture laws. But he said Yoo and Bybee were not reckless and did not knowingly give incorrect advice, the standard for misconduct.

The DoJ reluctantly admitted that Bybee and Yoo did not in fact commit any crime by giving their best advice to the Bush administration, even though liberals have the uneasy feeling that somebody got the better of them somehow. Accordingly, after years of "investigation," they've dismissed all charges.

The worst the Left could lay at the feet of Bybee and Yoo is that they "gave interrogators as much leeway as possible." One can only conclude that the Left believes the only fair and honorable course would be to give the terrorists as much leeway as possible. Heck, it's not their fault that they don't yet have a terrorist-sponsoring superpower to supply them with modern armies, intercontinental ballistic missiles, and an air force, hence must engage in "asymmetrical warfare" against us. Give them time!

But other members of the administration of Barack H. Obama just can't let go of that bone. They still want to push beyond the unsatisfying, symbolic, show-trial denunciation the president offered as his parting shot; these zealots still hope to drive all the way and jug nearly every official in the Bush administration who so much as considered the question of enhanced interrogation techniques. These latter Obamatons still fear that Bush-era Justice lawyers will escape their just punishment for the crime of coming to a different conclusion than liberals about the legality of treating the war against the Iran/al-Qaeda Axis as if it were a war against the Iran/al-Qaeda Axis:

The Office of Professional Responsibility, led by another veteran career prosecutor, Mary Patrice Brown, disagreed.

"Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear," her team wrote in a report that criticized the memos for a "lack of thoroughness, objectivity and candor."

But what if the legal advice is not what the liberal bloc wants to hear? Is that allowed?

Assistant Attorney General for the Office of Legal Counsel Jay Bybee and Deputy Assistant Attorney General for the OLC John Yoo gave actual legal and moral reasons why they believed that belly slaps and attention grabs, and even waterboarding, did not rise to the level of "torture." Does Ms. Brown give reasons why she thinks they do? More to the point, does she give such cogent and unanswerable reasons that no reasonable person could possibly dispute that making terrorist detainees stand at attention while being shouted at constitutes torture?

In a word, No; she gives not.

Lean close and press your ear to the monitor; that grinding noise you hear is the gnashing of liberal teeth. As Andy McCarthy asks at the National Review's group blog the Corner (hat tip to John Hinderaker at Power Line), "What exactly did the CIA do that [they] think was 'torture'?"

Earlier, he answers his own question:

Torture is the infliction of severe physical or mental pain or suffering. The physical kind must be excruciating and the mental kind must cause profound and lasting psychological harm. The law has always taken care to distinguish torture from lesser forms of abuse because it is the most heinous of acts. It is important not to trivialize it by applying the explosive label torture to acts that don't warrant it. Moreover, there has always been a demanding standard of criminal intent: the accused must specifically intend to torture his victim. The police officer who shoots a murder suspect in a gun fight may inflict severe pain, and know full well when he fires his weapon that severe pain is a certain result, but he doesn't commit torture -- indeed, he doesn't commit a crime of any kind.

And as too often happens in discussions of "torture," your concerns about morality are entirely one-sided. Officers of the executive branch have a solemn obligation to protect the American people. It is their highest responsibility. They are not good Samaritans. If there is a serious threat of a mass-murder attack, they are obligated to take all reasonable steps to stop it -- and what is reasonable depends on the circumstances and the exigency. It is immoral to assume that obligation and then fail to carry it out. Unlike your angry fellow parishioners, these officials don't get to be detached Monday morning quarterbacks. You condemn them for acting, but they will be just as vigorously condemned for failing to act if a preventable catastrophe happens.

In response to this, liberals, exemplified by the exemplary Mary Patrice Brown, construct an argument structurally identical to, "It must be torture, because it would be so convenient if it were torture!" Needless to say, this is about as convincing as "Shut up," she explained.

In short, we have an insoluble dilemma: On the one hand, liberals and the hard Left believe that Bybee and Yoo had a moral duty to "the Vision" to bend their hands backwards to find some reason to forbid every form of interrogation beyond politely asking for intelligence; on the other hand, Americans have the arrogant, ethnocentric notion that the first duty of the President of the United States was to protect... well, the United States and all it contains. Especially including its people. And to hell with the putative "constitutional rights" of unlawful enemy combatants who don't even obey the law of war, let alone the law of peace.

The Left vs. America -- what a shocker!

And now, having utterly lost the political and ideological argument -- for even the Obamacle Himself finds reason to create a "High Value Detainee Interrogation Group;" though as usual, he proudly pronounces the policy, then dawdles over the details -- the whiners think to win by criminalizing policy disagreement, stripping their ideological adversaries, whom they have never been able to outargue, of their livelihood and even imprisoning them.

Yet even this strategy will backfire, as Col. Oliver North demonstrated in July of 1987. I swear, enthused acolytes of the One would be out shooting conservatives in the streets, were it not for those pesky gun-control laws in our nation's capital.

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