Holder Faces First Torture Choice

(AP Photo/Evan Vucci)
Pass the Paxil. The word in Washington is that some former Bush Administration officials are experiencing "anxiety" about a pending Justice Department report on whether they violated legal or professional ethics when they authorized the use of water-boarding and other "enhanced interrogation techniques" by dramatically narrowing the official definition of torture under American law.

Howard Fineman reported in the current issue of Newsweek that a draft of the report circulated in the waning weeks of the last administration "sharply criticized" the work of "torture memo" drafters John Yoo and Jay Bybee and Stephen Bradbury, who was head of the Office of Legal Counsel (which is, essentially, the law firm serving the executive branch).

Newsweek later reported that then-Attorney General Michael Mukasey objected to those conclusions and helped stall the release of the report.

Today the Washington Post reported that "two sources briefed on a draft of the [Justice Department] report said there is a strong likelihood that its findings will be shared with state legal disciplinary authorities, who could launch their own investigation into whether the lawyers who prepared the memos abided by their professional responsibilities." This could mean, ultimately, the loss of their law licenses for a time.

The report now is on the desk of Attorney General Eric Holder, who made it very clear during his coronation-cum-confirmation hearing last month that he would take seriously a review of the most dubious legal policies implemented by the last regime. This report is only the beginning—it doesn't address the thornier question of whether any Bush officials ought to be charged with crimes. But Holder should start strong and, as another Washington figure notably declared, have "the political courage to follow the facts" wherever they lead.

Except that we know precisely where those facts are going to lead. The draft report is "sharply" critical of the former Bush officials because it should be; because those government lawyers (and many others) contorted the legal definition of "torture" beyond where it was constitutionally meant to go to authorize a military and political policy that became, in the shadow of Abu Ghraib and in the tortured form of Maher Arar, the nation's shame. There are a great many Americans, in and out of power now, who believe that if Yoo, Bybee and Bradbury merely lose their law licenses, and not their liberty as well, they'll be getting off remarkably lightly given the damage they caused.
  • Andrew Cohen

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