WCW Home News Recent News 2-22-10 No Surprise, but Outrage, Over OPR Report
2-22-10 No Surprise, but Outrage, Over OPR Report PDF Print E-mail

By Stephanie Tang

The finally-released report from the Department of Justice's Office of
Professional Responsibility (OPR) delivers no surprises. Newsweek
had already leaked its basic findings: during their Bush Torture Team
tenure, attorneys John Yoo and Jay Bybee did nothing worse than
exercise "poor judgment" and therefore should escape accountability for
the crimes that directly resulted from their work.

No surprises but a big, huge, multi-layered outrage, nonetheless.

The following is an in-depth analysis of the outrages.  Torture has been defined and accepted by the international community for decades.  No one can "redefine" it as John Yoo attempted to
do.  Waterboarding is torture, period.  The US prosecuted as war criminals
Japanese military who waterboarded US military in WW2.

John Yoo is a war criminal and should be prosecuted!

Outrage Level One: How was the OPR report produced? By a Justice
Department (first under Bush and now under President Look Forward
Not Back Obama) investigating its own personnel and
policies(!) During the 5+ years of the investigation, OPR repeatedly
allowed the subjects of the investigation to review and edit its
report. Yoo and Bybee were given drafts and their suggestions for
revisions were invited!. The CIA and other investigation subjects
were also allowed to help edit the report.

And when even so the OPR finally concluded that Yoo and Bybee were guilty
of professional misconduct and should be referred to state bar
associations for disciplinary action, presto! a senior Justice
Department lawyer steps in to override the OPR, downgrading its
findings to poor judgment, free of any political or professional

Outrage Level Two: The immediate media spin is: the OPR report lets
the torture lawyers off the hook because now they've been
investigated and found not guilty of any crimes. The world is
supposed to accept this verdict and watch silently as known war
criminals walk off freely into their post-Abu Ghraib,
post-waterboarding lives. See? There goes the law professor, there
the federal judge, respected professionals, all.

This is supposed to be OK because Bush is gone and Obama says torture has
ended. Yet the bald facts are bald facts: the work product of the
torture lawyers lives on, is actively continuing; torture has become
part of US standard operating procedure.

Yes the Bush Regime is gone. But Obama has reversed and repudiated NO
major component of Bush/Cheney's ensemble of horrors, from torture
and rendition to the shredding of habeas corpus as an inconvenient
antique in the post-911 world.

Yes the Bush Regime is gone. But Guantanamo is still open and will
close only when some new Guantanamo is ready to hold its last
prisoners and many newly-captured ones joining them, for the rest of
their lives, still not charged, not convicted, never to be

Yes the Bush Regime is gone. But John Yoo enjoys faculty perks at an
elite law school and Yoo's superior, Jay Bybee, himself the
author of key torture memos sickening in their bloodless sadism,
enumerating 14 permissible torture techniques enjoys his lifetime
appointment to the federal bench.

Outrage Level Three: How shocked and angry might people have been,
the day Bush and Cheney left office, if they could have seen what
exists today, 13 months into change we can believe. If BUSH
were president today, and his Justice Department exonerated itself
with this eviscerated OPR report and was busily defending the
torture lawyers against lawsuits of torture victims - and was
refusing to prosecute any of the principals in the illegal,
immoral torture state for which the US is now held responsible by
the world and was expanding the bloody wars and illegal
occupations we see from Iraq and Afghanistan to Pakistan and Yemen,
with the Bush Doctrine and Bush torture policies controlling.

If this were all happening under Bush or McCain, what would many good
people be saying, and doing?

And what are far too many people today NOT saying, and NOT doing?

There is nothing more important that people inside this country could do
right now than to mobilize and organize ourselves to stand up to
the crimes of our government, no matter who is in the White House.
Right now, there are many people in many countries who shared an
excitement during the Obama campaign because they saw a chance to end
the Bush-Cheney nightmare. And just as we have, they have now
watched for the last 13 months and seen what Obama has said and done. And
maybe they are anxious and confused and angry, as many people here

It is crucial that there are people in this country and more of
them, all the time - who continue, and persevere, and refuse to be
set aside, in the fight to actually stop the torture, to stop the
entire so-called War on Terror which requires torture as one of
its weapons; to stop the war for empire which is really going on
under this guise. But it is also important all along the way, even
before we succeed in those goals that there is a message sent up
from people in this country to people around the world. Sometimes
there are not in our name moments, this is one of them. People
around the world are watching the OPR report unfold a story: the US
government commits great crimes and offenses; the US government
tells lies to its people to make that appear necessary; the US
people accept the lies and even support them.

But the lies can be revealed as lies if someone makes it so. And the
lies have to be up-ended and replaced. People around the world need
right now to be shown that there ARE people in the US who refuse to
accept and tolerate the crimes of our government. Let it not be said
that torture was first committed, and then excused; this will keep
Americans safe! and that no one stood up to say NO.

Outrage Level Four: What are we to make of the Democrats' paltry
response to the OPR report and its being hamstrung and why should
anyone rely on them to do more? It barely qualifies as hand-wringing
to call for next week's congressional hearings as any sort of real
response to the OPR findings. Hearings on a Friday?? Without
subpoenas?? And really: a single day of hearings!?!?! Is anyone
supposed to take this seriously (the OPR report was over 5 years in
the making!)???

What's needed now is not another round of congressional committee hearings
through which some political steam can be vented to little effect.
Ample evidence is already in the public realm, thanks to the work of
journalists, human rights and legal communities, and activists, that
documents the torture story clearly and lays more than enough basis
for prosecutions to be launched. There are many people in many walks
of life who feel deeply offended and disgusted by what has gone down
with this OPR report. They need to be called into motion to make
their demands felt. And if their sentiments and energies are
siphoned into expectations that more hearings or other activities
high up in the halls of power will lead to real accountability, that
will be a real waste.

Let's be clear: the fight to bring torture and torturers to justice still
stretches ahead of us, and many levels and forms of action will be
needed to take that fight forward. But what is needed now is a real
leap, a fresh and refreshed wave, of making felt the demand that the
torturers must be brought to justice, as a demand from below, from
the people of this country, independent of the power structure that
rules it. That is the only hope we have to effect real change. And
that in turn is our responsibility to the people who have directly
suffered the abuse of the American Torture State, and to the people
of the world more generally.

In that light, let's return to the OPR report. Let's be clear that
the OPR report is far from the last word. The OPR report IS an
insult to the torture victims and it is also an insult to everyone
who has been in one way or another standing up to demand real
accountability as the only way to set limits for the future saying we
will not tolerate torture. But the OPR report needs to be seen as a
challenge: it represents another move against us in the ongoing fight
against the war crime of torture, and to bring to justice the war
criminals from Bush and Cheney on down. For example, the Margolis
cover memo says the OPR will not call on bar associations to dis-bar
the criminals. But this doesn't at all mean that those bar
associations can not take action motivated by many other sources.

And a final word about the Justice Department's guy, Margolis, parsing
the crime of torture into a problem of poor judgment. John
Yoo, Jay Bybee and the other Bush lawyers were hired gun lawyers
whose work for their client, the Bush Regime, was notoriously
unethical, flaunted professional standards, etc. But pull the lens
back and what we actually see is this: these lawyers were
functionaries in a criminal enterprise, no less than were the lawyers
and judges of Germany's Third Reich whose legal memos and other
work product enabled the Nazis to carry out their Holocaust. As
history reminds us, this role was found during the Nuremberg trials
to rise to the level of war crimes because without the lawyers
providing legal cover for those great crimes, the regime would not
have been able to commit them and call them legal.

That is the moment we are living in now. To the World Can't Wait
movement, torture has never been separable from the so-called War
On Terror which called it forward as a key weapon, with special
urgency in the post-911 years. The US has wielded torture for
centuries but it is this post-911 time that saw torture sanitized,
dressed up and glamorized, and made into a normal, necessary
fact of life (e.g., the trend in some mainstream poll trajectories
which mark a growing public acceptance of torture).

Where somebody's judgment is in question, the torture memos
show far less about what John Yoo may or may not have been thinking
than what was going on above him, in the thinking of his superiors.
Torture DID involve judgement but not that of Yoo, really.

It was at the top levels of the U.S. government at the time, the
Bush-Cheney Regime, that the judgment was reached that torture was
necessary, and that legal cover for the torture and the secret
rendition, for what became Guantanamo and Abu Ghraib was needed
in order to more effectively pursue the so-called War On Terror,
(actually a war OF terror). John Yoo was called into willing
service, he was a hired gun lawyer who helped to carefully craft the
legal language that would allow these extraordinary, thoroughly
illegal activities.

Every person in this country has to ask him  or herself: are you for
torture, or against it? Is torture part of a world you want to live
in, or isn't it? And if you think torture is wrong and it must
stop and your government insists torture is necessary and
therefore OK, then what will you do? We need a powerful
resistance from the people. The world can't wait.


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