No penalty for Yoo and Bybee? Sigh.

John Yoo and Jay Bybee are the authors of the so-called "torture memos" that gave legal cover to the Bush administration's torture programs in 2002-2006. As I posted last summer, the memos are a travesty.

The torture memos basically define torture out of existence, redefining it as the infliction of severe pain "equivalent to organ failure or death." Yoo and Bybee believe that anything short of sadism is okay, so long as it is in the service of national security.
In keeping with the Bush administration's pooh-poohing of all international law, the memos show no appreciation of the meaning of torture as developed in the rest of the world.

So other than being crappy lawyers who got it wrong, why should Yoo and Bybee be punished?

The problem is that Yoo and Bybee undermined the legal professions. Their job, and their oath, was to provide honest legal advice to the federal government, and to protect and defend the constitution. Intellectual honesty is required in such a job. Yet these memos are intellectually dishonest. They are exercises in result-oriented, sophistic reasoning designed to justify each and every "harsh interrogation technique" already used or proposed by the administration. Tellingly, the memos contain no real line-drawing. If the Bush-administration had proposed different or harsher "techniques," Yoo and Bybee would have found a way to approve them too.

There is a joke about a math professor who spends 45 minutes proving a theorem on the blackboard. When he is done with his proof, a student raises is hand and asks if the hadn't professor mistakenly flipped the inequality in the theorem – meaning he had the whole theorem backward. "Oh," says the professor, "that's even easier to prove." It's not a joke when fundamental human rights are at stake.

Yoo and Bybee make no attempt to obtain or review evidence outside that which the administration provided. The memos are legal fig-leaves for a position they already believed, that there should be no limits on executive power (if a Republican…) in time of war. They fundamentally misconstrued their job as being advocates for the Bush administration rather than for the constitution and the rule of law.

I am very disappointed they are not being disbarred (the appropriate remedy here). More cowardice from the Obama administration. Disbarring them would be for the ages; appeasing the right sends the wrong signal. They are now respectively a Law professor at Berkeley and a Judge on the Ninth Circuit Court of appeals. Treason doth never prosper: what's the reason? Why, if it prosper, none dare call it treason.