Few things provoked more justified anger and resentment of the Bush administration’s Department of Justice than the torture memos written by John Yoo (now a law professor at Boalt Hall) and approved by Jay Bybee (now on the Ninth Circuit Court of Appeals). These memos gave a weirdly narrow definition to torture, thereby authorizing waterboarding and similar tactics. Their misshapen constitutional analysis held that the president’s exercise of his “commander-in-chief powers” could not be overridden by congressional legislation or international treaties, including the Geneva conventions.
As a small-government libertarian, I regard these memos as bunk. So, evidently, do many in the Obama Department of Justice. In late July 2009, its Office of Professional Responsibility issued a report that found both men had committed professional misconduct, which, the OPR urged, should lead to disciplinary action before their respective state bars. In February, David Margolis, a career official in the Department of Justice, issued a long-awaited report that rejected the finding of professional misconduct even as it excoriated the memos.
It is easy, of course, to applaud the decision if you believe, as many people do, that Yoo’s muscular interpretation of presidential power was warranted on either textual or political grounds. It is equally easy to denounce the report if you think that Yoo made up the entire legal structure out of whole cloth. Hats off to Margolis, whose institutional savvy led him to split the difference.
Regarding sanctions, Margolis accepted the view that the pressures of the moment excused poor legal work, given the good faith of its authors. It takes no imagination to realize that the threat of a repetition of 9/11 weighed heavily on executive branch officials who desperately sought slack in the war against this shadowy, deadly enemy.
On reflection, however, the courageous Margolis reached the right result for the wrong reason. It is a mistake to protect government officials facing political charges on that basis of good faith, about which people acting in good faith could easily differ.
To get the needed information on mental state requires extensive investigations that put many other public officials in the crosshairs. This in turn could make able people more reluctant to take up the thankless task of public service.
Given these institutional risks, good faith is not the right test. What is needed is absolute immunity from investigation. Discipline should be left to cases such as bribery, insubordination, and unauthorized document leaks. It should not extend to errors in legal judgment, however egregious. My argument does not seek perfect justice; instead, it is consciously content to accept a lesser evil in the case to preserve the larger gain to the Justice Department as a whole.
The invocation of absolute immunity is not unprecedented. A 1959 decision of the late Justice John Marshall Harlan in Barr v. Mateo gave official immunity to a public official for actions within the “outer perimeter” of his official duties. Subsequent legal decisions, most notably the 1978 case of Butz v. Economou, substituted a qualified for an absolute immunity, thereby allowing suits to go ahead on proof of the “actual malice” of the public official charged with wrongdoing.
Unfortunately, in these matters there is no way to keep the door to liability only ajar; it is either wide open or shut tight. Liability against government officials is not sought for negligent acts. It is always demanded for conscious decisions that in the light of hindsight are branded malicious. It is therefore difficult in civil litigation for government officials to get summary judgment even in baseless cases brought by kooks. I can still recall hearing the late Edward H. Levi’s bitter complaints about having to defend himself against frivolous lawsuits even after he stepped down as U.S. attorney general.
The retort is, of course, that private lawsuits are one matter, but disciplinary proceedings are quite another. Indeed one solid argument for absolute immunity in civil litigation is that disciplinary proceedings provide a more focused sanction than countless lawsuits. What legal sanction, it may be asked, is available against Yoo or Bybee if both private lawsuits and public discipline are foreclosed?
The correct answer is none. The political risks of using legal sanctions are just too great. The risk is evident even when discipline is exacted against a public officer by his own party, and risks are vastly multiplied when one administration seeks sanctions against the political actors of its predecessor. In a functioning democracy, the correct sanctions are solely social and political. Speak and denounce if you will. Appeal to the court of history. Teach the memos unto the next generation to expose their many weaknesses. I for one have attacked the Yoo position in the media, debated with Yoo (who is, for the record, depressingly effective), and opposed him in amicus briefs, public speeches, and academic writings.
But there I draw the line. Let’s thank David Margolis for putting a stop to a legal crusade before it turned into a legal vendetta. Yet a prudent Department of Justice should not have started on this inquiry at all. To steal a line from William Tecumseh Sherman, “Investigations are hell.”