John Yoo is entitled to dance a jig on the grave of Eric Holder’s credibility. And he does. He sums up the ludicrous witch hunt conducted by the Office of Professional Responsibility, which examined whether he and Jay Bybee violated their ethical obligations in providing legal advice on enhanced interrogation techniques:
Rank bias and sheer incompetence infused OPR’s investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR’s preferred outcome. They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States. OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president’s commander-in-chief power. They accused us of violating ethical standards without ever defining them. They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence, even though we both patiently—and with no legal obligation to do so—sat through days of questioning.
OPR’s investigation was so biased, so flawed, and so beneath the Justice Department’s own standards that last week the department’s ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.
But who is ultimately responsible for this three-ring circus? The attorney general, of course. “Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do.” Yoo then describes the efforts of outgoing Attorney General Michael Mukasey and his deputy Mark Filip to critique the OPR’s sloppy work and end the investigation before they left office. But OPR “decided to run out the clock and push the investigation into the lap of the Obama administration.” And Holder let the investigation churn on and on until it was apparent that its work could not be defended and that the Justice Department risked humiliation were it to follow OPR’s error-ridden recommendation. Finally, David Margolis was brought in to clean up the mess, reverse the recommendations of OPR, and do what Holder could have done on his first day on the job: end the entire inquiry.
Yoo makes a key point: this is not simply about the persecution of two fine lawyers. It’s not even about the untold damage done to the Justice Department, which may find it difficult to find top-flight attorneys willing to stake their careers and savings by rolling the dice that some future administration won’t second-guess and investigate them. No, as Yoo points out, it’s about stopping the Justice Department from actively interfering with the serious business of the fighting a war against Islamic terrorists. (“Ending the Justice Department’s ethics witch hunt not only brought an unjust persecution to an end, but it protects the president’s constitutional ability to fight the enemies that threaten our nation today.”)
Now Holder needs to end the equally spurious reinvestigation of CIA agents who utilized enhanced interrogation methods and whom career prosecutors had previously declined to prosecute. And then he might reconsider whether Mirandizing terrorists and giving jihadists public trials are really helping us win a war. Or is it “criminal warlike activities“? That’s the problem, all right. And if Holder can’t give up the pipe dream of running a war from the ACLU handbook and conducting witch hunts to please the MoveOn.org crowd, Obama should find an attorney general who will.