Sunday, January 31, 2010


Alright, I'll admit it, sometimes I get the feeling that if you send the right email to the right member of government, you might get a response. Below is an open letter I've just sent to Department of Justice Office of Professional Responsibility lawyer David Margolis. I am less than hopeful that I'll get any sort of meaningful response, but hey -- it is always worth a shot, isn't it?


David Margolis,

According to this article in NEWSWEEK, it seems that you have reversed the judgment that Jay Bybee and John Yoo showed "professional misconduct," but rather that they displayed "poor judgment." However, the Justice Department has failed to give any explanation as to why the memos by Bybee and Yoo do not constitute Professional Misconduct.

Considering as the implication of this opinion is that it is an understandable accident that the United States found itself performing acts of torture which had been clearly condemned in violation of both US law and our obligations under our treaties, it seems vital to the public debate to have an explanation as to why this has occured. We don't want to leap to the conclusion, as journalist Andrew Sullivan does, that the Department of Justice is simply trying to minimize scrutiny of its previous mistakes to avoid accountability. But in the absence of any defense of this position, we in the public have very little alternative but to speculate along these lines.

It has been well documented that actions such as waterboarding have been considered torture by the United States for decades, and the United States has prosecuted both soldiers and law enforcement officials for performing this task. But Jay Bybee's memo clearly states that if the President of the United States decides that acts previously defined as torture should be used, his authority as commander-in-chief overrides our treat obligations, and our laws. When pressed on this subject in public, John Yoo has repeatedly stated that the President "would never want" to crush a child's genitals, but admits that his memo would grant the President that authority.

Perhaps it is because I am not a lawyer, but I simply cannot understand how this point of view does not completely run in the face of the very reason we have an Office of Legal Counsel. In another context, perhaps, this might be poor judgment, but I have difficulty in understanding how this does not constitute gross misconduct in their role as the President's legal advisors. If their very purpose was to communicate to the President the legal boundaries that constrain the President, then advocating any-and-all powers to the President (a position which doesn't seem to me to be legally defensible on any previous-case grounds) would seem to be the height of professional misconduct.

Thank you in advance for your help. I look forward to hearing your response.

Guy Yedwab