I get that. But the release this week of certain government memoranda written by lawyers now guaranteed a lifetime of paychecks makes me wonder whether exceptions should be made.
These are legally sloppy, single-minded memos from high- level Bush administration lawyers who rationalized widespread abandonment of bedrock constitutional principles. They said the president essentially had no restraints on him in time of war.
So wrong were these opinions that in its final days the Bush Justice Department felt compelled to disown the ones it hadn’t previously discredited.
It now turns out that the same lawyers who condoned torture also claimed that the president could legally suspend free speech, the free press and freedom from unreasonable searches.
They wrote that the president could lift international treaties without consulting Congress.
And they said he could dispatch detainees to foreign countries that use torture to make them talk and needn’t worry about congressional interference in treating terrorism suspects any way he wants.
Warrantless Wiretaps
And as for warrantless wiretaps on Americans, no need to bother with the law that restrained the president from doing that, either, they said.
Most of the memos, released this week by Attorney General Eric Holder, were written by John C. Yoo and Jay Bybee when they worked in the Justice Department’s Office of Legal Counsel beginning in 2001.
Fortunately for these men, they found other jobs before their work saw the light of day.
Yoo is a tenured law professor at the University of California at Berkeley, of all places. I’m all for academic diversity and robust debate on campus, and surely Berkeley could use some conservative balance.
But I worry what a man with so little regard for the Constitution teaches lawyers-to-be. For now, he is teaching it at Chapman University in Orange County, California, as a visiting professor while on leave from Berkeley.
Judicial Appointment
Bybee sits on the San Francisco-based 9th U.S. Circuit Court of Appeals, to which his patron, George W. Bush, appointed him. It’s hard to imagine a Democratic Senate confirming him if the memos had come out earlier. The courts of appeal are one rung below the U.S. Supreme Court, each setting precedent for vast regions of the country.
Like Berkeley, the 9th Circuit needed more right-leaning weight for ideological balance. But if Bybee’s memos are any indication, the court got a radical, not a conservative.
Their jobs don’t offer the big bucks that, say, running an investment bank into the ground used to pay. But they carry high prestige and they promise lifetime work, barring ill-health or some sort of horrific misconduct.
It’s true that these lawyers wrote the memos as the Bush administration was working around the clock to figure out every legal means available to prevent another terrorist attack.
Out of Mainstream
Nonetheless, these opinions are so far out of the mainstream that more level-headed attorneys in the Bush administration spent years correcting them.
You don’t have to take my judgment. Rely on Bush’s last deputy assistant attorney general, Steven Bradbury.
Five days before leaving office, he wrote to make it clear that those memos were just plain wrong.
To use his words, this one is “not sustainable” and that one contains “doubtful” legal reasoning. Some are “not persuasive” and at least one is flat out “incorrect.”
Bradbury said so in a memo on Jan. 15 to make sure that no one would still take these writings seriously. He pointed out that some had long ago been “withdrawn,” meaning discredited.
In some cases, they were defanged by Supreme Court rulings or congressional act.
Yoo and Bybee are smart, articulate men, richly credentialed professionally.
To be sure, the fear unleashed by the World Trade Center and Pentagon attacks and the awesome responsibility to help prevent another one weighed heavily on them.
But those who wrote the Constitution and its Bill of Rights knew something of war, too. They had fought one against great odds to win the very freedoms that these men would have diminished.
And yet these two will never have to worry about where their next paycheck is coming from. They’re now ensconced where they can pass along their extreme views through court rulings and law classes for years to come, long after their memos are buried in history’s trashbin.
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