Sometimes, during a tsunami of bad news, it’s nice to come up for a breath of encouraging air. The only way to do that this week that I know of is to read a beautiful 42-page order by a judge. Usually such things don’t strike me as beautiful, but this one says that leading torture lawyer John Yoo can be sued in court by one of his victims. It also says that his arguments for immunity are a load of crap, his arguments for the legality of torture are at least plausibly as fetid a pile of feces as they appear to the naked eye, and the treatment received by Jose Padilla is rather glaringly in conflict with our laws, basic standards of decency, and the wisdom of those who have gone before us and warned against sacrificing our rights on the temple of war.
So, while Congress and the Ministry of Truth, er … I mean the Department of Justice (DOJ), hold off on any attempts to hold anyone accountable for torture until the DOJ’s Office of Professional Responsibility releases a report on the conduct of Yoo, Jay Bybee, and Steven Bradbury — a report already delayed for six weeks of integrating edits made by the three men who are supposedly the subject of the report — a judge, by simply comparing Yoo’s publicly available confessions in the form of torture memos with actual legal standards, has produced the outline of an indictment that a special prosecutor could pick up and use to put John Yoo behind bars. The only thing missing is the creation of such a special prosecutor, something Attorney General Eric Holder would have to do. Meanwhile the House of Representatives is impeaching a judge for groping female employees, but can’t be bothered to impeach another judge, Jay Bybee, who was John Yoo’s boss during much of the torturing, who himself signed torture memos, and who signed a memo purporting to place the “legal” power of aggressive war in the hands of any president.
Holder testified before the Senate Judiciary Committee on Wednesday that such memos are only recommendations that higher ups must use their own judgment in accepting or rejecting. In fact, the torture memos advised attorneys general, the CIA, and Bush and Cheney to do exactly what they had requested to be advised to do. The lawyers must be held accountable, but so must those above them who bear ultimate responsibility.