Were Yoo, Bybee Just Foolishly Aggressive or Criminally Too Clever By Half?

ONLY AT THE END, DOES THE VETTING BEGIN

Buying the 'law versus morality' and 'legal-opinion-of-the-statue versus bad-policy' arguments?

I'm not, much.

How could 'torture' be a term so easily 'emptied', either by lawyers or by policy makers, a term with a prosecutorial history, even by the U.S.? The idea that these changes were "hidden", especially from the electorate in 2004, with Ashcroft opining, "History will not judge this kindly" [whatever his referent] suggests subterfuge. The very fact that there is a U.S. torture statue, that likely didn't come into being without impetus, might suggest a criminal mindset behind trying to to reach for more "authority", unilaterally, in secret, without obvious technical foundation (few believe 'torture' actually 'works'), ...

Anyway, here is Barack Obama, two days ago, setting a high standard for "ignorability" by his Administration:

So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.

I wonder if AS notices how he is thinking about his "first term". Sounds like what AS decries as "Clintonian", eh?

It's also worth noting that all these details come to light only after voters no longer have choices, much. Might you have supported a different candidate?

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Update: For perspective on "new tools" for a new "war", one needs to look not much further than the exaggerations surrounding FISA claims, outlined by GG.

Update1: Did Yoo offer simply dispassionate assessments of law? Some in the profession are perplexed about calls for Yoo to be scapegoated and removed from his faculty position. His Dean writes (at Balkinization):

"Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics."

While "torture" is, of course, hard to define, there seems little doubt that Bybee/Yoo, along with many others in the Bush Admin (including Addington on some reports), brought a mindset to their work, a fully admitted bias, and it was not a dispassionate one. I fail to see how we would not judge that harshly, especially if it had ill consequences, clearly foreseen or not. One commenter remarks:

The right analogy would be a judge that is part of the conspiracy, say, by taking bribes or agreeing to decide cases a certain way to benefit organized crime. And such judges certainly would be impeachable.

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