Andrew Sprung notes the latest flim-flam from the anti-anti-torture right:
While Mukasey's piece does defend those who defend "clients that were or became unpopular," the piece is a bait-and-switch, built on a false and dangerous equivalence that is sure to become a Republican talking point. After noting perfunctorily that Bernie Madoff's lawyer was reviled, Mukasey turns to his true passion:
More recently, we've witnessed a campaign to impose professional discipline on two former Justice Department lawyers, John Yoo and Jay Bybee, for legal positions they took as to whether interrogation techniques devised and proposed by others were lawfula campaign that also featured casual denunciations of them as purveyors of torture.After then noting the denunciation of Justice Department attorneys who in private practice represented terrorist suspects or upheld their rights, Mukasey makes his move:
This is all of a piece, and what it is a piece of is something both shoddy and dangerous.
This is an outrageous comparison.
First off, Yoo and Bybee have not yet been charged with anything. When they are, I sure hope they have the best lawyers to defend them against some of the most serious charges anyone can face: war crimes. Secondly, I have never made any "casual denunciations" of them as purveyors of torture. I have made very specific, clear, thoroughly argued, unimpeachable legal, moral and historical cases that they were indisputably legal architects of what the Bush administration's own Gitmo chief prosecutor called torture. And torture is a war crime. By the Nuremberg, principle, they are as responsible a their bosses and the torturers themselves and all those who aided and abetted this evil.
Their work in twisting the law to make what was plainly illegal "legal" was described thus by the OPR report from the Department of Justice:
Based on the results of our investigation, we concluded that former Deputy AAG John Yoo committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.
The OPR explained what this meant:
OPR finds professional misconduct when an attorney intentionally violates or acts in reckless disregard of a known, unambiguous obligation imposed by law, rule of professional conduct, or Department regulation or policy. In determining whether an attorney has engaged in professional misconduct, OPR uses the preponderance of the evidence standard to make factual findings.
An attorney intentionally violates an obligation or standard when the attorney (1) engages in conduct with the purpose of obtaining a result that the obligation or standard unambiguously prohibits; or (2) engages in conduct knowing its natural and probable consequence, and that consequence is a result that the obligation or standard unambiguously prohibits.
My italics. These lawyers were not defending unpopular defendants. They were providing fraudulent legal advice to enable politicians who were then riding the highest of poll numbers to break the law.