The rot at the Department of Justice grows more evident every day. Already being hit for botched decisions about terrorist trials and for dropping a voter-intimidation case against the New Black Panther Party, the department is taking another huge blow.
On Friday, Associate Deputy Attorney General David Margolis excoriated the department's Office of Professional Responsibility (OPR) for an attempted railroad job against two George W. Bush administration appointees who crafted rules for interrogating captured terrorists.
The 69-page memorandum by Mr. Margolis makes the ethics of OPR look worse than that of the two lawyers OPR targeted for sanction. It makes Attorney General Eric H. Holder Jr.'s management of OPR look particularly dishonest. And it is a reminder that the initial responses to the Sept. 11, 2001, terrorist attacks involved difficult legal and policy decisions on which honest people could differ. It's inappropriate and counterproductive to try to criminalize those honest disagreements.
As Hans A. von Spakovsky explains on the facing page, Mr. Margolis blasted OPR for refusing to acknowledge that the Bush lawyers' advice on purported torture involved complex legal issues in an area of unsettled law, and the lawyers were under extreme time constraints. Partly for these reasons, Mr. Margolis exonerated the ethics of the two Bush lawyers even though he said he personally disagrees with their legal decisions.
To understand just how rigged the OPR process was, consider Mr. Margolis' report that "in a departure from standard practice and without explanation, OPR in its initial two drafts analyzed the conduct of the attorneys without application of OPR's own standard analytical framework." Then, when criticized for this failure to adjudge the Bush attorneys by any known standards of ethics, OPR in its final report applied two new sets of ethical standards that "raise* several [other] concerns. First and foremost, neither of them existed at the time."
In short, OPR charged the lawyers retroactively with breaking rules that had yet to be invented. Soviet show trials could hardly be more brazen. It was under new OPR chief Mary Patrice Brown that the office tried that last dirty trick. Ms. Brown reportedly is under consideration for a federal judgeship, but this conduct may disqualify her.
At the very beginning of this scandal, respected former Attorney General Michael Mukasey strenuously objected - in a 14-page letter - to OPR's initial report draft. Mr. Margolis explicitly recommended (on Page 67 of his report) that the Mukasey letter be released to the public along with his own report. In yet another affront to open government, Mr. Holder did not release it.
The ethics of both Ms. Brown's OPR and of Mr. Holder are thus in doubt. By logical extension, the Justice Department's Office of Professional Responsibility cannot be trusted to investigate charges that Mr. Holder's own team has been unethical in other big cases, such as questions over why the Holder team dropped the charges against the Black Panthers. The Black Panther case and this "torture memo" investigation both yell out for appointment of a special counsel. Otherwise, the American people will wonder if justice indeed reigns at Justice.