The office of legal Counsel at the Department of Justice is a contender, and perhaps the lead contender, for the most rotten place in the United States government during the Bush administration. The rot ran deep, the rot is reflected in legal opinions that are so far below OLC's regular standard of scholarship, indeed so far below simple run of the mill levels of scholarship that a whole slew of them have already been withdrawn. It is a rarity for an OLC opinion to be withdrawn because it was wrong. Obviously they are constantly adjusted as case law changes going forward, but I can't recall anything like this ever having happened. The OLC was like a temple of scholarship within the Department of Justice. The notion that it would be the subject of a examination by the Office of Professional Responsibility of the Department of Justice, was before the Bush administration, unthinkable. And yet, there has been considerable stall, but sooner or later, and I hope soon, we will get the report from the Office of Professional Responsibility that looks into what has taken place.

For those of us who have taken a first hand look into those opinions, the spectacle we have seen has been appalling. Perhaps the most disgraceful example is the torture opinion, omitting any discussion whatsoever of a decision of the 5th circuit court of appeals of the United States of America, describing waterboarding, and repeating - I think it was 11 times in the opinion - describing it as torture, using the word torture.

Another area of historical research that completely eluded the Office of Legal Counsel in making these opinions. The Department of Justice has had some very dark days through the Bush Administration. The joy and relief with which Atty General Eric Holder was greeted when he came back to the Department, the sense that propriety has been restored, the bipartisan nature of that relief - has all been a very good thing. It has brought the Department of Justice back from some very dark days.

But the darkest part of those dark days is what became of the Office of Legal Counsel. And so I welcome this discussion. I think the more we discuss the Office of Legal Counsel and what took place during the Bush Administration, the better the American people will understand how previously proud agencies of their government were corrupted and turned to ideological pursuits. I hope we spend a lot of time on the floor discussing this because I think it is an important piece of America's learning and coming to grips with just how bad the interference with the integrity of government became in areas, that I said before, had been temples of scholarship. People who have been around the Depart of Justice just cannot accept, cannot believe, cannot countenance what took place there. The more you know the Department of Justice the more you know the reputation the Office of Legal Counsel had within that department and what became of it is shameful and disgraceful.

If there is a single irony in these proceedings that outdoes all of the other ironies, which are legion right now, it is my friends on the other side of this table who were silent through those long dark days of degradation of this proud office, now suddenly come forward and have discovered that they have concerns about partisanship or ideology or rule of law.

[looks directly at the republicans across the table]
Where were you when the problem was really acute? Where were you when these incompetent ideological opinions were being issued one after another? Where were the reassuring remarks after these opinions had to be withdrawn? What will they have to say when the OPR report comes out? It will be interesting to see all of this. And as I have said, the larger this debate gets, the better it is for America, and I can't tell you how much I look forward to energetically having this whole question thoroughly air out on the floor of the United Sates Senate before the American people.

For those who cannot see the video, Whitehouse's words were delivered with both frustration and yet a heartbreaking forlornness which is hard to describe. Being a former US Atty himself, his pain at seeing this degradation seems especially acute. Which brings me to the point of my post.

For a hypothetical, let's say you are a CIA interrogator. Let's say you are asked to do things that you know are torture. You know it down to your bones. You refuse stating ethical and legal reasons why. The admin then breaks down your ethical argument by laying the weight of another attack on your shoulders by your refusal. Let's say you still refuse, stating even if the ethical problems were abolished, there were still caselaw preventing torture. Now here is where it gets sticky.

Your CIA bosses give you a legal opinion from the OLC assuring you your actions are legal and you will be free from prosecution. As shown by Whitehouse's impassioned statements, most DOJers believed the OLC to be the first and last word for legal scholarship. But you could even say no to that, knowing that what you are doing is torture. But lets remember that this is the Bush Administration we are talking about. They outed a CIA agent, they put Don Siegleman behind bars, and don't even get me started on the US Atty scandal. All of this kind of makes you wonder just how intimidated the longtime CIA agents themselves were. I am not talking about Bush lackeys in the DOJ, I am talking about the career professionals, who, like Whitehouse, took pride in the rule of law.

This is just my hypothesis. I could be totally wrong. But I think Obama's reasons for not prosecuting the CIA interrogators could be something along those lines.