Late last night, bmaz alerted us to a very disturbing report by Michael Isikoff and Daniel Klaidman of Newsweek regarding the pending Justice (sic) Department OPR review of the crafting of the torture memos:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

My response after reading this passage from Isikoff and Klaidman was very similar to that of Eureka Springs, who compared it to "an old sucker-punch from Cheney". After all, Isikoff himself had earlier reported that the OPR report would refer Yoo, Bybee and Bradbury to their state bar associations for disbarment. This was viewed by many as merely the first step of bringing the criminal actions of crafting and implementing a systematic program of torture into the legal system so that those responsible would be held accountable.

So how is it that professional misconduct has been downgraded to poor judgment? Jeff Kaye points us to troubling aspects of previous actions by the DOJ attorney who downgraded the conclusion, but the wider question becomes whether the entire government is standing in the way of accountability for the crime of torture. In viewing the situation, where we now have a President who vows to "look forward, not backwards" and an Attorney General who takes those words to heart, it is hard to escape the conclusion that prosecution will never occur.

That stance of the government standing directly in the way of prosecution for torture is just one aspect of the overall situation of immunity for those at the highest levels of government and large corporations. The financial sector nearly brought the entire world economy to ruins in late 2008, and yet its highest executives retained their outlandish bonuses while their firms were bailed out with taxpayer money. This week Obama followed that situation by stating that he doesn’t want to "punish the banks" despite reports as long ago as 2004 that there was an "epidemic of mortgage fraud".

Yesterday also brought the UK inquiry into the start of the Iraq war into the news, and Glenn Greenwald did an excellent job of reviewing the terrible toll of this patently illegal act spearheaded by the US that will never see a single person held accountable in the legal system.

The UN published a report this week on the use of secret prisons at the same time as the US head of detentions in Afghanistan made a statement that seemed to leave open the question of whether the US still maintains secret prisons there.

In a book to be released next June, former covert CIA operative and author Barry Eisler incorporates many of these actual events into a fictional account of a variation on the destruction of the CIA videotapes of interrogation. Near the end of Inside Out, protagonist Ben Treven begins to understand the significance of a statement from an erstwhile opponent: How can there be a conspiracy when everyone is complicit?

In developing this theme of everyone being complicit, Eisler hits on a very convincing description of how it occurs. Branding our situation as being dominated by oligarchs, he points out that rather than being hidden, it is in plain sight. Also, "there aren’t any secret handshakes". Rather, "It’s just a collection of people in business, politics, the military, and the media who recognize their interests are better served by cooperation than they would be by competition."

Isn’t that a believable explanation of how Margolis downgraded the charge in the OPR report? I doubt he had explicit instructions from Holder or Obama to do so, but the steady drum-beat in the press of Obama looking forward and Holder not criminalizing policy differences, coupled with the report having multiple iterations of going back and forth between DOJ and those whose actions were reviewed, could leave Margolis with only one conclusion as to what he was expected to do. After all, he’s been in DOJ over 40 years and he knows what is in the interests of DOJ and those above it.

Eisler ends the book by dangling the possibility that a network of extremely capable undercover operatives might come together to lead a push for restoration of justice. If such a group exists in the real world, I’d have say that right now their cover is exremely effective and that their plans have not yet been implemented.

I thank Barry Eisler for a pre-publication copy of Inside Out and hope that he and the publisher will forgive me pushing the limits of the notice not to quote the uncorrected proof for publication.