I hate it when I disagree with myself.
After all, I'm an editor, a writer, a speaker, a mini-pundit. I'm supposed to know what I think.
And then along comes the finding of the Justice Department on the conduct of Jay Bybee and John Yoo whose legal opinions in the Bush years provided legal grounds for torturing prisoners held by the United States. The ethics lawyers in the Office of Professional Responsibility had found that the two men were guilty of "professional misconduct."
That finding was rejected by David Margolis, who issued the final report. He said the two men, while "flawed" did not represent professional misconduct, because, he said, they were working in a time after the attack of 9/11 when the entire context of the law was based on a sense of national urgency and fraught with the passions of the moment.
In effect, he said, while their work may have been done poorly, and may even have been wrong, you have to cut them some slake: it was a difficult time in America.
Now here's where I start to argue with myself.
I have a rule that addresses this very subject: Rule #32. Rule #32 says, "Content isn't king. Context is king."
I am a great believer in context. Context provides the meaning that elevates general information, random observation, facts--but only facts--to the level of significance. Context is how we make sense of the world.
So I agree with Mr. Margolis.
On the other hand, if I buy Mr. Margolis's argument, he's basically saying that it's ok to screw up on things like torture, basic matters of human rights, as long as the times are so urgent that you feel compelled to do it. The problem here, of course, is that the only time these kinds of legal opinions matter is when times are urgent, when civil liberties are on the line. So I disagree with Mr. Margolis: context matters, but in this case the context that matters is that urgent times demand--no require--absolutely scrupulous application of justice. Not convenient legal opinions that cater to the mood of the moment, but virtuous legal opinions that may, in fact, buck the mood of the moment in the larger interest of justice.
So which interpretation of context is the right one?
Does context permit faulty work in the name of urgency?
Or does context require an even higher standard of justice, precisely because so much is at stake?
Now that I think about it, I know what I think; what do you think? You be the judge.
All Rights Reserved 2009 (c) Alan Webber, Rules Of Thumb