The Report of the Office of Professional Responsibility dated July 2009 is here, and the memo of Associate Deputy Attorney General David Margolis rejecting key findings of the OPR Report, dated January 2010, is here.
UPDATE: I have closed comments, as they only proved, once again, that the words “yoo” and “torture” in the same sentence make commenters get rather unhinged.
public_defender says:
Are Yoo and Bybee just bad lawyers, or are they guilty of complicity to war crimes? Are they just bad lawyers, or were they the equivalent of in-house mob lawyers? Are they bad lawyers? Or lawyers who committed morally repugnant? I guess those questions will follow them forever. Good.
Soviet-style sleep deprivation. Nazi-style stress positions. Khmer Rouge waterboarding. Have they no moral compass?
I realize the difficulties in making a criminal case against these two. They law protects government employees, especially government lawyers, in all sorts of ways that the law does not protect the general public. But even though their facilitating torture may not be legally actionable, it is morally disgusting, especially since they seem to be unrepentant.
It’s a sad sign that so many on the right now seem to equate not-prosecutable with morally good.
Bybee and Yoo may be legally entitled to keep their freedom and their law license. But the rest of us are legally entitled to consider them to be unrepentant, moral scum.
February 20, 2010, 1:26 pmrarb says:
The Margolis memo is somewhat akin to a court decision finding that Yoo and Bybee committed acts in violation of the law, but are protected by qualified immunity.
February 20, 2010, 1:35 pmPatrick S. O'Donnell says:
Helpful references and analyses here, here, and here.
February 20, 2010, 1:44 pmjerry says:
What I find most interesting is the incredible silence on these matters from the legal profession.
Oh, you’ll create bars and codes of ethics and tromp around in your suits and charge $500 per hour and claim you are professionals, but when one of your own says torture is okay, what we get is years and years and years of you lawyers unable to figure out where to file charges against him, where to file ethics code violations against him, and mainly just urging other people to deal with your own cowardice.
Disgusting profession as usual.
February 20, 2010, 1:50 pmRPT says:
This will certainly be a long thread, with much repetition of arguments and opinions already made in earlier posts.
It would be helpful if some could focus on the role of Margolis and whether the ethical and professional standard he applies is so low as to be meaningless, as Balkin suggests.
It will also be helpful to see the commentary generated from off-VC sources such as non-lawyer Marcy Wheeler, who will actually read and analyze all of the released documents before making conclusions.
February 20, 2010, 2:50 pmJoseph Slater says:
RPT:
The first two links Patrick O’Donnell provided contain what seem to me (it’s not my field) to be dispassionate analysises with detailed references to the actual rules.
February 20, 2010, 3:01 pmRPT says:
DontAsk:
How do you deal with the assertion that Yoo/Bybee were completely unqualified to make a factual determination that the techniques actually used weren’t torture? What is the basis for asserting that the made any factual investigation at all?
February 20, 2010, 3:02 pmOff Kilter says:
Quod licet Jovi non licet bovi.
It’s not like this is a new insight….
February 20, 2010, 3:03 pmRPT says:
Can you identify which of her prior analyses you consider deficient and why? Have you read the source documents? Stick to the merits.
February 20, 2010, 3:04 pmOff Kilter says:
Don’t Ask: “They didn’t say torture is OK, they said the techniques used weren’t torture.”
Such a wonderfully lawyerly-like distinction. I’m sure you were also impressed when President Nixon explained that when HE did it, it wasn’t illegal…
February 20, 2010, 3:05 pmOrin Kerr says:
Everyone,
Be civil to each other or else I’ll just close up the comment thread.
February 20, 2010, 3:11 pmyankee says:
A government investigation that exonerates government officials from accusations that they violated the law? Who could have imagined such a thing?
February 20, 2010, 3:12 pmKazinski says:
Yes, having a legal definition of torture would deprive all the administrations critics from the opportunity to hyperventilate over any sort of rough treatment given to terrorists.
I personally think the Pelosi standard should apply: any treatment that Nancy Pelosi fails to object to when it matters is not torture.
February 20, 2010, 3:22 pmEric Rasmusen says:
From Commentary:
Can any critic of Yoo and Bybee find any action of theirs that is such clearly shoddy legal work as these two examples from the OPR report? Note that the question here is not whether it is good or bad public policy— we are supposed to be talking about legal malpractice. It’s dismaying how many people are willing to go after Yoo with no concern for whether they did anything against the rules. It’s enough to make you think liberals don’t really care about civil liberties at all.
February 20, 2010, 3:22 pmorca says:
Won’t the real test come when one of these two try traveling to a country that still has a sense of decency?
February 20, 2010, 3:25 pmJones' Cell Mate says:
This report does not reach my preferred conclusion, I therefore reject it entirely.
Also, all intelligent people agree with me, except for those who are blinded by their own partisanship.
February 20, 2010, 3:29 pmgeokstr says:
That’s OK, since the “rest of us” on the right have the same opinion of leftists.
Oh, and by the way, there’s at least twice as many of our “the rest of us” as your “the rest of us”, according to pretty much every survey ever taken.
February 20, 2010, 3:39 pmOrrin Hatch says:
orca,
If you really think that either Jay Bybee or John Yoo really have to worry with their international travel then you probably also think Democrats will sweep this year’s election.
February 20, 2010, 3:40 pmorca says:
Why won’t they? All the praying in the world won’t slow down our current economic recovery.
February 20, 2010, 3:54 pmA. Zarkov says:
Let’s get specific. Page 35 (document number not pdf number) of the OPR report lists 12 EITs proposed for Abu Zubaydah. Which (if any) of the 11 visible items constitute torture? They are all unpleasant and coercive. So is being under arrest or in jail. Basic training, especially for Marines, can also be extremely unpleasant. A civilian police interrogation is no picnic either. Some people even consider a deposition torture too. When do we cross the line into the realm of legal torture? If any or all of these techniques are torture, then what should use as an alternative” The comfy chair?
February 20, 2010, 3:54 pmbailey says:
Yes, the comfy chair would be just fine. I just wish that the left would tell us how many of their fellow citizens they would sacrifice to maintain their dainty moral qualms. Hundreds? Thousands? Millions? Could someone give a number of citizens they would see die to avoid pouring water over someone’s face or putting a caterpillar in a room with them.
February 20, 2010, 4:03 pmBob from Ohio says:
No Margolismas this year.
Back to patriotic dreams of foreign countries arresting former American officials for writing memos. I fear that you will be disappointed there too.
February 20, 2010, 4:13 pmbailey says:
I have seen some interesting stuff on right leaning sites about the number of DOJ attorneys who represented terrorists in their prior careers. My guess is the figure of 9 provided is low given Holder’s penchant for telling the truth. How much would you like to bet that people would be more outraged by this than pouring water over a face to save lives? Any takers?
February 20, 2010, 4:15 pmPhil says:
So much for VC substantive commentary. I think, you should just delete this comment thread, Orin Kerr.
February 20, 2010, 4:22 pmyankee says:
Items 9 (shackling the victim in a standing position, with feet chained to the floor and arms chained to head level, and not letting the victim sleep while so shackled, for a period of up to 11 days) is definitely torture. Same for item 11 (drowning the subject, but stopping before they actually die and hopefully before they suffer permanent injury).
8 and 9 (wall standing, stress positions) are also forms of torture, since no time limit is placed on how long the victim is forced to remain in that position. The human body is not built to remain absolutely still for long periods of time, especially in an unnatural position like those described. If you keep it up the pain is excruciating.
I’m not sure about number 5 (cramped confinement). The subject is stuck in a cramped position, but only for two hours, and I don’t know what the effects of that are. I could definitely be convinced it was torture due to the pain from having your back bent for a long period, overstretched muscles, and impeded circulation. It would depend on how painful being suck in such a position actually is.
I doubt the other items constitute torture, except item 12, which is so horrible they redacted it.
February 20, 2010, 4:27 pmbailey says:
Why is it that the left doesn’t like to discuss tradeoffs. If we don’t waterboard and people die, isn’t that something that should be discussed? Is it insensitive to bring up such topics? It’s easy to get on the soap box for cost free decision making.
February 20, 2010, 4:27 pmtroll_dc2 says:
Please state the number of lives saved as a result of this technique.
(I am opposed to disciplining the lawyers for their advice, but I also am opposed to ideologically driven rhetoric.)
February 20, 2010, 4:33 pmyankee says:
Did you read the description provided in the memo? There is no way to avoid inhaling water when it’s being poured directly onto your face. The presence of a cloth doesn’t change things, water goes straight through a wet cloth. (You can do an experiment in your kitchen if you don’t believe me.) Less water makes it in (because it’s mediated by the cloth) but there is no way to avoid inhaling water and the physiological response is the same as if you’d just held their head in water.
The technique is preferred to holding someone’s head in water because the gag reflex kicks in faster and the total volume of water inhaled is lower. The result is a lower risk of permanent damage to the victim.
I choose the description I did because the description in the memo (“pouring water onto the cloth”) does not adequately describe what’s really going on. It doesn’t just “produce the sensation” of drowning: the victim actually is drowning.
February 20, 2010, 4:50 pmHauk says:
Personally, at least a few million. Maybe in the tens of millions.
February 20, 2010, 4:53 pmorca says:
If there’s nothing a government lawyer can say or write that should get them in trouble…why all the fuss?
Aren’t there a few rule they have to abide by?
February 20, 2010, 4:58 pmyankee says:
It is not I who am lying: I am providing an accurate description of what actually happens. Common descriptions (like that chosen in the memo) describe what is happening in terms that make it sound much less serious than it actually is. The victim is inhaling water, though less than if their head were held under water. The victim’s involuntary physiological response is exactly the same as if they were being held in water, except that it kicks in faster. If you keep it up the victim will suffer permanent damage from asphyxiation; if you keep it up longer they will die.
The technique does not merely “produce the sensation” of drowning: the victim is drowning.
February 20, 2010, 5:01 pmsteve s says:
Since this is a law blog, I wold rather there was some attention paid to pages 80 and 81 of the pdf. If you look at the reasoning behind Yoo’s memo there does not seem to be any easonable limit to what they can do, which would be in line with modern torture regimes would normally do.
Self defense and necessity are adequate justification for torture by Yoo’s standards as long as the interrogator is acting in good faith. IOW, essentially anyone who believes that they are doing good on behalf of their country has few real limits on their interrogations. (Modern torture regimes dont gouge out eyes anymore. Look at Maher Arar. The Syrians did not cut off fingers. They used the kind of torture we did.)
Steve
February 20, 2010, 5:08 pmyankee says:
That was the whole point. The purpose of the memos was to provide legal cover for anything the government wanted to do.
February 20, 2010, 5:22 pmjosh bornstein says:
I have no idea why some people are turning this into a Left vs Right issue. I know many many conservatives who were appalled at the waterboarding. I think they recognized that the US saw waterboarding as torture post World War Two, and their position is merely consistent with decades of precedent.
I personally much prefer those (again, on the Right and on the Left) who have the integrity to say, “Of course waterboarding is torture, but–on balance–it’s worth it in terms of protecting out country.” I might disagree with that position, but it’s a legitimate argument one could make. Something as ridiculous as claiming that it’s not torture to begin with just flies in the face of evidence, precedent, world opinion, and weakens the credibility of those making the claim.
I also point out that those who support Yoo’s definition of torture would presumably also support rape of female suspects (as an ‘enhanced interrogation’ technique), and would certainly support rape of a suspect’s relative in her presence, since the pain and/or suffering would not exceed the standards set out by Yoo/Bybee.
February 20, 2010, 5:43 pmyankee says:
Why just female suspects?
February 20, 2010, 5:50 pmtroll_dc2 says:
You cannot both be right. How do you know (as oppose to believe, surmise, or hope) what the purpose was?
February 20, 2010, 5:52 pmJoe says:
How do you know (as oppose to believe, surmise, or hope) what the purpose was?
Various reporting was done in which the first option was reasonably shown [at least] to be accurate. To be more precise, to provide a “get out of jail free card” at a particular point in time.
Books being written about it, one blog comment won’t do the trick.
February 20, 2010, 5:57 pmDOJ Releases Reports on Bybee, Yoo, and the Torture Memos | Liberal Whoppers says:
[...] the rest here: DOJ Releases Reports on Bybee, Yoo, and the Torture Memos [...]
February 20, 2010, 6:04 pmBruce Hayden says:
Let me suggest that you read the Margolis memo linked to at the top. My view is that he pretty much refutes this position.
Or, at least I should clarify this – the get out of jail free card was strictly limited to performing the specific acts on illegal combatants outlined in the CIA request and answered in the secret Bybee memo.
February 20, 2010, 6:10 pmBruce Hayden says:
At least the Bybee memos were apparently more limited than that – the CIA asked for direction as to specific techniques, and that is what the memos covered. At least he apparently expected that if the CIA wanted to do something else, they would come back to the OLC for additional guidance.
February 20, 2010, 6:13 pmBruce Hayden says:
As pointed out in the Margolis memo, this is the incorrect standard to apply here. And that was part of where he was criticizing the OPR, in applying 20/20 hindsight to the evaluation of the environment in which the memos were written. Looking at what actually happened is irrelevant to determining whether or not the authors of those memos acted professionally when writing the memos.
February 20, 2010, 6:18 pmorca says:
Haha, torture is okay if you give your victims a band aid afterwords?
Hypocrisy of that magnitude would make even the Kmer Rouge blush.
As someone said up thread, why don’t you guys man up and just admit you think it’s ok to drag America in the sewer of torture and murder?
February 20, 2010, 6:21 pmtroll_dc2 says:
Bruce Hayden, I know that. I was merely responding to DontAsk’s claim.
February 20, 2010, 6:22 pmbailey says:
Putting a bug in a cell drags us into the sewer of the Khmer Rouge? I guess you missed the mountain of skulls that particular regime left. Flexible walls to prevent whiplash-oh, those diabolical CIA monsters.
February 20, 2010, 6:27 pmBobC says:
Ok, maybe waterboarding someone is not torture. What about doing it 183 times in one month to KSM? Even in the name of information gathering, can’t the act reach the point of torture?
February 20, 2010, 6:32 pmorca says:
The C.I.A.: Not quite as bad as the Kmer Rouge.
February 20, 2010, 6:33 pmbyomtov says:
Why is it that the left doesn’t like to discuss tradeoffs.
Actually, it’s the torturers and their fans who don’t like to discuss them. Aside from making you feel like a tough guy, what are the benefits? The fact is there is considerable opinion among those who actually have experience, as opposed to learning from TV shows and indulging sadistic fantasies, that torture is not an effective interrogation tool.
February 20, 2010, 6:55 pmJoe says:
Let me suggest that you read the Margolis memo linked to at the top. My view is that he pretty much refutes this position.
I’m unsure my understanding will be more informative than (Washington Post) “recommendations by the department’s ethics investigators,” various other lawyers who disagree with you (at Balkinization, Firedoglake, others covered by various articles/books/blogs) and non-lawyers who have done a heck of a lot more research and have contacts I don’t have access to. So, your suggestion is of limited appeal.
Or, at least I should clarify this — the get out of jail free card was strictly limited to performing the specific acts on illegal combatants outlined in the CIA request and answered in the secret Bybee memo.
So, it is of a “particular” type as noted. So, it’s okay to be unethical etc. if it is “strictly limited” or something.
Since Bybee is one of the people being investigated, I’m not sure how useful his “answers” are as well. But, again, one blog post is not going to answer this.
February 20, 2010, 7:01 pmbyomtov says:
Josh Bornstein,
I have no idea why some people are turning this into a Left vs Right issue. I know many many conservatives who were appalled at the waterboarding. I think they recognized that the US saw waterboarding as torture post World War Two, and their position is merely consistent with decades of precedent.
How do you know they were appalled? They told you so, privately? I guess I’d like to see a bit more evidence. I’m not saying that no such people exist, just that I’d like to see some footprints.
February 20, 2010, 7:06 pmJoe says:
As to the ‘tradeoffs’ issue — I was under the impression “the left” were the ones blamed for “situational ethics” of that sort. I thought the left were the weenies who didn’t realize life was a bit harsh, but rules have to be followed all the same.
February 20, 2010, 7:07 pmorca says:
Says the guy who supports torture and murder.
February 20, 2010, 7:09 pmSun Tzu's Nephew says:
Panties twist much?
February 20, 2010, 7:13 pmSarcastro says:
[glad Orin didn't give up on this thread. The heat is high, but there is some serious light coming about as well.
There are a number of parallel relevant conversations going on here. Open questions I see:
1. What was the purpose of the memo? How would one show this is the purpose?
2. what limits did the Yoo memo put upon interrogation techniques? Would rape cross such a line?
Rabbitholes like 'is waterboarding torture' and 'my tradeoffs are better than your tradeoffs' are kinda boring these days.
I myself am kinda interested in the necessity/self defense rationale, since if they apply not only to existential threats to the US, but rather to some subset of the US, then the exigent circumstances swallow the rule of law.
Also, whenever I've seen Yoo interviewed, he puts emphasis not on that rationale, but rather the idea that the executive's power is essentially unbounded in a time of war, declared or not. Course, now he's walking it back with respect to Obama, but that's on him as a person not on the memo.
Also, twisted panties in defense of liberty is no vice!
And could someone lock orca and Don'tAsk in a chatroom together? The heat could power a small city!]
February 20, 2010, 7:13 pmrpt says:
Speaking as a former tenant, the Library Tower attack theme has been thoroughly and repeatedly credited. Once poster here used the time travel metaphor in so doing.
February 20, 2010, 7:13 pmyankee says:
I don’t think you understand. It’s only torture when they do it. When we do it, it’s “harsh interrogation techniques.”
February 20, 2010, 7:18 pmjosh bornstein says:
Don’tAsk,
In all seriousness; according to the criteria Yoo and Bybee laid out, what exactly in rape would make it torture? (Of course you and I see it as torture . . . we’re rational people.) But I think that one reason why both liberals and conservatives off all stripes reacted so strongly to Yoo’s position was that–for example, the case of rape–it seems to permit this sort of horrific act, or others that seem to ‘pass’ simply because the level of pain doesn’t rise to the heights Yoo seems to think are necessary for “torture.”
I do agree with your other point re world opinion, insofar as it should, of course, not be the sole criterion in determining what torture is or is not. But I don’t think it’s wise to discount world opinion completely, as you seem to be suggesting. How the world views the United States matters a great deal, even if it’s not in a way that can be easily quantified. We often ask the world to follow our path, both politically and morally. And if the world sees us as acting in an obviously-immoral way, then we of course lose moral credibility. That does not seem to be a controversial point.
We can have a good-faith argument about trade-offs. You might argue that our relative loss in world standing is offset by an increase in our security, etc.. We can agree to disagree on the result of that analysis. But to claim that there is NO trade-off, no negative costs at all, as a result of our use of torture (or ‘enhanced interrogation’ that the rest of the civilized world sees [mistakenly, perhaps] as torture) seems to be a silly argument. And not one, I trust, that you are attempting to make.
February 20, 2010, 7:19 pmrpt says:
Yes, of course I did mean “discredited”.
February 20, 2010, 7:44 pmSarcastro says:
[DontAsk, you really think how the US treats nationals of other countries effects how the other countries think about us? Hard to prove a negative (i,e, how would things be if we hadn't indulged in such tactics), but it seems to me that such an assertion needs no evidence, other than a general knowledge of human nature.
But think about how we felt about Iran after the hostage crisis.]
February 20, 2010, 7:47 pmEmsl says:
It is probably far too late to get any focus to this discussion, but here are my two cents on the actual issue presented — did Yoo and Bybee engage in professional misconduct? I speak, in part, as a former DOJ attorney.
It is clear from the Margolis memo — very carefully written by a long-time civil service attorney — that the OPR report was unsound and unreasonable. It was riddled with substantive and procedural errors, not to mention a “holier than thou” attitude. There is a vast difference between disagreeing either with the policy at issue or even the legal analysis and asserting that a lawyer violated the ethical code. To take one example, OPR again and again refers to authorities that it asserts should have been cited that are either arguable or distinguishable. This is not the stuff for disciplinary action.
Assuming the question is limited to whether Yoo and Bybee engaged in misconduct, is there any real criticism of the Margolis Memo?
February 20, 2010, 8:03 pmgeokstr says:
Funny, though, your argument that this should not be a Left-Right thing would have much more meaning if you could also say you know at least some liberals who don’t think waterboarding is torture, too.
February 20, 2010, 8:05 pmrpt says:
No comment necessary on this one, which reminded me of several libel cases cases we very successfully litigated against Williams & Connolly and William Calley’s prosecutor, Aubrey Daniel, some years ago:
“Yoo Said Bush Could Order Civilians ‘Massacred’
By Michael Isikoff, Newsweek
20 February 2010
The chief author of the Bush administration’s “torture memo” told Justice Department investigators that the president’s war-making authority was so broad that he had the constitutional power to order a village to be “massacred,” according to a report by released Friday night by the Office of Professional Responsibility.”
February 20, 2010, 8:08 pmbyomtov says:
Don’t ask,
the evidence shows that life-saving intelligence was gathered from the interrogations of KSM and Zubaydah.
Sorry, I don’t assign much credibility on torture to Bush speechwriters.
February 20, 2010, 8:20 pmrpt says:
DontAsk:
Recall your own comments re Marcy Wheeler, whose work is substantive and fact-based, not speechifying, whether or not you agree with her conclusions. Thiessen has no record of actually analyzing anything.
February 20, 2010, 8:37 pmbyomtov says:
Don’tAsk,
Thiessen has a strong personal interest in defending the torture policies. As a former Bush speechwriter he is, whatever else you might say, clearly not an impartial observer. That’s not ad hominem, it’s common sense. Do you not discount self-serving statements?
February 20, 2010, 8:40 pmrpt says:
DontAsk:
Isikoff has been writing about drone strikes for many years. That is irrelevant.
But how do you feel about what Yoo told the OPR?
February 20, 2010, 8:41 pm