I have one more question to add on to yesterday’s post on John Yoo and the torture memos. Let’s imagine what I’ll call a reverse Yoo. Here’s the hypo, with the question at the end.
The year is 2002, and the CIA has come to OLC seeking a legal opinion about what “enhanced interrogation techniques” are barred by the federal torture statute. Imagine that the federal torture statute is drafted a bit differently, however. Specifically, imagine that the fairest reading of the statute leads to the result that waterboarding and all the other techniques the CIA wanted to conduct are actually lawful. This result is not a slam dunk, because the statute is really vague. But on balance, the most accurate and lawyerly reading of the statute produces the result that waterboarding and the other techniques were not actually prohibited by it.
Now we get to the reverse Yoo. Imagine that John Yoo is in charge of writing the memos, and he decides that his conscience will not allow him to write a memo approving waterboarding. Whatever the statute technically says, Yoo feels deep down that these techniques are torture: It would be unjust, un-American, and downright savage to let the CIA use these methods. John Yoo is not going to be like the Nazi lawyers who let the Holocaust occur: He must do the right thing to stop what he deeply believes is an obvious injustice. So Yoo decides that he must write a memo concluding that these techniques are unlawful. Granted, he needs to get a bit creative to reach that result. He needs to stretch a legal term here, bend a legal term there. But by fudging the analysis when necessary, he manages to write a memo that gets to the result he wants to reach that the CIA is not permitted by law to engage in these interrogation methods. With OLC’s opinion issued, the CIA never uses these techniques and no one is ever waterboarded.
So here’s the question that I’d like to ask, specifically for the many readers who believe that the real John Yoo wrote the real memos in bad faith. How similar or different are your reactions to the real Yoo and the Reverse Yoo? Are you equally upset about the Reverse Yoo as you are the real Yoo, because in both cases he fudged the law to reach a result he personally wanted? Or is Reverse Yoo significantly less blameworthy, or even a hero, for having done the right thing and stopped waterboarding?
Houston Lawyer says:
While the reverse Yoo may feel good about himself, the victims of the pending terrorist attacks that would have been disclosed but for his high mindedness might not have that fuzzy warm feeling.
March 1, 2010, 12:19 pmOrin Kerr says:
Houston Lawyer,
But what do you think — specifically, do you see the real and reverse Yoos as equally blameworthy?
March 1, 2010, 12:22 pmadjunct says:
My reaction is the same to reverse Yoo as to real Yoo; both did not do their jobs properly.
More to the point, if it’s just the result we’re after, why not use a non-lawyer, like your best friend, to obtain advice? As the posts on this subject show, everyone’s got a strong opinion on this torture business.
Yoo (or reverse Yoo) was not retained/hired/employed to provide his strong opinion. He was hired to provide an analysis of the law. After all, that’s what he’s supposed to be — not a commentator, opinionator, blogger, etc. — a lawyer. If it’s just an opinion and a result we seek, then why bother with the charade of a legal opinion at all.
March 1, 2010, 12:27 pmyankee says:
The reverse Yoo has committed malpractice and breached his duty of loyalty to his client, but no more.
The real Yoo, on the other hand, wrote the memos in order to provide cover for criminal acts. Specifically, the purpose of the memos was to allow government officials to commit a serious felony. They could then claim they were acting pursuant to advice of counsel, making prosecution politically infeasible.
The reverse Yoo is guilty of malpractice. He may be subjected to a malpractice lawsuit or professional sanctions. The real Yoo is guilty of conspiracy to commit torture and may be punished by up to 20 years in prison. The two are not remotely comparable.
March 1, 2010, 12:29 pmPintler says:
Reverse Yoo (what were his parents thinking, naming a kid ‘Reverse’) is praiseworthy, for the same reasons as Rosa Parks, underground railway conductors, and Raoul Wallenberg.
March 1, 2010, 12:29 pmruuffles says:
Or he could just resign in protest, a la Nixon’s DOJ guys.
March 1, 2010, 12:31 pmcboldt says:
If he’s acting as an advocate, then outcome-based “fudging” is part of the job description. If his role is ostensibly neutral (as a judge is supposed to be), then “fudging the law” is dishonesty. Dishonesty undermines the foundation of “rule of law.” I find “reasoned dishonesty” (as in, I know this is not the natural read or intended outcome of the law, but I’m going to assert that it is) to be despicable.
March 1, 2010, 12:31 pmJasonPoe says:
Hi Orin,
This is a very interesting question. With the understanding that my argument may not be what you’re looking for, I’ll take a stab at answering it.
I would not be as upset about the Reverse Yoo as the Real Yoo. The reason, I think, is because the umbrage at the Real Yoo (“RY” from here on out) is not (just) because he fudged the law to reach a result he personally wanted per se: but rather, because he fudged the law to reach a result that was perceived to be immoral and/or unhelpful. In other words, the complaints about the process were not the primary complaint; rather, the process was perceived as an lesser injustice that enabled a greater one.
Let me provide another, more absurd hypothetical. Imagine that a government bureaucrat decides to intepret some statute in such a way as to mandate the immediate donation of $1M to widows and orphans. This reading is clearly a strained interpretation of the text… even a clearly incorrect one. Is he blameworthy? I would say yes – but in a way that is much less morally severe than the case of someone who chooses to steal $1M from those widows and orphans.
In other words, the moral fault that is cited – twisting the law to suit ones own personal preferences – can be both incorrect and yet relatively minor in the context of the actions it was designed to further. Ironically, this is why RY opponents were so outraged by Yoo’s actions… they felt that he was comitting one injustice to perpetuate a much more significant one.
The point that I’m making is obviously not a cut-and-dried one for defenders of RY, because there are a number of arguments that they propose as to why Yoo’s goals were indeed moral. My point is not to joust with them, but rather to point out why the above analogy isn’t necessarily as helpful as it seems: it focuses on an ethical question that many people might actually agree be decided in Yoo’s favor, but which needn’t ultimately sway opponents of his actions.
March 1, 2010, 12:32 pmDavid Schwartz says:
Yoo perverts the law to undermine the ethical normal all civilized people agree on. Reverse-Yoo perverts a broken law to preserve them. What was the question again?
March 1, 2010, 12:33 pmchad says:
What if KSM had been captured on 1 Sept. 2001 and the CIA came asking about waterboarding and reverse Yoo reached his conclusion. The 9/11 attacks occur and 3000 people die, or actually since we are playing what if the attacks occure the way OBL actually wanted them too and up to 500,000 people die. It comes out that the CIA had KSM in custody but couldn’t get him to spill any information even though he had all the operational details in his head. How do you feel about Reverse Yoo then.
March 1, 2010, 12:36 pmA Non-E Mouse says:
March 1, 2010, 12:37 pmcboldt says:
I’d just add, I think it is error to evaluate Yoo solely in light of “statutory torture.” There are other statues that prohibit conduct, in particular, the statutes that forbid cruel and inhuman treatment.
March 1, 2010, 12:37 pmThe hypotheticals that focus on “torture” to the exclusion of other crimes tend to devolve into spitting matches over labels; and also tend to conflate “torture” in the vernacular sense with “statutory torture.”
Howard Gilbert says:
A lawyer should not apply his personal sense of morality to legal issues. Nobody would praise a lawyer who gets his client convicted of a crime because his personal morality would not allow him to let the criminal loose to harm others. John Yoo did not approve interrogation techniques because he through it was the moral thing to do. He approved them because he believed it was the correct interpretation of the law. You may disagree with his judgment, but at least it is based on a view of law and not a personal view of good and bad independent of the law.
March 1, 2010, 12:38 pmAndrew says:
Is Reverse-Yoo a Democrat?
March 1, 2010, 12:40 pmMatthew K says:
I agree with yankee. Reverse Yoo is not being an ethical lawyer and should receive the appropriate punishment for that offense, and also whatever added sanctions apply given that the client he poorly served was the government. Real Yoo should be blamed for everything in category A as well as knowingly contributing to criminal acts. So Real Yoo worse than Reverse Yoo.
I would not consider Reverse Yoo a hero, however. His first obligation was to provide his client with a “correct” reading of the law and, given the stakes, his failure to do so is a very serious offense.
March 1, 2010, 12:43 pmShelbyC says:
I’m not convinced that the real Yoo intentionaly gave the wrong opinion, nor am I convinced that the reverse hypothetical Yoo did so intentionally, people interpret things by fitting them into their personal schema, and there’s lots of ambiguity about what goes where.
March 1, 2010, 12:45 pmSimon Jester says:
Imagine the statute was written differently? Should we also imagine that the UN Convention Against Torture was written differently? That there was no jurisprudence defining torture under the Convention, such as ECHR decisions?
In a hypothetical *world* where torture is legal, if Reverse Yoo fudged the analysis to draft a memo claiming that torture was actually illegal, he would have done a praiseworthy thing in about the least praiseworthy way.
Why not just resign and write a scathing critique of the torture-permissive society? Join (or lead) the revolution against torture.
March 1, 2010, 12:46 pmbailey says:
This “hypothetical” is consequence free. Why not up the ante and throw in that a couple of thousand people died in the follow up attack that could have been prevented. The problem is that the buck never stopped with the real Yoo and wouldn’t stop with the reverse Yoo if those thousands died. Morality is always easy if the choices are pain free.
March 1, 2010, 12:49 pmShelbyC says:
Isn’t reverse Yoo putting the country in danger?
March 1, 2010, 12:50 pmDel E. says:
Orin:
A number of comments have, I think, framed the answer correctly: so long as you include the moral content of Yoo’s actions (real and reverse), it’s really a case of apples and oranges once you get beyond the lesser question of whether his actions were “ethical.”
The bigger question, as Yankee suggests, is whether both Yoos were aiding the commission of heinous acts that–on 9/10/01–would have been thought to be so far outside the bounds of the torture statute that anyone suggesting otherwise would have been laughed at.
I think the phrase “Nuremburg Trials” comes immedately to mind. What war crime–as America once saw things–would Reverse Yoo have committed? And the Real Yoo?
In the end, I think the case of Reverse Yoo is one of pre-9/11 thinking. Much like America’s role in the Nuremburg trials.
As I recall from Telford Taylor’s recounting, the Soviets were in favor of summary execution–after a full debriefing. Fast, clean, efficient.
In any event, your questions on Yoo are welcomed, provocative, and level headed. Please keep on.
March 1, 2010, 12:50 pmcboldt says:
– I’m not convinced that the real Yoo intentionaly gave the wrong opinion … –
March 1, 2010, 12:53 pmMy read of the hypotheticals, though they were couched in different language, is to assume that counsel intentionally gave the “wrong” opinion. Meaning, he knows it’s not what the law really says, so has interposed his own sense of the way things should be, in order to obtain the outcome that he prefers. Of course, if he’s any good at being a liar, his legal rationale will have pretextual plausibility – and all he has to do is stick to his story.
chad says:
I am not a lawyer, so my understanding of the law is not as nuanced as all of yours, but I read the USC regarding torture, I read the convention against torture and I read the part where congress specifically only adopted the CAT in the manner in which it would fit in with American Jurisprudence. So given all that I am still at a loss as to how all you lawyers can read what is stated in plain terms. Torture has to cause severe long term physical or mental effects and conclude that Yoo broke the law.
March 1, 2010, 12:54 pmCalifornio says:
Yoo was a piker. Conspiracy to commit mass murder of citizens? If the government fails to protect it’s citizen’s, then the government will fall – and the citizen’s can respond in their Jacksonian rage, a’la Curtis LeMay. But then again, I am from the unsophisticated part of town that does not expect morality from law.
Here is an idea – we need not examine these questions if we mind our own business. Rape, murder, genocide in a foreign land? The Yoo haters will of course emphatically state that we are NOT to act or get involved – cultural imperialism and all that. Let the foreigners hack each other to death with machetes. Then the problems will sort themselves out quickly, dare I say, chop-chop wiki-wiki.
March 1, 2010, 12:58 pmAbdul Abulbul Amir says:
It seems Yoo had a truly impossible task. That is he was to draw the line between what is merely coercive and what with just a smidgen more becomes “torture.” No matter where that line was drawn, some will say that it includes torture.
Take sleep deprivation as an example. Waking a person an hour early is probably considered torture only by your teenage children. OTOH, 200 hours without sleep would pass for torture by most everyone. No matter where Yoo drew the line between those two numbers, some will say he was authorizing torture.
March 1, 2010, 12:59 pmMatthew K says:
In my opinion, no. My evaluation of the evidence leads me to believe that torture is at best unproductive and more likely counter-productive. But that’s really an argument for another thread.
In the event that an attack did occur, one could make an argument for indirect negligent homicide, but that causal chain would be rather lengthy, probabilistic, and unlikely.
March 1, 2010, 12:59 pmSlow says:
He is a lawyer and has been asked to give a legal opinion, he is not an ethicist. Reverse Yoo is just as bad.
March 1, 2010, 1:00 pmMark Field says:
I agree with both yankee and JasonPoe. ReverseYoo violated his responsibilities as a lawyer, but he did so in a good cause. RealYoo violated his responsibilities as a lawyer, and did so in a bad cause. The best solution for ReverseYoo, as others have noted, would be to resign a la Elliott Richardson.
So much for my opinion. Let me add a couple of provisions from the ethics rules. I’ll use the PA rules because that’s where Yoo is admitted to the Bar. I believe they track the Model Rules except for minor details.
Rule 1.2 (b) states that “A lawyer’s representation of a client, including representation by appointment, does not
constitute an endorsement of the client’s political, economic, social or moral views or activities.” This, I think, establishes that ReverseYoo has the obligation to give the correct legal answer. But… (there’s always a “but”)
Comment 2 to Rule 2.1 states that “Advice couched in narrowly legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and
ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.”
If ReverseYoo were to write the memo and give the correct legal analysis, rather than resign, it would be proper for him to include in the memo his ethical objections. RealYoo didn’t take advantage of this possibility.
March 1, 2010, 1:00 pmCalifornio says:
P.S. the value of consensus of legal opinion? Ask the law professors who almost 100% opposed the Solomon Amendment – which was upheld by all 9 Justices of the Supreme Court. Popular does not equal correct, oh wait that only applies to the great unwashed.
March 1, 2010, 1:01 pmjukeboxgrad says:
abdul:
What about 180 hours of sleep deprivation while being continuously shackled in a standing position, being fed a partial starvation diet, and being subject to temperature extremes? You seem to not realize that this is what we did, with OLC approval.
March 1, 2010, 1:07 pmfrankcross says:
I really can’t get too outraged by either case. Because it’s human nature.
Look at the comments. Some say that reverseYoo wasn’t as bad because his cause was not so unjust. That’s the thinking that causes this. Others say realYoo wasn’t so bad, because he protected us from terrorist attack. Of course, these are just assertions, and the Bush Administration quickly abandoned waterboarding, and no terrorists have attacked in the period since. But people believe to be true what they want to believe to be true. It’s called motivated reasoning.
At some point, this becomes so extreme as to be beyond the pale. But shading the law happens all the time. It’s human nature.
March 1, 2010, 1:09 pmShelbyC says:
I’m not sure reverse Yoo’s (or your, or my) opinion matters. Reverse Yoo is depriving the folks charged with determining whether or not the method is effective of a useful tool. For your argument to work, torture has to be counterproductive in every single individual case.
March 1, 2010, 1:11 pmsteve s says:
In order to make the reverse Yoo scenario work, you need to make some historical modifications. If, as you stipulate,
“Specifically, imagine that the fairest reading of the statute leads to the result that waterboarding and all the other techniques the CIA wanted to conduct are actually lawful.”,
then I would conclude that we had not previously sentenced other people as war criminals for waterboarding. I would assume that we had looked at these techniques when the North Koreans used them on our soldiers and decided they were lawful. I would assume we had not sent people to jail within our own country for waterboarding. I would assume that scholars around the world had discussed the issue and a preponderance had come to the conclusion that it was lawful. I would assume that past research had shown that those who used it had come to the same conclusions. I would assume that when Reagan signed the CAT it had at least been mentioned, as waterboarding is a common, recurring technique. (Actually, to make your scenario work wouldnt we even have to conclude that we decided that waterboarding done by Nazis was lawful, we just found the other stuff criminal?)
With those assumptions, I would find reverse Yoo just as blameworthy. Reverse Yoo would be taking a view he narrowly held that ran against precedent and prior findings to force his own narrow views upon the government. Given the unique position of the OLC to essentially write law (this will get me grief), he should present what is commonly held to be permissible. Now, if he wanted to make a case against it, while also presenting the currently held consensus, I would have no qualms about that approach.
May I also note that you are assuming that Yoo is doing this for his own reasons. I would add that if he had written this opinion because the president asked him to do so, it would also be just as wrong.
Steve
March 1, 2010, 1:11 pmchad says:
Well minus the shackles it sounds like a military field exercise, or more specifically Ranger school. I’m not sure where cold tired hungry and wet under the supervision of a physician to insure that you don’t suffer permanent physical or mental harm became torture but I would suggest that definition is highly misguided.
March 1, 2010, 1:12 pmSuperSkeptic says:
This is exactly right. Instead of saying in the memo something along the lines of what I understand he did write – conflating “law” with “political reality” (not verbatim, my take): “The president may override any statutes at anytime because he is the president and under our Constitution has unlimited power when it comes to war”; RealYoo could have just written: “Yeah there’s statutes, but when the president does it, chances are, after the fact, politically, it’s not illegal because the political process will likely accept what he has done as long as it’s not too egregious for the people to stomach – look, the country ratified Lincoln’s actions”. Because, at best, that’s what he really meant to say.
March 1, 2010, 1:16 pmCliveStaples says:
Even though I do not find Yoo’s actual conduct objectionable (I don’t think waterboarding is torture), it seems reasonable for Yoo’s detractors to find Reverse Yoo less objectionable. Doing the wrong thing for the right reasons (bending the law in order to stop evil acts) is less objectionable, I think, then doing the wrong thing for the wrong reasons (bending the law in order to allow evil acts).
Consider two cases from the standpoint of someone who thinks waterboarding is torture, and torture is evil:
1. Yoo authorized waterboarding, thinking that it was torture. In this case, Reverse Yoo is less morally objectionable than Yoo, since RY correctly identifies the moral nature of torture where Yoo did not, and since RY’s conduct is ethically identical to Yoo’s, RY’s conduct is less objectionable than Yoo’s overall.
2. Yoo authorized waterboarding, not thinking that it was torture. Yoo still fails to correctly identify the moral nature of waterboarding, where RY succeeds. So RY’s conduct is less objectionable than Yoo’s.
Other commenters raise the issue of a terrorist attack resulting from Reverse Yoo’s decision, but it is not clear why this should make us find his decision more objectionable; do moral ends (protecting innocent lives from terrorist attacks) clearly justify immoral means (torture)?
March 1, 2010, 1:16 pmchad says:
No it was to point out that the scenario was incomplete. I also don’t think waterboarding is torture although it would fall outside the scope of treatment for a POW (all interrogations do), but it was never used until a terrorist attack occured. In order for the scenario to be complete that possibility has to be present. I was also pointing out that moral and ethical questions don’t exist in a vacuum. The decision made have real world impacts beyond the nice little considerations of whether or not it’s moral. In war dropping a bomb on a village with women and children is immoral but not doing so may have the real world impact of causing you to lose a large number of your men. That moral consideration goes out the window at that point.
March 1, 2010, 1:24 pmTamerlane says:
My rhetoric teacher often pointed out that one reason to avoid the passive voice was that it was a convenient and lazy way to fudge an argument or avoid responsibility.
I’d ask the writer, “Who perceives this result to be ‘immoral and/or unhelpfull’?” Certainly not I nor many of my friends, not a significant portion of the legal community, not a large portion (perhaps the majority) of the American people.
Those who are dogging Yoo and Bybee are almost invariably presenting their own views on the issue of torture and what constitutes torture as if they were a consensus, nay an emanation of the Rousseauan Will of the People.
This is not the case. And without that absolute moral certainty that characterizes cranks, religious fanatics, and this country’s liberal annointed it is difficult to make a case against Yoo or Bybee.
March 1, 2010, 1:27 pmorca says:
If most Americans wanted to live in the kind of society that tortures helpless prisoners, then John McCain would be president now.
Talk about irony.
March 1, 2010, 1:31 pmAbdul Abulbul Amir says:
This is a problem with outlawing torture without a bright line definition of what is and is not torture.
@jukeboxgrad
March 1, 2010, 1:32 pmWould it still be torture in your eyes with more calories in the diet? Or is it still torture based on the diet alone?
yankee says:
What Yoo was asked to authorize was sleep deprivation “not to exceed 11 days at a time,” i.e., 264 hours. The proposed procedure was to be induced by “shackling the subject in a standing position, with his feet chained to a ring at the floor and his arms attached to a bar at head level, with very little room for movement.” Yoo would have had a hard time coming up with a precise number defining the exact point where the line is crossed. In fact, coming up with a precise number is probably impossible. But there is no doubt about what Yoo actually authorized, and at least some of it was torture unless nothing is torture.
March 1, 2010, 1:32 pmRyan says:
I’d praise him.
March 1, 2010, 1:34 pmyankee says:
The fact that there is no bright line does not make it impossible to say that anything is on one or the other side of the line. Virtually nothing in American law is defined by a bright line anyway; that doesn’t mean the legal system is meaningless and everything is hopelessly subjective.
It’s impossible to specify the precise point where a color changes from being a bluish green to being a greenish blue. That doesn’t change the fact that a traffic light signifying “go” is green and the sky is blue. Anyone who says otherwise is wrong.
If the statute and the U.N. Convention on Torture are too vague for your tastes, propose amending them. The law is what it is, not what you would like it to be.
March 1, 2010, 1:41 pmchad says:
You mean the same John McCain who has condemned the CIA practices since day one. Or is there and alternate John McCain who ran for President advocating breaking bones, knocking out teeth, blinding people etc. What’s ironic is that a lot of people had problems with McCain precisely because he opposed waterboarding. It is one of the areas I disagreed with him on.
March 1, 2010, 1:42 pmDJR says:
I have seen Real Yoo speak and have read his memos. The former leads me to believe that he could not have authored the latter in good faith, because he is not so stupid that he is confused between a legal argument and a practical/emotional instinct. As a lawyer, I have occasionally signed on to arguments that at first blush I did not think would work (but was later convicnced could work), but I have never signed on to an argument that I did not believe had a good faith basis in law or the extension of the law (which I think is the standard for frivolous arguments under the ABA’s model rules of professional conduct). Because I do not believe Yoo had a good faith basis for what was written in his memos, I find his conduct unethical and that it brings into question his competence as a lawyer. That his unethical conduct was in furtherance of torture makes it morally as well as ethically reprehensible.
If Reverse Yoo engaged in the same conduct to the same extent, I would find his conduct equally unethical. Note that his conduct would have to meet the same standard in that there would be no good faith basis for the memo. I say that because I have found that the law generally does not lead to conclusions that seem quite as out there as “waterboarding isn’t torture.” I would be sad to live in a country with such backwards laws as the one that Reverse Yoo lives in. Reverse Yoo would have several options available to him rather than to give an intellectually dishonest opinion, and I would find his conduct in not selecting one of those options blameworthy. Again, I think Reverse Yoo’s conduct would call into question his competence as a lawyer. However, I do think from the moral perspective that Reverse Yoo is less blameworthy. He should face a sanction, but maybe should not also be scorned.
March 1, 2010, 1:42 pmGerard N. Magliocca says:
Orin,
Is the reverse Yoo telling the President what he wants to hear or not?
March 1, 2010, 1:45 pmDilan Esper says:
So here’s the question that I’d like to ask, specifically for the many readers who believe that the real John Yoo wrote the real memos in bad faith. How similar or different are your reactions to the real Yoo and the Reverse Yoo? Are you equally upset about the Reverse Yoo as you are the real Yoo, because in both cases he fudged the law to reach a result he personally wanted? Or is Reverse Yoo significantly less blameworthy, or even a hero, for having done the right thing and stopped waterboarding?
It’s a little strained because reverse Yoo could certainly note the international law prohibition on torture and its consistent application to mock executions (including waterboarding).
That said, taking the hypothetical in the spirit in which it is authored, I do think that reverse Yoo would not be doing his job properly if he doesn’t accurately state the law. The correct action in this situation is to resign if your conscience prevents you from accurately stating the law.
March 1, 2010, 1:45 pmbailey says:
I thought it was silly but the Solomon Amendment stuff is now actually becoming relevant. The “best” legal minds all signed up onto this argument. If law dean opinions were all that mattered, it was certainly as much of a slam dunk as one could ask for.
March 1, 2010, 1:46 pmHouston Lawyer says:
If Yoo shaded his advice based upon the outcome he wanted to see, he was derelict in his duties. I don’t believe that this has been shown to be the fact.
Reverse Yoo not only placed his personal morals above his legal advice, he did so in a manner that put the country’s security at risk. He is to be condemned.
As one who gives legal advice for a living, I often have to deliver bad news to clients. My personal morals do not affect my legal advice. Clients need to understand the law, but they are not obligated to follow my advice.
Even if Yoo had said that all means of torture are permitted, the Bush Administration would not have implemented medieval torture chambers. The reverse is clearly not true.
March 1, 2010, 1:49 pmAF says:
What David Schwartz said.
March 1, 2010, 1:50 pmMark Field says:
Or, to use Edmund Burke’s example, while it’s true that we can’t draw a precise line for the dawn, night and day are tolerably distinguishable.
March 1, 2010, 1:50 pmCrazyTrain says:
Huh?!? How did OBL think he could 1/2 a million people with four airplanes? The truth is that the attacks were successful beyond OBL’s expectations — he didn’t think the towers would fall — as he said on that taped conversation that came out a few months after 9/11.
March 1, 2010, 1:52 pmCrazyTrain says:
Actually scratch my above comment — I forgot that some people around here think of Osama and his cohorts as comic-book supervillains who can use their Islamo-superpowers to destroy everything.
March 1, 2010, 1:53 pmchad says:
@Crazy Train -
You are correct I conflated the earlier WTC Bombing and the 9/11 attacks. Sorry.
March 1, 2010, 1:58 pmAnonsters says:
First, to answer the question, I agree with what a few people have already noted: Double-Yoo should resign. I’d take it a step further than the rest: he should go public after resigning.
So was Churchill.
In your view, in what way does a “bright line definition” differ from an extensional definition? If it doesn’t differ, why do you demand an extensional definition for the crime of torture, when the vast majority of crimes are defined intensionally?
March 1, 2010, 2:06 pmAF says:
Here’s an analogous question:
1. A client asks attorney John Lew whether he is legally entitled to rape his co-worker. The attorney says yes, as long as she doesn’t put up sustained violent resistance. The client rapes his co-worker.
2. Rape is legal, as long as the victim doesn’t put up sustained violent resistance. A client asks attorney “Reverse John Lew” whether he is legally entitled to rape his co-worker. The attorney says no. The client does not rape his co-worker.
Which attorney is more blameworthy?
March 1, 2010, 2:07 pmAultimer says:
Legally, revYoo and Yoo are equal. Morally, YMMV. When I’m asked whether a course of action is “legal” the memo gives the client’s preferred answer and details all the risks raised by taking that position. When the preferred answer requires an argument beyond good faith, no memo is written.
March 1, 2010, 2:12 pmyankee says:
Considering that the evidence that torture produced any useful intelligence consists of self-serving statements by Dick Cheney, this is highly dubious.
Let’s not lose sight of the fact Yoo’s attempt to provide political cover for the government to violate the law was not merely an authorization of immorality, but was also a serious crime: conspiracy to commit torture. If waterboarding is really justified by the supposed increase in security it produces (which there is no actual evidence for), then the appropriate course of action is to inform the President that it’s illegal and propose asking Congress to change the law. It is not to decide it’s OK to violate the law and write a memo designed to make it politically infeasible to prosecute the violations.
March 1, 2010, 2:13 pmjrose says:
I agree with Dilan. If the situation is clear that this is torture, reverse Yoo would have no problem concluding it is permissible under the statute, but impermissible under international law.
If on the other hand, he must stretch international law to reach that conclusion, then he is as blameworthy as the real Yoo.
March 1, 2010, 2:14 pmAssistant Village Idiot says:
Observation: Many of the comments defending Reverse Yoo declare that he is less blameworthy because he is using his powers for good instead of evil. But this simply isn’t true. Silly comments #9 & #17 to the contrary, the choice is between damaging a single, visible person and damaging dispersed, invisible ones. I can well see why that feels worse to us, but that is an emotive reaction, not a logical one. I think the give their real game away unwitting.
For other reasons, I oppose the US using torture in the vernacular sense. But I take that position understanding that there is a human cost to it. And that’s not any easy cost to pay when you know it is real. I suspect those who treat the question simplisticly of self-righteousness and lack of moral imagination.
March 1, 2010, 2:16 pmyankee says:
Disingenuously advising your client that that a felony is not a crime is orders of magnitude worse than disingenuously advising your client that a legal act is a felony. The second is malpractice and a breach of your duty of loyalty to your client, but the first is criminal conspiracy.
March 1, 2010, 2:18 pmluagha says:
The problem is that Reverse Yoo’s failure is undetectable.
Until a prisoner breaks and begins giving up useful, actionable, verifiable intelligence, there is no way of knowing for certain what intelligence he has to give.
So we could have a prisoner and fail to interrogate him successfully but not know that he had the information we need to stop an attack. The attack occurs, and we try to assign blame, but there just weren’t any dots to connect and so we never know.
It is vanishingly unlikely that the fact pattern will come up that will allow us to realize specifically that Reverse Yoo was wrong even if he was wrong.
(And as for stress positions and sleep deprivation, take a look at what the British did to the IRA over their 20 year campaign.)
March 1, 2010, 2:21 pmyankee says:
No, there might be a human cost to it. In theory, torture might generate intelligence that could not have been obtained through other methods of interrogation, and this intelligence might save lives. There is, however, no actual evidence that this is the case, except for self-serving assertions by Dick Cheney. There are also reasons torture might cost lives, most notably by making our enemies less willing to surrender. It may also aid recruitment of terrorists by damaging our reputation in the Islamic world and helping people promote that idea that the U.S. is the Great Satan.
It is one thing to take a position knowing that it will cost lives, and another to take a position even though it might theoretically cost lives.
March 1, 2010, 2:24 pm1040 says:
In this counterfactual hypothetical, does torture also lead to the truth/saving lives/defusing the fabled ticking time bomb?
March 1, 2010, 2:25 pmMatthew K says:
Not really. Is torture, on balance, good for national security? If yes, than Reverse Yoo is risking the country. If no, than Reverse Yoo is not. Just as some will only cooperate if tortured, others will only cooperate if not. But I’m not really interested in going round and round on this old topic.
Also, Real Yoo is using unethical means to promote a criminal act. Reverse Yoo is using unethical means to discourage a legal act. Even if one held all content constant, one of these is a worse act.
March 1, 2010, 2:26 pmmls says:
I have a different hypothetical, which like yours is designed to try to differentiate between the purely legal analysis and that which depends on one’s moral, policy or political viewpoint.
Suppose we had a machine that one could attach to a detainee and the machine had a dial from 1 to 10, where 1 and 2 would be universally acknowledged to be mere discomfort or mild pain, while 9 or 10 would be universally acknowledged to be extreme pain. As one moves up the dial, at some point one moves from non-severe to severe pain, but exactly where that line is will be a matter of varying and subjective judgment. Lets say that there is data suggesting that most people would draw the line somewhere between 4 and 8, but there is a wide variation among individuals within that range.
The CIA goes to hypothetical Yoo (maybe we should call him Hercules) and asks him how far up they can turn the dial. Assuming that Hercules is neither interested in “leaning forward” (to stop imminent terrorist attacks) or “leaning backward” (because the idea of using this machine is morally repugnant), isn’t the correct legal answer something along the lines of “how the hell should I know?” Isn’t the CIA asking Hercules a factual, rather than a legal, question, one on which Hercules has no particular expertise? Sure, Hercules may be able to find caselaw and other legal materials that allow him to carve out some area (say 1-4) as so clearly permissible that it cannot, as a matter of law, be considered torture under the statutory definition, but beyond that he would have to say that the question is a factual one that is beyond his area of expertise. Even given Hercules’s assumed knowledge and understanding of all applicable rules and principles, he cannot say that the answer to the CIA’s question is “6.83.”
Both pro-Yoo and anti-Yoo people seem to assume that he was supposed to give the CIA a definitive legal answer as to whether waterboarding and other specified techniques constitute torture under the statutory definition. Given that Yoo had no way of knowing exactly how these techniques would be used or all the circumstances surrounding them, answering that question would seem even harder than the one posed in my hypothetical.
March 1, 2010, 2:32 pmGreg says:
I’m not a lawyer but I spend a lot of time researching the law in my occupation. If the law is unclear I figure I can do whatever I want, I don’t need no stinkin opinion. The problem, of course, is that what’s unclear to me might be very clear to others.
Could it be that John Yoo took the same tack? Could it be that the folks who wrote the law ought to be brought up on the charges proposed for John Yoo? It is my understanding that the reason the law is unclear is because the folks who wrote the law are weasels, they kicked it down to the bureaucracy.
March 1, 2010, 2:33 pmorca says:
The Geneva Conventions are quite clear. There is no “weasel room” in them when it comes to the treatment of prisoners.
March 1, 2010, 2:44 pmAnonsters says:
CA3 forbids cruel, inhuman, and degrading treatment.
That’s very weaselly, orca.
Only weasels would write language like “cruel” or “unusual” into a law.
Maybe we should bring James Madison up on charges.
March 1, 2010, 2:50 pmyankee says:
No, the reason the law is vague is that enumerating every possible form of torture would be impossible, just like enumerating every possible way of killing someone.
In any case, vagueness does not mean nothing is clear. The difficulty of saying when dawn starts and ends does not mean it’s impossible to distinguish day and night; the difficulty of saying which color is greenish blue and which color is bluish green does not make it impossible to distinguish blue and green; the difficulty of saying exactly how long sleep deprivation must last to be torture does not mean it’s impossible to distinguish keeping someone up for 24 hours by gently waking them up whenever they start to doze off and keeping someone up for 11 days while shackled with their arms above their head.
March 1, 2010, 2:52 pmwfjag says:
Irrelevant. Since both Yoo and Reverse Yoo worked for the Axis of Evil (Bush-Chaney), whatever either of them did, whatever the result, whatever the law said, or whatever their respective analyses, it was morally corrupt and wrong. Accordingly, both Yoo and Reverse Yoo deserve to be drawn, quartered and disbarred — or, forced to reside and interact with the citizens of Berkley, CA, which many consider to be a prima facie violation of the CAT.
March 1, 2010, 2:52 pmAnon21 says:
Reverse Yoo is morally praiseworthy and professionally blameworthy. He has acted in accordance with the highest traditions of American justice and human rights enforcement, but as a professional he has forsaken his role and his promises. He should be referred for disciplinary action and probably barred from the practice of law. He can take comfort in the fact that he did what was right, as have thousands of civil disobeyers (is that a word?) before him.
The real Yoo doesn’t have that comfort, nor should he be treated as anything other than a clever sociopath at best, and a criminal at worst. And it goes without saying that he, like his mirror universe counterpart, should be barred from the practice of law.
March 1, 2010, 2:52 pmStephen Lathrop says:
Is this a fascinating problem for lawyers? For me, a non-lawyer, it’s an invitation to more Yoo logic. I will repeat something I wrote before, and add a comment.
Cutting the Gordian Knot on Yoo logic:
For counseling torture, Yoo should be disbarred.
But on what principle?
On the principle that counseling torture gets you disbarred.
To all you lawyers, please note: no reference to what the law is or isn’t. No reference to what torture is or isn’t. No niggling about whether written professional standards permit Yoo to know what conduct is licensed or prohibited. Just a plain assertion of values. Nothing else. It says some lines you don’t cross, and if you don’t get that you aren’t fit to call yourself a professional. It implies something too—that you can’t insist on defining professional standards solely from within the profession, because a major point of professional standards is to govern relations between the profession and the world at large.
I have read these torture threads with a growing sense of horror. And the horror hasn’t been about the CIA and Yoo and all that, but about what some people who seem to be lawyers are willing to advocate. I hope you torture guys aren’t typical. In fact, I hope some of you are merely pretending to be lawyers. I would sleep easier if I knew you were cranks.
March 1, 2010, 2:56 pmAnonsters says:
I’m with you, brother.
The lack of integrity in the legal community is incredibly disheartening to this about-to-be-a-member-of-it.
March 1, 2010, 3:01 pmorca says:
It also forbids violence of any kind from being inflicted on unarmed prisoners.
March 1, 2010, 3:02 pmSarcastro says:
wfjag is right. His side is always the victim of hate from the other side, while his side is only fighting back against wrongful persecution. Life must be very difficult for his side.
March 1, 2010, 3:02 pmptt says:
I don’t see how we get to even find out about Reverse Yoo. In the hypothetical, the techniques are legal, but they’ve never been used by any other administration, no? And — if we’re staying parallel — the administration Reverse Yoo works for wants the result he provides. They get it. Employer happy. Nobody killed in U.S. custody as a result of the memos. Life goes on. Later on, Reverse Yoo gets a seat on the federal bench, kind of like Real Bybee.
March 1, 2010, 3:03 pmBlar says:
The implication of the real case is that an administration can do whatever it wants to as long as they can find a lawyer to claim (however implausibly) that it is legal. The lawyer can just assert (however implausibly) that he acted in good faith and everyone else can claim that they were relying on the lawyer’s judgment.
There is no analogue to this problem in the Reverse case. There the implication is, what? Administrations should be careful who they hire, especially if they want to do something that many people consider immoral? Don’t rely too heavily on one person’s advice, especially on controversial issues?
So I am much more concerned about cases like the real one, where OLC lawyers claim that illegal actions that the government wants to take are legal, than the reverse type, since it’s looking like our system can’t handle the real-type cases but I don’t see such problems with the reverse-type.
March 1, 2010, 3:03 pmptt says:
If, on the other hand, I’m wrong about the parallel administration in the hypo, Reverse Yoo gets fired. Reputation ruined. Pilloried by the right-wing press. Praised by hippies and lefties. Reverse Yoo ends up running an obscure not-for-profit.
This assumes, of course, that his employer doesn’t waterboard him to get the right memo.
March 1, 2010, 3:06 pmjukeboxgrad says:
abdul:
One of the many fictions told about the OLC torture memos is that they offered “a bright line definition of what is and is not torture.” Wrong.
You should answer the question I asked before you expect me to answer yours.
=================
village:
The evidence that torture endangers us is far stronger than the evidence that it protects us. Still waiting to see any of the latter that doesn’t require a belief in time travel.
March 1, 2010, 3:06 pmjukeboxgrad says:
wfjag, it’s good to see you here. A while back you made some very odd claims about your own alleged experience being waterboarded, and you never responded when I challenged you on those claims.
Maybe you’re finally ready to clear up that little mystery.
March 1, 2010, 3:08 pmMark Field says:
Try “civil disobedients”.
March 1, 2010, 3:12 pmSuperSkeptic says:
To me, this is a “highly dubious” assertion. Depending, of course, on who is encompassed by your definition of “you”, the law could very well be “what ‘you’ would like it to be”.
March 1, 2010, 3:13 pmBlue says:
Reverse Yoo is worse–far worse–than Real Yoo, if you have any belief in democracy at all.
In the hypothetical the President–the holder of sovereign powers by vote of the populace–asked the Reverse Yoo a question designed to allow him to carry out the delegated will of the population. Reverse Yoo substituted his view for the view of the people and unfairly limited the actions of the people’s representative. It is a gross failure for any member of the bureaucracy to do such a thing. What the elected representatives want is what should be done, period. Don’t agree with it, leave the government.
Real Yoo, on the other hand, may have provided too wide a latitude for action but he did NOT place himself and his views over those of the sovereign people.
March 1, 2010, 3:14 pmepeeist says:
My approach incorporates some philosophy of law and moral justification for legal ethics (even if normally “immoral”) to the best of my recollection from years ago in law school…
In a fundamentally, fatally flawed “justice” system like in nazi Germany or stalinist Soviet Union or another totalitarian state (let’s get Godwin’s law out of the way…), morality generally trumps professional legal ethics and one cannot (morally) allow professional ethical behaviour to lead one into questionable actions.
In a more normal, not fatally flawed, non-totalitarian justice system (whatever one may think of specific laws as a libertarian!), such as in (most of?) the U.S., Canada, Western Europe, Australia, New Zealand, etc. (not to say they’re the only ones, just trying not to include any contentious ones), there is a “higher morality” in complying with the ethical rules even if in a specific instance they lead to what might otherwise seem to be immoral. For instance, lawyer-client privilege (lawyer can’t be compelled to testify against the client) serves a valuable purpose in helping the justice system function, so while a non-lawyer should (morally) report what the accused admitted, the lawyer should (ethically and morally because of the non-fatally-flawed system) not report it (there are exceptions for FUTURE matters, e.g. the client believably says he’s going to kill someone, you can and should take steps to stop it).
So if a pro-life lawyer who considers abortion=murder is asked for an opinion on an abortion law that is in his/her view unconstitutional given Roe v. Wade, he/she must answer honestly (even if he/she thinks Roe v. Wade was wrongly decided, under the system it’s “the law”). To lie about what the person considers a fundamental moral value (to reduce abortions) would still be (in a not fundamentally unjust system) immoral. Contrariwise someone who considers pro-choice and access to abortion a moral value, if he/she believes a law limiting abortion access or a particular type is constitutional, say so.
Similarly for either Yoo or reverse Yoo. Hyperbole aside, the U.S. system is not fatally/fundamentally flawed, and either Yoo or reverse Yoo – to the extent he is unethical – is also behaving immorally, no matter what one’s opinion of the morality of waterboarding etc. is.
That’s what bothered me most about the (real) Yoo memos. No competent lawyer in my view could possibly have thought the matter was that much of a slam-dunk. So even if you agree with waterboarding, you should object to the (what I see as) professionally negligent “justification” for it which didn’t even reasonably consider counterarguments.
March 1, 2010, 3:17 pmCalderon says:
Not to derail the thread, but yankee repeatedly states that the real John Yoo is guilty of criminal conspiracy. Is this is a normative claim about what yankee believes should happen to Yoo, or are there US cases or statutes providing that giving a legal opinion can be the basis of a conspiracy conviction?
March 1, 2010, 3:23 pmyankee says:
I will leave aside the question of whether the American people would approve of those techniques if the press described them accurately rather than using misleading euphemisms like “simulated drowning” and “sleep deprivation.” Assuming for the sake of argument that the people do approve of those techniques, the President’s job is to faithfully execute the laws passed by the people’s representatives, not to ignore the law in favor of whatever the opinion polls say at this particular moment. If the people object to the law, the appropriate course of action is to get Congress to change it, not to blatantly violate it. Otherwise we are no longer a nation of laws.
March 1, 2010, 3:23 pmAnonsters says:
You missed the part where s/he thinks the president is the holder of “sovereign powers.” Who cares what Congress has said, when The President is Sovereign?
March 1, 2010, 3:28 pmUnbranded Bovine says:
“Reverse Yoo” should be disbarred, then immediately signed for a lucrative book deal.
March 1, 2010, 3:30 pm1040 says:
Now, now, don’t project your feelings about Obama onto this analysis :)
March 1, 2010, 3:33 pmDJR says:
You clearly haven’t taken professional responsibility yet.
March 1, 2010, 3:35 pmyankee says:
The CIA and Yoo had an (implied) agreement regarding the commission of torture, and Yoo authored a fraudulent legal opinion with the specific intent of aiding the conspiracy by providing political cover to avoid prosecution. Yoo may also be liable as an accomplice.
But no, I have no cites handy. Is there any authority that says an attorney cannot have criminal liability for authoring a fraudulent legal opinion?
March 1, 2010, 3:36 pmTim Lundquist says:
This is an interesting question, although I would generally say that Yoo owes nothing more than an honest answer to the question presented. The same holds true for reverse-Yoo. His policy preferences should not enter into his determination of the substance of the law.
If this creates an immoral (and otherwise strategically damaging) interrogation policy regime, that falls on the shoulders of policy makers, and not the lawyers. I think controversy over the OLC memos, and Yoo himself, often misses the larger point – these were policies enacted by elected officials, including the President and Vice President. Andrew Sullivan is at least honest about where he wants all of this to end. John Yoo can write all of the memos he wants, but has zilch authority to implement anything.
Jack Goldsmith spent some time in the “Terror Presidency” talking about the problems that result when practicing lawyers serve as de facto policymakers. He makes a strong case that lawyers, focusing backwards on precedent that sometimes can date back to the Civil War, have little practical knowledge about the complexities of many national security issues.
If anyone is to be faulted in the implementation of our post 9/11 legal regime it is our elected officials, who understandably asked two questions when assessing new policy options (1) is it legal; (2) can we come up with a good reason not to do X. Memories of 9/11 and the 9/11 Commission served as powerful incentives to do everything allowable under the law. That is, however, a policy question, and not a legal issue.
March 1, 2010, 3:37 pmCalderon says:
Not that I’m aware of, though I’ve never heard of an attorney being criminal prosecuted or held liable civilly for giving a legal opinion. For example, I haven’t heard of a tax attorney who gave “fraudulent” advice about whether a particular method of sheltering taxes was legal being prosecuted for conspiracy to commit tax evasion. If there were law allowing criminal or civil penalties, that would be useful for a practicing lawyer to know for both defensive and offensive purposes.
March 1, 2010, 3:48 pmorca says:
Here’s what the Geneva Conventions, which the U.S. is a party to, says:
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.
Can we drop the phony legal debate and just more honestly debate whether Yoo & Co. will get away with it or not?
March 1, 2010, 3:49 pmBlue says:
“I think controversy over the OLC memos, and Yoo himself, often misses the larger point — these were policies enacted by elected officials, including the President and Vice President.”
And that is exactly my point. A bureaucrat who places their policy preferences at odds with those of elected officials is acting as if democracy does not matter.
March 1, 2010, 3:52 pmlgm says:
The Reverse Yoo situation is not fully reversed. To fully reverse, you need to put Yoo in an office where his superiors do not want to torture and are looking for legal justification not to. They ask Reverse (is that his first name?) to write a memo stating that torture is illegal. The problem is that torture is legal. Reverse then has the option to write a memo telling Attington and Cheney that torture is legal, but “torturers’ discretion” allows them to decide whether to torture in this particular case. He could point out that the President, as Commander in Cheif, decides things like this.
But what if the statute seems to require that KSM be tortured. The Real Yoo would have been able to write a memo stating that the President is not bound by statute in a time of war, and therefore is still free not to torture.
In a reversed environment – reversed person situation, we have the wisdom of ruuffles:
March 1, 2010, 3:53 pmBlue says:
KSM was not a POW. Doesn’t apply.
March 1, 2010, 3:53 pmTom in Houston says:
Real Yoo bent the law to OK something that is both inherently immoral and in my view helped the enemy recruit. Reverse Yoo bent the law to enable morality to trump his legal training (bad for a lawyer, good for a person) and avoided having the government provide the enemy with recruitment fodder.
As lawyers, both are equally culpable ( a wash). As defenders against Islamic terrorism, there’s obviously a debate as to the efficacy of torture in the fight against these sorts of terroistic acts (let’s call it a wash for argument’s sake). As human beings, however, Reverse Yoo has it all over Real Yoo. This is not a hard question, unless you start from the premise that torture is not always immoral. And it’s the folks who live on that slippery slope who are scary.
March 1, 2010, 3:54 pmPintler says:
That is an honorable solution, but is it the only one? If you are [a police chief in Vichy France|a sheriff in antebellum Ohio] and you are asked if you know of any [resistance fighters|runaway slaves] is it dishonorable to stay in office and actively impede [the Gestapo|slave catchers]?
March 1, 2010, 3:58 pmMick says:
It seems to me that the whole question of torture has to be viewed in light of the question of moral justification. The infliction of discomfort or pain may or may not be torture depending on whether their infliction is, in view of all the relevant facts, morally justified, or not. Some behaviors, such as dismemberment, thumb screws, and the like, may never be morally justified (and in the latter case, I am certain are not), or at least are probably not in light of our knowledge regarding the extraction of information. And some purposes, such as the humiliation and suffering of other individuals, are, under the dominant conception of human rectitude that I share, never justified. However, much of what was permitted by the Yoo Memos is morally justifiable under some circumstances (apply the imagination). Therefore, for Yoo to conclude that they were not torture per se, leaving it to the Executive branch to exercise its prudential judgment regarding proportionality is neither immoral nor professionally unethical.
March 1, 2010, 4:02 pmc.s.b. says:
A problem with your hypothetical is that you give the second bureaucrat a larcenous intent. That throws off your balancing, because there’s no comparable self-centered motivation in original (or real-life) scenarios.
March 1, 2010, 4:04 pmMick says:
Run, Tom, Run.
March 1, 2010, 4:05 pmRPT says:
“Previously on 24….” 9:00 p.m. tonight on Fox. What if we had to deal with reality as it is?
March 1, 2010, 4:09 pmorca says:
Did we follow the process outlined by the Geneva Conventions to determine that he wasn’t a POW?
March 1, 2010, 4:10 pmjeffry house says:
So, you think it is hard to answer the question: when in doubt, do I authorize torture?
March 1, 2010, 4:21 pmbyomtov says:
I’m with yankee.
March 1, 2010, 4:22 pm1040 says:
What if Bush and his security advisors had received a memo on 6 Aug 2001 titled “Bin Laden determined to strike in US” detailing FBI information consistent with preparations for hijacking planes and attacking federal buildings. Oh wait…
March 1, 2010, 4:22 pmMark Field says:
As long as we all agree that the law is not what Yoo would like it to be.
There are such cases and they’ve been cited in previous threads. I don’t have names or cites handy, but Anderson or jbg might.
Remember, also, that there’s a crime/fraud exception to the attorney/client privilege.
This is silly. We expect our elected officials to abide by the existing law unless and until it’s changed. It’s even written into the Constitution that way: the President shall faithfully execute the laws.
March 1, 2010, 4:27 pmShelbyC says:
What process is that?
March 1, 2010, 4:28 pmTim Lundquist says:
Here is what that great legal source, wikipedia, says about POW status according to the Third Geneva Convention.
“To qualify under the Third Geneva Convention, a combatant must have conducted military operations according to the laws and customs of war, be part of a chain of command, wear a “fixed distinctive marking, visible from a distance” and bear arms openly.”
I don’t think KSM falls anywhere close to that.
March 1, 2010, 4:30 pmRPT says:
If only C. Rice & Co. had watched the “Lone Gunmen” WTC plane hijacking episode in early 2001….
March 1, 2010, 4:31 pmwfjag says:
<
True, true. And, of course, the recent re-newal of those obviously unconstitutional provisions of the USA Patriot Act — the ones that allow the FBI to show up at the Public Library and check on which books Granny has been reading so they can roust her at the Nursing Home — went through without a whimper by the NYT, is, of course, proof of the objective point of view of those who compared the previous administration to a Dark Ages Despot.
IMO, the Yoo memo is a dead horse that has been beaten sufficently that it should either be sent to the pet food maker, or sold as French Flank Steaks. ;)
March 1, 2010, 4:36 pmCalderon says:
Thanks, if Anderson or jukeboxgrad would be willing to post the cites or a link back to the thread with those cites, I’d be interested in seeing them.
March 1, 2010, 4:42 pmSeaDrive says:
Isn’t the real problem that there was no forum for review? Any one person’s opinion is suspect.
March 1, 2010, 4:45 pmchad says:
@1040
Except as the 9/11 commission report details, that isn’t what the memo says, what it says is
So three years before 9/11 the FBI received warning of hijackings which they weren’t able to confirm, but since that time they had developed some information that indicated that al-Qaeda was still interested in attacking, and from that George Bush was supposed to make the leap that hey I think al-Qaeda is going to fly planes into buildings.
source
Wow, that’s a pretty big intellectual leap for a guy most on the left consider slightly stupider than moss. Thanks for playing pin the blame on Bush though.
March 1, 2010, 4:48 pmIR Student says:
I think the question is framed the wrong way. Yes it would be wrong for Yoo to bend the legal rules, but in the “Reverse Yoo” he doesn’t have to.
International Criminal Law clearly recognizes that if a commander orders someone to (in the Rome Staute’s term) do something ‘manifestly illegal’ the subordinate must refuse to do so. Likewise it would seem Yoo could simply say the torture statute in this order is manifestly illegal; at the very least it would be proper to note that the international community would not see the actions as legal (which could complicate foreign affairs for the President and CIA).
I’m sure many will harp that the US doesn’t recognize many international laws and that the ICC is not binding on the US. But the US has recognized for hundreds of years that torture is illegitimate and it is universally accepted (or was) that torture is a jus cogens crime. To be fair, it would be extraordinary for a lawyer to make the claim that such a law is manifestly illegal, but that’s ultimately the right outcome
March 1, 2010, 4:48 pmorca says:
Aaah, but if he doesn’t, then he’s supposed to be treated like a civilian.
Nowhere in the Geneva Conventions does it say a country is free to abuse prisoners of any category.
March 1, 2010, 4:49 pmJohn David Galt says:
I would completely support the reverse Yoo. Because I believe there is such a thing as an objective morality determined by the rights of individuals, and that all acts of force should have to satisfy BOTH that morality AND, if possible, the law.
The law can legitimately deny to law enforcers methods or ROE that are otherwise right. But it cannot legitimately authorize those which are wrong. (“Who decides?” A jury!)
This is also the way I would want policemen, judges, and juries to make their decisions, and is the way I will do it if I ever sit on a jury.
March 1, 2010, 4:49 pmZvi Rosen says:
I’m not Orin, but in regard to Gerard Magliocca’s hypo, I’d have two answers. The first one is that yes, Reverse Yoo is likewise telling the president what he wants to hear. I think the goal of the hypo is to provide a near-mirror in “Reverse Yoo,” and not to change the facts beyond the reverse.
The problem with that is that Reverse Yoo is seeking to prevent certain actions from being taken. So the issue would only come up if (a) the President wants legal cover to permit him to not take an action he doesn’t want to take but wants to blame on the lawyers for stopping him from doing for political purposes or (b) the President in fact does want to do it. If the President doesn’t want to engage in coercive interrogation techniques, and presuming no-one thinks the president is under a legal obligation to use such techniques (wow, lots of italics), then the issue would never come before Reverse Yoo. Thus it is hard to imagine a scenario where Reverse Yoo would be overtly doing what the President wanted by taking the position described in Orin’s post.
March 1, 2010, 4:53 pmmls says:
We expect our elected officials to abide by the existing law unless and until it’s changed.
So long as you define “existing law” to mean “anything the Supreme Court will let them get away with” and “change” to include things like “constitutional moments.” Otherwise, our expectations would be way too high.
March 1, 2010, 4:55 pmCheckEnclosed says:
When a lawyer dishonestly advises a client that he believes it may legally do X, then it is still up to the client to decide whether it should do X.
When a lawyer dishonestly advises a client that he believes it may not legally do X, then he will prevent the client form choosing whether it should do X (unless it wants to do X so badly that it doesn’t care what the lawyers say).
Because the lawyer’s conduct first scenario deprives the client of information, while the second deprives it of both information and agency (unless it wants to intentionally act against the law) the conduct of the lawyer in the second scenario is more unethical, other things being equal.
On the other hand, when lawyers counsel governments, it may be that the corrupting influence of power, the prevalence of group-think,and the corresponding need of those in power to have contact with people who tell them “No” justify a secular bias in favor of opinions that minimize the scope of government power (& its legality). By this theory, the dishonest actions of the lawyer in the second scenario would be less unethical than those of the lawyer in the first scenario.
Of course, this may refelct a libertarian bias in favor of protecting citizens’ liberties.
March 1, 2010, 4:56 pmShelbyC says:
No, he can be treated like a war crminial, or a spy. He’s an unlawful combattant, who isn’t entitled to POW protections (if he were we wouldn’t be able to try him), nor is he entitled to protections as a non-combattant.
March 1, 2010, 4:58 pm1040 says:
Umm, the full report was linked in my comment, no need to go to secondary sources.
Again, they had received information that Bin Laden was interested in hijacking buildings and there was increased terrorist activity around surveilance of federal buildings, which is different from the unconfirmed earlier reports.
So.. your defence is that Bush was dumber than moss?
March 1, 2010, 5:01 pmRPT says:
1. GWB had advisers who believed themselves to be the toughest and smartest anti-terrorist experts around.
2. This crew believed in the 1% doctrine. Why didn’t they apply it before the fact?
3. Didn’t they have some obligation to do something?
4. Re the 9.11 Commission Report, Philip Selikow did a lot of editing to screen Rice and others from at least negligence liability; it’s hardly the whole story.
March 1, 2010, 5:05 pmJohn says:
Dude – these were not ‘Prisoners of war’ they were illegal combatants. The Geneva convention, as accepted by the US, does not apply. Under the Geneva convention, they ‘legally’ could have been shot in the head after being taken prisoner.
March 1, 2010, 5:07 pm1040 says:
Do you have evidence that these provisions about “Granny” were in the recent extension? Can you explain what you are referring to here?
March 1, 2010, 5:07 pmchad says:
@1040
except I went to a primary source the actual document. my link is also easier for other people to look at. The memo also says that they had been interested in hijackings for 3 years and that the FBI was investigating reports of surveillance of federal buildings. I’m not sure what your point is other than to mislead.
March 1, 2010, 5:08 pmorca says:
Not without a hearing to determine whether he’s a spy or a war criminal. And even then, we would only be free to execute, not torture, him.
I’ll never understand why the humanitarians who wanted America to start torturing helpless prisoners weren’t brave enough to try to withdraw us from the Geneva Conventions?
Was it because you wanted a morals free medicocrity like Yoo to take the blame?
March 1, 2010, 5:10 pm1040 says:
The “Bin Ladin Determined to Strike in US” Memo says this:
Although Bin Ladin has not succeeded, his attacks against the US
Embassies In Kenya and Tanzania In 1998 demonstrate that he prepares
operations years in advance and Is not deterred by setbacks. Bin Ladin
associates surveilled our Embassies in Nairobi and Dar es Salaam as early
as 1993, and some members of the Nairobi cell planning the bombings were
arrested and deported In 1997.
..
AI-Qaida members-Including some who are US citizens-have resided
in or traveled to the US for years, and the group apparently maintains a
support structure that could aid attacks.
…
Nevertheless, FBI information since that time indicates patterns of
suspicious activity in this country consistent with preparations for
hijackings or other types of at1acks. including recent surveillance of
federal buildings in New York.
My point is to quote the actual memo, not excuses.
March 1, 2010, 5:15 pmwfjag says:
1040 says:
No, I think what Chad means is that Bush was advised by Richard Clark, the same person who advised Clinton, and who failed to accurately advise either Clinton or Bush of the threat posed by UBL or Al Qaeda. But, we must make allowances for Richie Clark — when he turned around at the 9-11 Commission hearings and apologized — well, I didn’t feel so comforted till Tiger Woods apologized for 2-timing (er, I mean “14-timing”) his wife.
March 1, 2010, 5:15 pmShelbyC says:
Hey, I don’t blame Yoo. I think the torture statute should be amended to make clear that waterboarding is torture. I was just correcting a factual error on your part about KSM being entitled to POW status. If he was, we would be violating the Geneva Conventions by trying him, as Obama is doing.
March 1, 2010, 5:18 pmAnon21 says:
Oh, did he not? Because I could have sworn the sovereign people, through their elected representatives in Congress, had actually passed a law of some sort or another regarding torture and the lega status thereof, and then that Real Yoo substituted his judgment for theirs by basically “reading” the law into meaninglessness. Probably just my imagination, though–surely Real Yoo would never do that!
March 1, 2010, 5:20 pmorca says:
True, but you failed to mention that even if KSM isn’t considered a POW, it’s still not legal for us to subject him to “physical or mental torture, nor any other form of coercion.”
We can kill him, that’s it.
And only after a hearing determines he’s a spy or war criminal.
March 1, 2010, 5:25 pm1040 says:
Fail.
Richard Clarke was shut out of NSA meetings for his advice that something real bad was going to happen. He had been saying this since the beginning of the Bush presidency, at the very least.
In any case, I don’t want to derail this thread since we are talking about torture counterfactuals. My point about bringing up the Bush memo was the fantasy that somebody brought up about how a tortured KSM on 9/1 would sing out the song of 9/11. And how, there, but for the grace of Yoo, go we.
March 1, 2010, 5:25 pmShelbyC says:
I’m not sure where you get that from. POW’s generally can’t be pressured to give more than their name, rank, service number, but I’m not sure where you get a requirement against using (non-torturous) coercion on unlawful combatants.
March 1, 2010, 5:29 pmSteve P. says:
I always think these hypotheticals are really interesting. It’s an attempt to separate the action (Yoo authorizing waterboarding) from the context (the morality of waterboarding). I think that’s a really valuable exercise when looking at the law.
Imagine there are four people:
1). Believes waterboarding is immoral, and that Yoo deliberately fudged his analysis.
2). Believes waterboarding is immoral, and that Yoo acted appropriately.
3). Thinks waterboarding can be moral, and that Yoo deliberately fudged his analysis.
4). Thinks waterboarding can be moral, and that Yoo acted appropriately.
When someone says “waterboarding is wrong, and Yoo acted illegally”, it’s difficult to separate out those two statements. Do they think that Yoo acted illegally partially BECAUSE they think that waterboarding is wrong? The Yoo/reverse Yoo exercise is an attempt to separate those two ideas out.
It’s worth noting that the opinions of #2 and #3 are more likely to be viewed favorably, because their opinion runs counter to their biases. Like a conservative arguing for greater deference in the Senate to a liberal president’s SC nominee.
Legally, both Yoos should be equally culpable. Morally, one is significantly worse than the other. At least, that’s my take on the situation.
March 1, 2010, 5:30 pmleo marvin says:
I think we should always test our objectivity with this sort of devil’s advocacy when we’re emotionally invested in a legal controversy.
1. I agree with Dilan that ideally Reverse Yoo would accurately state the domestic law and point out how it’s contradicted by international law and, if applicable, our treaty obligations. Alternatively, Reverse Yoo should resign.
2. On the provided facts, I’d be less bothered by Reverse Yoo than I am by real Yoo. I assume that at least partially reflects my own bias, though as pointed out, the international law and treaty angles compound Yoo’s subterfuge, and not Reverse Yoo’s.
3. I’d note that the Reverse Yoo hypothetical isn’t precisely parallel to what’s widely alleged against Yoo. Many people believe it is in fact a slam dunk that waterboarding is prohibited by the statute, and he did more than “get a bit creative” to reach a desired result (e.g., omitting mention of Youngstown).
4. I think a similarly useful exercise would be to ask those who defend both Yoo and the interrogation practices used, how, if at all, their views would differ if the person being interrogated wasn’t a suspected terrorist or even a sympathizer, but just, say, an uncooperative Fed Ex driver or neighbor strongly believed to have overheard details of a planned attack. A reporter who gleaned the info from interviewing the terrorists?
March 1, 2010, 5:30 pmjukeboxgrad says:
mark:
It wasn’t me who posted on this subject, or anything similar (“a tax attorney … being prosecuted for conspiracy to commit tax evasion”). But a little googling comes up with this and this, which may or may not be relevant. It’s not my area of expertise, so no warranties are attached.
===============
chad:
There are a number of persistent myths regarding 9/11. One of them is that no one anticipated such an attack. Rice said this: “I don’t think anybody could have predicted that these people would … try to use an airplane as a missile.” You seem to be channeling Rice. Trouble is, her claim was false.
Spending lots of time clearing brush at his ranch in 8/01 was not a smart way for Bush to react to that memo. But it’s OK, because like Giuliani said, “we had no domestic attacks under Bush.”
March 1, 2010, 5:35 pmjukeboxgrad says:
wfjag, aren’t you going to tell us how you made out with that phone call?
March 1, 2010, 5:36 pmChris Travers says:
Interesting question.
What troubles me about Yoo’s statements on record (going beyond the OLC opinions for a moment) is that they suggest that torture laws do not really bind the executive. I posted a link to this above. He seems at that point to be suggesting that the law doesn’t really matter, or that presidential decisions take precedence to what torture law actually is.
Now in your reverse case, I wouldn’t say equally blameworthy. As bad as a reverse Yoo would be, the argument would seem to have to be grounded in Congressional law (which Congress can change), Constitutional law (via court precedent), or such. Either way it wouldn’t just be up to the reverse Yoo to sustain the mistake. In essence the reverse Yoo would not be as much of an affront to our system of checks and balances than the real one.
A parallel might be Abraham Barak’s advisory opinion as chief judge of the Israeli High Court which offered to approve extraditions to the ICC even though Israel had not ratified that treaty. In essence nothing ever became of it other than a few news stories.
March 1, 2010, 5:49 pmChris Travers says:
I would point out that thus far Doe v. Holder has come out very much opposed to these provisions. While it hasn’t reached the Supreme Court, it will, and I think the Supreme Court will have to follow the lower courts’ lead and strike the provisions down.
March 1, 2010, 5:53 pmTim says:
Considering that this “fudging” would have prevented him from being responsible for war crimes, I would have responded differently to “Reverse Yoo” than I did to ‘Forward Yoo’.
March 1, 2010, 5:59 pmjames says:
The real problem that the pro-torturers like you is missing is this: It is also just as likely that the real-world impact of bombing civilians would recruit more terrorists/soldiers to the cause of the enemy – especially if they feel that they face total annihilation instead of an enemy looking for peace. So your moral consideration is not only one-sided, but ultimately prolongs a conflict and absolutely pushes more of “your” men into a longer fight.
March 1, 2010, 6:09 pmSuperSkeptic says:
I can agree with that – Yoo is not “you”. The problem here is that Yoo is advising ‘you’ (the government) that ‘you’ can get away with anything ‘you’ (again, the government) let ‘you[rself]‘ get away with. I don’t see that as factually (or legally*) incorrect, despite all the whining about the immorality of reality.
*Perhaps legally premature, but only because “you” didn’t rule on it yet and permit it; but that’s the inherent catch-22 of “legal” advice for “extra-legal” activity, i.e., war.
March 1, 2010, 6:11 pmJoe says:
The year is 2002, and the CIA has come to OLC seeking a legal opinion about what “enhanced interrogation techniques” are barred by the federal torture statute.
An allegation made is that what was being “sought” was not “what” it barred but a sort of backdated permission to do certain things. So, a reverse Yoo arguably is someone who actually goes against this, and twists the law to determine that torture is not allowed against the wishes of higher-ups.
So, I think the scenario — a good thought experiment (I’m with Mark Field, Dilan Esper and others on the point) — might give the real Yoo a bit too much “credit” in a way.
March 1, 2010, 6:14 pmjukeboxgrad says:
chris:
I think it’s even a bit worse than that. As Ricardo pointed out here, Yoo’s attitude about such matters seems to be greatly dependent on whether the executive is an R or a D. Which tends to suggest that he was behaving like a mob lawyer, not a principled analyst.
March 1, 2010, 6:15 pmSuperSkeptic says:
Government lawyers are like mob lawyers – I like it.
March 1, 2010, 6:21 pm2 cents says:
WRONG!! I wrote about this here. I have several follow up comments in that thread that further explain the law on this issue.
I have no idea where this canard about “unlawful combatants” having no rights comes from.
Under the Geneva Conventions analysis, you start with classifying the conflict and the person. I could lead you through the analysis of the conflict with Al Qaeda being non-international in nature and thus invoking Common Article 3 (CA3) protections. But, the Supreme Court, in Hamdan, stated that CA3 applies to conflict with Al Qaeda.
What does CA3 require?
“Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.”
This is from Convention III Relative to the Treatment of Prisoners of War:
“Art 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”
March 1, 2010, 6:29 pm1040 says:
And when you do, could you also please also answer my question about what you said earlier?
March 1, 2010, 6:42 pmDilan Esper says:
I have no idea where this canard about “unlawful combatants” having no rights comes from.
It comes– literally– from the talking points of the Bush Administration, repeated ad infinitum by the Republican Noise Machine (talk radio hosts, hack commentators, “scholars” who just repeat talking points, etc.).
And it succeeded– lots of people who haven’t read a single piece of scholarship on the Geneva Conventions are entirely convinced that the moment that someone, for instance, enters combat without visible insignia, the person is completely without rights and subject to summary execution. (These folks haven’t, of course, considered the implications of such a rule for our own special forces. But then, the type of person who believes this generally believes in some combination of American exceptionalism and that foreign enemies will never follow international law under any circumstances anyway.)
In any event, as far as I am concerned it is enough to say that the Supreme Court expressly rejected this construction and held that Common Article III of the Geneva Convention applies to people accused of being unlawful enemy combatants, and that anyone who is claimed to be an unlawful combatant must have his or her status established by a competent tribunal. So whatever one thinks is the “pure” interpretation of Geneva, it is conclusively established black letter law in THIS country that certain of the Conventions apply even to unlawful enemy combatants.
March 1, 2010, 7:24 pmShelbyC says:
Has doubt arisen about the status of KSM?
March 1, 2010, 7:27 pmMark Field says:
Well, that’s pretty much what our system provides.
Thanks. The comment by Mahan Atma sounds familiar too. My recollection is that there is a 2d Circuit opinion on this, but I can’t get to Westlaw right now.
March 1, 2010, 7:28 pmloki13 says:
I think what OK is trying to get to is the analysis used. IAAL, so YMMV. ;)
1. The first step is to determine what Yoo’s proper role is in the analysis. There is a difference between giving an honest appraisal of an area of the law and “creative lawyering.” Creative lawyering is often seen in litigation, where two parties can view the same set of facts, the same statutes, and the same legal principles somewhat differently . As an advocate for one side, you try to emphasize those areas that are most favorable to your client, while minimizing the areas that are less advantageous. This does not allow for misstating the law, but it does allow you to marshall the law in a way that is most favorable to your desired outcome.
2. I believe that Yoo’s role was to give an honest appraisal of the law. In other words, as a descriptive matter, he should have been describing the law as it is, not (normatively) describing the law as he wished it to be. However, even if you believe he had a mandate to engage in “creative lawyering” then his torture memos fail.
3. Why? Well, to be quite frank, he doesn’t even bother engaging with the great weight of authority (I would say all the authority) that was against him. There are no caveats that he gives to his client. Instead of a reasoned analysis that engages with, and then attempts to diminish the countervailing law (which would be acceptable if you presuppose that he was engaging in creative lawyering) he simply refuses to acknowledge it.
4. But more importantly, his role should not have been to engage in creative lawyering. His client (the government) would have been best served by a thorough understanding of the law a it is- we don’t want lawyers for the government given a mandate to reach a result that enables the government to plausibly break the law given that advice. Moreover, had he engaged in a more truthful and reasoned analysis, his client would have realized that other actions (such as changing the law) would have been more appropriate.
5. Finally, I find the actions of the reverse Yoo just as repugnant from an ethical standpoint. If the law allowed waterboarding and other forms of torture, it would have been his job to inform the client of that- under the Model Rules, he could have included social advice (this would be a bad idea), and he could also resign. But purposefully misleading your client because you think your “moral outcome” is better is a dangerous road to tread, and should not be done by attorneys. As we can see from these comments, there are those (misguided and blinded by 24 in my opinion, but still) who believe torture is A-OK… and allowing one attorney to mislead his cleint because I “know” how bad torture is just as reprehensible as allowing another attorney to mislead his client because they “know” everything changed after 9/11.
March 1, 2010, 7:37 pmAndy Bolen says:
(1) This assumes, of course, that Yoo was fudging, and I’m not convinced of that yet.
March 1, 2010, 7:48 pm(2) Assuming real Yoo was fudging in the same way reverse Yoo was fudging here, I would feel exactly the same about both; what they did was unethical, and the response should depend on their mens rea (conscious fudging, like you make it sound here, should probably be punished; simple bias should probably be censured).
Owen H. says:
The “ticking time bomb” defense of torture is complete and utter bull****. For it to ever work at all, you’d have to know the individual has the immediate information you need. On 9/01, did we know KSM had such info? Or are we going to just torture based on the fear that a suspect might have such? It also fails because someone being tortured will say anything to make it stop, even a lie, and in the time constraints a true “ticking time bomb” scenario presents, you don’t have time to determine if they are telling the truth or just trying to make it stop.
March 1, 2010, 7:51 pm2 cents says:
I was mainly responding to the question of what process is used to determine one’s status under the Geneva Conventions. However, since you asked:
This is from KSM’s pro se response to his charges preferred for trial by Military Commission (Commission Order Regarding Pro Se Filing:“The Islamic Response to the
Government’s Nine Accusations,” found here http://www.defense.gov/news/order%20regarding%20pro%20se%20filing%20to%20islamic%20resp%20to%20gov%209%20accusations.pdf )
“Also, you have violated all laws of war, and in particular, your treatment of Prisoners of War, in Afghanistan and Iraq. We are the best example of such violations and your “Black Sites” for torturing prisoners.”
He did raise the issue of his status as a POW. I don’t think the argument resolves in his favor under any reasonable interpretation of the GC’s (mainly due to the conflict’s non-international character). But, technically, he should have held a presumptive status as a POW until he had a status determination.
We will see what comes, but I strongly suspect that his defense attorney’s will raise issues of his status as well (I am not saying solely as it relates to GC’s, but this issue may well come up in the Federal prosecution).
March 1, 2010, 7:52 pmjukeboxgrad says:
super:
I don’t. If Yoo wanted a job as a mob lawyer, there are plenty of openings in the private sector. He belongs on the mob’s payroll. He never should have been on mine.
===============
dilan:
Indeed. Even Bush finally was forced to acknowledge that GC applies. Here the Bush White House refers to Common Article 3 as “The Standard That Now Applies To The Treatment Of Detainees By U.S. Personnel In The War On Terror.” Bush was forced to make that admission after SCOTUS slapped him in Hamdan (link, link, link).
March 1, 2010, 8:00 pmloki13 says:
I’m going to add an addendum to my fifth point. Upthread, an outstanding point was made delineating the difference between an unjust legal system (say, Nazi Germany) and a relatively just legal system (like, say, ours). If you work within a relatively just legal system, then you should follow the rules as the rules, in totality, work to protect the system and justice overall even though in individual application they might lead to an “immoral” outcome. An example used above, which I believe to be salient, is this:
Defense lawyer hears his client confess to an unsolved murder. The “moral” thing to do is to tell the authorities. However, were we to allow attorneys to do this, then the whole system of attorney-client privilege would be undermined, and would cause people to be guarded with their counsel, resulting in less effective service (and less justice) overall.
Something similar is going on with the Yoo and Reverse Yoo situation. In each case, we have an attorney that “knows” the correct outcome (one based on either kowtowing to his superiors/love of an unbridled executive/long-time fandom of the Saw series, and the other based on his belief in the immorality of torture). They purposefully subvert the law, and give incorrect legal advice, in order to advance their own personal causes. Note that while the real Yoo might have believed that he was advancing his client’s cause, that was not his decision to make- his client should make the decision after being fully informed.
So that’s a more granular response to Orin Kerr. While I personally believe that the outcome of Reverse Yoo is superior to Real Yoo, I would deplore the means both used to get there. Both give a bad name for lawyers- putting their own interests and beliefs above both the law, and the needs of their clients.
March 1, 2010, 8:32 pm2 cents says:
What is strange is that the Combatant Status Review that he was granted in 2007, was focused on his status as an “enemy combatant” and did not take up his status as a POW under the GC. Here is a transcript. The last several pages, where he makes his closing statement are very interesting for purposes of the GC analysis.
So far as I can tell, no one has conducted a GC tribunal to consider his status. Is anyone aware that this has happened?
March 1, 2010, 8:36 pmGilbert says:
I agree with yankee. To put it another way, I find reverse John Yoo less morally culpable BECAUSE I believe there are strong practical reasons not to use torture.
If you believe that torture works (in the sense that, all things considered, using it provides more benefit than harm), you would (probably) find reverse John Yoo as morally culpable as real John Yoo.
March 1, 2010, 8:48 pmFranklin says:
Both real and reverse yoos performed their proper function in service to the president of the united states. The OLC asked for a legal opinion and so he gave it. The commenters who criticize real yoo for violating ethical norms, moral norms, etc. act like Yoo was corporate counsel to an asbestos polluter. The president drops bombs, governors permit executions. All these actions harm people but all are acceptable under the laws of this union. It doesn’t matter that you dislike these things, you ultimately permit the chief executive of your state or country to do such things. To then draw ethical parameters around Yoo’s conduct and demand resignation or whistleblowing places him in a different job entirely.
March 1, 2010, 8:52 pmmls says:
March 1, 2010, 9:24 pmDon de Drain says:
For those interested in reading something about tax attorneys being prosecuted and convicted of conspiracy, take at look at the summary here:
http://en.wikipedia.org/wiki/KPMG_tax_shelter_fraud
As someone who makes a living handling civil and criminal tax controversies, I can guarantee you that prosecutors love to go after tax professionals if they can prove a conspiracy. The problem lies in proving the conspiracy. It is difficult to do when the targets are highly educated tax professionals. You need someone on the inside who is willing to talk. And even then, the “snitch” may have credibility problems. So even if criminal investigators suspect criminal violations, they may never pursue criminal charges.
Oren K– As long as you are on the subject of Yoo, I would love to see a post by you raising the application of Cheek v. United States, 498 U.S. 192 (1991), to the Yoo memo and related opinions. In Cheek the Supremes held that, if claim that you hold a good faith but erroneous belief about the meaning of a statute, you can get an appropriate jury instruction, and, if the jury believes you, you can be acquitted.
But if you believe the statute is unconstitutional, and knowingly act in contravention of the statute, you do not get any special jury instructions. If the statute is in fact unconstitutional, you get acquitted by the Court, which decides matters of law, but if the statute is not unconstitutional, you will be convicted if the jury concludes that you intentionally violated a known duty set forth in the statute. Your belief that the statute is unconstitutional is irrelevant to determining guilt.
Cheek involved a “tax protester”. At first blush, I see parallels between Yoo’s conduct and the conduct of tax protesters. But IMO Yoo is too smart to get away with claiming that he did not understand certain things. Anyway, I would be interested in your thoughts on whether Yoo, if criminally investigated, might be able to kill the investigation using a defense under Cheek.
I’m not about to pronounce Yoo guilty of any crime. His conduct was repugnant to my own personal standards of conduct. And I’m with Anderson on the likely reasons for the missing emails. Sure, there is a chance that these particular emails inadvertently went “missing”, and there is also a chance that I’ll win the lotto tomorrow. It stinks, pure and simple.
March 1, 2010, 9:50 pmMark Field says:
The Supreme Court has approved their reasoning?
March 1, 2010, 9:57 pmmls says:
No, but that is not the standard that elected officials use. When they want to do something, they consider it legal until the Supreme Court explicitly says that it is illegal. And if it is really obviously illegal (like the DC Voting Rights Act), they say that they are not qualified to decide if it is legal and will wait to see what the courts say.
March 1, 2010, 10:33 pmMark Field says:
That’s not the point I was making. Nor is it relevant to this discussion, since the whole issue in dispute is “what is the law?”. And any elected official fool enough to claim that he can violate the bribery statute, say, until such time the Supreme Court rules on it is, well, a fitting tribute to the power of self-delusion.
March 1, 2010, 10:42 pmMikee says:
I have long been of the opinion that the purpose of torture is to inflict pain and damage gratuitously on an individual. Interrogation, on the other hand, is designed to elicit information. Painful interrogation is a different animal from torture. Using the word “torture” to describe what was done to KSM and two other individuals is creating a tautology in your argument, since of course everyone disavows torture. Hence “EIT” is used to describe the interrogations by waterboarding and other techniques.
When McCain was tortured in Hanoi, the purpose apparently was to physically and mentally damage him, to coerce him into making a false confession of war crimes, and to enjoy some sadistic pleasure against the hated American enemy. He was not tortured to elicit information.
It irks me that the difference between interrogation and torture is so non-obvious to so many people.
March 1, 2010, 10:55 pmRoger Zimmerman says:
But (IANAL) doesn’t the GC have a specific definition of P.O.W. which (at least, arguably) excludes at least some of the individuals subject to waterboarding? And, if it does, why would you not include this very germane definition in your post?
March 1, 2010, 11:02 pmFat Man says:
An exercise in moral preening by a bunch of people who (thank the Lord) have never been, and (we all fervently hope and pray) will never will be, responsible for the safety of any portion of the American people. And yes, Kerr, I am looking at you.
I really don’t care what you all think about what the law is and what all bien pensants think it ought to be, because there is not a one of you who I would put in charge of a 4 year old’s birthday party, let alone the security of a nation. Or even of a small trailer park.
March 1, 2010, 11:04 pmDaveR says:
“Torture is having your testicles crushed with pliers or on a block with a sledge.”Torture” is being hooked to a crank generator by electrodes attached to earlobe and genitals and breaking all your teeth and having your muscles permnantly torn by the spasms when the crank is turned. “Torture” is having your family separated from you and marched into a gas chamber while you hear their screams. “Torture” is wondering for hours whether your loved one got out of the World Trade Center, or seeing the buildings going down knowing they were still inside.
March 1, 2010, 11:07 pmYou sit here pontificating about the number of angels which will fit on the head of a pin. I think any of you who believe Yoo’s recommendations venture into the area of “torture” are incredibly nieve, have way too much time on your hands or are just a little crazy; maybe all three.
jukeboxgrad says:
mikee:
Nonsense. Everyone knows what the difference is. It’s called “torture” when someone else does it to us, and it’s called “enhanced interrogation techniques” when we do it to someone else.
March 1, 2010, 11:07 pmNobody Really says:
Yes, the Supreme Court said it, but it doesn’t make it any less stupid. Al Queda is not of an international character? Afganistan and Pakistan are in the territory of a “High Contracting Party” (which would only make sense as meaning the USA). And this is so self-evident that, in 2002, any competent lawyer should know that?
As George Orwell would say, it is an idea so stupid only an intellectual would believe it.
March 1, 2010, 11:17 pmjukeboxgrad says:
dave:
We prosecuted the Japanese for torture when they waterboarded, and waterboarding isn’t on your list. So do we owe them an apology?
Also, are all of us now free to break laws when we disagree with the law and the case history behind that law, or does that privilege only apply to government officials?
Why do you want to live in a banana republic? Why do you hate the rule of law?
If you disagree with our current laws and treaties which outlaw torture (and which use a definition different than yours), then you should work to change the law. But when you make excuses for criminal violations of the law as it currently exists, then you are standing up against the rule of law.
I’m old enough to remember when the GOP was the law and order party. Those days are long gone.
March 1, 2010, 11:21 pmLester Dent says:
Seems as if the question assumes that Yoo intentionally biased his comclusion and willfully distorted his analysis. That’s a pretty big supposition, and the answer to that must be arrived at before you can continue with this hypo. If there is one thing we should understand in the law is that two well-intentioned, smart people can look at the same cases and law and arrive at different conclusions (heh, it’s what we get paid for…). If the question to Yoo was “Can you find legal authority and reasoning to support enhanced interrogation?” then to the extent he has made the best argument possible he has discharged his duty.
Frankly, I have a very un-scientific definition of torture which is, nonetheless, pretty compelling for me – real torture is a practice that no shock-jock or commentator would willingly undergo to decide if it was torture. The fact that so many radio and public personalities (as well as activists) have volunteered for this means that they know, deep down, they will not suffer lasting harm. No one submits to having their fingernails pulled out, or to have electrodes attached to their bodies, to determine whether they believe those techniques are torture.
The bias in the way the question is set up invalidates the entire exercise, frankly. Perhaps someone has noted this above – I confess I didn’t read all the responses…
March 1, 2010, 11:23 pmjukeboxgrad says:
One more thing, dave. You made reference to extreme forms of torture, as if this demonstrates that lesser forms of torture aren’t torture. That’s like saying Al Capone isn’t a thief because he didn’t steal as much as Bernie Madoff.
March 1, 2010, 11:24 pm2 cents says:
I am not sure if I fall into the group you accuse of moral preening. But, I think my enlisted service as an infantryman, my later service after commissioning as a Company Commander and my service as a JAG qualifies me as having been responsible for a portion of America’s safety. If you don’t care what I think, that is fine. I do care what you think because I believe that my position on torture not only helps to preserve our Nation’s values and the Constitution, but is an important issue as our torturing others puts our Soldiers (and all Servicemembers) at risk of the same treatment by others. I would not abide anyone treating one of our Soldiers the way we have treated those we waterboarded. The more people who think that our actions were okay, the more likely these actions becomes our practice. That is the first step towards legitimacy and opens the door to others treating our troops the same way.
I am neither criticizing your right to your opinion, the strong feelings you may have, nor your choice of how you want to define torture. But, for a legal argument, you have to look to the statute:
18 USC Sec. 2340. “Definitions
As used in this chapter–
(1) “torture” means an act committed by a person acting under
the color of law specifically intended to inflict severe physical or
mental pain or suffering (other than pain or suffering incidental to
lawful sanctions) upon another person within his custody or physical
control;
(2) “severe mental pain or suffering” means the prolonged
mental harm caused by or resulting from–
(A) the intentional infliction or threatened infliction of
severe physical pain or suffering;
(B) the administration or application, or threatened
administration or application, of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be
subjected to death, severe physical pain or suffering, or the
administration or application of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
personality;….”
If you feel differently than someone, that is fine. But you can only convince someone else by addressing their arguments. Calling them names without taking on the substance neither helps your position nor does it add anything to the conversation.
March 1, 2010, 11:29 pmFat Man says:
2 Cents: Thank for your service, but you have the Lindsay Graham disease. To wit: “but is an important issue as our torturing others puts our Soldiers (and all Servicemembers) at risk of the same treatment by others.”
Others have routinely tortured (and I mean really tortured as Dave R, correctly, defines it) US soldiers in every war we have been involved in. We could be purer than driven snow and it would make absolutely no difference to them. Our current enemies care even less about “international law”, “human rights”, and “civilized behavior” than the last set.
But that has nothing to do with this discussion. Kerr, and his little friends, want to preen and show how moral they are by being hostile to people who can do them no harm. It does them no credit.
March 1, 2010, 11:56 pmjukeboxgrad says:
lester:
There’s not much room for doubt about that, because he completely glossed over the long history of US courts defining waterboarding as torture (pdf). Yoo et al referenced that history this many times: zero.
When a smart person deliberately ignores all the relevant cases, it’s no longer possible to view them as “well-intentioned.”
It’s not that he looked at those cases and came to an unusual conclusion about them. It’s that he pretended they simply didn’t exist.
Except that you completely misunderstand “his duty” as an OLC lawyer. His job there is not to act as an advocate for a certain position. His job there was to provide a complete, objective analysis of the relevant law. He didn’t do that.
And how long did any of them last? Five seconds? The minimum duration by CIA was twenty seconds, and the maximum was much greater, and they repeated this hundreds of times. If you don’t understand how these things are different, then you are probably also confused about the difference between rape and sexual intercourse.
One of many problems with your “un-scientific definition of torture” is that it has nothing to do with the law.
People willingly submit to needles in their skin to get a tattoo. People cut themselves with razors as a sexual practice. So if I do these things to you, that couldn’t possibly be torture, right? After all, someone consented to it willingly. Right?
March 2, 2010, 12:03 am2 cents says:
I am not sure what you are saying. That the Supreme Court got this wrong? Of course, even what they get wrong, until otherwise overruled by a later opinion or by legislative action, is the law of the land. All that said, I think you misunderstand the term “not of an international character.” It does not mean a conflict occurring outside of one State or across borders. It means a conflict not between two Nation States. As the Supreme Court explained in Hamdan, “The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” 415 F.3d at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations.” Hamdan v. Rumsfeld, 548 U.S. 557 (U.S. 2006)
I am also confused about your reference that in 2002 this was self-evident. As the Court explained in Hamdan, “In context, then, the phrase “not of an international character” bears its literal meaning. See, e.g., J. Bentham, Introduction to the Principles of Morals and Legislation 6, 296 (J. Burns & H. Hart eds. 1970) (using the term “international law” as a “new though not inexpressive appellation” meaning “betwixt nation and nation”; defining “international” to include “mutual transactions between sovereigns as such”); Int’l Comm. of Red Cross Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, p 1351 (1987) (“[A] non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other”). Id. at 631 (Emphasis added).
Note that the date of the citations are 1970 and 1987. I disagree that the Court got this wrong, and I disagree that a competent lawyer in 2002 would have thought that the conflict with Al Qaeda was international in character. In fact, such a conclusion would lead to the designation of Al Qaeda as a Nation.
March 2, 2010, 12:42 amHeh says:
I don’t think it does at all. Our military (I had almost 22 yrs at retirement) is one of the most well-trained, well-behaved forces in history. We *could* fight an over-whelming bomb-them-all-into-dust war but we generally choose not to. But in the conflicts I’ve been involved with, I noticed that each time we exercised restraint while our opponent did not.
Don’t get me wrong, I agree that we should exercise some restraint. But the suggestion that by doing so it will influence our opponent just doesn’t track. Not a single time. It’s important to remember, though, that part of the reason we exercise restraint is NOT supposed to influence our opponent; it’s to provide direction and morale to OUR men. We don’t do it in the hopes that someone won’t do it to us, we do it because that’s how we think it should be done. It’s a vitally important difference, and I think you’re not representing that fully in your statement.
Careful here. So just to make this point, I spent a little over 3 years as an instructor at one of our schools, and my job was to put these guys through hell to make sure they could take anything that was thrown at them. The HVTs who were on the receiving end of the EIT saw nothing near the level many of our own guys did. And I *liked* our guys :)
The water boarding, the sleep deprivation, and many other things are still, to this day, regular SOP for some of our schools. Again, it’s vitally important to remember this when making some of these statements; our guys have had it worse at our own hands than these few HVTs ever did. You can certainly decide you won’t abide me now, but I think you just didn’t realize what you were writing :)
Again, our guys are already treated much worse than you seem to want to acknowledge, in just about every conflict we’ve been in. It’s not right, it’s not fair, etc. I don’t suggest we ever sink to anyone else’s level, but we need to acknowledge that just by keeping our standards high, to a certain degree we are handicapping ourselves, as very few others won’t take advantage of us basically fighting with a hand tied behind our back.
Sure, the large organized armies will all fight the same way. But that’s not because they’re following our example, it’s because they too wish to install discipline and morale in the ranks. Lesser armies care a lot less about this, and they will often REWARD the very behavior you think we’re trying to discourage. No action on our part will change that. Until they get to the point where they care more about internal discipline than winning a few cheap-shots, they won’t come up to our level.
March 2, 2010, 12:45 amjukeboxgrad says:
heh:
You better hurry up and convey that important information to the CIA IG, because what he found was the exact opposite of what you just claimed.
March 2, 2010, 12:52 amHeh says:
I’m not going to take the IG report by itself over a lot of information from sources that have been reliable over decades. We’ll see how this shakes out in 5 or so years, but I’ll be the first one to be surprised if it turns out what I’ve heard is wrong :)
March 2, 2010, 1:17 amyankee says:
You’re the one creating the tautology by declaring that anything done for interrogation is, by definition, not torture. The problem is that your definition doesn’t match anyone else’s. The U.S. Code’s definition does not include an exception for interrogation. The U.N. Convention Against Torture expressly contemplates interrogation as a purpose of torture, not as an exception that makes something not torture. So does the dictionary.
You can say that when you use ‘torture’ it means what you choose it to mean, no more and no less, but that doesn’t mean your definition has any relevance to anything outside your own head.
March 2, 2010, 1:30 amyankee says:
So the claims that SERE waterboarding is done to people who have volunteered for the program, lasts no more than 20 seconds, can be stopped at any moment, and is done no more than once or twice are all wrong? In reality people are forced to enter the program, aren’t allowed to leave, 20 seconds is a minimum rather than a maximum, and the procedure is applied nearly 200 times over the course of a month?
March 2, 2010, 1:34 am2 cents says:
Heh,
Thanks for your comment. I disagree, but appreciate the discussion.
I think the difficulty with countering your statement (but, also with mine), is that it tries to prove a negative. That is, we don’t know, nor can we, how many Servicemembers were treated better because the enemy either respected our compliance with the laws of war or feared prosecution. I don’t think this example is perfect, but the case of the three Soldiers who were captured by Yugoslavia, Spc. Steven M. Gonzales, Staff Sgt. Christopher J. Stone, and Staff Sgt. Andrew A. Ramirez provides an example. This case was taught to me at the Judge Advocate General’s School as an example where compliance with the law of war helped to protect these Soldiers. Initially, when captured, the US Government made statements about their status that clouded their status as POW’s. I can’t recall the full details, but I do remember the faculty mentioning that quickly the Judge Advocate General recommended that their status as part of the UN mission be clarified, thus giving them protected status. You may recall that the Yugoslav government initially promised to hold a military trial for these Soldiers. The US vigorously contested the trial and stated that it was a violation of the Geneva Conventions. The Soldiers were ultimately released.
Since this post was about torture, that was my focus, but I think that compliance with the laws of war has several potential benefits. These are:
(These are not my original ideas, these are from the US Army Law of War Deskbook,(available on http://www.jagcnet.army.mil), but I was first exposed to these concepts years ago and I do believe they are a good practical basis for observing the laws of war).
As for point 2, I think the large scale surrenders of the Iraqi Army in Desert Storm can be in part attributed to this.
More interesting for my original point, Number 5 is important because our violations of rules by torturing others (or if you choose not to characterize waterboarding as torture)
makes it more confusing and harder for us to charge others for waterboarding our personnel. If someone waterboards a US Servicemember, I want to be able to charge them with a violation of the laws of war without any legal obstacles by virtue of our ill considered actions.
I reject that anything we did to our troops in SERE school or other training is the same as what we did to KSM and some of the other HVT’s. But, to be clear, I certainly did realize what I wrote and stand by it.
I do acknowledge that our troops have faced horrific treatment at the hand of the enemy. I just believe that our compliance in the past with the laws of war served a protective measure for our troops in some cases (and I fear that our present or near past conduct has diminished this effect). Again, impossible to prove this. I believe that compliance helps to motivate early peace (either by surrender of the enemy or by not inflaming instincts for revenge). But, it seems that we agree that a side effect of compliance with law of war is a higher level of morale for our troops and speaks to a more disciplined force. If this is what pushes us (or convinces you) of a good reason to comply with the laws of war, then I am all for it.
March 2, 2010, 2:03 amjukeboxgrad says:
heh:
By “sources that have been reliable over decades” do you mean random internet commenters who show no proof for their claims while bragging that their knowledge of the CIA torture program is somehow superior to the CIA IG’s knowledge? Is that your concept of “reliable?”
Because when I think about sources like that, “reliable” is not the first word that comes to mind.
And are you sure that it’s OK that you’re sharing these secrets? You realize we’re talking on an open line, right?
March 2, 2010, 2:47 amaeroscout says:
in the interests of objectivity agendas should be clearly stated , the undercurrents of an interesting yoo / reverse yoo debate r 2 glaring 2 b hidden by it’s thin veneer . my agenda is the constitution is not a death pact . heh has 4 the most part stated my case , i attended courses he mentioned . as 4 yoo the setup is flawed because of false assumptions , but if an obverse reverse scenario was infallibly laid out the principled observer would find them equal on an absolute basis . i find it distasteful 2 use sophistry in an attempt 2 invalidate opposing viewpoints . part of humanity includes passion and conscience which r codified , and inexorably link person and opinion . i also strongly resent irrational intractability . if some1 makes a good point , concede it !
March 2, 2010, 3:57 amSome Guy says:
Meh, who cares what the lawyers think? Let the cowards hide in the rear with the gear, that’s where they belong. Let ‘em think they’re in control. The lawyers’ power extends exactly as far as they can see.
(This entire piece is funny. You lefties are really scared about November, aren’t you?)
March 2, 2010, 5:58 amDaveR says:
Juke – we didn’t execute Japaneese for waterboarding but rather for indiscriminate beheadings, starving POWs, using POWs for biological warfare experiments and mass atrocities against civilian populations such as forced prostitution, using civilians in Nanking for bayonet practice, etc. I doubt waterboarding would have even come up as a serious offense. Sortta like trying Eichmann for waterboarding.
March 2, 2010, 6:23 amThe citation you gave excludes acts done under “lawful sanction.” Lawful sanction may well include orders from the Commander in Chief; what those orders may include is exactly what Yoo was trying to determine. NOW, you can start parsing the term “lawful sanction”; indeed, I expect you to. That’s what lawyers do. Lease not quite right? Let’s parce the meaning of “occupancy.” What is meant by “honest service” a la Enron. What constitutes “lawful sanctions” in a war situation? Parse, Parse, Parse. Sortta like “that depends on what the meaning of “is” is. Excuse me if I still think the whole line of thought so prominently exhibited in this thread is self-serving, pentulant, and marked by an arrogence that is better suited, if anywhere, to contract disputes than to a determination of the proper approach to questioning of those who, as a group and well as individually, want to kill you, your family and anyone else who will not submit to their own religious view.
2 cents says:
Except it did: See my comment here about Yukio Asano, convicted of waterboarding and sentenced to 15 years confinement at hard labor.
I know your comment was directed at jukeboxgrad, but I want to respond. First, I discussed in another post the possibility of a mistake of law defense for interrogators (based on legal opinion of officials with apparent authority). But, more importantly, I want to respond to your comment about lawyers and “parsing.” My concern with this comment is that it seems to reject the opinions/reasons for those with differing views than you just because they are not the same as yours. Is it “parsing” to disagree? You state that the comments in this thread are “self-serving, pentulant, and marked by… arrogence.” Can you tell us how it is any of these
( I am particularly interested in how you think it to be self-serving…though, I will admit that one of my concerns with waterboarding is that, as a result of our doing it, it could be applied to US Servicemembers…or US citizens by an enemy. If that is self-serving, then, yes, I understand your comment)?
I am serious about this whole argument because I think that torture/waterboarding weakens our Nation. If you do respond, I hope it is with substantive argument, rather than just dismissing a contrary position because it may be advanced by a lawyer. I extend you the courtesy of listening and responding to your post. I hope you do the same.
March 2, 2010, 7:05 amjukeboxgrad says:
daver:
This is important news you have. I hope you will share it with the ignorant people at National Review, because they said this:
Another ignorant person you need to educate is McCain:
There were other charges for other crimes, but the waterboarding itself was considered a crime.
And I didn’t say “execute,” I said “prosecute.” It’s not entirely clear that we ever executed a Japanese only for waterboarding, but it’s clear that we prosecuted them for that. As both NR and McCain understand. Too bad you don’t.
The one who is doing that is you. The core of your position is that it’s called “torture” when someone else does it to us, and it’s called “enhanced interrogation techniques” when we do it to someone else. Are you claiming that we owe the Japanese an apology? Are you claiming that you will refrain from calling it torture when a future enemy does to us what we have now done?
The torture statute makes no exception for a situation where the victim is someone “who, as a group and well as individually, want[s] to kill you, your family and anyone else who will not submit to their own religious view.” Why do you hate the rule of law? If you don’t like the law, you’re supposed to work to change it, not break it. If you don’t get this, then you are an enemy of the rule of law and an enemy of democracy. And in an important sense this makes you more dangerous to America than AQ, because they don’t get to vote, but you do.
The argument you are trying to use regarding “lawful sanction” is so feeble and pathetic that even Yoo didn’t attempt to rely on it. So the one who is guilty of transparent, disingenuous “parsing” is you.
March 2, 2010, 8:14 ammls says:
I am gratified that 2 Cents would like to have a rational dialogue, rather than simple dismissal of opposing arguments, but anyone who has followed this “debate” realizes that Professor Kerr is right that this has never been principally about the law or professional responsibility. For the vast majority of the anti-Yoo commenters, it appears to be about categorizing Yoo and everyone they associate with him (and they have a very broad and flexible conception of who is associated with him) as morally inferior to themselves. As jukeboxgrad so charmingly puts it, anyone who disagrees with him is “an enemy of the rule of law and an enemy of democracy.” This, rather than what 2 Cents said, represents the spirit of the anti-Yoo commenters. Moral preening sounds about right.
Let me be clear (as POTUS would say). I think that the flaws in Yoo’s work were extremely serious, possibly rising to the level that would justify professional discipline. Its just that very few people are interested in having a serious and balanced discussion of that issue.
March 2, 2010, 8:42 amjukeboxgrad says:
mls:
Uh, no. It’s not that anyone who disagrees with me is an enemy of the rule of law and an enemy of democracy. It’s that anyone who advocates that well-placed government officials should be free to break the law is an enemy of the rule of law and an enemy of democracy.
It’s one thing to claim that you oppose USC 2340 and the various related statutes and treaties, and the related case history (and some people are honest enough to frankly take that position). It’s something else to pretend they don’t exist. Trouble is, that’s what plenty of people are doing.
If you are interested in “a serious and balanced discussion,” you should explain why you view defending the rule of law as a form of “moral preening.”
March 2, 2010, 9:11 ammls says:
“It’s that anyone who advocates that well-placed government officials should be free to break the law is an enemy of the rule of law and an enemy of democracy.”
But the people you are criticizing do not say that “well-placed government officials should be free to break the law.” That is your characterization of their position. And your formulation fails to account for the countless types of situations where “well-placed government officials” may be said to “break the law.” Every administration takes actions which it knows could be said to break the law, and every administration will be found by the courts to have broken the law in various respects. This is a simple function of the fact that administrations take many actions, we have many laws, there are many possible ways of interpreting those laws, and our rule of recognition gives a pretty wide berth for administrations that wish to ignore “the law” as enacted by Congress. In fact, every administration explicitly refuses to comply with various aspects of federal statutes, so your formulation leaves us pretty much free to designate everyone (or everyone we don’t like) as enemies of the rule or law and of democracy.
March 2, 2010, 9:53 amStones Cry Out - If they keep silent… » Things Heard: e108v2 says:
[...] Setting a situation on its head. [...]
March 2, 2010, 9:57 amjukeboxgrad says:
All laws are not of equal importance. Not “every administration” commits war crimes.
It’s one thing to realize that we live in an imperfect world, and that no person or group or government can always behave perfectly or in perfect accordance with every law. It’s something else to be aware of a specific felony and make excuses for it by pretending that there’s no case history making it a felony. And that’s exactly what Yoo did, and it’s what his defenders are doing.
March 2, 2010, 10:01 amWhadonna More says:
So you take the moral high ground by advocating stooping to the standards of the enemy? Or do you just take pot-shots at people who discuss things that scare you?
March 2, 2010, 10:11 amjukeboxgrad says:
mls:
Your formulation leaves the government free to do whatever it likes, regardless of what the law says. Is this part of your concept of conservatism? I guess conservatives are now people who oppose the idea of unlimited government power, except when they’re the ones exercising the power. Sounds more like Republican authoritarianism.
March 2, 2010, 10:13 amNobody Really says:
First of all, I think Al Queda (especially with its alliance with the Taliban) meets any reasonable definition of a nation-state conflict, but you are ignoring the second part of the quote. “occurring in the territory of one of the High Contracting Parties.” You can’t have it both ways.
Second of all the Supreme Court didn’t make that determination until well after 2002, so the fact that it is the law of the land now, it wasn’t then, regardless of the date of whatever they choose to hang their hat on for this definition. They departed from accepted law and precedent (as well outlined in the descent) that the Executive has the latitude to interpret the meaning of treaties. But stare decisis is Latin for “past cases I happen to agree with.”
More importantly than all of this is that this line of reasoning eviscerates the whole enforcement mechanism of the Geneva Conventions, that the only one to violate the convention is the one who does it first. Punishment for failing to uphold them is that the other party is no longer obligated.
March 2, 2010, 10:29 ammls says:
“Your formulation leaves the government free to do whatever it likes, regardless of what the law says.”
I would be happy to find a formulation that genuinely restrains the government, but I don’t think that yours does. If Obama decides tomorrow to launch an all-out nuclear strike on Iran, has he violated the law, in your opinion? Has he committed war crimes? Suppose he orders a drone strike on Pakistan that kills a bunch of civilians? Suppose its another country where he believes (rightly or wrongly) that Al Qaeda has set up operations? Suppose he orders a targeted killing of an American citizen such as Awlaki? Suppose he orders that KSM be tried by military commission, or be held indefinitely without trial? Or, for that matter, suppose he orders the reinstitution of EITs, something less than waterboarding that in the judgment of the new lawyers at OLC does not constitute torture?
For any of these examples (some of which are not hypothetical), there are many people who would argue that the action is illegal and constitutes a “war crime.” You may or may not be one of them. How does one decide if the action in question makes Obama one of those enemies of democracy, or just an imperfect person trying to do the best he can in an imperfect world?
March 2, 2010, 10:32 amsubmandave says:
yankee: “The real Yoo, on the other hand, wrote the memos in order to provide cover for criminal acts. Specifically, the purpose of the memos was to allow government officials to commit a serious felony.”
Del E.: “The bigger question … is whether both Yoos were aiding the commission of heinous acts”
“I think the phrase “Nuremburg Trials” comes immedately to mind.”
IANAL, so perhaps I will be sneered at in this august body, but I have yet, in the five years or so this topic has been discussed, read any convincing argument that any of the enhanced interrogation techniques used violate the actual law that prohibits torture (18USC2340). The fact is that most comments I read here begin with the assumption that whatever we did, it sure as shooting was “torture.” I still stand by what I wrote in 2005, but am willing to read other opinions provided they are not based in the “evil baby-killers” emotionalism of many counter “arguments” I’ve seen.
Regardless of the propriety or legality of EIT, any mention of “Nuremburg” in conjunction with this discussion should be considered a violation of Godwin. If a significant number of lawyers here really see a moral equivalence between subjecting captured enemy combatants to harsh but non-permanently damaging interrogation techniques to obtain actionable intelligence and the purposeful cruelty and death meted out in the Holocaust then there truly is a vast gulf between the lawyer caste and the rest of us.
March 2, 2010, 10:53 amjukeboxgrad says:
nobody:
GC is here. Show us the text which supports the claim you just made.
=============
subman:
I guess you are going to join the large collection of people (including and especially Yoo) who are seemingly oblivious to the long history of US courts defining waterboarding as torture (pdf).
And are you seriously claiming that standing shackled and sleepless for 180 hours is not a violation of USC 2340? And various other laws and treaties? Is there any number that would satisfy you in that regard? 1800? 18,000?
Are you claiming that if a future enemy did this to an American, that you would refrain from calling it torture?
=============
mls:
By objectively analyzing facts and precedents. I have no reluctance to put Obama in the former category. He is already heading in that direction, given his reluctance to prosecute those who violated USC 2340.
March 2, 2010, 11:16 amFat Man says:
Learn to read.
March 2, 2010, 2:39 pmWhadonna More says:
Learn how to make an argument.
March 2, 2010, 3:05 pmleo marvin says:
What do you make of the statement by Susan Crawford, the Bush administration official who didn’t allow military prosecutors to re-file charges against Mohommed al-Qahtani, because, as she said, “We tortured Qahtani”?
March 2, 2010, 6:31 pmDaveR says:
Juke,
Loved your comment about Al Capone. Actually, the best (or worst) one can say about him is that he is an alledged crook; he was only convicted of income tax evasion. Too bad he wasn’t up for Secretary of the Treasury.
Bye the Bye, ask Daniel Pearl how much that group of international standing, also known as Al Quida, really observes the Geneva Convention.
March 2, 2010, 6:39 pm2 cents says:
DaveR,
Did you see my above post explaining the term “international” as referring to between Nations?
March 2, 2010, 9:50 pm2 cents says:
This statement is very confusing, so I will try to address what I think you mean, but if I am mis-stating your position, please let me know.
Before I get to that, though, you do understand that the Supreme Court has ruled that Common Article 3 applies to the present conflict with Al Qaeda (AQ)? You may disagree, but, I want to make sure we can agree what the current state of the law is.
I think you mean from the above that our conflict with AQ is international because, in part, it occurs in Afghanistan and because of AQ’s funding/support/operations with Taliban in some instances. If this is what you mean, you are misunderstanding the concepts of Nations and States. There are four recognized criteria in international law for a State to be legally recognized:
1. Defined territory (which can be established even if one of the boundaries is in dispute or some of the territory is claimed by another State);
2. Permanent population (the population must be significant and permanent even if a substantial portion is nomadic);
3. Government and,
4. Capacity to conduct international relations.
See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, § 201 (1987).
AQ does not meet any of these criteria.
I also think that, while you are entitled to your opinion about what the law should be, you cannot analyze this issue out of context. It has never been the position of the United States that AQ is a State actor or Nation. We have taken the exact opposite position. President George W. Bush, for example, specifically repudiated this point, in Feb. 2002: “Our recent extensive discussions regarding the status of al Qaeda and Taliban
detainees confirm that the application of Geneva Convention Relative to the
Treatment of Prisoners of War of August 12, 1949, (Geneva) to the conflict with
al Qaeda and the Taliban involves complex legal questions. By its terms, Geneva
applies to conflicts involving “High Contracting Parties,” which can only be
states.” http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf (emphasis added).
In fact, the Yoo/Bybee memo says much the same:”Geneva III does not apply to a non-State acror such as the Al Qaeda terrorist organization. Al Qaeda is not a State. It is a non-governmental terrorist organization composed of members from many nations, with ongoing operations in dozens of nations. Nongovernmental organizations cannot be parties to any of the international agreements here governing the laws of war.” http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.22.pdf
So, you are arguing, essentially, that AQ is a State. If this were the case, then I think it would lead to a position that you seem to disagree with, i.e., that other provisions of the Geneva Conventions would apply (and AQ members would likely be afforded POW status). Do you think that AQ is a State?
I don’t understand your point about “occurring in the territory of one of the High Contracting Parties.” Iraq, Afghanistan, and Pakistan are all High Contracting Parties.
http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P
So, I don’t understand how this is having it both ways.
I will try to explain my position (which happens to be the current state of the law):
AQ is not a State, therefore we cannot have a conflict with them of an “international” character.
The military operations we are discussing all have occurred in the territory of one of the High Contracting Parties; therefore, Common Article 3 applies.
I am not clear of the importance of the first part, where you say the law was not that Common Article 3 applied before this decision. That is the whole role of courts, to rule on cases and controversies. It would have been near impossible to adjudicate the narrow question of whether AQ members are entitled to Common Article 3 protections before 9/11, since the capture of Hamdan did not occur until after 9/11 and our subsequent military action.
There is a lot that could be debated about the issues raised in the dissent. (And I think they are very interesting issues, but the majority of them have to do with jurisdiction of the courts to hear the case, whether CA3 requires the same procedures as Court-Martials convened to try our own military members). I agree that it is a relevant issue about the justiciability of Hamdan’s claims and the impact of the exclusive enforcement mechanisms in the GC. But, these points do not go to the underlying issue of whether CA3 applies in the first place (which, I point out, is separate from the other issue, which I think you are explicitly raising, as to whether the President can suspend/withdraw from the GC).
Not at all. The enforcement mechanisms for grave breaches are found in the following places: GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146
The consequences for a grave breach is that each State has a duty to prosecute or extradite. “Specifically, each State must:
i. Enact penal laws criminalizing grave breaches.
ii. Bring persons alleged to have committed grave breaches before its courts, regardless of the person’s nationality. This is the basis for “universal jurisdiction” over grave breaches.
iii. Alternatively, hand the person over to another Party willing to prosecute.” Judge Advocate General of the Army’s Law of War Deskbook (accessible at http://www.jagcnet.army.mil )
For simple breaches, 18 U.S.C. § 2441 (War Crimes Act of 1996, as amended) permits prosecutions for violations of Common Article 3 in U.S. federal court.
There is no provision for not complying or abrogating responsibilities under the treaty is another party does not comply.
March 2, 2010, 11:40 pmjukeboxgrad says:
daver:
I hope you and your little straw man are having lots of fun together. Who said that AQ “observes the Geneva Convention?” And what is the relevance of whether or not they observe GC? A 2 cents has nicely explained, “there is no provision for not complying or abrogating responsibilities under the treaty if another party does not comply.”
Then again, maybe your point is that we should behave immorally when our enemies behave immorally. Really? Then in what way are we different from our enemies?
March 3, 2010, 12:03 amzuch says:
Fallacy of bifurcation, amongst other errors in logic.
But it’s amasing how erstwhile “conservatives” (or at least RWers) start talking in utilitarian terms about how the few must [be] sacrifice[d] for the many, and about the “greater good” … when they’re volunteering the testicles of other people’s children for the Noble Cause. Not when it’s their tax money on the table, of course….
Cheers,
March 5, 2010, 12:40 amMelvin H. says:
Seems to me the entire question regarding John Yoo is an example of Supreme Court-enacted ex post facto law; remember, the conventions against torture were for decades thought only to apply to military forces of countries, NOT against terrorist groups…i.e.: Al Qaeda terrorists. That did not change until the Supreme’s ruled in 2005 or ’06 that the conventions DID apply. Therefore, any charges against Yoo, et al would seem to come under what amounts to a new interpretation of law that did not exist at the time–and how are you supposed to give an opinion if something is legal/illegal or at the boundaries, if the mere giving of the opinion is made a crime retroactively?
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Think of it this way: Imagine in 1971, you lived in a state where there was no speed limit in the Interstates, and you did 80mph…and you asked a lawyer friend or one in the state’s State Patrol if that was OK; their response comes back “maybe a little fast, but legal”. Fast forward to 1976: Now, a national speed limit of 55mph was in place, the Supremes say it is legal (Fed funding, etc.), and the state now decides to go after you for the 1971 excessive (20+mph over the limit) speeding (with appropriate penalties); should the lawyer be hauled into court for advising based on the law at the time of the occurrences what became illegal years later?
March 6, 2010, 4:47 am———————————————–
And you wonder why I am confused why the Yoo matter even came up in the first place–seems to me just a bunch of people who couldn’t stand Bush and those in at the time, now trying to get revenge under the guise of “justice”; justice for WHOM? Under what law and what interpretation (one which did NOT exist at the time of 9/11/01, or the writing of the memos)?