I’ll post up something fuller on my views about the AQ7 debate, but for now, here is my contribution at the New York Times’s “Room for Debate” blog. (Like Orin, I’m a signer on the original letter objecting to the AQ7 ad.)
I’ll post up something fuller on my views about the AQ7 debate, but for now, here is my contribution at the New York Times’s “Room for Debate” blog. (Like Orin, I’m a signer on the original letter objecting to the AQ7 ad.)
cityduck says:
It seems to me we’re seeing a split between some very bright Conservative lawyers and folks who appear to fall into the camp that Justice Posner labeled as the “new conservatives.” As he stated: “new conservatism [is] powered largely by emotion and religion and [has] for the most part weak intellectual groundings.”
The attack on the AQ7 is all emotion and no intellect.
March 10, 2010, 2:30 pmAnderson says:
Third, I understand the desire of conservatives to give back to liberals as close to the same treatment as they delivered to Bush-era lawyers. The attacks on those lawyers were utterly dishonorable.
Eh vraiment? What is a characteristic example of an utterly dishonorable attack on a Bush-era lawyer?
The only example anywhere near “utter dishonor” I can think of is that some people were not nice to Jack Goldsmith when he left DOJ and went to academia.
March 10, 2010, 2:59 pmmetro11 says:
cityduck:
would you say the same about those who attacked John Yoo and Jay Bybee?
March 10, 2010, 3:01 pmruuffles says:
Where is the list of signers? Are there any current or former federal judges on there?
March 10, 2010, 3:16 pmLN says:
You want to know an interesting difference between John Yoo and the “Al Qaeda 7″? There were no weakass liberals saying, “I’m not saying John Yoo is a war criminal, I just think that it shouldn’t be out of bounds to consider if he’s a war criminal.”
March 10, 2010, 3:16 pmArthur Kirkland says:
This is my first invitation to an al Qaeda coming out party. Should I bring a present, make a donation, or what?
March 10, 2010, 3:18 pmmetro11 says:
LN: Sure – they just sought to disbar John Yoo. Nice:
http://delong.typepad.com/the_torture_memo/2009/02/michael-isikoff-yoo-disbarment-proceedings-now-visible-on-the-horizon.html
March 10, 2010, 3:19 pmruuffles says:
Disbarment is a far far cry from treason.
March 10, 2010, 3:20 pmmetro11 says:
ruufles: “treason” in the blogosphere is a far cry from DOJ memos actively pointing to your disbarment.
http://delong.typepad.com/the_torture_memo/2009/02/michael-isikoff-yoo-disbarment-proceedings-now-visible-on-the-horizon.html
March 10, 2010, 3:25 pmLN says:
metro, you missed my point. I have no problem with John Yoo being disbarred, because I have no problem criticizing his actions. I also have no problem with what the “Al Qaeda 7″ did, and I have no problem with them serving in the DOJ.
Saying “I don’t necessarily think that John Yoo is a war criminal, but why should considering the possibility that he is a war criminal be out of bounds?” is remarkably passive-aggressive nonsense. And I’ve seen that sort of nonsense over and over again on these boards.
March 10, 2010, 3:27 pmmetro11 says:
LN:
you missed my point. you seem to have no problem with those who criticize the legal advocacy of John Yoo and Jay Bybee. yet you seem to take exception to those who criticize the legal advocacy of the AQ7. i’m suggesting your positions are inconsistent.
March 10, 2010, 3:32 pmArthur Kirkland says:
But are DOJ memos actively pointing toward disbarment such a far cry from a sympathetic administration’s thorough and public repudiation of the underlying legal work?
March 10, 2010, 3:34 pmLN says:
metro11: I missed your point because it’s dumb. “You seem to have no problem with those who criticize the political work of the Democrats, yet you seem to take exception to those who criticize the political work of the Republicans.”
When a lawyer gets disbarred, what explains how all the other lawyers are able to keep working? Inconsistency?
March 10, 2010, 3:38 pmmetro11 says:
LN:
the Yoo criticism i’ve seen has primarily been about disclosing his legal advocacy and/or punishing him for engaging in that legal advocacy (not his politics).
the AQ7 criticism i’ve seen has been primarily about disclosing their legal advocacy and/or punishing them for engaging in that legal advocacy (not their politics).
of course, their politics have been criticized too. people’s politics are criticized all the time. endlessly, it seems. i’m not addressing that.
what i’m addressing is this: if you are criticizing discussions about disclosing/punishing the AQ7′s legal advocacy – then your criticism is inconsistent if you fail, also, to criticize discussions about disclosing/punishing Yoo’s and Bybee’s legal advocacy.
March 10, 2010, 3:55 pmAssistant Village Idiot says:
cityduck – generalise much?
March 10, 2010, 4:00 pmAnderson says:
Metro11, you are incorrect. Would you like to know why?
Yoo was not criticized for being a legal advocate, or for his choice of client. He was criticized for doing his job badly, in fact dishonestly. He misrepresented the law, apparently in an effort to reach a bad-faith result and to provide legal immunity for torture.
If any of the lawyers representing accused terrorists did his job badly or dishonestly, I would criticize him too. But they are being criticized for their choice of client.
March 10, 2010, 4:00 pmmetro11 says:
Anderson: We’re on both AQ7 threads. So … hi-
And, actually, i just posted something on the other thread responsive to what you say above (re: the legal merits in the AQ7 and Yoo/Bybee matters). see below.
* * *
the Yoo criticism i’ve seen has primarily been about disclosing his legal advocacy and/or punishing him for engaging in that legal advocacy.
the AQ7 criticism i’ve seen has been primarily about disclosing their legal advocacy and/or punishing them for engaging in that legal advocacy.
of course, the merits of their positions have been criticized too. i will defer to Professor Kerr and Andrew McCarthy on that re: the AQ7: obviously bright people disagree about the merits.
what i’m addressing is this: if you are criticizing discussions about disclosing/punishing the AQ7’s legal advocacy — then your criticism is inconsistent if you fail, also, to criticize discussions about disclosing/punishing Yoo’s and Bybee’s legal advocacy.
March 10, 2010, 4:05 pmSteve says:
People who think Yoo and the AQ7 lawyers are indistinguishable need to read Stephen Gillers’ explanation of the difference between litigation and non-litigation activities, at the same link provided by Prof. Anderson.
Yoo did not simply go to court and argue for a legal position that offends some of us. He played an active role in shaping administration policy and he did so through shoddy legal work. It’s not like Yoo’s defense is “those memos have nothing to do with my personal views on the subject” – he’s made quite clear that those very much are his personal views.
March 10, 2010, 4:10 pmmetro11 says:
Anderson:
Also – many bright people think Yoo and Bybee were right:
See here:
http://volokh.com/2010/02/21/yoo-bybee-opr-report-commentary/
See, also, here:
http://article.nationalreview.com/393415/the-justice-departments-torture-hypocrisy/andrew-c-mccarthy
March 10, 2010, 4:11 pmmetro11 says:
Steve:
Many bright people think Yoo and Bybee were right:
See here:
http://volokh.com/2010/02/21/yoo-bybee-opr-report-commentary/
See, also, here:
http://article.nationalreview.com/393415/the-justice-departments-torture-hypocrisy/andrew-c-mccarthy
March 10, 2010, 4:12 pmmetro11 says:
The U.S. Court of Appeals for the Third Circuit agreed with Yoo and Bybee:
http://article.nationalreview.com/393415/the-justice-departments-torture-hypocrisy/andrew-c-mccarthy?page=1
March 10, 2010, 4:15 pmyankee says:
And criticizing Cheney for making baseless accusations of treason is a far cry from demanding that she be disbarred. Her attacks were dishonest and immoral, but they were not unethical or illegal. No one has claimed otherwise.
March 10, 2010, 4:16 pmorca says:
Under what system of ethics does dishonest and immoral not equal unethical?
March 10, 2010, 4:31 pmyankee says:
I meant legal ethics, since the topic was disbarment.
March 10, 2010, 4:36 pmcityduck says:
No. Care to point out the generalization?
March 10, 2010, 4:47 pmMike McDougal says:
I don’t know. Did they distinguish between advice and advocacy? How did they understand the roles of Yoo and Bybee?
March 10, 2010, 5:00 pmAnderson says:
many bright people think Yoo and Bybee were right
You provide a link to the post on the OPR report and Margolis’s reaction, but even Margolis was clear that Yoo’s legal analysis was wrong, wrong, wrong; Margolis actually concluded that Yoo was so blinded by ideology that he couldn’t think straight.
Andrew McCarthy is a hack who will write anything, whether he believes it or not.
March 10, 2010, 5:24 pmSarcastro says:
I for one think Yoo should be disbarred, and possibly tried for taking on the previous President and obvious war criminal as a client! This goes for everyone who ever worked for Bush!!
Hell, I hate America, so that goes for everyone working for Obama has got to go as well.
March 10, 2010, 5:27 pmjukeboxgrad says:
metro:
You are repeatedly citing a NR/McCarthy article that is pure baloney. And of course that is completely consistent with his other ‘work.’
March 10, 2010, 5:27 pmChristopher Cooke says:
Yes, McCarthy’s “analysis” of the Bybee/Yoo memoranda is flimsy and ideologically motivated, just like his criticisms of the AQ7. Regarding his false comparison of the DOJ arguments in the Demjanjuk case (Pat Buchanan’s favorite Nazi) with the Bybee/Yoo memos, the Bybee/Yoo memos’ flaws were in creating ridiculously narrow definitions of “torture” that ignored past precedent on, for example, whether water boarding was torture.
I did not see that position advocated by the DOJ in the Demjanjuk case because it was not. McCarthy’s own views on torture appear to be that if the interrogator is trying to elicit information, and is not acting from sadistic motives, then he is not guilty of torture. By that definition, most Nazi torturers were not guilty of torture, even if they used horrendous techniques to elicit information, so long as they were intending to elicit information. The DOJ did not advocate that ridiculous view in Demjanjuk.
I agree with Professor Anderson’s article and Orin’s comments in the other post. People accused of being unlawful enemy combatants are entitled to have an attorney represent them because the precise issue that remains to be determined-whether they are unlawful enemy combatants–will be assisted if they are represented by counsel in an adversarial proceeding. McCarthy knows this but is intellectually dishonest.
March 10, 2010, 5:51 pmChrisTS says:
Whew. Thanks to Anderson, Steve, Christopher, and others. I have been away from Volokh; metro’s comments made me think my brain had melted.
March 10, 2010, 6:00 pmwumhenry says:
Margolis opined that Yoo’s conclusions were wrong, but that opinion is not supported by the analysis in Margolis’s memo. It wasn’t necessary for him to support that opinion, which was purely gratuitous. The question before Margolis, not to put too fine a point on it, was whether the Yoo/Bybee memos were so egregiously defective that disbarment might be warranted. Margolis determined that they were not. Having made that detemination, there was no call for Margolis to say whether he thought Yoo and Bybee’s bottomline conclusions were right or wrong. I suspect that he threw in the gratuitous criticism to mollify superiors who would predictably be disappointed with his veto of OPR’s recommendation to refer the matter to state officials as possible grounds for disbarment.
March 10, 2010, 6:09 pmAnderson says:
The question before Margolis, not to put too fine a point on it, was whether the Yoo/Bybee memos were so egregiously defective that disbarment might be warranted. Margolis determined that they were not. Having made that detemination, there was no call for Margolis to say whether he thought Yoo and Bybee’s bottomline conclusions were right or wrong.
How exactly was Margolis supposed to determine *egregiously* defective without getting to “defective”?
DOJ conceded under Bush that Yoo’s analysis was defective. That is not something Margolis came up with.
Margolis pointed to Yoo’s ideology as an alternative explanation to OPR’s conclusion that Yoo wrote in bad faith. Margolis’s arguments on that score were lousy, and perhaps in bad faith themselves, but there was no issue whether Yoo’s legal analysis was any good. It wasn’t.
March 10, 2010, 6:21 pmleo marvin says:
Get with the program, Chris. We’re trying to avoid logical leaps. The persuasiveness of Anderson’s, Steve’s and Christopher’s comments is no evidence that your brain hasn’t melted.
March 10, 2010, 7:00 pmleo marvin says:
It wasn’t gratuitous. It was important for Margolis to clarify what he wasn’t saying as well as what he was, lest some people misrepresent his decision not to refer Yoo for Bar discipline as a full exoneration of Yoo’s work. Of course Margolis’ “gratuitous” conclusion that not only was Yoo’s work deficient enough to have warranted discipline had Yoo still been a DOJ employee, but that it was a close question whether Yoo had intentionally or recklessly provided misleading advice, hasn’t stopped plenty of people, Yoo included, from mischaracterizing what Margolis said in precisely the manner I suggested.
March 10, 2010, 7:29 pmBenjamin Davis says:
As usual in National Security discussions, six white guys talking to each other. As if the rest of the America could not figure this stuff out. Well we can get a couple of Asian-Americans maybe (John Yoo, Harold Hongju Koh). So, in the spirit of diversity that reflects the diversity of the troops that are defending our butts, see my Keeping America in the Dark op-ed over at jurist.law.pitt.edu.
March 10, 2010, 8:16 pmBest,
Ben
1040 says:
Huh???!!! Why the pandering and false equivalences?
March 10, 2010, 9:23 pmvc addict says:
Much-needed levity. Bravo!
March 10, 2010, 9:26 pmAnderson says:
The persuasiveness of Anderson’s, Steve’s and Christopher’s comments is no evidence that your brain hasn’t melted.
Rather the contrary, where Anderson’s are concerned.
March 10, 2010, 11:53 pmleo marvin says:
If that were so, these threads would be a graveyard of melted brains.
March 11, 2010, 4:49 amjrose says:
Yoo’s job wasn’t legal advocacy, but rather to provide objective legal analysis. If someone is charged with violating the torture statute, and Yoo is criticized for defending him, then your analogy holds.
However, criticizing a lawyer for advocating for an accused client (AQ7) is not the same as criticizing a lawyer for advocating when there is no accused to advocate for (Yoo).
March 11, 2010, 7:30 amLubomyr Prytulak says:
Christopher Cooke’s aside– “Demjanjuk case (Pat Buchanan’s favorite Nazi)”–deserves to be objected to on the basis of several considerations, among which one is that the Ivan the Terrible of Treblinka, for whose crimes John Demjanjuk was almost hanged, is imaginary:
BLURB BIOGRAPHY OF JOHN DEMJANJUK, SO FAR
http://www.xoxol.org/dem/blurb.html
and among which another is that the “Demjanjuk” signature on the Trawniki ID Card was written by someone other than John Demjanjuk, to conceal which John Demjanjuk’s persecutors have obliterated it:
FORGED AND OBLITERATED: THINGS YOU WON’T READ IN WIKIPEDIA ABOUT THE TRAWNIKI ID CARD’S DEMJANJUK SIGNATURE
March 11, 2010, 10:02 amhttp://www.xoxol.org/traw/forge.html
Artemus says:
We only hear paeans to the “American tradition of zealous representation of unpopular clients” when it’s being used to defend causes popular with liberals — serial killers and terrorists.
Lawyers want to be congratulated for their courage in defending “unpopular” clients, while taking cases that are utterly noncontroversial in their social circles.
They’d be scared to death to take the case of an anti-abortion activist. Defending the guy who killed George Tiller the Baby Killer won’t make them a superstar at the next ABA convention.
March 11, 2010, 10:26 amBenjamin Davis says:
Meeting the lawyer who defended the guy who killed George Tiller would be interesting to me. It seemed his client did everything that his lawyer was advising him not to do. Very interesting thing to discuss to the extent possible under attorney-client privilege.
March 11, 2010, 10:40 amBest,
Ben
byomtov says:
what i’m addressing is this: if you are criticizing discussions about disclosing/punishing the AQ7’s legal advocacy — then your criticism is inconsistent if you fail, also, to criticize discussions about disclosing/punishing Yoo’s and Bybee’s legal advocacy.
No.
The criticism of Yoo/Bybee is based on the content of their advice (not advocacy). Nobody is criticizing them for just working at OLC.
The “AQ7″ are being criticized for just representing detainees, without reference to the quality of their work or the content of their advice.
March 11, 2010, 11:12 amAnderson says:
Let’s try this another way:
The people who gripe that, in previous wars, prisoners didn’t get counsel, habeas, etc., are tending to forget that, in previous wars, we didn’t generally seek to try and execute those prisoners. The prisoners weren’t “bad,” just “the enemy.”
And I daresay that when we did put them on capital trial, as in Quirin, they had counsel – outside of drumhead courts-martial, which are scarcely needed for any of the present detainees, or else they wouldn’t be our present detainees.
March 11, 2010, 12:53 pmPubliusFL says:
Which of the AQ7 were defending capital trials?
March 11, 2010, 1:30 pmzuch says:
Ummm … as Hertz would say, “not exactly“.
McCarthy falsely states that the analysis is the same:
But this is not true. The Yoo/Bybee theory was that it wasn’t “torture” if there was some other intent of those doing the acts in question (such as to obtain information), even if the natural and intended consequences of the acts was predictably to cause severe pain and suffering (note that extracting information under torture simply doesn’t work if it’s not torturous enough; without the pain and suffering, it doesn’t work … and it’s not torture).
On the contrary, the Holder brief explicitly references another part of the torture laws and treaties, which is the exception for pain and suffering incidental to lawful sanction:
It is true that they also dismiss the claim that imprisonment (or acts leading to such) which may — or even probably will — lead to pain and suffering are not torture either where the pain and suffering there are not the “motive and purpose” for such. Such is not true of pain and suffering while under interrogation by torture. Such pain is not incidental and/or unavoidable, it is in fact the sine qua non of the procedure.
Cheers,
March 11, 2010, 1:59 pmwumhenry says:
As I understand it, the criticism was aimed at DOJ, for refusing to disclose the names and assigned responsibilities of recently-hired lawyers who’d advocated for Gitmo detainees. You can argue with that too, but it’s a little harder to work up a full head of froth over it.
March 11, 2010, 2:25 pmjukeboxgrad says:
Calling the lawyers “The Al Qaeda Seven” and asking “WHOSE VALUES DO THEY SHARE” is not a criticism “aimed at DOJ.” It’s a criticism aimed at the lawyers.
The names were accessible to the public, so there was no “refusing to disclose.” If you ask me what the top headline is on NYT today, and I tell you to go find out yourself, I am not “refusing to disclose.”
March 11, 2010, 2:46 pmwumhenry says:
It would have sufficed for Margolis to say that his critique of OPR’s analysis was not intended to imply, and did not imply, that he agreed with Yoo’s conclusions. In fact, he did say that, near the beginning.
I read Margolis’s memo, and I don’t recall it saying that punishment would be in order if Yoo were still employed at DOJ. Please quote the statement you’re referring to.
I do recall the comment that it was a “close question” whether Yoo had been deliberately or recklessly deceitful. Margolis tossed that in at the end without explanation, and it isn’t supported by the preceding analysis.
March 11, 2010, 2:50 pmmetro11 says:
The U.S. Court of Appeals for the 3rd Circuit ruled that the Yoo/Bybee legal analysis was correct. See here:
http://article.nationalreview.com/393415/the-justice-departments-torture-hypocrisy/andrew-c-mccarthy
To say the Yoo/Bybee legal analysis was obviously wrong is a liberal talking point – it is not substantive analysis. At best, reasonable and bright people disagree about the Yoo/Bybee legal analysis. If you disagree with Yoo/Bybee then you also disagree with the 3rd Circuit. In short, government lawyers should not be hounded and/or made the subject of possible disbarment proceedings because an Administration from a different political party comes into office.
To get back to the original post, reasonable and bright people can also disagree whether they would be comfortable representing accused terrorists – and whether putting such lawyers in high government positions is wise and/or should be criticized.
March 11, 2010, 4:15 pmjukeboxgrad says:
metro, you are citing that article now for the fourth time even though you’ve been shown proof that it’s garbage, and even though you have said nothing to acknowledge or address that proof. There’s a word for people who do what you do: troll.
March 11, 2010, 4:28 pmleo marvin says:
Considering how what he did say has been falsely spun by Yoo and others as a complete exoneration, I don’t see how Margolis can be criticized as having been too critical of Yoo.
You may be right. I don’t have time to go through Margolis’ memo again, and I’m not certain that’s where I saw it stated that Yoo would have been subject to DOJ punishment.
March 11, 2010, 5:22 pmmetro11 says:
jukeboxgrad:
you and i disagree over the National Review article, the opinion of the 3rd circuit and the rest of this thread, apparently. i try to do so respectfully. you engage in ad hominem attacks. you ad hominem attacks say more about you than they do about me, if my view.
i read your post above (with the link to a prior post of yours – not exactly by the Blue Book, but I read it nonetheless). you don’t respond substantively to the 3rd circuit. you say what they wrote doesn’t “pass the laugh test.” this is what is called circular reasoning.
you might consider the possibility that people may disagree with you and still be operating in good faith. sometimes – you may find this on occasion – they may event be right.
March 11, 2010, 6:50 pmmetro11 says:
leo marvin and jukeboxgrad:
I should add: I think you are missing the larger point I’m trying to make.
Even if you strongly disagree with the decision-making and/or advocacy of government attorneys (as you do with regard to Yoo/Bybee) it is utterly inappropriate to make their decision-making and/or advocacy criminal and or the basis for disbarment up the change of Administrations. (No one suggests they were acting outside the scope of their employment; reasonable people and federal courts have agreed with their view). Also, they had supervisors at DOJ. They had levels of review. To focus on them as you have shows, I think, that you want their skins for political reasons. If what they said was so wrong, then an entire chain of review at DOJ and in the fed gov’t would have to be wrong too. And I respectfully disagree with jukeboxgrad – I believe a reading of the 3rd Circuit opinion i reference above does follow the analysis used by Yoo and Bybee.
Also, I still maintain it is inconsistent for you to “go for the jugular” with Yoo/Bybee – but criticize those who question the advocacy/hiring of the AQ7. I think you are unable to take off your partisan blinders. But, as I’m sure you’ll let me know, that’s just my humble opinion.
March 11, 2010, 6:58 pmleo marvin says:
metro, please show where I’ve done what you accuse me of.
March 11, 2010, 7:44 pmjukeboxgrad says:
metro:
There was no need to “respond substantively to the 3rd circuit,” because they said nothing remarkable. But I did indeed “respond substantively” to McCarthy’s baloney. And you are indeed failing to “respond substantively” to my substantive response.
And I didn’t say “what they [the 3rd circuit] wrote doesn’t ‘pass the laugh test.’ ” This is what I said about the “laugh test:”
Are you misquoting me because you have poor reading comprehension, or because you’re dishonest? Either explanation does not bode well for your credibility.
March 11, 2010, 7:53 pmmetro11 says:
Jonah Goldberg & Andrew McCarthy on the AQ7:
http://corner.nationalreview.com/post/?q=NzgyOTE2M2Y3NzNkYmY2YjI2NzRhYTk2MDVkYjg0M2U=
March 12, 2010, 11:44 amjukeboxgrad says:
metro, Goldberg’s relationship with the truth is a lot like yours. He accuses DOJ of “keeping their identities a secret” even though the information was a matter of public record. He’s using the magic GOP dictionary where “secret” means something other than “secret.”
March 12, 2010, 1:48 pmzuch says:
From the NRO:
Huge “straw man”. Why anyone bothers listening to the blathering of Lucianne Goldberg’s offspring is beyond me, and this just puts an exclamation point on it.
Cheers,
March 12, 2010, 2:54 pmwumhenry says:
OPR predicated its recommendation on findings that the Yoo/Bybee analysis was erroneous in various specific respects. Margolis discussed each of those findings in turn and concluded, in each instance, either that there was no error or that the error wasn’t as bad as OPR made it out to be. Margolis did not essay a comprehensive critique of the Yoo/Bybee memo and did not purport to comprehensively summarize its arguments. It isn’t logically possible to deduce merely from Margolis’s discussion of OPR’s specific error findings that Yoo and Bybee reached the wrong bottomline conclusions. Margolis’s comments on that score were gratuitous and largely unsupported.
March 12, 2010, 6:22 pmChris Travers says:
Part of the problem with Yoo is that, in addition to the memos, he advocated a legal position in public debates which allowed for even the most horrific acts of torture if the president deemed it necessary. In essence Yoo advocated a position in these public debates that no Congressional law nor treaty can prevent the executive from doing whatever the President determines is necessary to keep our country safe.
The DoJ memos that Yoo authored are, IMO, somewhat out of bounds, but no so much that I would call for his disbarment. His conduct in these public debates also falls within the bounds of first amendment protection. So I don’t think there should be professional or criminal sanctions against him. Instead I think he needs to be relegated to that category of individuals whom I would defend his right to speak even though I find the contents deplorable. If nothing else, he helps provide the opportunity to rebut these positions, and undermines the positions he legally advocated by taking them in public to an extreme that few people can support.
March 13, 2010, 11:50 amChris Travers says:
BTW something to consider for those overly hostile to Yoo/Bybee (overly being relative, so take with a grain of salt).
Imagine that you work for the OLC and the CIA comes to you and says “we want to interrogate folks as harshly as we can without violating torture laws. We need guidance on where that line is.” This is a question which never should have been asked, but now that it has been asked, you have to provide an answer. Worse, it is a question with no good answers and any answer given will probably be twisted or abused.
It was clear even to the later OLC under Bush that the Bybee memo was bad advice and based on both mistakes of law and of fact. However, lawyers, being human (despite some jokes to the contrary), are apt to make mistakes. The question is whether this one mistake is so egregious that it should result in such sanctions.
March 13, 2010, 12:18 pmleo marvin says:
Doesn’t that at least argue for erring on the side of a more expansive definition of torture?
March 14, 2010, 1:23 amTom Layden says:
Dear Mr. Anderson: Is your opinion on this subject changed at all in light of the Opinion piece of Burlingame & Joscelyn in the 3/15/10 Wall Street Journal? Thanks
March 15, 2010, 10:45 am