In Defense of the Office of Legal Counsel:
This interesting letter to the editor appeared today in the Washington Post (via Howard). There isn't much there in the way of content -- given that this is only a letter to the editor and many of the details are classified, that isn't unexpected -- but the fact that the group felt motivated to object to the earlier Post editorial (and thus, indirectly, this NYT story) seems notable. Or at least it seems that way to me, in part because I know and trust a number of the individuals represented by the letter.
I am unimpressed. It is amazing that in six years so many people have come to believe that operating secret prisons and torturing people is justifiable, constitutional, legal and necessary. Then they go even further and convince themselves that it is a good idea, moral, and effective and that this administration that has been deceptive and outright lied about so many things, is being truthful when they say that this is necessary, useful and is not being abused.
And this is why it's completely unpersuasive. Yes, people who worked in OLC feel good about their office and their boss. That in no way responds to the problems with the effects of their work.
"Under Mr. Bradbury, the office [not SB himself] has also played a critical [and unspecified] role in bringing greater transparency [for David Addington's benefit] to the legal basis for the administration's policies [concerning, you know, executive stuff].
I'm not Jen, but I'm going to guess that a moral compass, honor, and respect for human dignity are in the list of reasons.
Now whether it was Cheney who let their masterful creations spoil or they sent out garbage from the start remains to be seen, but this letter does nothing to clear that up.
It seems to me that it's you who is confusing the legal analysis with policy choices. It's the role of the President to set the policy, it's the role of the OLC to analyze whether the policy is legal. As Goldberg's book makes clear, there is often a lot of pressure on the OLC from the White House. This pressure is not unique to this White House, what is unique, however, is the DEGREE of this pressure. These people, especially Attington and Cheney, just won't take no for the answer. They'll do all they can to get the answer they want.
Unfortunately, it appears that the leadership of this OLC is not able (doesn't want)to resist this pressure. In fact, it is likely that it's been put there precisely to rubber stamp the policy choices. It's astonishing that the specific CIA techniques that so clearly violate the Geneva Conventions and the DTA appear to get an approval from this OLC. It is precisely the ILLEGALITY of these techniques that is an issue.
This OLC is a joke and is shameful.
Nonsense. The editorial says;
the [OLC] has deteriorated under Mr. Bush's leadership to become the equivalent of a legal yes man.
In other words, it claims that the legal analysis is faulty.
The letter just says, in effect, "not so," with no further explanation. I'm unimpressed.
Your comment is exactly what I'm talking about... You feel that "cruel, inhumane, or degrading" treatment is bad... ergo it must be illegal.
Here's a pop quiz: What part of "the Geneva Conventions only apply to signatories (and non-signatories that abide by their terms)," i.e. a legal analysis, don't you understand?
Your analytical skills have shown themselves to be a far superior tool than your ability to trust people in the past.
I know there are a lot of missing facts and all, but, given the Bradbury memo, I can't even think of *any* hypothetical facts that would support the claims in the letter vis-a-vis that memo.
Common Article 3 of the Geneva Conventions applies to all detainees in US custody. See the Supreme Court in Hamdan.
It provides that detained persons “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever”—including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”
So, you really believe that waterboarding (taking the extreme example) does not fall under cruel treatment and outrages upon personal dignity?
The second paragraph of the WaPo editorial reads "those opinions form part of a continuing pattern, beginning in 2002 and extending until this past summer, of secret -- and highly questionable -- legal judgments by Bush-appointed lawyers . . . ." But at least the writer had the intellectual honesty to note that "Mr. Bush's executive order of July was tailored to [the Military Commissions Act]; while some techniques, such as simulated drowning, have been dropped, others are again in use." In other words, the OLC's opinions are "questionable" because we don't like the outcome; but even we have to admit the President's actions comply with the law.
@Markusha
OLC's client is the President. Pressure from OLC's client to ascertain the outer limits of what the law allows isn't a bad thing... it's OLC's job. As for the Geneva Convenctions and DTA, you make the assumption that, because they restrict Executive action in some cases, those restrictions apply in all cases. Again, conflation.
Well, you just failed the pop quiz. cruel, inhuman and degrading treatment is illegal under the War Crimes Act, International Convention Against Torture and Other Cruel, Inhuman and Other Cruel Inhuman or Degrading Treatment or Punishment (Gee, the title might give you a clue). Also, the Supreme Court has ruled that the Geneva Conventions provisions requiring humane treatment are applicable to detainees.
Please encourage your pals to strive to have the actual memos released.
Your argument is a classic version of pot calling the kettle. It's you who's conflating the prerogatives of the President (setting the policy) with the prerogatives of the OLC (determining whether the policy is legal). Although the President is the client, the OLC is still obligated to give an honest and competent advice and not shy away from saying "no." "Ascertaining the outer bounds" is not the same as saying there are no bounds.
And if these torture memos say what they are reported to say, then under the OLC's interpretation there are no bounds to President's authority to order any interrogations falling short of outright torture. This is because if waterboarding (the extreme technique that even many Republicans are uncomfortable with) is allowed, then everything else must by definition be allowed.
And yes, in Hamdan, the Supreme Court ruled that Article 3 applies to ALL actions of the President.
The lady doth protest too much, methinks.
Again, I must emphasize legal analysis (which, btw JF, includes reading a statute rather than just citing to it because you think it says something):
The Military Commissions Act, Pub. L. No. 109-366, broadly defines "cruel &inhumane treatment" and "torture" in Section 6 as requiring, inter alia, "severe mental or physical pain or suffering." More specific definition is entrusted to the President by Section 6(a)(3), whose interpretations are "authoritative" for purposes of U.S. law. Reference to foreign and international sources of law for further definition is prohibited. Also, take note, that the term "Geneva Conventions" is precisely defined in the Act as well, and (based on quick review) it is limited to those agreements that the United States is actually a party to.
Quick recap: Regardless of how you "feel" about certain actions, the statute defines offers some "torture" and "cruel and inhumane treatment," restricts reference to other sources, and leaves further refinement up to the President. IIR, the MCA is generally considered to have narrowed Hamdan's limitation on Executive action. Result: whether a particular act is morally or politically justified is entirely separate from whether OLC's determination regarding that act is "highly questionable," in the words of the WaPo.
What bothers me is that they seem to be surprised and offended that such a controversial opinion elicited mild criticism. If I remember correctly, the worst thing they were called was yes men or something to that effect.
Decisions such as that need to be discussed vigorously. We should never expect blind deference to authority. I don't want to live in a society where it is ho-hum to torture, but unacceptable to mildly criticise those who say torture is OK.
Uh oh. I'd be worried if I was in OLC. The last time Orin said this was why he was not inclined to give full credit to the allegations re the mishandling of US attorney dismissals.
The only way they could come to that conclusion is to wilfully misread the pertinent statutes, caselaw, laws, treaties, and even the constitution. But like I said, they are in good company since there are a lot of right wing legal scholars who are willing to do just that to let Bush get away with the horrendous crimes he has committed in our name.
Well fine. The president has repeatedly said "we don't torture". I have never heard him claim that we don't treat detainees cruelly or inhumanely. If he ever makes that claim then maybe, just maybe, I will be satisfied (although I would like to have him say it under oath).
The point being, that the President has very broad authority under the statute to define what "torture" and "cruel and inhumane treatment" consist of. His definition is authoritative under the law. Just because someone feels that "waterboarding" is bad, doesn't make it illegal, because Congress gave the President the power to do the defining. Given these terms, a very strong legal opinion permitting, e.g. waterboarding, isn't that hard to generate, and criticism of OLC is misplaced. FYI, under the MCA, "torture" is merely "cruel and inhumane treatment" used for certain listed purposes.
You are often quite confident that you know the truth about things. I'm much more cautious; I side with Learned Hand that the Spirit of Liberty is the spirit that is not too sure it is right. I realize that this will mean that I am less judgmental than other people, and often less judgmental than you like. I also realize that sometimes this means I will not condemn someone early on who it later turns out should have been condemned. On the other hand, I will also be less likely to have joined in with the pack and condemned people that it later turns out not to be deserving of condemnation. Given that the issue here is condemning a very specific person, Stephen Bradbury, and I don't know much about him, I would rather wait until I know more before condemning him.
Anyways, Anonlawstudent- I've been told by people who worked in OLC during the Reagan, Bush I, and Clinton years that OLC has not traditionally viewed itself as an advocate for the President; instead, it traditionally viewed itself as the only office in government whose client is the Constitution. The excessive amount of pressure placed on OLC during the Bush II years has undermined this traditional role.
Orin, I would tend to agree with that sentiment generally. But this is about the hundredth time we are told that there are "more facts" we need to know about. At some point, you have to stop giving the benefit of the doubt to the administration and shift the burden to them. I think that point happened a long time ago. Further, the irony here is that you are dealing with people -- Bush &Cheney -- who act quite the opposite of the Spirit of Liberty. They act as if they are always right and that they and only they have the right to know everything. The biggest problem with this administration is its abject refusal to even let there be a debate on so many issues and refusal to even let the most basic of facts out -- even with Congressional leaders, they do not brief them and refuse to accept security clearances from law clerks, they have abused the states secrets doctrine, etc. The Spirit of Liberty is great when you are dealing with people who have some humility, here we are dealing with people who have none.
And as an aside, as we are in the middle of the Baseball playoffs, let me just set out this quote showing the wisdom of George W. Bush: "I made my arguments and went down in flames. History will prove me right." -- Texas Rangers owner George W. Bush after voting against realignment and a new wild-card system during a Major League Baseball owners meeting in September 1993. Bush was the lone dissenter in a 27-1 vote.
You would think after that, he would learn that he, like everyone, is not always right.
Thanks for the thoughtful response. I'm curious -- to the extent you had an opinion about them, what did you think of Jack Goldsmith, John Ashcroft, and James Comey as of around 2005?
Well, if one accepts that secrets are necessary in wartime, it might be useful to keep them. we have seen the ill effects of leaking in the not so dim past. as to thinking they are right, I hope they would think so. as to the President thinking he is doing right, I would hope he does-or, in the alternative, do you want a sitting president roaming the globe, a la Carter, decrying this country, aiding its enemies and generally announcing how bad we are?
That these gentlemen are your cites for a refreshing breeze only highlights the mephitic miasma of the administration.
However, to me at least, there are some things that define us, that are our moral compass. They include the notions that we are decent people, that torture and cruel and inhumane treatment is wrong. If we don't accept these notions, we are no longer a nation of the free.
Actually, I think the point is that we should always question authority -- even the New York Times.
In the end, without reading the memos, it will be difficult to judge them (at least for me).
However, since the authors are asking the public to take this apparent assertion on trust, it is only fair that if that turns out not to be the case, their credibility will be damaged. And it will be damaged even if Bradbury's agreements with the Bush administration have been based on colorable arguments made in good faith. For surely if the reports about the so-called new torture memos are accurate, and if there have been no further incidents in which the OLC told the White House "no" on important issues, accusing the Post of being "ill-informed" and stating that Bradbury does not hesitate to say no is not warranted, even if the authors disagree with the Post's views on the merits of the legal questions.
What it shows is that the moral and legal questions converge, and that those who conclude that waterboarding is legal can legitimately be criticized on moral grounds.
"Shocks the conscience" is a much, much higher standard than "bad."
Because their conscience should have been shocked but wasn't? Speculation on my part, I suppose, but I doubt the authors of the memos in question determined the legality of waterboarding by asking whether the practice shocked the authors' conscience. They probably applied legal authority, such as Supreme Court Eighth Amendment case law, to the question at hand.
While the Bush Administration in general may be deserving of condemnation, I'd reserve judgement (like Prof Kerr) of any specific people who had, up to that point, not been linked to previous "issues".
with that being the case, the treatment alleged doesn't shock my conscience. shall we hold a referendum on the matter-if the non-shocked side wins, it is okay and the "shocked" side will go home? what wording will we place on the referendum? does a terrorist ringleader being slapped or forced to stay in a 50 degree room shock your conscience-vote yes or no.
I don't get your response to my point. You are willing to accept someone's "trust me, there are more facts." I just think you shouldn't - not that you should assume the opposite, but that you in the past have accepted the "trust me" routine, and that its failed. I've never said I knew the facts - but I think the proper thing to do with unknown facts is to treat them as unknown (while also considering the reasons why those facts may be unknown), not to give the benefit of the doubt to those that are veiling those facts.
And as I mentioned, I'm not assuming any facts about the Bradbury memo - I just don't see any set of facts that might exist that would credit the memo as a neutral advisory piece of "unimpeachable integrity and sound judgment." Maybe you can provide some hypothetical facts that, if proven true, would absolve the memo of its apparent taint? I cannot - maybe a lack of imagination on my part.
Here is the statement of one of the losers who worked for OLC under Bork:
So says some dude named Frank Easterbrook- I think he's got some dead-end job in Chicago now.
I think you and I are disagreeing about what the letter says. It seems that you are interpreting it as a defense of OLC's work product generally, or maybe a defense of a specific unnamed memo. I read the letter differently; it seems to be a defense of the integrity and role of Stephen Bradbury as the leader of OLC. I don't know Bradbury or know the dynamics of OLC under him; do you?
Sen. Clinton: Well I think I've been very clear about that too, we should not conduct or condone torture and it is not clear yet exactly what this administration is or isn't doing, we're getting all kinds of mixed messages. I don't think we'll know the truth until we have a new President. I think once you can get in there and actually bore into what's been going on, you're not going to know.
(An exercise in parataxis.)
--As for the broader point re: Mr. Bradbury, I agree with Prof. Kerr, and am eager for the relevant memos etc. to be publicly disclosed, so that we can all come to a more informed conclusion.
Might have been more convincing had you entitled the original post "In Defense of Stephen Bradbury".
Yes, that was the Post's title. I guess I assumed that individuals would actually read the letter before criticizing it. I suppose that was too optimistic.
Just a hunch about something, Pig: Are you banned commenter "MacGuffin" (aka Mark Hamstra) posting under a new pseudonym? You first appeared soon after MacGuffin was banned, and you have the same ISP.
As to Goldsmith, given the time he was at OLC, I would likely have assumed the worst about him. Some of those assumptions have been proven false, but my point still stands, I think the burden is on those in the Bush administration on these issues given the history here.
(And no, for those of you who think in terms of personal interest, I am not saying this as the disgruntled fan of a division winner that lost to a wild card team.)
And it was your title, and you presented little or nothing in the way of criticism of or alternative to that reading until after some seven hours of comments. I'm just saying that if your intent was just to defend Bradbury and not the OLC, you might have done well to provide a earlier, stronger hint to your readers.
Your hunch is incorrect in total and in more than one detail.
Doctors of rhetoric are few on the ground, not to mention that Blue Cross won't reimburse them.
By the way, like Hillary and Orin, I agree that we should reserve judgment on Bradbury until we know more facts. Too many people rushed to judgment about Goldsmith (who was denounced at Harvard) and Ashcroft, but they turned out to be principled people. But, I am not willing to give him the benefit of the doubt just because some of his co-workers ask us to do so.
Mild criticism? I believe they are being accused of being derelict or incompetent.
Well, some people take Bush appointees at their word. Some don't. I can't imagine how this letter would persuade anyone to change their opinion. In fact, as many have pointed out, the defensiveness makes them look worse.
I'll take Professor's Kerr's word that the letter-writers he knows had integrity when he knew them, but they really shot themselves in the foot with this letter.