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[Richard Painter, guest-blogging, March 28, 2009 at 10:29am] Trackbacks
Torture Memos:

I make a few points in my book.

First, the memos were requested and written before I arrived at the White House in early 2005, and furthermore this is not the type of matter that is brought to the attention of government ethics lawyers. This is part of the problem. Government ethics lawyers should be consulted in the White House and in the agencies about a wide range of matters about which they are never consulted (e.g. document retention policies, proper procedures for dismissing political appointees, etc.). Instead ethics lawyers are tied up in the infinitely complex financial disclosure system (Form 278). They are kept busy arguing with dozens of prospective nominees each year about whether all of the underlying holdings in a hedge fund need to be listed separately on Form 278 (who cares when the underlying holdings of most hedge funds change so quickly that the Form 278 will be stale in about a week).

Second, the questions answered in the memos never should have been asked. A sensible lawyer would know that.

Third, the answer given in these memos was deficient on its face. One does not have to be an expert on international law, the Constitution or the Convention Against Torture to read the memos and know that they are one-sided and rely on thin logic. The "self defense" argument justifying torture, for example, cannot be right. War, if justified at all in a civilized society, is justified principally in self defense. Torture, however, is not acceptable in war. That is the whole point of the Convention. Some of the memos argue that the Convention and other similar treaties cannot bind the President under the Constitution, but one wonders then why the United States signed them. Would the framers really want to deny to the United States the power to make binding treaties? The OLC memos at least had to recognize that there were arguments on the other side, and that the law could be different from what the OLC said it was.

Fourth, the OLC memos probably were so bad in part because the lawyers who wrote the memos, unlike lawyers who provide legal opinions to private clients, did not have to answer for them. Government lawyers don't get sued for malpractice when they give bad advice; private practice lawyers do. OLC lawyers instead get judgeships, recommendations from political superiors for private sector jobs or they go back to tenured posts in universities. In my book I call these skewed incentives the "malpractice liability gap" between the public and private sectors. I explore ways to address the gap, but as a practical matter it would be difficult to use a malpractice liability regime to hold government lawyers accountable.

Finally, there is the argument that these are no different from the one-sided opinions that OLC has rendered in the past to stretch the law as far as it will go, and sometimes further, in favor of the President's executive power. President Franklin Roosevelt used Justice Department lawyers to justify expanding his powers before and during World War II and many of his successors did the same. Still, as widely recognized by former OLC lawyers, there are limits to how far OLC can go. For an insightful analysis, see John McGinnis, Models of the Opinion Function of the Attorney General: a Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375, 434 (1993) (pointing out a difficult balancing act because the OLC is not useful to the President unless it has credibility and a reputation for independent legal analysis).

Most important, the "torture memos" took OLC into un-chartered waters. They implicated not only the Constitution and federal statutes, but international law including treaties to which the United States was a signatory. Our adherence to widely accepted laws of war hung in the balance. Our own soldiers would probably be at greater risk as a consequence. The subject matter was grotesque. The memos authorized a violation of human rights that involved human suffering. Religious leaders of all faiths around the world condemned the policy as immoral. At least one Senator heard about the matter from the Presiding Bishop of the church in which he had been raised. See Letter dated October 16, 2005 from The Most Rev. Frank T. Griswold to Senator John McCain (R AZ) (expressing appreciation for "your efforts to preserve intact the Senate approved amendment to prohibit cruel and inhumane treatment of those held in the custody of the United States"). There are not many pastors, priests, rabbis or imams who would disagree. The topic was so inflammatory and the legal reasoning in the memos so flimsy that a successor head of OLC took the unusual step of rescinding them. See Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007). For all of these reasons, this was an area for OLC to tread lightly in its quest for expanded Executive power. OLC instead chose to barge ahead heedless of the consequences.

In short, there is serious doubt about whether the questions put to OLC should ever have been asked in the first place, as well as serious doubt about whether OLC was acting responsibly in the way it answered them. A government ethics lawyer might not have been able to help, but I doubt one had an opportunity to even try.

MarkField (mail):
There have been media reports that a subsequent ethics investigation has determined that there were ethical lapses by the writers of the torture memos. Without asking you to speculate on such findings, do you believe (a) that such investigations are proper; and (b) if so, should the relevant state bars also undertake such an investigation?
3.28.2009 10:37am
Displaced Midwesterner:
"Fourth, the OLC memos probably were so bad in part because the lawyers who wrote the memos, unlike lawyers who provide legal opinions to private clients, did not have to answer for them." I'm not sure that's really true here. Effectively, the client wanted bad opinions. It wasn't an answer that was sought, but only a specific answer.
3.28.2009 10:59am
MJN1957:
You write "Our own soldiers would probably be at greater risk as a consequence"...

Taking that argument at face value, could you please give an example of exactly what you would consider "...(A)t greater risk" considering the foe-at-hand's propensity to like, you know, literally behead their living 'prisoners of war' as a political statement while video taping it for prosperity? (Which they were doing LONG before we pursued and captured their 'soldiers' on the field so any tit-for-tat argument is moot.)

I'd never suggest that we should do the same...but if your argument is that we must hold the high moral ground so as to swathe our soldiers in some fanciful cocoon of "lesser risk", certainly you have some opinion as to what constitutes a 'greater risk' than what our soldiers faced prior to us hauling a single P.O.W. out of a ditch!

As to the ethics of it all, I am pretty confident that those 'ethics' are just as conditional as every other 'ethic' held by the left which follows the credo "We can do no wrong, You can do no right". Unfortunately, the OLC in question had the unfortunate circumstance of giving their advice to an unfavored President.

Write the exact same memo today and it would be seen as a stroke of legal brilliance, the likes of which has never been seen before and likely will never be seen again.
3.28.2009 11:12am
John (mail):
The posted comments are just not convincing of anything because of the lack of any specificity. Just general denunciations. Perhaps the denunciations are warranted, but you can't tell from the post.

Is there a quote you could give us from the memos that displays the lawyer's reasoning? Could you then show that a precedent he relied on doesn't say what he says it does? Or that the argument you quote is flawed in some other way?

Just going on, and on, and on characterizing the memos as faulty--while quite possibly justified--is extremely tiresome and very unhelpful to readers who haven't already made up their minds. And for those who have made up their minds, preaching to the converted (or unconverted) is not a good use of space.
3.28.2009 11:16am
ObeliskToucher:
...furthermore this is not the type of matter that is brought to the attention of government ethics lawyers. This is part of the problem. Government ethics lawyers should be consulted in the White House and in the agencies about a wide range of matters about which they are never consulted...

We are important! Attention must be paid!

Models of the Opinion Function of the Attorney General: a Normative, Descriptive, and Historical Prolegomenon

I felt drowsy just reading the title... is there hope that this isn't just deconstructive gobbledygook?
3.28.2009 11:16am
Oren:

Would the framers really want to deny to the United States the power to make binding treaties?

No, but they also wouldn't empower past Senates to bind future Senates when making a treaty. I would read an implicit right of the President, in concurrence with 2/3rds of the Senate, to withdraw unilaterally from any treaty.

Other than that, this post is spot on (I've been quite a fan of the entire series, actually, thanks for posting.)
3.28.2009 11:42am
Xanthippas (mail) (www):

Is there a quote you could give us from the memos that displays the lawyer's reasoning? Could you then show that a precedent he relied on doesn't say what he says it does? Or that the argument you quote is flawed in some other way?


There are about 1,000 blog posts in the blogosphere that do exactly that. Here is one specifically, that deals with the self-defense argument.
3.28.2009 12:02pm
Xanthippas (mail) (www):
Also, it should be noted that the OLC specifically denounced some of these arguments in the days before it the Bush administration came to an end, which is what prompted the latest round of outrage over the memos. I'm guessing that Painter presumes that we informed readers already know that.
3.28.2009 12:05pm
wheres the beef:
I respectfully disagree with many of the arguments in Painter's post.

(1) Painter's long post does not give any specific citation to any contention in the memos. He just states without evidence that their conclusions, which are typically buttressed by detailed legal analysis, are wrong, incompetent, and immoral. If some specific statement in their legal analysis was so wrong, incompetent, etc., why not cite it exactly? It seems to me fundamentally unfair to characterize legal reasoning as "incompetent" without addressing more specifically the errors in that reasoning.


(2) Let's look more closely at some of Painter's complaints:


Most important, the "torture memos" took OLC into un-chartered waters.

These "un-chartered waters" had to be addressed because there had never been an attack of the nature and severity on American soil. So this is not a valid criticism of the memos.

They implicated not only the Constitution and federal statutes, but international law including treaties to which the United States was a signatory. Our adherence to widely accepted laws of war hung in the balance.

The first sentence is not a criticism, and the second sentence is the specific point addressed in the memos.

Our own soldiers would probably be at greater risk as a consequence.

The memos give advice on constitutionality and legality of certain practices, not their military advisability. Whether something is legal is different from whether that thing is a good idea militarily (i.e. whether it endangers soldiers). It is nonsensical to criticize a legal analysis for reasons of military necessity - for example, it might have been legal to invade Iraq, but that has no bearing on whether doing so endangered soldiers. We don't want lawyers at the OLC opining on military strategy - only on the legality thereof.

The subject matter was grotesque.

Congress passed a statute making illegal the infliction of severe physical pain in certain circumstances, the so-called anti-torture statute. OLC was asked to construe that statute. Construing the statue requires parsing its terms and reviewing the case law. The case law consists mainly of descriptions of acts that are "grotesque". Why criticize OLC for that?

The memos authorized a violation of human rights that involved human suffering. Religious leaders of all faiths around the world condemned the policy as immoral.

The memos are answering a legal question, not a religous one. Whether religious leaders of all faiths view the policy that the memos argued was legal as immoral is not relevant to any legal analysis the memos could give. Just as we don't want OLC attorneys opining on the best military strategy, we don't want them polling religious leaders either: we want them to state the law accurately.

The legal reasoning in the memos so flimsy that a successor head of OLC took the unusual step of rescinding them. See Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007).

Goldsmith does not seriously address the memo's legal arguments themselves. He, like Painter above, just substitutes invective "(e.g. "bad defense counsel's brief", p. 149, or "other questionable statutory interpretations, p. 145) for specific criticisms. In the two places in his book Goldsmith does address specific parts of the memo, he just misquotes or misreads them. For example, on page 148 Goldsmith changed the memo's phrasing that Congress could not regulate the interrogation of battlefield combatants without impinging on the President's commander-in-chief authority to the far more charged term detainees. And similarly, the famous "organ failure" test from the actual test ("severe pain" is pain whose level is the level that would ordinarily be associated with severe physical injury) to the ridiculous formulation that "severe pain" must actually cause severe physical injury. Nobody who verified Goldsmith's quotes could take his analysis seriously: he just changes what the memos said into something they did not say, then inveighs against the changed wording.

I would expect that within the hundreds of pages of legal analysis produced by the OLC, on very short notice, on incredibly complex areas of law, would contain some infelicities or inartfully drafted sentences. But the invective piled on the memos, invective almost never supported by any substantive legal analysis, is on the one hand not justified legally and on the other hand much, much sloppier than the memos themselves.
3.28.2009 12:15pm
John Martin:
Lawyers in practice are encouraged to write opinions that (1) make their clients happy; (2) or encourage their clients to hire them for more work. Just try and find a patentability report that says "Nope. you can't patent this invention of yours." At least the OLC, is not getting more business/revenue based on their determinations in the torture memos.

Regarding torture of the enemy endangering America's soldiers, I posit that if America had/has a reputation of being hard on captured Jihadi's it will make our soldiers safer - because America, as an enemy, will be more fearsome.

As posted by a commenter above, captured American soldiers will always be subject to likely torture and summary execution for all foreseeable military conflicts. Standing against torture, whatever that means, does not make them any safer.
3.28.2009 12:18pm
Anderson (mail):
I would read an implicit right of the President, in concurrence with 2/3rds of the Senate, to withdraw unilaterally from any treaty.

So you would think, but it's my understanding that a simple majority of the Senate and House can enact a statute (barring the veto) which abrogates a treaty provision.

Not only does it seem silly to let a majority undo what it took 2/3 of the Senate to achieve, but allowing the House that power has never seemed consistent to me with the Framers' evident intention to exclude the House from treaty matters.
3.28.2009 12:19pm
Anderson (mail):
Most important, the "torture memos" took OLC into un-chartered waters.

These "un-chartered waters" had to be addressed because there had never been an attack of the nature and severity on American soil. So this is not a valid criticism of the memos.


Like a signed confession of the writer's stupidity. Thank god for internet pseudonyms.

Because America was attacked, the legality of torture "had to be addressed"?

Here's a link for you: non sequitur. The title is too big a word for ObeliskToucher, but you might take a shot at reading the article nonetheless.
3.28.2009 12:24pm
OrinKerr:
Just going on, and on, and on characterizing the memos as faulty--while quite possibly justified--is extremely tiresome and very unhelpful to readers who haven't already made up their minds. And for those who have made up their minds, preaching to the converted (or unconverted) is not a good use of space.

John, have you read the memos? Why not just go read them and make up your mind yourself, rather than "going on and on" about how no one is analyzing them in ways that you find personally appealing?
3.28.2009 12:38pm
Anderson (mail):
Btw, I should join Oren in thanking Mr. Painter for his series. I do wish there were chain-links (if that's the term) at the bottom of his posts, as is typically done with series posts at the VC.

(These might even lead the interested reader back to a post linking to Mr. Painter's book, which he is positively "ethical" in not promoting via links in his posts.)
3.28.2009 12:41pm
Visitor Again:
I rather think Painter didn't address specifics because at this point he didn't think he'd have to. Never overestimate the commenters on the Volokh Conspiracy.
3.28.2009 12:45pm
spook:
John Martin writes:

Lawyers in practice are encouraged to write opinions that (1) make their clients happy; (2) or encourage their clients to hire them for more work. Just try and find a patentability report that says "Nope. you can't patent this invention of yours." At least the OLC, is not getting more business/revenue based on their determinations in the torture memos.

The last sentence of that paragraph seems to eviscerate what came before. If OLC were dissolved and presidents could look to the private sector for this sort of advice the same way companies look to patent counsel for advice about patentability or infringement, then we'd have a legitmate complaint about institutional incentives to tell clients what they want to hear.

Partner @ Covington &Burling: Hi. I'm calling to give you an update on that matter you retained us for. We've researched the issue, and I'm afraid that there's simply no legal justification for torturing al-Qaeda.
White House Chief of Staff: Hmm. Obviously we're a bit disappointed, but we understand. Are you sure, though? al-Qaeda doesn't sign treaties or recognize the laws of war, and they most certainly attacked us on 9/11.
Partner: I'm sure. I had 3 of my smartest associates research the issue to death and I looked into it too. Our obligation not to torture is broader than just a contract with other countries.
White House Chief of Staff: So the research is done and this isn't a tentative conclusion?
Partner: Right. If you want, we can write it up and send it to you this week.
White House Chief of Staff: Don't bother writing it up. Thanks for your help on this. Remember to shred everything, and please send us the bill by the end of the month. Have a good weekend.

[hangs up phone]

White House Chief of Staff: Let's see what Gibson Dunn thinks of this.
White House Deputy: Yes, sir. I have their contact information here.
3.28.2009 12:49pm
MatrixArchitect:

Because America was attacked, the legality of torture "had to be addressed"?


A definition of torture had to be discerned in order to know what the law barred and what it did not, so as to enable law enforcement to take stock of what steps could be taken to address the new realities. Torture, as a term of art in the legislation prohibiting it, was a valid focus of the memos. The useful phase for you're post here is straw man, of which I have no link for you.
3.28.2009 12:50pm
Anderson (mail):
As posted by a commenter above, captured American soldiers will always be subject to likely torture and summary execution for all foreseeable military conflicts. Standing against torture, whatever that means, does not make them any safer.

I confess to finding Mr. Martin's objection plausible in part. The "golden rule" argument against torture is not likely to be effective when we're fighting, say, al-Qaeda (which, [brokenrecord] is not even a state actor at all but a criminal gang[/brokenrecord], and thus not the sort of entity that Geneva is meant to deter or compel.

Still, we do see in WW2 the Germans treating British and American POWs better than many others, not least because we had German POWs and the Germans feared retribution if they were too beastly in general to our captured troops. If even the Nazis could be deterred in this way, then that tells us something.

The arguments against torture are moral, practical, and policy-based. It's evil, and it's a lousy way of getting information. People who will give up valid intel under torture would probably have given it up anyway; those who won't, probably won't under torture, either. And re: policy, the historical record shows that torture is invariably abused and spreads far beyond any "reasonable limitations" set upon it. Cf. the French experience in Algeria.
3.28.2009 12:52pm
einhverfr (mail) (www):
Yes, one more thanks to Mr Painter for this series. And I think this is an insightful discussion as to the ethics involved in the torture memo dispute. FWIW I agree fairly strongly with Mr Painter and I suspect Wheres the beef has been watching too much "24."

However, I have one minor disagreement. I do think that at some point, given a number of circumstances (including the popularity of torture-portrayals on TV in regards to the fight against terrorism and their effect on Westpoint students), there was going to have to be some feedback on the issue sooner or later. So my concern was much more with the substance of the memos than with their existance. The big issue involved IMO was that the OLC took the viewpoint it did, not that it addressed the subject matter. IMO, the OLC should have taken a strong opinion against torture, but they declined to do so.

Saying that the question shouldn't have been asked suggests to me that the alternative would be to torture first and ask questions later, which seems even more irresponsible.
3.28.2009 12:55pm
Anderson (mail):
so as to enable law enforcement to take stock of what steps could be taken to address the new realities

"Law enforcement" -- the FBI -- already knew how to interrogate prisoners. They did it for a living.

So did the military. They had a manual on the subject.

CIA did not know how to interrogate prisoners. So instead of turning to people who did, they dusted off the old torture manuals and turned to people who could reverse-engineer our torture-resistance training.

France in 1914 did not need to resort to torture. Neither did Britain in 1940. I would be ashamed to compare 9/11 with the national emergencies faced by those countries.
3.28.2009 12:57pm
mls (www):
I agree with much of what is stated in the post, but I don't understand how government ethics are implicated here. Legal ethics are implicated, as Mark Field suggests, with regard to whether the OLC memos complied with professional standards, but one would not expect that question to be raised in advance. Eg, John Yoo to OPR- could you read these memos and tell me if I am committing malpractice?
3.28.2009 12:58pm
wheres the beef:
OrinKerr writes,

Just going on, and on, and on characterizing the memos as faulty--while quite possibly justified--is extremely tiresome and very unhelpful to readers who haven't already made up their minds. And for those who have made up their minds, preaching to the converted (or unconverted) is not a good use of space.

John, have you read the memos? Why not just go read them and make up your mind yourself, rather than "going on and on" about how no one is analyzing them in ways that you find personally appealing?


Because Painter is trying to make the point the memos are horrible. So he is the one who should point out the exact reasoning errors the memos make.
3.28.2009 1:05pm
Anderson (mail):
but I don't understand how government ethics are implicated here

Good point. I think perhaps they could've provided some assistance as regards the *process*.

Decisions about torture, abuse, and indefinite detention were made through an informal network that deliberately bypassed agencies and persons who had (1) relevant expertise and (consequentially) (2) predictable opposition to the program. Think of Taft at State's legal section, or Alberto Mora and the JAG's.

I would imagine, and perhaps Mr. Painter can speak to this, that part of a gov't ethics lawyer's advice would be for the process to work more openly. "Those who do evil hate the light" does not logically imply that all who hate the light are doing evil, but sometimes it's a big hint.
3.28.2009 1:09pm
Anderson (mail):
Because Painter is trying to make the point the memos are horrible. So he is the one who should point out the exact reasoning errors the memos make.

No. He is working from the obvious, widely accepted fact that the memos are horrible, and making points going from there.
3.28.2009 1:11pm
Oren:

Congress could not regulate the interrogation of battlefield combatants without impinging on the President's commander-in-chief authority

Wow.

Article I Section 8. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

How much more clear does it have to be?
3.28.2009 1:22pm
mattski:
try this also if you believe that

he is the one who should point out the exact reasoning errors the memos make.
3.28.2009 1:23pm
trad and anon (mail):
No. He is working from the obvious, widely accepted fact that the memos are horrible, and making points going from there.
Exactly. There is no point in going over what others have said hundreds of times before, including on this blog. Commenters who still insist on believing that the memos were legitimate objective opinions are not going to be convinced by a specialist in legal ethics making the same points less well.
3.28.2009 1:24pm
Bart (mail):
[T]his is not the type of matter that is brought to the attention of government ethics lawyers...Second, the questions answered in the memos never should have been asked.

In "The Terror Presidency," Jack Goldsmith was spot on in his lengthy critique of the recent "judicialization" of war where war policy is being made by attorneys. However, in the age of lawfare being waged against our nation by enemies and their sympathizers, the President must consult with attorneys to defend the nation on this new front.

Some of the memos argue that the Convention and other similar treaties cannot bind the President under the Constitution, but one wonders then why the United States signed them. Would the framers really want to deny to the United States the power to make binding treaties?

Treaties have never been considered permanent. Rather, they are agreements between nations that are abided by so long as they are mutually beneficial. The Executives of nations have traditionally entered into and withdraw from treaties at will. The Founders did not want our President to bind the United States to a treaty without approval from Congress and thus had the Constitution require ratification by the Senate. Given there is no similar check to withdraw from treaties, the Constitution leaves that power with the President.

The OLC memos at least had to recognize that there were arguments on the other side, and that the law could be different from what the OLC said it was... [T]here is the argument that these are no different from the one-sided opinions that OLC has rendered in the past to stretch the law as far as it will go, and sometimes further, in favor of the President's executive power. President Franklin Roosevelt used Justice Department lawyers to justify expanding his powers before and during World War II and many of his successors did the same.

Still, as widely recognized by former OLC lawyers, there are limits to how far OLC can go. For an insightful analysis, see John McGinnis, Models of the Opinion Function of the Attorney General: a Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375, 434 (1993) (pointing out a difficult balancing act because the OLC is not useful to the President unless it has credibility and a reputation for independent legal analysis).


OLC is not an independent quasi judiciary or legislature setting policy for the Executive. Rather, it appears that the historical purpose of OLC has been to provide the Executive with legal arguments to support its policies. In the age of lawfare, this function is more important than it was during WWII. Of course, even when OLC is acting as an advocate for the Executive, it must provide sound analysis and address potential liabilities.

Our adherence to widely accepted laws of war hung in the balance. Our own soldiers would probably be at greater risk as a consequence.

There is no historical basis for this wishful thinking. Our past voluntary extension of GC POW privileges to enemies who did not qualify for them did not cause those enemies to reciprocate. In every single major war since WWII, our captured military have been abused far worse than any treatment meted out to al Qaeda. Indeed, al Qaeda's policy is to torture our captured soldiers to death to damage our war morale.
3.28.2009 1:26pm
Anderson (mail):
Commenters who still insist on believing that the memos were legitimate objective opinions are not going to be convinced by a specialist in legal ethics making the same points less well.

... Enter Bart, stage right.
3.28.2009 1:29pm
Pro Natura (mail):

Neither did Britain in 1940. I would be ashamed to compare 9/11 with the national emergencies faced by those countries.


Actually there are cited references in the recent biography of Churchill, Warlord, to suggest that the Brits did torture POWs during WW II when they thought that vital information was at stake; and the methods used were not always as benign as water-boarding. If I had not given the book to a friend, I'd search them out for you.

It is well-known that both Britain and the US executed recalcitrant spies in the presence of their comrades to elicit information and cooperation from the survivors. I'd argue that this is an extreme type of psychological torture.

Although less authoritative, I can remember several occasions where relatives and parents of friends talked about instances during WW II of POWs' being tortured to elicit life-saving information. My recollection is that my sources were clear in their accounts that there was tacit acceptance up and down the chain of command for limited use of these techniques.
3.28.2009 1:30pm
Randy R. (mail):
John Martin: "Standing against torture, whatever that means, does not make them any safer."

Perhaps that is true. But the real question is: Does standing FOR torture make our troops any safer? I don't see any evidence of that, but if there is, please let us know. As another noted, the Nazis decided that being for torture didn't get them information or make their soldiers any safer.

Now, if you are for torture as a tit-for-tat sort of thing, that they torture us, so we torture them, then you might have an argument for torture as a method of punishment. But that still hasn't gotten us the inforamation we need from the enemy.
3.28.2009 1:36pm
wheres the beef:
Anderson writes:

wheres the beef writes:

Because Painter is trying to make the point the memos are horrible. So he is the one who should point out the exact reasoning errors the memos make.

No. He is working from the obvious, widely accepted fact that the memos are horrible, and making points going from there.


You make two claims, but one is incorrect and one is irrelevant.

The incorrect claim is that it is "obvious" that the memos are horrible. I don't think even most detractors claim that - the memos are so complicated, most lawyers would not be familiar with all the areas of substantive law they address, for that matter. For example, the precise effect of the legislative history of treaty reservations to a statute implementing that treaty; or the nuances of military law. If it were obvious the memos were horrible, the specific aspects would have been quoted, but even Goldsmith does not do that.

The irrelevant claim is that it is "widely accepted" that the memos are horrible. The question is whether the memos are horrible, not whether there are fifty thousand blog posts complaining about the memos. Yes, of course there are fifty thousand blog posts complaining about the memos, and there are a thousand editorials complaining about them, and various television commentators have produced hours of indignant criticism. (Maybe the memos are horrible because they have increased global warming thanks to all the hot air expended at them). And yes, the most visible critics of the memos have mainly gotten jobs in the new Administration.

But none of these thousands of blog posts and editorials and television commentators or new appointments to the OLC is relevant to the question of whether the legal reasoning of the memos is actually horrible, because none of them, that I have seen anyway, actually correctly states exactly (a) what the memos argued and (b) why the memos' legal analysis should be considered "horrible." All the criticism is either result-oriented ("American soldiers will die because of this memo") or it just mis-states what the memos say (e.g. the Wendel articles, Goldsmith book, Koh lectures, etc.).

It's not a relevant legal argument to say that the legal analysis of the memos is horrible because it is widely accepted that they are horrible, because you need some evidence this wide acceptance, at some point, is actually based on correct assessment of the legal analysis of the memos.
3.28.2009 1:47pm
Anderson (mail):
Pro Natura, it's a bit tough for me to be persuaded by, or to argue against, uncited anecdotes. From what I know of British and American interrogation practice -- as opposed to the amateur efforts of troops in the field, who we know frequently executed prisoners in violation of law -- torture was not used.

I've seen the d'Este book on Churchill you mention, and will examine same next time I run across it in library or bookstore. Churchill, of course, had no trouble ordering carpet bombing, so his deeds are less exemplary than his rhetoric, as here in his famous lines from The World Crisis:

All the horrors of all the ages were brought together, and not only armies but whole populations were thrust in the midst of them.... Every outrage against humanity or international law was repaid by reprisals.... No truce or parley mitigated the strife of the armies. The wounded died between the lines: the dead mouldered into the soil. Merchant ships and neutral ships and hospital ships were sunk on the seas and all on board left to their fate, or killed as they swam. Every effort was made to starve whole nations into submission without regard to age or sex. Cities and monuments were smashed by artillery. Bombs from the air were cast down indiscriminately. Poison gas in many forms stifled or seared the soldiers. Liquid fire was projected upon their bodies.... When all was over, Torture and Cannibalism were the only two expedients that the civilized, scientific, Christian States had been able to deny themselves: and they were of doubtful utility.
3.28.2009 1:50pm
Bill Kilgore:
I appreciate Orin glossing over Anderson's embarrassing 12:24 comment, I presume he did so in order to give license to all other commenters to mock stupidity.

For everyone being tortured by Anderson's inability to put together any argument besides "we all agree that X is bad so X must be bad," recall that the last time he attempted to make a substantive rebuttal of the memos in question, he was found clinging to the Youngstown absence as proof of the memos failure. When it was explained to him that Youngstown was inapposite based on past OLC opinions, and its inclusion would have been indicia of incompetence, Anderson simply disappeared. Later to reappear with a another complete non-argument- which we once again get to see here.

Someone like that should probably refrain from calling people stupid, particularly since the host of the site has asked us to refrain from such. Of course, since Anderson demonstrates such moral superiority in his talking points, I'm sure its OK that his useful legal analysis is essentially non-existent. In short, if all you got is moral vanity, pose once so we can see you and move on so that the people interested in legal analysis can talk. If you've got an actual argument make it.

Oh, and was that Balkinization link supposed to be a demonstration of shoddy analysis- if so, you have found a fine illustration.
3.28.2009 1:50pm
John Martin:
Randy R.,

I object to "it's for the troops" being tossed into the argument.

Either torture works or doesn't. Either it is unlawful or it isn't. Those are the questions. I reject the morality question, in the sense, that if society finds torture so immoral then society should make torture unlawful.

The broad definition of torture makes the "pro-torture" position difficult to support. The word "torture" is ineffective for argument. Depending on who you ask torture ranges from harsh language and bright lights to fingernail pulling, with water-boarding somewhere in the middle.

However, I do know that I would gladly exchange a few minutes of water-boarding and harsh language, for this damn paralyzingly painful frozen shoulder I have been dealing with for the last few months. On the other hand, I wouldn't make the same deal for months of sensory deprivation.
3.28.2009 1:58pm
RPT (mail):
"Beef:

These "un-chartered waters" had to be addressed because there had never been an attack of the nature and severity on American soil. So this is not a valid criticism of the memos."

As noted above, this is a complete non sequitur. This was not a "world-changing" event. First, Pearl Harbor was worse from a military perspective. Second, all of the relevant institutions knew what to do and how to do it (spare us the discredited firewall argument) save for their lame leadership. Unfortunately the relevant actors were more concerned with lucrative but unnecessary missile defense issues focused on in early 2001 instead of paying attention to the relevant terror attack warnings. Third, the new actors of the Bush administration (Bush, Cheney, Rice, Feith, Wolfowitz, among others) were also pretty clueless as to actually manage the conflict once it started. They were very good at partisan, ideological and bureaucratic infighting warfare, battles over the accumulation of executive power, eliminating oversight, etc, but they had had little idea what to do in the real world (except "find me an excuse to attack Iraq"). This is one of the lessons of the morning of 9.11. "My pet goat", indeed, and Cheney's primary concern for his own protection. They also looked only to neo-com/Republican sources for help and guidance. Skillful leaders would have asked for and taken help form anyone and everyone. And from this they were led right into the stupidity of the counterproductive torture, etc strategy.
3.28.2009 1:59pm
Anderson (mail):
The incorrect claim is that it is "obvious" that the memos are horrible. I don't think even most detractors claim that.

You are mistaken.

the memos are so complicated, most lawyers would not be familiar with all the areas of substantive law they address, for that matter

The memos are not, in fact, "so complicated." They're simplistic. Any lawyer who passed Con Law, for instance, was able to read the August 2002 torture memo and ask himself, "what about Youngstown Sheet &Tube?"

What's "widely accepted" may not matter to you -- you may not believe the Holocaust occurred, or that the WTC really collapsed because it was hit by jetliners. But at this point, with the OLC retractions and the many criticisms lodged against the memos, I think the burden of proof lies with those who would argue they're actually sound examples of the legal art.
3.28.2009 2:00pm
Anderson (mail):
When it was explained to him that Youngstown was inapposite based on past OLC opinions

Care to link to that? I don't recall the occasion, apparently because I "disappeared" (which probably means, "had responsibilities outside the internet").

As for demonstrating moral superiority ... well, yeah. It's not actually very difficult to be morally superior to people who advocate or defend torture. I'm sorry if that surprises you.

As for "stupidity," well, there's name-calling, and then there's actual demonstration. Are we not supposed to believe that some arguments are just plain stupid? Or are they just "differently abled"? "Intellectually challenged"? "Logically diverse"?

Please identify the politically correct adjective you would suggest for non sequiturs that demonstrate the absence of logical, intelligent thought.
3.28.2009 2:05pm
Oren:

Given there is no similar check to withdraw from treaties, the Constitution leaves that power with the President.

Why the President? One could just as well write:

Given there is no authority granted for the President to withdraw from treaties, the Constitution leaves that power with the Senate.
3.28.2009 2:07pm
OrinKerr:
Bill Kilgore writes
I appreciate Orin glossing over Anderson's embarrassing 12:24 comment, I presume he did so in order to give license to all other commenters to mock stupidity.
Earth to Bill Kilgore: This is Richard Painter's thread, not mine: I am not going to go moderating his comment thread without his prior permission.

If it were up to me, I would delete several of Anderson's comments here; delete Bill Kilgorer's; and then ban Bill Kilgore for being the kind of nasty and bad faith commenter who lowers the quality of the blog. But this is not my thread.
3.28.2009 2:09pm
Bill Kilgore:
Orin, I didn't ask you to "moderate," but in any case I think it would be best if you didn't make direct personal attacks. If that is too much too ask of you, please advise me of same.
3.28.2009 2:15pm
Anderson (mail):
If it were up to me, I would delete several of Anderson's comments here

Well, coming from Prof. Kerr, that does give me pause. My apologies.

("Several"?)
3.28.2009 2:17pm
MarkField (mail):

The incorrect claim is that it is "obvious" that the memos are horrible. I don't think even most detractors claim that - the memos are so complicated, most lawyers would not be familiar with all the areas of substantive law they address, for that matter. For example, the precise effect of the legislative history of treaty reservations to a statute implementing that treaty; or the nuances of military law. If it were obvious the memos were horrible, the specific aspects would have been quoted, but even Goldsmith does not do that.


You'd be wrong -- most detractors DO claim that the torture memos are horrible on their face.

Nevertheless, there are numerous deconstructions of the memos on the internet. You can find some here.
3.28.2009 2:18pm
Interlocutor (mail):
Given the extensive and thorough treatment that the torture memos have received on the blogosphere and in print, it's hard to take seriously many of the comments complaining that Mr. Painter did not address their substance. It's been done, and it wasn't the point of his post. The post itself was very good, I thought, although I am curious exactly where in the process of OLC memos ethics lawyers would be brought in (or is the suggestion specific to subject matter, specifically torture?).

I'd like to add my name to the list of people who appreciate Mr. Painter's posts. I have disagreed with many, but they are notable for their thoughtfulness.
3.28.2009 2:19pm
OrinKerr:
Bill,

Your comment was a direct personal attack on Anderson, in which you indicated your false understanding that I had made a decision as to how to moderate the thread. If you want to play "victim," feel free, but it only makes you look silly.

I've looked though your past comments, and they reflect considerable difficulty complying with our comment policy. If it is too much to ask of you to comply with the rules, please advise me of same.
3.28.2009 2:21pm
ArthurKirkland:
If there is any reason ethical proceedings against Yoo, Bybee, Addington and a half-dozen or so others should not be underway already, I can't find it. For defenders of the memoranda and authors, who have the weaker hand by far as judged in the court of public opinion, it would provide an opportunity for vindication. For those who believe misconduct occurred, disbarments would bring the authors to justice, provide guidance for the next round of frightened reaction, and protect mankind against recurrence.

The case for allowing civil claims to proceed seems more complicated, but I would not reflexively oppose giving victims a day in court against torturers and their enablers.

Let the trials begin!
3.28.2009 2:25pm
trad and anon (mail):
Why the President? One could just as well write:

Given there is no authority granted for the President to withdraw from treaties, the Constitution leaves that power with the Senate.
Or: Given there is no authority granted for the President to withdraw from treaties, the Constitution leaves that power to Congress to withdraw by law signed by the President or passed over his veto. There's precedent supporting a unilateral Presidential power of withdrawal though: Carter purported to withdraw the U.S. from the SALT II treaty, and the Supreme Court plurality upheld the withdrawal under the political question doctrine (the fifth Justice argued that the question was not ripe). It's not clear what would happen if the President purported to withdraw from a treaty and the Senate declared the purported withdrawal void.

In any case, the President has not purported to withdraw the United States from the relevant treaties, so the President's power to do so (or lack thereof) is completely irrelevant.
3.28.2009 2:29pm
Bill Kilgore:
I had assumed you had a general objection to personal attacks on the site, I was wrong.

I did not play the victim, I suggested you refrain from personally attacking me- albeit with some poor spelling. You have elected not to do so. I'll not waste anymore of anyone's time on this issue and I will not comment here again.

My apologies for the interruption Mr. Painter, my conduct has not been worthy of your efforts at this site. Please forgive my intrusion.
3.28.2009 3:13pm
Oren:

Carter purported to withdraw the U.S. from the SALT II treaty

SALT had a withdrawl clause. The President was merely exercising the power granted by the treaty.
3.28.2009 3:20pm
Anderson (mail):
When it was explained to him that Youngstown was inapposite based on past OLC opinions, and its inclusion would have been indicia of incompetence

Well, now that Mr. Kilgore's bowing out, I still don't know what this "explanation" was; Google hasn't pointed me to it, that I can find ("Bill Kilgore" Volokh Youngstown).

That search got me to this comment --

The defense on the Youngstown issue is that a prior string of OLC memos had always treated that as pertaining to domestic power, not power abroad. There was a post on Balkinization trying to debunk that defense but essentially admitting that it's not as crazy as it might first sound.

-- sans link, which I don't see particularly explains things.

So I'm still at a loss here.
3.28.2009 3:23pm
wheres the beef:
Interlocutor writes:

Given the extensive and thorough treatment that the torture memos have received on the blogosphere and in print


Really? Can you name a single "extensive" or "thorough" treatment of the legal analysis in the memos, either in the blogosophere or in print? And if you cite the Goldsmith book, who addresses precisely two points in the memos and gets them both wrong, as I cite above, do you still find the Goldsmith work even slightly persuasive?


Anderson writes:

The memos are not, in fact, "so complicated." They're simplistic. Any lawyer who passed Con Law, for instance, was able to read the August 2002 torture memo and ask himself, "what about Youngstown Sheet &Tube?"


I disagree that the memos are not complex, or would not be to the average lawyer. Do you really consider, for example, the three-page analysis of the ratification history of CAT and its relevance to section 2340 "simplistic" (pp. 50-52, March 14, 2003 memo)? That discussion goes deep into areas of law I am certain most lawyers have never seen in school or in practice (how legislative history of an understanding of a treaty affects interpretation of a statute passed to implement a treaty).

Also, what specific legal argument in that memo do you believe would be invalidated because of Youngstown?

(Again, there must be a hundred blog posts complaining the a memo did not cite Youngstown, but I have yet to see a single cite to a specific argument in the memo that would be invalidated (or even affected) by Youngstown.)
3.28.2009 3:25pm
Anon21:
wheres the beef:
And similarly, the famous "organ failure" test from the actual test ("severe pain" is pain whose level is the level that would ordinarily be associated with severe physical injury) to the ridiculous formulation that "severe pain" must actually cause severe physical injury. Nobody who verified Goldsmith's quotes could take his analysis seriously: he just changes what the memos said into something they did not say, then inveighs against the changed wording.

You are incorrect. Goldsmith does not conflate pain associated with organ failure with organ failure itself. Here is the relevant passage, quoted in full, from "The Terror Presidency," p. 145 (footnotes omitted):

Most notorious was OLC's conclusion that in order for inflicted pain to amount to torture, it "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." OLC culled this definition, ironically, from a statute authorizing health benefits. That statute defined an "emergency medical condition" that warranted certain health benefits as a condition "manifesting itself by acute symptoms of sufficient severity (including severe pain)" such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function. It is appropriate, when trying to figure out the meaning of words in a statute, to see how the same words are defined or used in similar contexts. But the health benefit statute's use of "severe pain" had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define "severe pain." Rather, it used the term "severe pain" as a sign of an emergency medical condition that, if left not treated, might cause organ failure and the like. It is very hard to say in the abstract what the phrase "severe pain" means, but OLC's clumsy definitional arbitrage didn't seem even in the ballpark.

So perhaps it's you who needs to take care not to change another author's actual writing around to suit your meaning, and not Goldsmith.
3.28.2009 3:39pm
Anon21:
Above should read "Golsmith does not conflate pain associated with organ failure with actual severe injury."
3.28.2009 3:40pm
Anderson (mail):
Also, what specific legal argument in that memo do you believe would be invalidated because of Youngstown?

August 2002 torture memo at 38:

As the Supreme Court has recognized, the Commander-in-Chief power and the President's obligation to protect the nation imply the ancillary powers necessary to their successful exercise. * * * The President's complete discretion in exercising the Commander-in-Chief power has been recognized by the courts.

Yoo cites two cases, one from 1950, one from 1862. The takeaway of this section of the memo is that the Congress cannot limit the President's discretion in how to interrogate prisoners, so that the Torture Act does not apply.

Now, to Youngstown (1952). Part II of Black's opinion for the Court rejects the proposition that the executive power can supersede the legislative power of Congress. Better known of course is Jackson's concurrence with its 3-part analysis, which despite being "only a concurrence" is well known to be an influential analysis applied in later decisions. Jackson wrote:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

This of course was the situation addressed in the Bybee-Yoo memo, an implied constitutional power in conflict with an express statute. Whatever one thinks of Jackson's concurrence or of its applicability, the analysis at least had to be addressed and distinguished -- not passed over in silence.

Note also that in the same section of the memo, Bybee-Yoo do not mention Article I's enumeration of Congressional power to "make Rules concerning Captures on Land and Water."

That is obviously bad lawyering.
3.28.2009 3:47pm
trad and anon (mail):
SALT had a withdrawl clause. The President was merely exercising the power granted by the treaty.
The treaty has a withdrawal clause, but the question is who has the power to act for the United States in withdrawing from the treaty. That's not specified in the treaty itself.
3.28.2009 3:53pm
Anderson (mail):
Btw, Justice Clark's less-cited concurrence is interesting:

One of this Court's first pronouncements upon the powers of the President under the Constitution was made by Mr. Chief Justice John Marshall some one hundred and fifty years ago. In Little v. Barreme, he used this characteristically clear language in discussing the power of the President to instruct the seizure of the Flying Fish, a vessel bound from a French port:

It is by no means clear that the president of the United States whose high duty it is to "take care that the laws be faithfully executed" and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then-existing state of things, have empowered the officers commanding the armed vessels of the United States to seize, and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that [an act of Congress] gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seem to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.



Accordingly, a unanimous Court held that the President's instructions had been issued without authority, and that they could not "legalize an act which, without those instructions, would have been a plain trespass." I know of no subsequent holding of this Court to the contrary.


Justice Clark acknowledged the potential for grave crises, but concluded:

where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that, in the absence of such action by Congress, the President's independent power to act depends upon the gravity of the situation confronting the nation.

In the Torture Act, conversely, Congress had directed that certain procedures were forbidden, which the President was not empowered to authorize under his CINC power.
3.28.2009 3:54pm
wheres the beef:
So my understanding here is that you object to the page 38 of the August 2002 memo's omission of a cite to Youngstown in its discussion of the scope of presidential Commander-in-Chief power vis-a-vis Congress. You consider this "bad lawyering."

It is true that the August, 2002 memo does not cite Youngstown, but it is not true that the memo disregarded the case. The basis for the presidential power conclusions of that August, 2002 memo were the memo written a few months earlier and given as the cite for the claim that "the Commander-in-Chief Clause constitutes an independent grant of substantive authority to engage in the detention and transfer of prisoners captured in armed conflicts" (page 38, quoting Memorandum for William J. Haynes, The President's Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations, March 13, 2002.)

That memo, in turn, has a long discussion of Youngstown. Section 2 of the memo notes that where there a "systematic, unbroken, executive practice, long pursued to the knowledge of Congress" plays a major role in delineating the separation of powers between Congress and the President. (March 13 2002 memo at 7, quoting Youngstown, Frankfurter J., concurring). That and the following discussion contains twenty pages of extremely detailed discussion of the historical practice in the Congressional regulation of treatment of prisoners, citing numerous examples from the Revolutionary War, the "Quasi-war with France" in the 1790s, the War of 1812, and so on.

That discussion also discusses the importance of the Article 1, Section 8, cl. 10 (e.g. n.15). I cannot recapitulate the reasoning of that entire 35 page memo here - and neither should the August 2002 have done so. Rather, the August 2002 memo quite properly cited the conclusion of the earlier memo, which address Youngstown and the Section 8 powers.

So, the example you gave that claims to be a place where it was "bad lawyering" for Youngstown to have been omitted, seems actually not to have been. It is just that the full reasoning and import of Youngstown and of Section 8 (and many related issues) was best handled in the separate memo, which is cited on the exact same passage you cite.

Thus, I do not see how this can be "bad lawyering" or, for that matter, why everyone excoriates the August 2002 memo for not mentioning Youngstown when it is the March 13, 2002 memo that does the real work anyway.

Now, certainly you can disagree with the conclusions of the March 13 memo, but why claim it's "bad lawyering" for the August memo not to consider Youngstown, when it did, a few months earlier, in the companion memo, correctly cited?




Also, what specific legal argument in that memo do you believe would be invalidated because of Youngstown?

August 2002 torture memo at 38:




As the Supreme Court has recognized, the Commander-in-Chief power and the President's obligation to protect the nation imply the ancillary powers necessary to their successful exercise. * * * The President's complete discretion in exercising the Commander-in-Chief power has been recognized by the courts.

Yoo cites two cases, one from 1950, one from 1862. The takeaway of this section of the memo is that the Congress cannot limit the President's discretion in how to interrogate prisoners, so that the Torture Act does not apply.

Now, to Youngstown (1952). Part II of Black's opinion for the Court rejects the proposition that the executive power can supersede the legislative power of Congress. Better known of course is Jackson's concurrence with its 3-part analysis, which despite being "only a concurrence" is well known to be an influential analysis applied in later decisions. Jackson wrote:
3.28.2009 4:43pm
Anderson (mail):
That memo, in turn, has a long discussion of Youngstown.

The memo you've linked for me has no such "long discussion," merely the quote you've supplied -- which is even more egregious than not citing Youngstown at all, since it completely ignores the issue of executive power vs. legislative statute, which was at the heart of that case and of the torture memos.

Thus, it appears that your defense of the Bybee-Yoo memo relies on an assertion which is simply false.
3.28.2009 5:26pm
Andrew J. Lazarus (mail):
I posit that if America had/has a reputation of being hard on captured Jihadi's it will make our soldiers safer - because America, as an enemy, will be more fearsome.
I posit that if Al Qaeda had/has a reputation of being hard on captured Westerners, it will make our jihadis safer - because Al Qaeda, as an enemy, will be more fearsome.

My version doesn't have that same gut appeal, does it? Why do we assume that the same practices will have opposite effects on our enemies and on us? Of which, of course, this is not the only example, as we have never permitted the Other Team to waterboard our soldiers as a matter of their national self-defense.
3.28.2009 5:46pm
mattski:
Anderson, thank you for the discussion of Youngstown.
3.28.2009 6:03pm
C. Gittings (mail) (www):

"No, but they also wouldn't empower past Senates to bind future Senates when making a treaty. I would read an implicit right of the President, in concurrence with 2/3rds of the Senate, to withdraw unilaterally from any treaty."

Of course the Constitution itself is an international treaty, and neither the President nor the Senate have any power to withdraw from it except by the amendment process. Many treaties specify the terms and conditions by which the parties may withdraw from them, the Geneva Conventions for example.
3.28.2009 6:42pm
Lucius Cornelius:
Anderson
Any lawyer who passed Con Law, for instance, was able to read the August 2002 torture memo and ask himself, "what about Youngstown Sheet &Tube?"


I beg to differ. I took Con Law from Nancy Erickson at the Ohio State University College of Law in the early 80s. We only studied sex discrimination and abortion. Little, unimportant topics like "search and seizure" and other civil rights were not discussed. But it was pretty painful during the clerkship I had during the summer after my first year when I was required to write memos on "reasonable cause" for searches.

I was lucky to take David Goldberger the next year to study political and civil rights. I signed up for that class mainly because of the topics that Professor Erickson chose not to cover. And Youngstown Sheet &Tube was never discussed in that class.
3.28.2009 9:41pm
jukeboxgrad (mail):
Youngstown Sheet &Tube was never discussed in that class


There is some evidence that Yoo understands the importance of Youngstown. In 2000 he taught a course that included a section called "The Separation of Powers." The first case discussed in that section: Youngstown.
3.28.2009 9:52pm
Richard Aubrey (mail):
Anderson.
The Germans were unspeakably brutal toward their Russian POWs, notwithstanding the fact that the Russians had a large number of Germans in captivity, few of whom survived.
The Germans were so brutal toward captured Jewish soldiers that my father's division, possibly the entire army, pulled Jews from the line units.
3.28.2009 10:48pm
Anderson (mail):
Lucius, I acknowledge the deficiency in your education, but I'm not sure that's an argument.

In the provinces, like at Ole Miss Law, we actually do cover most of the Con Law textbook, including Youngstown. If you still have your textbook, you might flip through and see if it isn't in there.

... Searches &seizures, btw, are typically covered in Criminal Procedure, which amounts to the third semester of con law.
3.28.2009 10:48pm
Anderson (mail):
The Germans were unspeakably brutal toward their Russian POWs, notwithstanding the fact that the Russians had a large number of Germans in captivity, few of whom survived.

I have read a good bit on that; currently I'm on Richard Evans's The Third Reich at War, which recounts the sorry tale once more.

N.b. that, IIRC, the Soviet Union wasn't a Geneva signatory, which the Germans professed to find relevant; and that the Germans regarded Slavs as untermenschen. That's why I referred expressly to British and American prisoners. (A German POW still had a better shot of surviving Soviet custody than vice-versa, I believe.)

And yes, the fact that the Nazis had some degree of animus towards Jews is also a familiar matter of historical record.

Anyway, my larger point stands: I don't think the "golden rule" argument against torture is particularly effective, despite its embrace by quite a few military folks.
3.28.2009 10:53pm
Oren:

The treaty has a withdrawal clause, but the question is who has the power to act for the United States in withdrawing from the treaty. That's not specified in the treaty itself.

The treaty is the law of the land, the President executes the laws. So I would venture to say that the President has authority to unilaterally withdraw from a treaty with such a clause.

Failing the clause, he has to get the Senate on board.
3.29.2009 10:26am
C. Gittings (mail) (www):
It's just amazing to me how willfully ignorant some people are.

Like they never heard of Soviet show trials based on signed confessions to "crimes against the state" etc?

Like they are unaware that the Nazis used exactly the same methods under exactly the same euphemism ("enhanced interrogations")?

Like they never heard of the Inquisition nor had any faint clue as to the number of people who confessed to heresy and / or witchcraft under torture?

Like they are unaware that there was once a time when the due process for a criminal charge in England was trial by ordeal?

We don't torture people for exactly the same reason that we don't murder people -- because it is fundamentally criminal and bestial behavior which is subversive of human decency and civilization.
3.29.2009 11:26am
Xanthippas (mail) (www):

Regarding torture of the enemy endangering America's soldiers, I posit that if America had/has a reputation of being hard on captured Jihadi's it will make our soldiers safer - because America, as an enemy, will be more fearsome.


Interesting wording. You speak as if we didn't just enjoy an eight year experiment determining that exactly the opposite is true.
3.29.2009 8:45pm