pageok
pageok
pageok
[Richard Painter, guest-blogging, March 28, 2009 at 12:55pm] Trackbacks
More on the Torture Memos:

I will not reiterate the many specific criticisms of the memos already made by those with far more expertise than I. A very large number of international law experts see the memos as deeply flawed, as did the Office of Legal Counsel itself.

The job of an ethics lawyer and indeed any lawyer who is a generalist is to spot issues and to identify both legal and nonlegal risks to the client. Here the memos appeared one-sided on their face and it was obvious that the subject matter could expose the United States to widespread condemnation. Whether or not the advice is technically correct, a client is entitled to be told when there are arguments on the other side and when there are risks in proceeding as planned. None of that happened here. I cannot point to specific passages of the memos to illustrate what wasn't there.

It could be argued that the client wanted the advice given. This is common in corporate representations where officers or directors ask for an opinion of counsel stating that they may do something they shouldn't do. Rarely is the opinion given because if it is, and the matter blows up, the corporation, perhaps under new management, can turn around and hit the lawyer with a malpractice suit. Not true in government.

Craig R. Harmon (mail):
"I cannot point to specific passages of the memos to illustrate what wasn't there."

No? Could one not, for example, point out a passage that was one sided and point out the other side(s) that should have been included to have avoided an ethical problem? Of course, this might mean pointing out many passages in the memos and include many international treaties and constitutional and statutory precedents not addressed in each. I can understand one's reluctance to undertake such a task, more appropriate to a book-length treatment, in a blog but one or two examples with just one or two counter points for each might not be beyond doing and would illustrate what wasn't there by pointing to specific passages in the memos.
3.28.2009 1:18pm
coyote (mail):
Since Mr. Painter's specialty is legal ethics, I'd be more interested in examples of sanctions and malpractice suits involving attorneys representing corporations who told management what they wanted to hear instead of what they needed to hear. The behavior in those cases would make for interesting comparisons.
3.28.2009 1:32pm
John (mail):
Well, I was one of the commenters on the last post who wanted more substance to the criticism of the torture memos (which other commenters did supply, I note). However, if the intention was not to make normative statements about the memos, but only to discuss the ethical consequences supposing the criticisms to be true, that could have been made clearer. I apologize, however, if I misunderstood the intent of the post.
3.28.2009 2:04pm
Bill Kilgore:
Mr. Painter,

It appears that your analysis of the issue is premised on the understanding that the memos are deeply flawed. Although this is a common understanding, it is not unanimous. Particularly, at this location.

As such, I would recommend that your previous post would have been better served to state that while you understand that some people feel the memos aren't without merit, your opinion is that they are, that such understanding is widely held and that it is a foundation for your post. This would allow readers to reject your premise, if they wish, but still focus on the larger issue you were addressing.

That's my two cents anyway. In either case, I greatly appreciate your time and your ideas. You've been a great value to the site.
3.28.2009 2:05pm
Bill Kilgore:
There is some rather sloppy editing in that previous post. However I hope my larger point, particularly the one in the final paragraph, is apparent.
3.28.2009 2:07pm
wheres the beef:

I will not reiterate the many specific criticisms of the memos already made by those with far more expertise than I. A very large number of international law experts see the memos as deeply flawed, as did the Office of Legal Counsel itself.


Actually, no, there really are not that many criticisms of the actual legal analysis. Most of it is just policy-oriented: e.g. it is a terrible idea not to give Geneva protection to Al-Qaeda members, for example, because doing so would have all kinds of terrible consequences, or would be immoral, and so on. There is very little on the actual legal question: to whom does the Geneva convention actually apply? And a lot just misquotes or misunderstands the text or precedent (e.g., from commentators unfamiliar with Youngstown's specific ceding to the executive autonomy over the battlefield, or misreading the "organ failure test", or arguing the memo would allow interrogation techniques it specifically forbids, and so on)

There is a strong line of reasoning among the "international law experts" you cite that argues that the memos are terrible because they suggest the President may not be Constitutionally bound by customary international law. But these criticisms are mostly just discussing how the U.S. should has a matter of policy and reciprocity follow customary international law. The memos are not, however, intended as policy prescriptions for the President, and no matter how wonderful it would be if all nations mutually and reciprocally obeyed customary international law, whether the Constitution forces the Executive to abide by it in the performance of his commander in chief duties is an orthogonal issue.

And it's circular to condemn the memos for their own "widespread condemnation." Remember only a tiny, tiny portion of this "condemnation" even purports to be based on legal reasoning. The rest, like your own two posts here, just essentially condemns them based on others' condemnation. In any case, the OLC is giving legal advice, not trying to help the President's polling numbers. The last thing we want is for the OLC to be driven by polling, in fact - that philosophy would quickly erode Constitutional protections for unpopular groups.
3.28.2009 2:11pm
Cornellian (mail):

It could be argued that the client wanted the advice given. This is common in corporate representations where officers or directors ask for an opinion of counsel stating that they may do something they shouldn't do. Rarely is the opinion given because if it is, and the matter blows up, the corporation, perhaps under new management, can turn around and hit the lawyer with a malpractice suit. Not true in government.


Private sector lawyers give "tell us we can do what we shouldn't do but want to do anyway" opinions to their paying clients all the time. I don't know why you'd think that doesn't happen in the private sector.
3.28.2009 3:00pm
RPT (mail):
Beef and Bill's posts illustrate a problem that can never be resolved. No matter how much condemnation, critique there is of the torture posts (or the war, etc), how much acknowledgment of error, impropriety, and so on, there will be those who say that the issues of the torture memos and John Yoo's, Jay Bybee's, and others related work are still open. There is nothing that will change their position. This is why only a T&R Commission and/or state bar ethical proceedings, or some kind of criminal action is necessary.
3.28.2009 3:19pm
Charlie (Colorado) (mail):
I think a more interesting question is what memos haven't been released. Declassification is an Executive Branch decision; careful selection (say Yoo wrote memos, essentially briefed, in favor, and someone else wrote against.) What would the appearance be if only the pro memos were released?)

RPT, if such a commission were started, would it include Clinton, Panetta, et al? After all, many of these policies preceded Bush.
3.28.2009 3:27pm
Bama 1L:
This has been a great series. Thanks.
3.28.2009 3:44pm
David McCourt (mail):
The commission would include anyone who disagress with RPT's positions on "the torture posts (or the war, etc)." Then we can be browbeaten by state bars into acknowledging our "error, impropriety," etc. If not, it's off to the re-education camps.
3.28.2009 3:47pm
trad and anon (mail):
The commission would include anyone who disagress with RPT's positions on "the torture posts (or the war, etc)." Then we can be browbeaten by state bars into acknowledging our "error, impropriety," etc. If not, it's off to the re-education camps.
At least those of you who are in the business of giving your clients "objective" opinions that some crime they want to commit is unquestionably legal, while ignoring all precedents and arguments to the contrary, so that they can defend themselves with "but my lawyer told me it was OK!"
3.28.2009 4:07pm
BABH:
There are, it seems to me, two classes of people who don't recognize that the torture memos are deeply flawed: those who haven't read them, and those who are intimately connected to the authors in some way. (The connections of rabid partisanship count.)
3.28.2009 4:10pm
DRH (mail):

Since Mr. Painter's specialty is legal ethics, I'd be more interested in examples of sanctions and malpractice suits involving attorneys representing corporations who told management what they wanted to hear instead of what they needed to hear. The behavior in those cases would make for interesting comparisons.


Enron's various firms have paid significant sums for their alleged role in helping Enron undertake the actions which caused it to go bust.

Vinson &Elkins, according to a June 1, 2006 WSJ story, paid $30 million in cash and waived claims for $3.9 million in fees to settle claims made by Enron's bankruptcy trustee.

According to a September 25, 2004 Houston Chronicle story, the Houston firm of Andrews Kurth paid $2.8 million to Enron's unsecured creditors. Andrews Kurth apparently reviewed Enron's off-the-balance sheet transactions. According to the article:

A reading of Batson's report shows Andrews Kurth knew the questionable nature of the transactions. In one memo the examiner cited, a lawyer for the firm referred to financial terms that weren't included in any deal documents and noted that they "cannot be for financial accounting and legal opinion purposes."

In other words, there was no way to justify the deal legally or financially.


Using Enron may be cherry picking, but it was an easy example to Google.
3.28.2009 4:26pm
ArthurKirkland:
We are unlikely to know the precise, or perhaps even approximate, mixture of fear, secrecy, information, urgency, partisanship, morality (more likely, immorality), professional inadequacy, weakness and other factors that precipitated the torture memoranda, decisions and conduct (and general environment that spawned the memoranda, decisions and conduct) until those with direct knowledge start talking (voluntarily or under subpoena).

That is one of the reasons it is so important to uncover what occurred and why. The memoranda, the reports of torture, the facts indicating that the United States either either apprehended (in some cases, kidnapped) and abused many innocents or voluntarily released dangerous persons . . . there exists ample foundation for investigate the circumstances associated with torture, limitless detention, warrantless surveillance, and the like.

Most of the participants have demonstrated that they lack the character that would cause or enable them to come clean without (a) immunity or (b) compulsion by force of law. Our society should help them find a sense of decency, or at least to expose indecency by disclosing what occurred and imposing accountability -- civilly, criminally, and/or professionally.
3.28.2009 4:31pm
Benjamin Davis (mail):
Since we are focusing on the lawyers' work, please note that Spain has opened a criminal investigation (more at this place) and the UK is in the process of investigating the torture with regard to the Binyam Mohammed case (UK resident released from GITMO). For those who might seek to use as a defense for higherups that there was reliance that was "reasonable" on the lawyers' advice, the Senate Armed Services Committee declassified full report (executive summary came out in December 2008) is expected out next week according to this. In addition, the declassification of the May 2005 memos of Stephen Bradbury that were given to the CIA is authorized and impending and they are described as "ugly." And finally there will be the Office of Professional Responsibility report on Yoo, Bybee, and possibly Bradbury or Flannigan expected out over the next weeks or months.

Refluat Stercus!

Best,
Ben
3.28.2009 4:50pm
d-day (mail):

The job of an ethics lawyer and indeed any lawyer who is a generalist is to spot issues and to identify both legal and nonlegal risks to the client.


Really? A lawyer can provide legal opinions. A lawyer can be very clear about the scope of the investigation and application of the conclusions, but I would not expect a lawyer to render opinions as to nonlegal risks. If my client is a business, for example, and there are business ramifications, I won't tell the client what to do. I'll tell him - here is the legal risks inherent in each of these options. The ultimate decision is up to the client. The client knows the business risks, not me.

I would particularly refrain from offering opinions or identifications of nonlegal risks, and I believe that is the better practice. Identifying particular risks outside your expertise implies that you have considered the universe of risks and these are the ones you've identified. In actuality, they're little more than a layman's guess. I would have no way to non-negligently complete the undertaking that is implied.
3.28.2009 7:08pm
David McCourt (mail):
I guess they should have disbarred, or jailed, Lincoln's Attorney General, and lawyer Lincoln himself, for suspending habeas corpus and ignoring Supreme Court rulings.
3.29.2009 10:20am
jukeboxgrad (mail):
Your Lincoln comparison is weak, for reasons that are nicely explained here, here and here.
3.29.2009 10:51am
David McCourt (mail):
Despite you here, there ands everywhere references, you don't explain how Lincoln was empowered to suspend habeaas without Congressional action, to use the suspension of the writ to jail newspaper publishers, and hold them without trial, for what they published, or to defy court orders declaring his actions unconstitutional.

The plain facts is that the history of past presidential conduct doesn't line up as nicely as you'd like with your view that Bush is some great unprecedented war criminal.
3.29.2009 11:26am
David McCourt (mail):
BTW, jukeboxgrad, your first "here" incorrectly says that Congress formally suspended habeas a few months after Lincoln's act in suspending it. Not so, Lincoln first suspended the writ on April 27, 1861. Congress did not act until two years later, on March 3, 1863. But what's a couple of years of extra-constitutional conduct when it's a prsident we like?
3.29.2009 11:37am
MarkField (mail):

Despite you here, there ands everywhere references, you don't explain how Lincoln was empowered to suspend habeaas without Congressional action, to use the suspension of the writ to jail newspaper publishers, and hold them without trial, for what they published, or to defy court orders declaring his actions unconstitutional.


I don't think you understand the point of suspending the writ. The writ is the judicial method by which rights are enforced in court. Suspending the writ is the practical means of suspending the writ; without the ability to enforce a right, it doesn't exist. Thus, suspending the writ meant that newspaper publishers could be jailed and court orders defied precisely because that's what suspension means.
3.29.2009 12:13pm
David McCourt (mail):
Markfield, I understand the point very well, thanks, and I don't actually critricze Lincoln. I think he did what was necessary, but that is no defense, at least to some on this thread. Lincoln was not empowered under the Constitution to suspend the writ; only the Congress can do that. So his suspension was illegal, as was his ignoring the courts that told him it was so. So you, not I, should say that Lincoln and the Attorney General whose opinion he used to justify his actions should have wound being disbarred and prosecuted, right? If not why not?

It seems plain that many wish to hold the last administration to a standard that more than a few past presidents -- Lincoln, Grant, Wilson and FDR among them -- could not meet.
3.29.2009 12:56pm
MarkField (mail):

Lincoln was not empowered under the Constitution to suspend the writ; only the Congress can do that. So his suspension was illegal, as was his ignoring the courts that told him it was so.


This was much less clear at the time than it seems to us. Yes, I agree that Congress is the proper branch to suspend the writ. But there was an argument to be made for the Executive in 1861 even if that argument today wouldn't be plausible.


It seems plain that many wish to hold the last administration to a standard that more than a few past presidents -- Lincoln, Grant, Wilson and FDR among them -- could not meet.


I don't have any problem with that. Standards changed. Lincoln's racial attitudes were advanced for their time but would be unacceptable in a President today. By the same token, precedent and law have developed such that legal arguments once plausible are no longer. There's no inconsistency in recognizing that fact.
3.29.2009 1:21pm
Anderson (mail):
Re: Lincoln, I'm not terribly up on the subject, but didn't he go to Congress afterwards and ask it to retroactively approve his habeas suspensions, etc.?

Not ideal, but at least he acknowledged that Congressional approval was necessary. Not like the recent practice of shutting Congress out altogether.

Regardless, "Lincoln did it" does not justify anything, except maybe in the Church of Lincoln.
3.29.2009 1:27pm
David McCourt (mail):
As to what seems clear and unclear, the suspension clause is in Article I, and Chief Justice Taney had no problem telling Lincoln he was acting unconstitutionally, in a court opinion, in 1861, a few weeks after the first suspension. Lincoln's response was to do an Andy Jackson, and tell the courts that they could take their opinions and stick them in gitmo, so to speak. Lincoln unilaterally issued a nationwide suspension in 1862, after losing in federal court. Between 10,000 and 15,000 U.S. citizens -- enough to fill between 25 and 40 Gitmos -- were "detained," many for doing nothing more than speaking against the draft, or criticizing the conduct of the war. Congress did nothing until 1863.

That's far more than modern president has dared to do, arguably except for FDR and his plan to keep adding justices until he got a tame supreme court.

As I said, I'm not reciting this to criticize Lincoln, just to remind folks that Bush's misdemeanors pale when a little perspective is added, and that many of Bush's present critics would lock up the faces on Rushmore if they had their way.
3.29.2009 2:00pm
MarkField (mail):
Let's take a more complete look at the suspension issue. In 1861 it was (thankfully) an issue of first impression. That means that Lincoln's argument has to be judged according to what might adjudged reasonable legal arguments of that time.

Lincoln had several arguments to make. First, Congress was not in session when the emergency arose. This was hardly surprising given the long recesses common in that era and the difficulty of travel. Both factors were even more important in 1789. Thus, the idea that the executive might have to face an emergency situation in the absence of Congress was not all that unreasonable. Even today it might be reasonable under extreme circumstances which even Bush critics might accept.

Second, the closest historical analogue to the Civil War was the Whiskey Rebellion. While Washington didn't actually suspend the writ in that case (nor did Congress), that was the practical impact of Washington's actions. He declared that the courts were not functioning, took troops into the area, rounded up suspects without the usual legal process, and sent them for trial outside the vicinage. This was a reasonable historical example for Lincoln to follow (assuming an originalist construction).

Third, in England it was the Executive which had always suspended the writ. It was reasonable to think that the Constitution made the same assumption in the absence of express language to the contrary.

Finally, the specific case facing Lincoln involved a slavery-defending judge whose loyalty to the Union was itself highly suspect.

Lincoln's arguments, therefore, were reasonable under the circumstances even if I agree in retrospect that they were wrong. However, your argument about Congressional failure to act isn't all that helpful to you. Congress didn't act in part because many felt that it was, in fact, the President's call to make. Congressional failure to act cuts both ways.

In contrast to all this, the power of the President to authorize torture is much more circumscribed. There is a good deal of case authority (by the SCOTUS, not a single judge); there are other provisions of the Constitution which are relevant; there are express laws to the point; and there's a long history of torture being forbidden both by US law and by treaty. Context makes a huge difference here.
3.29.2009 4:20pm
David McCourt (mail):
You leave out a couple of things. First, the language of Article I, tellng the legislative branch under what circumstances the writ may be suspended by it, and no mention of it whatever in Article II. Second, prior practice by other Presidents: Jefferson had disclaimed any exective authority to suspend the writ, and had asked Congress to do so for him in the matter of Aaron Burr's intrigues. (You are incorrect in saying that in England the executive always suspended the writ on its own; at least from the time of the Habeas Corpus Act of 1679, its suspension up until this point had been only by law through Parliament (or the unitary sovereign, the King-in-Parliament), meaning the executive could not unilaterally suspend it. See, e.g., the Suspension Acts of 1745, and of 1794, in which Parliament suspended the writ by law (under certain circumstances)).

You also leave out the decision of the U.S. federal court in 1861, declaring that the executive did not have the power which Lincoln claimed for himself. Taney's opinion says there is no doubt about this, given the Jefferson precedent, and Article I, and expresses suprise that Lincoln makes argument to the contrary: "I certainly listened to it [Lincoln's argument] with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress."

You leave out Lincoln's subsequent defiance of the court; his renewed, nation-wide suspension of the writ in 1862, again without congress; and his jailing by the military of thousands of U.S. citizens, in the North, for speech only, after he had suspended the writ.

Of course, that is nothing, compared with the crime of waterboarding, for 30 to 180 seconds, a half a dozen Islamo-facists picked up on the battlefield in Afghanistan.
3.29.2009 7:35pm
MarkField (mail):
Of course I left things out. I was making Lincoln's argument. I'm aware of all those factors you mention, though my recollection is that English Kings continued to suspend the writ after 1679 (too lazy to check this now), and they certainly did so on their own before 1679.*

I didn't leave out Taney's opinion, I took it as worthless -- he was a treason supporter and everyone knew it.

As I mentioned, Congressional failure to act cuts both ways here, since many in Congress agreed that Lincoln could suspend it.

Finally, I'm not, ultimately, disagreeing that Congress is the proper body to suspend the writ. I'm just pointing out that Lincoln had legitimate arguments for his position, whereas Bush had none. That context matters a lot.

*Just to pick the most obvious example, Charles I refused to recognize the writ in the 5 Knights Case, and the courts actually upheld his refusal.
3.29.2009 9:33pm
David McCourt (mail):
If a good argument is one which just leaves out all the facts that are against it, or dismisses a ruling against it, issued by the Chief Justice of the United States, as "worthless," then I'm sure good arguments can be constructed for anything.

And if you are going to defend Lincoln by reference to Charles I, then Bush has nothing to worry about. Bush comes out as a moderate, because he failed to try to arrest the leaders of the House of Representatives, as Charles did with the Commons.

Actually, I don't think even Lincoln believed he had the better of the narrow legal argument. He famously asked, in his defense, "are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" That reads to me like an admission that the one was being violated.

Ultimately, Lincoln and Bush -- and FDR -- had the same argument for what they did: necessity in exigent circumstances. A compelling argument for some of us, and one that separates the two sides in this thread.
3.29.2009 11:35pm
jukeboxgrad (mail):
mccourt:

You leave out a couple of things.


You leave out about a million things: the number of enemy soldiers on US soil while Lincoln was president. Your comparison might seem fair after you demonstrate that this condition was present during the Bush administration.
3.30.2009 9:20am
MarkField (mail):
In addition to jbg's point, let me add that you seem to be missing the point entirely. Lincoln wanted to achieve a goal which the Constitution plainly allows: suspension of the writ. The ONLY dispute was the procedural mechanism to achieve that result. Lincoln had legitimate arguments on his side about the correct procedure, and in any case the issue was one of first impression.

Bush, in contrast, wanted to achieve a result plainly prohibited by law. This wasn't a procedural dispute, it was substantive; the whole question involved the merits of the ultimate goal, not the method of getting to an allowed goal. This was not an issue of first impression, it was well-settled. While Lincoln acted publicly, Bush acted in secret, concealing what was done for years. Where Lincoln made serious arguments (even if erroneous), Yoo made frivolous ones.

I understand the political motivations of those defending Bush and Yoo. I'm puzzled at their willingness to trash the reputation (unjustly) of their greatest president. If you really want to use a good example, try FDR and the internment camps. That's much closer to your point and has the added bonus of letting you trash the Right's favorite whipping boy.
3.30.2009 11:13am
David McCourt (mail):
jukeboxgrad,

I see you accept that there will be times when necessity in exigent circumstances may be used to justify presidential violation of the law, or even of the Consitution, as in Lincoln's case.

As for those million "enemy soldiers," it is instructive to remember that Lincoln readily accepted them back as fellow Americans. He favored no "Truth" Commission, or criminal prosecution, for the commanders of the Army of Northern Virginia, which had made war on the U.S. and killed scores of thousands of its soldiers. Of course, Lincoln was interested in uniting the country, and acted "with malice toward none." The proponents of disbarrment and prosecution for the Bush administration have quite another agenda.
3.30.2009 11:16am
jukeboxgrad (mail):
mccourt:

I see you accept that there will be times when necessity in exigent circumstances may be used to justify presidential violation of the law, or even of the Consitution, as in Lincoln's case.


I see you can't make an argument without pretending I said something I didn't say. Where did I say that "necessity in exigent circumstances may be used to justify presidential violation of the law?" I didn't. I simply said that you're making a bogus comparison. Bush's circumstances were not like Lincoln's circumstances.

The proponents of disbarrment and prosecution for the Bush administration have quite another agenda.


"The proponents of disbarrment and prosecution for the Bush administration" have this agenda: upholding the rule of law. The GOP was once the party of law and order. Then again, it used be a number of things it isn't anymore.
3.30.2009 11:25am
David McCourt (mail):
You may not like it, but of course you have accepted the necessity argument; why else would the existence of a million foreign troops be at all relevant to you in judging the legality of Lincoln's conduct in usurping congressional powers and defying the courts?

As Bernard Shaw said to the woman who asked, "What do you take me for, a whore?": "Madam, we've already established that. Now we're just trying to fix your price."
3.30.2009 12:00pm
MarkField (mail):

I see you accept that there will be times when necessity in exigent circumstances may be used to justify presidential violation of the law, or even of the Consitution, as in Lincoln's case.


I won't speak for jbg, but I do accept the doctrine of necessity. I think it's always a defense. But that doctrine has severe limits:

The defendant must choose the lesser of two evils; s/he must act to prevent imminent harm; s/he must reasonably expect the action will avoid the harm; there must be no other legal alternative available. Regarding the last requirement, the Supreme Court has emphasized that "The case, however, must be one of absolute and uncontrollable necessity... 'Nothing less ... than an uncontrollable necessity, which admits of no compromise, and cannot be resisted,' will be held a justification of the offence." The Diana, 74 U.S. 354, 361 (1868)

AFAICT, Bush's approval of torture failed this test. Lincoln's situation probably met it.


why else would the existence of a million foreign troops be at all relevant to you in judging the legality of Lincoln's conduct in usurping congressional powers and defying the courts?


Again not purporting to speak for jbg, but those troops were precisely the condition precedent required by the suspension clause. While they might also be used in support of a necessity defense, you're too quick to assume that's the only such use.
3.30.2009 1:17pm
David McCourt (mail):
MarkField, no one was saying, not in our discussion, and not in the legal arguments in 1861, that a rebellion such as that mentioned in the suspension clause didn't exist, so I don't accept that jbg's mention of the "million troops" was relevant to the legal question at issue in 1861 -- whether the president could unilateraly suspend habeas, or whether it had to be done by law. The "million troops" are relevant to the real defense that Lincoln publicly put forward -- on the advice of Edward Bates, his Attorney General -- both to justify his suspension of the writ, and to justify his defiance of the court: necessity ("are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"). (Whether the particular detentions Lincoln carried out were abusive or not is another, separate, question, writ or no).

You say you accept necessity as a legitmate argument; so do I, so we are each are like Shaw's lady, but our prices are different. To you Lincoln passes, Bush fails. Fair enough, I disagree, and I don't think Lincoln's necessity argument was made within the contours of the legal doctrine you recite, nor would it meet the requirements of that doctrine. I think they both pass, for the reasons I have mentioned.

If jbg doesn't acknowledge necessity, as he says, then it follows that for him Lincoln and Bates are just as guilty as Bush, with no decent legal argument, narrowly understood, to defend them -- worse, they persisted despite losing the argument in court, and they had 30 gitmos filled with 12,000 U.S. citizens from the North, taken from their homes, compared with 1 gitmo with 400 foreigners taken from the battlefield.

And this was just the point that I was making before when I mentioned Lincoln: that Lincoln would equally fail under the standard that was sought to be applied by many to Bush.
3.30.2009 2:02pm
MarkField (mail):

If jbg doesn't acknowledge necessity, as he says, then it follows that for him Lincoln and Bates are just as guilty as Bush, with no decent legal argument, narrowly understood, to defend them -- worse, they persisted despite losing the argument in court, and they had 30 gitmos filled with 12,000 U.S. citizens from the North, taken from their homes, compared with 1 gitmo with 400 foreigners taken from the battlefield.


This doesn't follow for at least 3 reasons:

1. The circumstances differed between Lincoln and Bush, as I pointed out above. Lincoln's legal arguments were legitimate (even if, IMO, wrong), Bush's were not.

2. The number of citizens locked up during the Civil War is irrelevant. The writ was going to be suspended either by Congress or by the President. There was no difference in outcome. In contrast, in the absence of Bush's approval, no torture would have occurred. That's a HUGE distinction.

3. The argument about losing in court lacks any real force in light of the circumstances.
3.30.2009 3:26pm
jukeboxgrad (mail):
mccourt:

you have accepted the necessity argument; why else would the existence of a million foreign troops be at all relevant to you in judging the legality of Lincoln's conduct in usurping congressional powers and defying the courts?


I didn't claim that the presence of a million enemy troops is proof that Lincoln's actions were legal (although that might be true). I claimed that the presence of a million troops is proof that you presented a feeble analogy. When you resort to comparing two things that are so fundamentally dissimilar you succeed only in demonstrating that you have very little to work with.
3.30.2009 5:19pm
jukeboxgrad (mail):
mccourt:

1 gitmo with 400 foreigners taken from the battlefield.


Most of the people in Gitmo were not "taken from the battlefield." That's explained here:

Denbeaux, who has worked with Seton Hall University's Law School in studying the Guantanamo detainees' cases, said that 55 percent have never been accused of committing a hostile act against the United States or its allies and that 60 percent were neither fighters for the Taliban nor for al-Qaeda.


Those claims are well-documented (pdf).

More proof that we locked up innocent people is here.
3.30.2009 5:26pm
David McCourt (mail):
1, 3. Lincoln had no good legal arguments for suspension, and no legal arguments at all for defying the court.

2. a. I don't know how you can divine that "the writ was going to be suspended either by Congress or by the President." Congress didn't suspend it for two years. You earlier made this out to be some small procedural glitch, as if whether a power is held by the Congress or the President should be a matter of indifference to us. Articles I and II, mix and match. In that case, I suppose none of us should care if it were announced tomorrow that, henceforth, we would be governed entirely by executive order, and no one was going to bother enacting any of those pesky statutes.

2.b. "The number of citizens locked up during the Civil War is irrelevant." Huh? What if, as an example, a president suspended the writ, during a genuine rebellion -- hell, Congress will get around to rubber stamping it some year -- and then locked up only all his political opponents (not rebel sympathizers), or anyone who criticized his incompetence in prosecuting the war. I don't think we just say, once the writ is suspended, the president can do whatever he wants, period, and it's irrelevant.

And I would say on its face that locking up 12,000 citizens without any process at all is a bit more problematic than waterboarding for 1 or 2 minutes four terrorist detainees who historically would have been summarily executed as combatants captured out of uniform.

I think we have kicked this horse enough.
3.30.2009 5:34pm
David McCourt (mail):
jbg,

I'm sure we have locked up some innocent people at Gitmo; there are some innocent people in every prison in the U.S., or any other country.

Although it has nothing to do with the thread discussion, the Washington Post snippet you quote re the Seton Hall study -- prepared by lawyers for two detainees, so it is a brief for one side -- contains several misleading statements which should be pointed out

The Study, which relies only on information publicly disclosed by the Pentagon, says that 98% of the detainees were either "fighters for" (8%), "members of" (30%) or "associated with" (60%) al Qaeda, the Taliban, or another related terrorist organization. (Report at par. 3). As to the other two percent, the Pentagon isn't saying.

Similarly, the WaPo statement about 60% not being fighters for the Taliban or al Qaeda doesn't fairly characterize the data. The Study (at 8) lists affiliations as follows:

1. al Qaeda (32%)
2. al Qaeda &Taliban (28%)
3. Taliban (22%)
4. al Qaeda OR Taliban (7%)
5. Unidentified Affiliation (10%)
6. Other (1%)

Between 60% and 67% are al Qaida; between 50 and 57% are Taliban (affiliations overlap); for 10% the affiliation is unidentified in the public records.

Presumably, many of the more peripheral figures are among the hundreds who have been released. One such "innocent" that we released has gone a got himself a new job, as director of Talibani military operations against the British in Helmand province.
3.30.2009 6:47pm
Anderson (mail):
McCourt, "associated with" is where the Mack truck drives through.
3.30.2009 7:07pm
MarkField (mail):

I don't know how you can divine that "the writ was going to be suspended either by Congress or by the President." Congress didn't suspend it for two years.


I say that because the debate in Congress was not whether to suspend the writ, but whether doing so was necessary because the president had already done so.


"The number of citizens locked up during the Civil War is irrelevant." Huh? What if, as an example, a president suspended the writ, during a genuine rebellion -- hell, Congress will get around to rubber stamping it some year -- and then locked up only all his political opponents (not rebel sympathizers), or anyone who criticized his incompetence in prosecuting the war.


My point was that assuming the writ was going to be suspended, whether by Congress or by Lincoln, the number of persons affected was going to be the same either way. There clearly were abuses of the suspension, but that's a separate issue from the question whether Lincoln had legitimate arguments in his favor. On that topic, I agree that we've played this scene.
3.30.2009 7:48pm
jukeboxgrad (mail):
mccourt:

"associated with" (60%) al Qaeda


There have been meetings between the Bush family and the bin Laden family. I guess that means Bush is "associated with" al Qaeda.
3.30.2009 10:15pm
David McCourt (mail):
jbg,

You cited the report, now you want to impeach your own witness?

This has all been argued before, ad nauseam.
3.31.2009 1:18am
jukeboxgrad (mail):
mccourt:

You cited the report, now you want to impeach your own witness?


Highlighting the phrase "associated with" has nothing to do with impeaching my own witness. That language is not Denbeaux's. It's the Pentagon's. And Denbeaux describes the importance of the phrase (pdf):

… by far the greatest number of prisoners are identified only as being "associated with" one group or another. A much smaller percentage -- 30% -- is identified as "members of." Only 8% are classified as "fighters for." The definition of "fighters for" would seem to be obvious, while definitions of "members of" and "associated with" are less clear and could justify a very broad level of attenuation. According to the Government's expert on al Qaeda membership, Evan Kohlman, simply being told that one had been selected as a member would qualify one as a member:

Al-Qaeda leaders could dispatch one of their own — someone who is not top tier…to recruit someone and to tell them, I have been given a mandate to do this on behalf of senior al-Qaeda leaders… even though perhaps this individual has never sworn an official oath and this person has never been to an al-Quaeda training camp, nor have they actually met, say, Osama bin Ladin.12

This expansive definition of membership in al Qaeda could thus be applied to anyone who the Government believed ever spoke to an al Qaeda member. Even under this broad framework, the Government concluded that a full 60% of the detainees do not have even that minimum level of contact with an al Qaeda member.


According to the government's own data, only 8% of the prisoners are "fighters," and most have never even had a conversation with an AQ member.

So it's not my own witness that's being impeached. It's the Pentagon, and you.

This has all been argued before, ad nauseam.


Then you have no excuse for being ignorant. Earlier you said this:

1 gitmo with 400 foreigners taken from the battlefield


The number "taken from the battlefield" seems to be approximately 8% (at most), since that's the number the Pentagon is willing to call "fighters." So I hope you'll explain why you still made such an ignorant statement (which I notice you have not withdrawn), given that "this has all been argued before, ad nauseam."

Maybe you're promoting that falsehood because the same falsehood has been repeatedly promoted by the usual suspects, like here:

the vast majority of detainees at Guantanamo were captured on the battlefield, in arms against the United States or its allies


And here:

And what of Guantanamo Bay? These are enemy fighters captured on the battlefield.


And here:

the government has detained enemy combatants. Almost all of these were captured on the battlefield


And here:

These are people captured on the battlefield.


Thanks for this nice example of how propaganda propagates.
3.31.2009 7:11am
jukeboxgrad (mail):
And speaking of propaganda, I recall that this is not the first time you've appeared here to promote bogus pro-torture talking points. I recall another occasion, when you told us that torture in 2003 helped us derail a plot in 2002. Time travel!
3.31.2009 8:24am
David McCourt (mail):
jbg,

You never did address the points about Lincoln in this thread, Instead, your MO seems to be to enter these threads as they peter out, and when participants signal that they are leaving the discussion to get on with their lives, as I did, to then unleash a torrent of name calling, abuse, and one-sided citations. As I am not visiting this thread again, please feel free to continue your disreputable practice.
3.31.2009 11:31am
jukeboxgrad (mail):
mccourt:

You never did address the points about Lincoln in this thread


You're describing your own behavior. We're still waiting for you to "address" this question: why are you comparing two situations that are incomparable? Lincoln was dealing with a million enemy soldiers on US soil. Bush was not.

your MO seems to be to enter these threads as they peter out, and when participants signal that they are leaving the discussion to get on with their lives


I entered this thread here, 31 minutes after you first mentioned Lincoln. I posted the 19th comment, and I posted less than 24 hours after the thread started. How does that amount to "enter these threads as they peter out?"

And as far as "when participants signal that they are leaving the discussion to get on with their lives," you first gave such a signal here. That was long after I entered this thread.

As usual, you're inventing your own facts. And in any event, no one is holding a gun to your head and preventing you from "leaving the discussion." The decision to discredit yourself further is completely your own.

name calling, abuse, and one-sided citations


If you don't like it when your bogus assertions are shown to be bogus, then there's a simple solution: refrain from making bogus assertions. And a good start would be to take responsibility for the ones you're already made. Like this one:

1 gitmo with 400 foreigners taken from the battlefield
3.31.2009 12:05pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.