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[Richard Painter, guest-blogging, March 28, 2009 at 9:14pm] Trackbacks
What Should We Do Next?:

Although many of my commentators here disagree with me, I still believe there was poor lawyering at various levels that went into the so called torture memos.

It is also clear that efforts to single out particular individuals at OLC for blame do not get to the heart of what happened and why. The question never should have been asked to begin with. Someone high up the chain of command should have recognized that any memo on this topic would be explosive unless it unequivocally rejected torture and anything that even came close to torture. Otherwise, there should be no memo, period. That is what an ethics officer, if consulted, should have said.

There is plenty of blame to go around here, and at this point I do not see how the blame game will do us any good. It would be particularly disingenuous to look only at the lawyers who signed the memos (we know that the views of a lot of other lawyers both in and outside OLC went into these memos).

A number of commentators have mentioned state bar discipline. There is relatively little case law on discipline for bad legal opinions; in the private sector this is worked out through malpractice suits. In government, lawyers who give wrong answers or answer questions they should have refused to answer are fired or — as is the case here — have to deal with adverse public opinion. I suggest in my book some proposals for how we might improve the quality of lawyering at OLC going forward. One is to involve more career lawyers at OLC in opinion writing, as is the practice at the Department of State. The present administration I hope will take this issue seriously by doing what it can to put its own house in order.

Disciplinary action at the state level furthermore could set a bad precedent. Once state bar associations go down that route, I fear where it would lead. I certainly would not want to be a lawyer for the present Administration coming from a Red State if the state bar happens to be controlled by people who listen to Rush on the radio.

The suggestion that criminal charges could be filed against anyone involved in these memos will go nowhere.

Finally, law professors should address this subject with constructive suggestions for change, not with invective. Of particular concern are highhanded efforts to squelch free speech on campuses by saying for example that a lawyer who worked on one of these memos should not be invited to speak or to teach. This type of thing puts the former OLC lawyers on the moral high ground in a battle over campus political correctness — a sideshow — when the real focus should be on what went wrong in the United States government and why.

Lucius Cornelius:
Okay, as a government lawyer, I am never going to allow myself to get roped in to writing an opinion memo about a controversial subject. If I make a mistake, more impressive minds than mine will be after my hide and will not stop until I am disgraced, disbarred, and destitute.

I will never, ever allow myself to get an assignment to write a memo in response to a question like, "what are we allowed to do?" or "what are the boundaries of our authority or powers." That's just asking for trouble.
3.28.2009 9:32pm
byomtov (mail):
So in one breath you condemn the memos, and in the next you say that there should be no consequences for those who produced them.

I do not see how the blame game will do us any good.

The same way that punishment in other cases does us good?

It would be particularly disingenuous to look only at the lawyers who signed the memos

Let them have their federal judgeships and tenured academic positions. Who cares?

lawyers who give wrong answers...have to deal with adverse public opinion.

Ah. There's a deterrent. Someone might write an op-ed.

The suggestion that criminal charges could be filed against anyone involved in these memos will go nowhere.

Is that for political reasons, or because charges are not justified?

Finally, law professors should address this subject with constructive suggestions for change, not with invective.

Invective seems wholly justified. Isn't that part of what you mean when you talk about "adverse public opinion?"

Of particular concern are highhanded efforts to squelch free speech on campuses by saying for example that a lawyer who worked on one of these memos should not be invited to speak or to teach.

Again, Isn't that part of what you mean when you talk about "adverse public opinion?

I've enjoyed reading your posts, but here you seem to be going very far out of the way to argue that members of your fraternity from should not face any serious consequences whatsoever for their actions.
3.28.2009 9:35pm
Anderson (mail):
should have recognized that any memo on this topic would be explosive unless it unequivocally rejected torture and anything that even came close to torture

But is that an ethics argument, or a policy argument?

Regarding the prospect of prosecuting Yoo et al., even I will concede that, barring extrinsic evidence of conspiracy to provide laughably bad OLC ops as "golden shields," a criminal prosecution is likely to fail. Yoo's ops are egregious enough that a jury might convict him on the memos alone, but it would be a difficult case and I could understand DOJ not wishing to make the attempt (and risk validating Yoo with a "not guilty" verdict).

That only makes it all the more important that there be a "truth commission" that uncovers as much as we can about the torture memos, how they came to be written, and the government's use of torture and abuse.

If we don't get all this on the record and make its reprehensibility clear, then it will all happen all over again. This country has a pretty poor record of acknowledging its own war crimes; it's time to break that cycle.
3.28.2009 9:45pm
Cornellian (mail):
when the real focus should be on what went wrong in the United States government and why.

Truth Commission.
3.28.2009 9:51pm
11B40 (mail):
Greetings:

Having spent a part of my life as a combat infantryman, it's kind of interesting to
me what gets lawyer's panties in a knot these days. After all, as my (Surrogate Court Clerk) mother used to say, "What kind of lawyer works for the government."

From my perspective, this is the over-educated discussing how many "torturers" can dance on the head of a pin. It's more than disheartening to me to see the inexperience protected telling their protectors how they want their protection implemented.

I'm willing to make a deal on this. I'll stay out of your law libraries and you stay out of our wars.
3.28.2009 9:52pm
Cornellian (mail):
After all, as my (Surrogate Court Clerk) mother used to say, "What kind of lawyer works for the government."

Every single judge and every single prosecutor, for starters.
3.28.2009 9:55pm
Downfall:
The question never should have been asked to begin with. Someone high up the chain of command should have recognized that any memo on this topic would be explosive unless it unequivocally rejected torture and anything that even came close to torture. Otherwise, there should be no memo, period.

So, the only ethical way for a government lawyer to explore a novel field of law is if "someone high up the chain of command" provides the answer in advance, and does so on what won't be politically explosive?
3.28.2009 9:58pm
Lucius Cornelius:
I always try to keep my agency and my superiors from embarrassing themselves. I try even harder to keep them from violating the law. In the mid 90s, I delayed, procrastinated, and was just plain stubborn in refusing to draft an opinion memo saying that the government recorder's office could "unrecord" an improperly recorded deed.

I finally convinced the Director of Internal Revenue (the official pushing for this action) that filing a lis pendens was the proper way to achieve the result we wanted. It worked like a charm.

Sometimes you should look behind the question that the government official is asking and look for what they are actually trying to do. Then you explain to them questions that they should be asking.

Of course, it helps if you are experienced enough in the area of law to know what questions to ask. Or, lacking that, if you are paranoid enough to keep looking for reasons not to do what they are asking.

I for one am very paranoid.
3.28.2009 10:00pm
ReaderY:
There was a different Richard Painter -- surely it must have been a different person entirely -- who was posting just a few days ago about the inappropriateness of government legislating morality. All of that Richard Painter's arguments apply perfectly well here.

If government has no business enforcing morality, surely it has no business enforcing Richard Painter's morality. And if government has any business enforcing Richard Painter's morality, surely Richard Painter ought to be willing to concede that it has equal business enforcing other people's.

As Bertrand Russell well explained it in his classic introduction to Western Philosophy, while he found himself unable to bring himself to believe there is no qualitative difference between his distate for torture and his distaste for, say, broccoli, neither he nor any philosopher in history has ever been able to find a wholly satisfactory proof that such a difference exists.

If government has no business legislating on the basis of distaste, that principle ought to apply here. Call emotion emotion and a phobia a phobia. But if it's rational for government to prohibit torture because the public finds it emotionally distasteful, it's rational for government to prohibit broccoli as well.
3.28.2009 10:06pm
ReaderY:
To clarify: the basis for dislike of torture seems to be animosity, plain and simple. Justice Breyer's words ("Isn't this simply a case of 'I do not love thee, Dr. Fell, the reason why I cannot tell") apply here precisely.
3.28.2009 10:08pm
jukeboxgrad (mail):
11B40:

It's more than disheartening to me to see the inexperience protected telling their protectors how they want their protection implemented.


Something else you may find disheartening is that in our system, the "protectors" are supposed to follow rules established by the "protected."

Aside from that, I wonder if your remark about "inexperience" applies to the 30 retired admirals and generals who signed a letter saying this:

We believe it is vital to the safety of our men and women in uniform that the United States not sanction the use of interrogation methods it would find unacceptable if inflicted by the enemy against captured Americans. That principle, embedded in the Army Field Manual, has guided generations of American military personnel in combat. …
3.28.2009 10:10pm
Lucius Cornelius:
I oppose torture. Problem is, I think that the definition of "torture" is being expanded. This will have the effect of diluting the impact of the word. Eventually, if we dilute it too much, we may start thinking that the lesser forms of torture are not so bad and should not be prohibited.

We are debating whether we can subject unlawful combatants to uncomfortable conditions. Meanwhile, our enemies are mutilating and killing our military personnel (and any civilians they get their hands on). There seems to be an imbalance here.
3.28.2009 10:13pm
ArthurKirkland:
An important threshold point is that the buck stops -- just as the failures began -- at the top. When you have dysfunction and weakness atop an organization -- a Bush Jr. as president and Cheney as vice president -- the entire system (administration) corrodes. When the leaders are brittle, frightened and overwhelmed (Bush) and/or arrogant, brutal, vindictive and reactionary (Cheney), it is not surprising that severe problems develop downstream.

Bush and Cheney damaged our country (and others) to a point that entitles citizens to hold them to account. They have compounded their shame by refusing to apologize. For that reason, neither Bush nor Cheney should be permitted to emerge from seclusion without being heckled and mocked (peacefully, in a dignified manner) every time they venture into public for the rest of their lives. They also should be advised not to leave American jurisdiction and, if their arrogance overrides that advice, they should be required to answer any charges brought against them in another jurisdiction.

For those lower along the chain of command, consequences are appropriate for egregious failings and misconduct. Disbarment inquiries are appropriate, in my judgment, for those who twisted, concealed and strong-armed the legal system to enable torturers. Why any law school would permit John Yoo -- a tough guy when writing memos, a disingenous sham when testifying about them -- to instruct law students is difficult to understand. Not merely because his legal work was shoddy and so readily discredited, but more because he has exhibited the character of a weasel, the maturity of a newborn weasel.

These are not mere mistakes or failures. I do not demonize people for failing in business, for making mistakes in judgment or execution, for falling short in person conduct. But I distinguish the person who declares bankruptcy because he chased the wrong idea, relied on the wrong people, or was ill-suited to the business from the person who loots the pension plan, poisons his neighbors or defrauds those with whom he transacts. Monica Goodling was not up to the job and made mistakes, but that appears to be the extent of it. The torture team, however, can not claim mere mistake.

It would be easier to exhibit sympathy if Bybee, Flanigan, Yoo, Addington and their colleagues possessed the character to apologize, to explain, to resign. But the overriding issue is to reduce the likelihood that the next frightened, overmatched, character-challenged government officials will be tempted to emulate the relevant wrongs. That requires disclosure and censure. Reasonable minds can differ on the form censure should take, and I hope to see a good debate and just resolution of that issue. But censure is more than appropriate; it is necessary.

Trying to defend the country, in theory, was highly commendable. But, in practice, it sucked. They were out of order, the entire system was out of order. And, as some of you will understand . . . I just completed my opening statement.
3.28.2009 10:15pm
Allan L. (mail):
Isn't there some history of capital punishment for bad legal advice? I'm thinking Nuremberg.

I think those who produced these "opinions" should not be practising law and should not continue to be members of the bar.
3.28.2009 10:36pm
TedX:
As a former US Army Interrogator and a current first year law student, my dog and I enjoy watching this fight from the sideline.
3.28.2009 10:43pm
Anderson (mail):
I'll stay out of your law libraries and you stay out of our wars.

Another person who thinks that Jack Nicholson's character was the *hero* of A Few Good Men.

To clarify: the basis for dislike of torture seems to be animosity, plain and simple.

Yes, and rape gets a bad rap, too.

But the "basis" w/r/t torture is actually the Torture Act, 18 USC 2340. It's funny how many people seem to think the issue is *whether* torture should be legal, instead of what to do in light of the fact that torture *is* illegal.
3.28.2009 10:43pm
11B40 (mail):
Greetings: especially "jukeboxgrad"

Most flag offices (admirals &general) have to suffer the Congressional approval process during which they seem to be able to sacrifice their "warrior-hood" for their next star, so, I am not much impressed. A fair number of them have no real combat experience either.

If you would be willing or able to provide some historical information about which wars American military members were protected from mistreatment by our "no torture" policy, I would be glad to put them in my file which is quite empty at the moment. Was it Iraq, Viet Nam, Korea, WWII?
3.28.2009 10:44pm
Anderson (mail):
There seems to be an imbalance here.

Uh, yeah: they're evil, and we're not (supposed to be).

It's an imbalance I hope to see continue.
3.28.2009 10:45pm
Perseus (mail):
I prefer a Sedition Commission.
3.28.2009 10:47pm
Ohio Scrivener (mail):
In government, giving the "wrong answer" to a legal question is often intertwined with politics. As political parties take turns being in power, those governing should be thoughtful enough to realize the folly of disbarring, jailing or sanctioning their predecessors who gave the "wrong answer." Otherwise, when the next opposing administration comes to power, and one always does, what constitutes the "wrong answer" may have a very different appearance.
3.28.2009 10:52pm
C. Gittings (mail) (www):
Lucius Cornelius,

First of all, I don't think there's any reasonable doubt Yoo, Addington, and Haynes knew exactly what they were doing: they were subverting the laws of the United States wholesale in order to provide legal cover for whatever Bush, Cheney, and Rumsfeld wanted to do regardless of the applicable laws and treaties. The basic 'theory'/alibi was stated very plainly in the little noticed first Yoo memo...

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

John Yoo, THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM, DOJ Office of Legal Counsel (2001.09.25).

That theory is absurd to an extent where I don't see how any lawyer could honestly claim to believe it.

And the same goes for your assertion that anyone is stretching the definition of torture. It's absolutely clear that the US government has been practicing torture and systematic abuse, and it's been obvious since February 7,2002, when the White house issued an order stating:

"I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."

Translated into plain English, what that says is: "we will obey Geneva except when we violate it." See my PEGC blog article for the details.

Now since when is having a plausible excuse an absolute defense to a criminal charge?

And since when are excuses such as those quoted above plausible?

What they really represent is intent to crimes pursuant to a number of federal statutes.
3.28.2009 10:59pm
Anderson (mail):
Okay, calling it a night, with this cheerful news:

Spain’s national newspapers, El País and Público reported that the Spanish national security court has opened a criminal probe focusing on Bush Administration lawyers who pioneered the descent into torture at the prison in Guantánamo. The criminal complaint can be examined here. Público identifies the targets as University of California law professor John Yoo, former Department of Defense general counsel William J. Haynes II (now a lawyer working for Chevron), former vice presidential chief-of-staff David Addington, former attorney general and White House counsel Alberto Gonzales, former Assistant Attorney General Jay Bybee, now a judge of the United States Court of Appeals for the Ninth Circuit, and former Undersecretary of Defense Doug Feith.

As Sully notes: "More ominous for Yoo and Addington et al is that the judge involved is the one who nailed Pinochet. That dude doesn't mess around. Spain's action means these war criminals are vulnerable in 24 European countries for arrest and prosecution for enabling torture. It's a start."
3.28.2009 11:03pm
Andrew J. Lazarus (mail):
11B40, at the least we can add WWII and Vietnam. You could contrast the German treatment of Americans they captured with Russians they captured. At that time, the USSR was not a signatory to the Geneva Conventions and under the GC of that time (this is no longer true), the Germans were under no obligation to treat Russian POWs in a civilized manner. Presumably had we renounced the GC, our POWs would also have been treated very badly.

On Vietnam, you could just ask John McCain, whose memoirs state that although the North Vietnamese did not adhere to the GC strictly, they did clean up their act when ICRC visits were imminent and the GC as a whole had a favorable effect on American POW treatment.

I'm always baffled by the undertow theme that torture is good military practice and we are just too nice to employ it, or at least to celebrate it. Team Torture lost WWII. And they lost the Cold War. Would you fill up my file with examples where torture was useful? Which wars were won through torture?

I should tell you that I have had some rather curious interactions with pseudonymous persons claiming to be veterans. (I'm not; in fact, I'm pretty much a 4-F lock for eyesight.)
3.28.2009 11:05pm
Bama 1L:
To add to Lazarus, one reason things got so bad in the WWII Pacific is that the Japanese rank and file were not aware that Americans took prisoners and treated them decently. The Germans did know that. Germans surrendered when the situation became hopeless; compare that to the Japanese. Other factors were in play, too, but it's something. Assuring the enemy fighting man that he will be treated well if captured encourages him to surrender and thus saves you casualties.
3.28.2009 11:22pm
Lucius Cornelius:
Anderson:

Judge Baltasar Garzón may have "nailed" Pinochet. But I he also tried to "nail" former Secretary of State Henry Kissinger, Italian Prime Minister Silvio Berlusconi and Osama bin Laden. And he tried to accuse the late General Franco (who is STILL dead after 33 years) and a few dozen of his army and Party officials of war crimes (even though there seems to have been an amnesty for all of that in 1977).

Judge Garzón seems to grandstand a bit, and his credibility suffers.
3.28.2009 11:28pm
C. Gittings (mail) (www):

"The suggestion that criminal charges could be filed against anyone involved in these memos will go nowhere."


Well it's certainly not the first time I've heard a lawyer say that, but as often as I've heard it said it never ceases to amaze me that any lawyer could say such a thing -- let alone a lawyer who specializes in ethics. Just last week I listened to Obama's nominee to be the AAG in charge of the DOJ Criminal Division say piously that we have to follow the fact and the law, and prosecute whenever the facts show that a crime has been committed.

Yet here we are... in a preposterous situation where our highest government officials openly conspired over a period of seven years to commit crimes we once executed Nazis for committing, we have proof of those crimes to a logical certainty on their own public record, and yet you don't think we can even get them indicted.

Why is that Richard?

'Is it because the laws of the United States are just a fraudulent pretense for realpolitik? Or what?

In truth, there is way more than probable cause to believe that they have violated numerous federal statues, including:

18 USC § 113 (assault within special maritime and territorial jurisdiction)

18 USC § 371 (conspiracy)

18 USC § 1111 (murder)

18 USC § 1201 (kidnapping)

18 USC § 1505 (obstruction of proceedings before departments, etc)

18 USC § 1509 (obstruction of court orders)

18 USC § 1512 (tampering with a witness, victim, or an informant)

18 USC § 1519 (destruction, alteration, or falsification of records)

18 USC § 2340 (torture)

18 USC § 2441 (war crimes)

10 USC § 881 (UCMJ conspiracy)

10 USC § 893 (UCMJ cruelty and maltreatment)

10 USC § 897 (UCMJ unlawful detention)

10 USC § 928 (UCMJ assault)

And in regard to all these fraudulent memos cooked up Addington, Yoo, Haynes, and Bybee, et al, it is especially worth noting the text of 18 USC 371, the conspiracy statute:

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."


And seriously Richard, what about the language "in any manner or for any purpose" is unclear to you. They set out to nullify the laws of the United States in full, in order to allow the president to commit any crime at will.

They aren't just criminals, they are the worst criminals in the history of the United States. Any lawyer who would advocate what those memos do should disbarred for life, and any lawyer who actively participated in any aspect of the torture, unlawful detentions, the fraudulent pretexts for the invasion of Iraq, the illegal wire-taps -- etc -- is simply a criminal.

Facts are facts, and it does not serve the law to ignore them in favor allowing criminals to go unpunished for their crimes. The law is supposed to be impartial, and we are supposed to be a nation of laws not men. I would think a legal ethicist could only agree with me on that.
3.28.2009 11:32pm
jukeboxgrad (mail):
lucius:

I think that the definition of "torture" is being expanded


One of the people who claims we tortured is Susan Crawford.

Crawford served as General Counsel of the Army (under Reagan) and Inspector General of the Department of Defense (under Bush I). Bush I appointed her "to the nation's highest military court in 1991 for a fifteen year term and [she] later served as its chief judge from 1999 - 2004." Then under Bush II she was selected to be in charge of detainee trials.

Presumably three R presidents would not give these senior legal positions to a person who is confused about the legal definition of torture, or who is inclined to see that definition "expanded."

Then again, maybe you're in a position to explain how your knowledge of the situation is superior to hers.
3.28.2009 11:47pm
PubliusFL:
jukeboxgrad: Aside from that, I wonder if your remark about "inexperience" applies to the 30 retired admirals and generals who signed a letter saying this:


We believe it is vital to the safety of our men and women in uniform that the United States not sanction the use of interrogation methods it would find unacceptable if inflicted by the enemy against captured Americans. That principle, embedded in the Army Field Manual, has guided generations of American military personnel in combat.


Right, because if we use interrogation methods or other conditions of captivity that we wouldn't want our personnel subjected to, the people we're fighting against might start mistreating our captured personnel. Heck, they might even start violating other requirements of the law of war by doing things like targeting our civilians. And we can't let THAT happen! Oh wait...
3.29.2009 12:16am
Tritium (mail):
The problem I see is having a legal staff at all. It creates a Judicial System within the Executive Branch violating the seperation of powers. While advice may be offered to the President from his cabinet, their interpretation is irrelevant since the courts are the only appropriate place.

The only reason these positions exist is to find ways around the laws, and is a recipe for tyranny, not democracy.

Few seem to understand the basic principles of the Science of Law, which is required if ever there is to be Justice had.
3.29.2009 12:35am
D.R.M.:
Commander in the field: "Look, I'm pretty sure this guy knows something. He's clearly not covered by the Geneva Conventions, because he broke about six dozen provisions. So how far can I go in interrogating him?"

Man at HQ: "Huh. Good question. I'll ask the lawyers. Hey, guys, how far can we go in interrogating an enemy combatant who isn't a legal POW?"

Ethics Lawyer: [interrupting] "We can't answer that."

Man at HQ: "What?"

Ethics Lawyer: "Well, we might, when looking at the law, find there are interrogation methods that are actually legal, but which organizations like Human Rights Watch would declare torture. You know, like that ridiculous bit in the Lebanon war where they called Israel bombing roads used by enemy forces a 'war crime' because the roads were also used by civilians? We don't want that kind of bad press."

Man at HQ: "What the hell? We have lives on the line here! I don't want to break the law, but if there's anything we can do, we need to know it!"

Ethics Lawyer: "Too bad."
3.29.2009 1:13am
David M. Nieporent (www):
Isn't there some history of capital punishment for bad legal advice? I'm thinking Nuremberg.
No. Nobody at Nuremberg was punished for "legal advice," bad or otherwise. If you look at what happened, you'll see that the lawyers/judges punished were actually punished for implementing policy, not for mere "advice."
3.29.2009 1:21am
C. Gittings (mail) (www):
IRT punishment for legal misconduct during WW2, see Evan J. Wallach, AFGHANISTAN, QUIRIN, AND UCHIYAMA: DOES THE SAUCE SUIT THE GANDER?, Army Law., November 2003, at 18, discussion at 45 beginning with...

"In United States v. Uchiyama, a U.S. military commission tried those Japanese officials involved in the Japanese military commission, which tried two captured Americans who participated in the carpet bombing of Kobe and Osaka. In the bombing raid, the Americans inflicted heavy civilian casualties. The Japanese military commission tried the Americans, and convicted and then executed them. Those officials included the commanding general of the Japanese Fifteenth Area Army, his chief of staff, his judicial officer, the three members of the Japanese commission, the prosecutor, and the executioner."


See also 18 USC 2441(c)(2) making it an offense to commit any violation of the Hague IV 1907 Annex of Regulations ("HR"), arts. 23, 25, 27, or 28; noting especially art., 23[h]:

"In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."


As to the punishment for such offenses, 18 USC 2441(a) states:

"Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death."
3.29.2009 2:47am
Wilpert Archibald Gobsmacked (mail):
I was beginning to have some respect for Richard Painter's pov until he said:
"I certainly would not want to be a lawyer for the present Administration coming from a Red State that has a state bar controlled by people who listen to Rush on the radio."
What a cockamamie thing to say. As if state bar members holding certain beliefs are not able to be fair, but those holding contrary beliefs are. Not a very lawyerly thing to say - or think, in my view.

I'm with ReaderY. Will the real Richard Painter please stand up? The guy who's posting here is wobbling all over the ethical map, and is biased against some things, but not others. Time for a recusal.
3.29.2009 3:05am
Roger Schlafly (www):
Which is worse? The quality of the legal argument in the torture memos, or in the criticism of those memos?

If the memos are incorrect, then why can't anyone point out the error? Painter's one example of an error is refuted by the comments.
3.29.2009 3:53am
jukeboxgrad (mail):
publius:

Right, because if we use interrogation methods or other conditions of captivity that we wouldn't want our personnel subjected to, the people we're fighting against might start mistreating our captured personnel.


I think the 30 generals and admirals who signed that letter were using thinking not quite as simplistic as yours. Condoning torture has certain unintended consequences. Abusing prisoners is not just immoral but dumb.

It's to our advantage, in this war and every other war, if our opponents are inclined to surrender easily, rather than choose to fight to the death. Now that we've announced that the US indulges in waterboarding and other forms of torture, every opponent in this and every future war now has extra motivation to avoid surrendering (unlike in the past, when they had reason to expect that they would be treated humanely once in US hands).

This means every US soldier, in this and every future war, is facing extra danger, because they will be facing enemies who will be incrementally more inclined to keep fighting rather than surrender.

================
schafly:

If the memos are incorrect, then why can't anyone point out the error?


Feel free to explain why Yoo failed to mention Youngstown. Some citations regarding the importance of Youngstown can be found via here.
3.29.2009 8:54am
davod (mail):
What is the Volkoh Conspiracy coming to?

Is this free advertising for an author, or is Mr. Painter paying for his time?
3.29.2009 9:33am
Fury:
jukeboxgrad:

"It's to our advantage, in this war and every other war, if our opponents are inclined to surrender easily, rather than choose to fight to the death. Now that we've announced that the US indulges in waterboarding and other forms of torture, every opponent in this and every future war now has extra motivation to avoid surrendering (unlike in the past, when they had reason to expect that they would be treated humanely once in US hands)."

This seems reasonable, but is dependent on the enemy and their mindset. If an opposing force is comprised of individuals whose belief system is dramatically different from that generally embraced by Western Civilization, then your assumption is not valid. The U.S. using torture may motivate such an opposing force to resist, but it does not necessarily follow that not using torture will mean they will consider surrendering in any greater degree than before.

In the war with the Taliban and al Queda, for many their core belief system does not allow for that type of outcome (to surrender)- they must fight until they are killed or can extricate themselves from the situation at hand. Several good books by Ahmed Rashid and Mary Habeck flesh this out further.

On a side note, I think President Obama's strategy concerning Afghanistan is the right one - bring civilians and military personnel in to help the Afghan people (and by example other Central Asian peoples) realize that there is a life separate and distinct from a life centered around being an Islamic extremist (I prefer the term khawarij, which is a heterodox Muslim instead of an "Islamic extremist") -the former holds more promise than the latter. For those not yet inculcated by madaris run by khawarij, this is the best hope for their lives to change - for those who are already committed to the khawarij way if life, they may not be able to change from a belief system that for many has been engrained in them since being a child.
3.29.2009 9:52am
Anderson (mail):
D.R.M. forgets conveniently that there is an Army Interrogation Manual that answers the commander's questions for him.

Also, there's the classic "I'm pretty sure this guy knows something." WHAT the guy knows, we supposedly can't learn except by torture; but magically, we DO know that he "knows something."

So the commander tortures the guy, and finds out that "pretty sure" wasn't quite enough? Oops, sorry we tortured you?
3.29.2009 10:27am
davod (mail):
Bush Jr. as president and Cheney as vice president -Disfunction and Weakness?
3.29.2009 10:36am
Brett Bellmore:

First of all, I don't think there's any reasonable doubt Yoo, Addington, and Haynes knew exactly what they were doing: they were subverting the laws of the United States wholesale in order to provide legal cover for whatever Bush, Cheney, and Rumsfeld wanted to do regardless of the applicable laws and treaties.


And this differs in what way from Congressional staff lawyers telling Pelosi and company that giving D.C. a seat in the House despite it not being a state was just peachy?

Lawyers telling politicians that whatever they want to do is Constitutional and/or legal regardless of whether it really is, is SOP, and has been for decades.
3.29.2009 11:05am
C. Gittings (mail) (www):

Roger Schlafly

"If the memos are incorrect, then why can't anyone point out the error?"

You're just not paying attention. I cited the most fundamental fraud in the Yoo memos above:

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

John Yoo, THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM, DOJ Office of Legal Counsel (2001.09.25).

For another example, see this blog post.
3.29.2009 11:06am
MarkField (mail):

In the war with the Taliban and al Queda, for many their core belief system does not allow for that type of outcome (to surrender)- they must fight until they are killed or can extricate themselves from the situation at hand. Several good books by Ahmed Rashid and Mary Habeck flesh this out further.


This theory makes it rather hard to explain how we got captives in the first place.* And even harder to explain how torturing the captives we do get would make it more likely to get additional ones.

*Beyond the obvious fact, already pointed out, that many of those at Gitmo were entirely innocent of any wrongdoing whatsoever.
3.29.2009 11:22am
Andrew J. Lazarus (mail):
Mr Schlafly: Perhaps you can ask your mother about how she broke into politics with the Cardinal Mindszenty Foundation. The cardinal was convicted in one of those Communist Bloc show trials, at which his confession (unquestionably extracted by torture) was "evidence". After your mother explains what was wrong about the Hungarian Communist actions in this case, just make the necessary substitutions to apply the Goose Gander Principle.

Except, that's really one of the points here, One reason the OLC memos are so transparently bogus is that we would never think of crediting the same reasoning, when practiced by our enemies.

It's not that surprising that when push comes to shove, many Americans are willing to excuse torture practiced by their own government. We have the same genes as all those other countries who were able to justify their own extreme, illegal measures.
3.29.2009 11:42am
Fury:
Mark Field:

"This theory makes it rather hard to explain how we got captives in the first place.* And even harder to explain how torturing the captives we do get would make it more likely to get additional ones. "

That's why I qualified my remarks:

"...for many their core belief system does not allow for that type of outcome..."
3.29.2009 12:20pm
Roger Schlafly (www):
I am not excusing torture. I get the impression that everyone here is in favor of interrogation and against torture, but they differ about the definitions and the applicability of existing law.

The question is whether the OLC memos gave correct legal advice. Gittings complains that Yoo said that the President has the authority to make determinations about terrorist threats. I am not an expert in this area. If Yoo is wrong, then where is the proof that he is wrong?
3.29.2009 12:23pm
C. Gittings (mail) (www):
Roger,

How much of an expert do you need to be to figure out that the US Constitution does not grant the president the same absolute powers claimed by Stalin, Hitler, Charles I, or the emperor Caligula?

Let me quote part of my own amicus brief in Hamdi v. Rumsfeld:

"The Constitution delegates the command of our armed forces to the President, but reserves to Congress the power to create, equip, and regulate such forces. U.S. Const., art. I, § 8, cl. 10-16, 18, U.S. Const., art. II, § 2, cl. 1. The President “shall take Care that the Laws be faithfully executed,” U.S. Const., art. II, § 3, and the conduct of military operations by the U.S. has been governed by statute from the beginning."
Hamdi brief at 8-9.


The last sentence there refers to the Articles of War exacted by Congress on June 30, 1775, a few days after they commissioned George Washington to command the Continental Army. There is absolutely nothing in the Constitution to suggest that the President has any authority to simply ignore the laws in war time, and especially not laws enacted specifically to regulate the military or implement the laws of war in our domestic laws.
3.29.2009 1:08pm
MarkField (mail):

"...for many their core belief system does not allow for that type of outcome..."


And the problem is that your qualification completely undercuts your argument. The original assertion was that we should not torture because torturing combatants means they'll fight to the death rather than be captured, thus putting our own soldiers at greater risk. Your response was that "many" of our enemies won't surrender. If you agree that at least "some" of our enemies will respond to incentives -- and the very fact of capture demonstrates that it's a serious overstatement to claim that they won't -- then the original incentive still exists.


I am not excusing torture. I get the impression that everyone here is in favor of interrogation and against torture, but they differ about the definitions and the applicability of existing law.


I am not excusing torture rape. I get the impression that everyone here is in favor of interrogation sex and against torture rape, but they differ about the definitions and the applicability of existing law.

No, you're not excusing torture, not in the least.
3.29.2009 1:14pm
Andrew J. Lazarus (mail):
I do not believe that Stalin ever claimed the ability to overrule laws passed by the Soviet legislative process, much as he may have done so in practice. I believe Gittings owes Uncle Joe an apology.
3.29.2009 2:07pm
Roger Schlafly (www):
How much of an expert do you need to be to figure out that the US Constitution does not grant the president the same absolute powers claimed by Stalin, Hitler, Charles I, or the emperor Caligula?
Can you show me where the OLC memos claimed that the President has such powers? I thought that they were just about whether CIA interrogators could spray some water in a suspect's face in about 3 instances.
3.29.2009 2:27pm
ArthurKirkland:
From a legal perspective, under the Yoo (Bush administration) line of interpretation of Presidential authority, what would (could?) stop Pres. Obama from declaring that the lot of them -- the entire Torture Team --are war criminals whose activities have aided the enemies of the United States in the "War On Terror;" rounding them up (saving the taxpayers money by inducing the targets to self-fund travel to the round-up point with a sting built upon a fake Federalist Society symposium on Presidential Power); shipping them to Guantanamo; and interrogating them using enhanced techniques?

If nothing else, this would illuminate the issue of how genuine is the ostensible belief among Torture Teamers that "[nothing} can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."
3.29.2009 2:38pm
C. Gittings (mail) (www):

"Can you show me where the OLC memos claimed that the President has such powers?"


I've already quoted it a couple of times on other threads...

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make." (emphasis added)

John Yoo, THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM, DOJ Office of Legal Counsel (2001.09.25).


Read what it literally says. If the President "determines" that a two-year-old girl in Kansas City is a "terrorist threat" and that the proper method to be used in response to that threat is a nuclear strike on Kansas City, then according to John Yoo and David Addington, that "decision" is "for the President alone to make".

It's pure idiocy to whatever extent it isn't naked hypocrisy and fraud -- a transparent excuse for doing whatever they want regardless of the law. Suppose the President decided that every Jew or Muslim was a terrorist threat and that the proper response to that threat was to exterminate all of the Jews and Muslims by the same methods employed in Bosnia or Germany -- what in that memo would stand in the way?
3.29.2009 3:06pm
Roger Schlafly (www):
C. Gittings, your posts are filled with absurd analogies and unsupported claims. But I'll try to play your game. In your view, who does have the authority to issue a nuclear response to a terrorist threat? What proof do you have that your view is correct?

Many American Presidents have acted militarily without waiting for Congressional approval. But not GW Bush. He got a vote from Congress for the Afghan and Iraq wars.
3.29.2009 3:32pm
C. Gittings (mail) (www):
Analogies??? What analogies?

A hypo is a hypo, not an analogy.

I don't think there's an easy answer to your question, but I don't think the inherent difficulties of dealing with nuclear weapons justifies abandoning the law either -- that will only make a difficult situation worse IMO.

But that's beside the point in any case: you're changing the subject, which was what the law actually says as opposed to the Bush administration's fraudulent claims. The reality is that they intentionally committed war crimes, crimes against humanity, and crimes against peace in exactly the same sense that the Nazis committed such crimes, and they did so in violation of our own laws.

That isn't an opinion or analogy, on information and belief, it's what the facts show. If we had this much evidence against a drug dealer or thief they'd have been tried and convicted a long time ago.
3.29.2009 4:09pm
PubliusFL:
MarkField: This theory makes it rather hard to explain how we got captives in the first place.

If you assume that they will be successful in whatever they choose to do. It IS possible, however, to capture someone who doesn't want to be taken alive, with some luck and/or surprise. Especially since combat medicine is much better than it used to be at keeping people alive. Abu Zubaydah, for example, was shot multiple times during his capture, but was treated and then interrogated.
3.29.2009 4:13pm
Roger Schlafly (www):
C. Gittings, no easy answer? So Yoo might have been right after all?

Again, you make a silly Nazi analogy. I suggest that you take your evidence (or your "reality") to Obama or Pelosi. They're in charge now. Better yet, go write your own memo on what you think that the law is.
3.29.2009 4:35pm
MarkField (mail):

If you assume that they will be successful in whatever they choose to do. It IS possible, however, to capture someone who doesn't want to be taken alive, with some luck and/or surprise. Especially since combat medicine is much better than it used to be at keeping people alive. Abu Zubaydah, for example, was shot multiple times during his capture, but was treated and then interrogated.


I agree there could be individual cases, but we're talking hundreds.
3.29.2009 4:58pm
C. Gittings (mail) (www):
Roger,

What makes you think your diversion has anything to do with the truth of Yoo's claim?

Are you trying to suggest that it might actually be a good idea to nuke Kansas City just because George Bush thinks so, and therefore it's a good idea to eliminate all our laws so that he'll feel uninhibited about it??

No, you aren't -- it's simply an irrelevant diversion to avoid the substance.

Do you have a claim here? If so, what is it?

You certainly haven't shown me any reason to suppose Yoo's memo is anything other than what it obviously is: a preposterous fraud which claims the President can ignore any and all laws and commit any crime at his sole discretion.

There is no analogy: robbery is robbery, fraud is fraud, murder is murder, torture is torture, kidnappings are kidnappings, wars of aggression are wars of aggression, and the elements of crimes are established by the facts and the law. YOU are simply denying both the facts and the law, apparently because you think that committing crimes is perfectly all right just as long as you suppose they will benefit you in some way. I doubt anyone ever robbed a bank or committed a rape thinking anything different.
3.29.2009 5:33pm
Roger Schlafly (www):
C. Gittings, the Kansas City nuke was your silly scenario, not mine. I am not advocating committing any crimes; I am just discussing what the law is.
3.29.2009 5:46pm
ArthurKirkland:
The issue is broader than waterboarding. Evidence indicates that a number of captives under American control died of beatings or other physical abuse inflicted while they were shackled. Any takers for the proposition that those prisoners were not tortured?

Our nation needs to resolve this. Release all of the evidence -- every memorandum, every photograph, every videotape (if not already destroyed by cowards), every report, every text message. Conduct a thorough investigation to generate more evidence -- statements under oath, information from other countries. After determining, to the best of our ability, what occurred, hold the culpable to account. Shame them publicly. Conduct professional, civil and criminal proceedings. After the past has been addressed, improve our laws, if necessary, to deter recurrence.

By the way, it's also about time to determine whether any of those kidnapped, captured, detained, abused or killed were proper targets of such conduct. If anyone in custody is culpable, they should stand alongside the Feiths, Addingtons, Yoos and Bybees in the line awaiting judgment.
3.29.2009 6:48pm
Fury:
MarkField:

"And the problem is that your qualification completely undercuts your argument. The original assertion was that we should not torture because torturing combatants means they'll fight to the death rather than be captured, thus putting our own soldiers at greater risk. Your response was that "many" of our enemies won't surrender. If you agree that at least "some" of our enemies will respond to incentives -- and the very fact of capture demonstrates that it's a serious overstatement to claim that they won't -- then the original incentive still exists."

Here is what I wrote:

"The U.S. using torture may motivate such an opposing force to resist, but it does not necessarily follow that not using torture will mean they will consider surrendering in any greater degree than before."

The next paragraph is where I specifically mentioned the Taliban and Al-Qaeda. I don't believe that committed Taliban and Al-Qaeda fighters will surrender, regardless if the U.S. did or did not use torture, as it is not relevant to their worldview. They have been inculcated for years that we are unbelievers and as such, we must be destroyed - and whether or not we torture will not change that.
3.29.2009 7:07pm
MarkField (mail):

The next paragraph is where I specifically mentioned the Taliban and Al-Qaeda. I don't believe that committed Taliban and Al-Qaeda fighters will surrender, regardless if the U.S. did or did not use torture, as it is not relevant to their worldview. They have been inculcated for years that we are unbelievers and as such, we must be destroyed - and whether or not we torture will not change that.


There may very well be those who will fight to the death regardless of our policies. But we should define policies (in part, at least) for those who might be motivated to surrender if they know they'll be treated fairly. As long as there even a few such, our own soldiers benefit.
3.29.2009 7:18pm
C. Gittings (mail) (www):
Roger,

Well "my silly scenario" wasn't anything more or less than an illustration of what Yoo's fraudulent memo would permit -- the memo quite literally states that the President can do anything at all to anyone he pleases regardless of any law enacted by Congress. What's silly about that is that they would make such an outlandish claim in the first place, or that anyone who claims to believe in democracy, the rule of law, or the U.S. Constitution would actually support them.

I didn't write the memo, I'm just reading what it says at face value -- you asked for an example and I gave you one. I could just as easily have given you a dozen others, but that one encapsulates them all -- the President can violate any law at will says Yoo.

He wrote a memo on 18 USC 2441 -- the war crimes statute -- which purported to show that every single provision was inapplicable in war time for various and sundry reasons, but that was fluff. The 2001.09.25 memo is the only real one, the others are just elaborations of the basic theme. The Nazis called it "the Fuhrer Principle",m and they floated exactly the same arguments, rationalizations, and excuses that the Bush gang and their political supporters
have for the last eight years -- the only real difference is that the Nazis enemies were a lot more dangerous than Al Qaeda, the Taleban, or Iraq ever were.

But that fact is also irrelevant: fallacious reasoning is fallacious reasoning no matter how dangerous your enemies are, and nothing will help your enemies more than adopting fallacious reasons for doing things.
3.29.2009 7:28pm
jukeboxgrad (mail):
fury:

for many their core belief system does not allow for that type of outcome


But maybe not as many as you think. Because as Mark pointed out, if it was really quite so many, then we should have very few prisoners. But we actually have many.

Also, even if someone's "core belief system does not allow for that type of outcome [surrender]," it is not to our advantage to give them an extra reason to adhere to their core belief system. Please pay attention to the way I made my point: we have given them "extra motivation to avoid surrendering." This includes everyone: even those whose "core belief system does not allow for that type of outcome."

===============
schlafly:

If Yoo is wrong, then where is the proof that he is wrong?


Earlier you suggested that no one could "point out the error" in Yoo's memo. So I pointed out an 'error:' he failed to even mention Youngstown. And I cited references which explain why this matters.

When you ask for proof and then ignore the answer, this tends to create the impression that your question is not sincere, and that you don't really expect to be taken seriously.
3.30.2009 10:18am
Fury:
jukeboxgrad:

But maybe not as many as you think. Because as Mark pointed out, if it was really quite so many, then we should have very few prisoners. But we actually have many.

Maybe there are some stats on number of prisoners taken from the Central Asian theater versus total number of fighters - will take a look for that.

Also, even if someone's "core belief system does not allow for that type of outcome [surrender]," it is not to our advantage to give them an extra reason to adhere to their core belief system. Please pay attention to the way I made my point: we have given them "extra motivation to avoid surrendering." This includes everyone: even those whose "core belief system does not allow for that type of outcome."

Agreed, especially on those who do not share that core belief system. A good example are many of those arrested in Iraq.
3.30.2009 11:17am
MarkField (mail):

Maybe there are some stats on number of prisoners taken from the Central Asian theater versus total number of fighters - will take a look for that.


At the time of the Seton Hall study, the majority of those in Gitmo were captured in Southwest Asia, but not on the battlefield and not by US forces.
3.30.2009 3:19pm
Jay Reding (www):
C. Gittings, last I checked, the Constitution gave the Executive the role of Commander in Chief.

If Yoo is so transparently wrong, then who should have the power to determine what the terrorist threat actually is? Congress? The Supreme Court? Someone has to make those determinations, and Yoo is simply pointing out the obvious that the Constitution gives the Executive the power to do so.

Congress can impeach the President or they can vote to cut off funding for any military operation. What they cannot do is usurp the President's lawful role as Commander in Chief of the Armed Forces.

Your hyperbolic reaction to Yoo's statement demonstrates the weakness of your argument. The issue is not whether the President can nuke Kansas City because of a two-year-old, the issue is who has the authority to make military decisions in this country, and the Constitution clearly gives that power to the Executive and not the other branches. All Yoo is doing is pointing out the obvious, and your extreme examples are hardly persuasive.

Under your construction of the Constitution then, what does the Commander in Chief power actually mean?
3.31.2009 11:29am
Anderson (mail):
The point, Mr. Redding, is that while the President is CINC, that power does not make him an absolute leader.

If the Constitution forbids slavery, for instance, then the President is not allowed to direct our soldiers to enslave their vanquished opponents.

If the Constitution empowers Congress to regulate the armed forces, then the President is not allowed to direct our soldiers to violate those regulations.

Re: a body like the CIA, it's not part of the armed forces -- and is thus not part of any discretion held by the CINC. Civilian CIA employees are no more allowed to direct or perform torture than you or I.

Yoo argued, literally, that the CINC power allows the President to order torture, in the face of a Congressional prohibition. I cannot imagine a single Framer who would have agreed with that interpretation of the Constitution. Do you imagine that Hamilton, or Madison, or Washington would have?
3.31.2009 12:01pm
jukeboxgrad (mail):
reding:

the issue is who has the authority to make military decisions in this country, and the Constitution clearly gives that power to the Executive and not the other branches


Are we reading the same Constitution? Because the one I've seen says Congress has the power to "To make Rules for the Government and Regulation of the land and naval Forces."

Under your construction of the Constitution then, what does the Commander in Chief power actually mean?


It means that the president has the power to command the military, within the bounds of the "Rules" established by Congress.

Yoo obviously never read the Constitution (and I guess you didn't either), because he said this:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.


It's interesting to note that in this particular memo, Yoo quoted the relevant Constitutional text ("make Rules for the Government and Regulation of the land and naval Forces") this many times: zero.

If Congress has the power "To make Rules for the Government and Regulation of the land and naval Forces," then decisions regarding the use of those forces are obviously not "for the President alone to make." Any decision the president makes regarding the use of those forces has to abide by the "Rules" established by Congress.
3.31.2009 12:37pm

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