June 14, 2004

Froomkin on the Justice Department's Approval of Torture

Michael Froomkin writes about the Justice Department's Office of Legal Counsel's cheers for torture.

It seems very clear to me that Jay Bybee should not be a judge, on the 9th Circuit or anyplace:

Discourse.net: OLC's Aug. 1, 2002 Torture Memo ("the Bybee Memo"): The Washington Post has placed online the full text of an August 1, 2002 memo from the Justice Department’s Office of Legal Counsel (OLC) to White House Legal Counsel Alberto R. Gonzales.

A few words of context before substance. The OLC is sometimes called “the Attorney General’s Lawyer”. It’s an elite bureau in the Justice Dept. staffed by very very intelligent and highly credentialed people. Its primary function is to give opinions on matters of constitutionality regarding interdepartmental and inter-branch relations, and to opine on the constitutionality of pending legislation. By all accounts working at OLC is one of the most interesting jobs in government if you are interested in constitutional law or the working of government.

In August 2002, the head of the OLC was Jay Bybee, now a sitting judge on the 9th Circuit. His signature appears on page 46 of this memo.

White House Counsel Alberto Gonzales, who requested this memo, is not the head of the OLC. The White House Counsel is part of the Office of the President, and the Counsel is the President’s staff lawyer, just as the Attorney General is the President’s institutional lawyer; neither of these people however is the President’s personal lawyer.

OK. On to the substance.

The memo is about what limits on the use of force (“standards of permissible conduct”) for interrogations conducted “abroad” are found in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment ( Torture Convention) “as implemented” by 18 USC §§ 2340-2340A (the Torture statute).

The memo concludes that the restrictions are very limited — that only acts inflicting and “specifically intended to inflict severe pain or suffering”, whether mental or physical, are prohibited. Allowed are severe mental pain not intended to have lasting effects (pity if they do…), and physical pain less than that which acompanies “serious physical injury such as death or organ failure” (p. 46). Having opined that some cruel, inhuman, or degrading acts are not forbidden, only those that are “extreme acts” (committed on purpose), the memo moves on to “examine defenses” that could be asserted to “negate any claims that certain interrogation methods violate the statute.”

  • This is not a draft, but it’s not an action document either. It’s legal advice to the Counselor for the President. The action document was Gonzales’s memo to Bush.
  • This OLC document is a legalistic, logic-chopping brief for the torturer. Its entire thrust is justifying maximal pain.
  • Nowhere do the authors say “but this would be wrong”.
  • This memo also has a full dose of the royalist vision of the Presidency that informs the Draft Walker memo. In the views of the author(s), there’s basically nothing Congress can do to constrain the President’s exercise of the war power. The Geneva Conventions are, by inevitable implications, not binding on the President, nor is any other international agreement if it impedes the war effort. I’m sure our allies will be just thrilled to hear that. And, although the memo nowhere treats this issue, presumably, also, the same applies in reverse, and our adversaries should feel unconstrained by any treaties against poison gas, torture, land mines, or anything else? Or is ignoring treaties a unique prerogative of the USA?

Synopsis and commentary:

Pages 2-13 are the same sort of unconvincing criminal law analysis that others have critiqued in the Walker Working Group memo

Admitting that the Torture Statute is designed to implement the Torture Convention, and that therefore the interpretation of the treaty should inform one’s interpretation of the statute, page 14 of the Bybee memo starts in on the Torture Convention. It finds in the Convention a distinction between the worst acts of torture and lesser acts of “cruel, inhuman or degrading treatment or punishment”. (P. 15) That’s fair enough.

Then things get weird. When the Senate ratified the Torture Convention in 1994 it stated “[t]hat the United States considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” 136 Cong. Rec. 17491 (Oct. 27, 1990).

It’s obvious (I hope) that the various horrors the memo would allow, such as hurting prisoners a great deal (but not quite to the point of ‘torture’), drugging them, scaring them, and so on, indeed very many things we would call “cruel, inhuman or degrading” would be the sort of thing that we would domestically prohibit as “cruel and unusual” punishment. But if that’s right, then the memo is deeply, horribly, wrong.

So, here’s how they try to reason out of that hole: It’s not the Senate’s view that really counts. No, it’s the King’s President’s view of the treaty’s meaning that has the “greatest weight” (p. 16). To get to this conclusion they cite a bunch of court decisions that say the executive’s view is entitled to “great weight” (which it is)…but the difference between “great” and “greatest” is, well, pretty great.

Having decided that it’s the executive branch’s views that matter, the memo then parses the Reagan administration’s submissions to the Senate relating to the proposed ratification of the the Convention. One problem with relying on what the Reagan administration said is that the Senate didn’t ratify the Convention until the first Bush administration. Arguably it did so in reliance on the Bush administration’s submissions which, as the memo delicately puts it used “less vigorous rhetoric” (p. 18). In fact, the Bush administration used language much like that in the Torture Statute; but the memo chooses to rely on the Reagan language instead (p. 19) to find that only the most extreme conduct would be prohibited.

As for what the Senate may have said in the ratification debates, the memo’s attitude is — Who Cares? “[A]part from statements by Executive Branch officials, the rest of a ratification debate is of little weight in interpreting a treaty”. For a statement of the contrary, and widely accepted, view that requires a court to consider legislative sources, see Restatement (3rd) of the Foreign Relations Law of the United States § 325 comment 5.

Despite the increasingly heard right-wing complaint that the Supreme Court should not rely on the decisions of foreign courts, the Memo then turns to what other nations have said constitutes torture. The most important case on which the Memo relies is “Ireland v. United Kingdom”:, a 1978 decision of the European Court of Human Rights which held that “interrogation in depth” involving “five techniques” was not “torture” but merely “inhuman and degrading treatment”. The five techniques were:

a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

e) deprivation of food and drink.. subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

If one believed that US law banned only “torture” and not mere “inhumane and degrading treatment” then I think the Memo would be right to rely on this precedent. The key issue is whether that initial distinction is right.

(The memo also noted, at pp. 30-31, the Israeli Supreme Court’s decision in “Public Committee Against Torture in Israel v. Israel”:, 38 LL.M. 1471 (1999), which discussed even more aggressive measures and found them to be “inhuman and degrading”. The Bybee Memo argues somewhat unpersuasively that this means the Court did not believe them to be torture, a reading it buttressed by noting that Court accepted there might be a necessity defense in some cases. I’m no expert here, but I’m dubious: the Israeli Supreme Court was ruling in a charged and political case, and was very mindful of the potential effect on international public opinion. It had every incentive to avoid the word ‘torture’; as for the necessity defense, the Israeli rule, like the US rule, contemplates permitting some things under domestic law that violate international law. “Necessity” in Israel is seen as touching national survival.)

Page 31 returns us to Wonderland. Here the memo reverses field and says, basically, if we were wrong about any of this stuff and the statute did ban an interrogation technique then the statute would be unconstitutional as an impermissible encroachment on the President’s Commander-in-Chief power to wage a military campaign, especially in circumstances “unprecedented in recent American history”. (Note the qualifier: it is NOT the first time we’ve had an attack on our shores or even on core government institutions. After all, the British burned the White House in 1814.) The next couple pages recite what a great threat Al Qaeda is, and the great national effort to fight it, concluding that “the capture and interrogation of such individuals is clearly imperative to our national security and defense” as they could tell us information that would prevent future attacks.

[In what now must seem highly ironic this section of the memo concludes by citing Padilla’s arrest as an example of the valuable intelligence that could be gathered to prevent future attacks on the US. (In fact, by all accounts other than the Justice Department’s, Padilla was at worst a nasty, ill-intentioned incompetent or perhaps just a big talker; his lawyer argues he was a guy who soured on Al Qaeda and made up stuff so they’d let him go back to the US).]

The memo then argues (pp. 33- ) that any criminal statute such as the Torture statute, which might be read to limit the President’s authority to wage war must be read to avoid this constitutional problem. It’s certainly right that reading statutes to avoid constitutional problems is a good interpretive strategy. The problem here, as I’ve suggested previously, is that there isn’t actually much of a constitutional problem here: a President negotiated the statute, the Senate ratified it, both houses of Congress passed implementing legislation that a different President signed. Treaties are the law of the land. Once implemented in legislation (few treaties are “self-executing,” so legislation is almost always needed), the President has a duty to take care that they be faithfully executed unless Congress relieves him of that obligation. That didn’t happen here.

The memo argues (p. 35) that Congress “may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” Either this is just bunk, or the Geneva conventions, the prohibitions on the use of poison gas, all the rest of the web of international agreements to which the US is a party, are so much tissue paper. We’re no longer committed to the rule of law, but the rule of force. (In fact what the OLC seemed to argue for in other memos was a double standard in which international law still applied to everyone else.)

In any case, there’s an enormous difference between unfettered discretion to move troops around on the battlefield and unfettered discretion to order war crimes. One has to do with determining what tools the President has available to conduct the war, the other with the conduct of it. Congress has a great say in the first, even if it has no say in the second.

Page 36 pulls back a bit in the direction of reality. Perhaps realizing that its argument is a little daft, the memo considers the possibility that “[i]t could be argued that Congress enacted 18 U.S.C. § 2340A with the full knowledge and consideration of the President’s Commander-in-Chief power, and the Congress intended to restrict his discretion in the interrogation of enemy combatants.” But the visit is merely temporary, for the memo quickly asserts that even if this were the case, “the Department of Justice could not could not [sic] enforce Section 2340A against federal officials acting pursuant to the President’s constitutional authority to wage a military campaign”.

Note that the argument here is not that the DOJ should use its prosecutorial discretion, but rather that it would have a legal duty to abstain from prosecution. Why couldn’t the DOJ prosecute what appears to be a crime? Because the President’s power to protect the nation’s security is paramount (p. 36), and plenary, especially “in grave and unforseen emergencies” (p. 37).

Now, there really is great substance to the argument that the President’s powers are at its apex if he has to repel a sudden attack on the US. I think all constitutional scholars would agree with that. But the scenario to which this applies is the invading army, the advancing missile or aircraft, not the detainee captured half way across the world.

By page 39 of the memo, however, we’re back to the Vesting Clauses of the Constitution, and the argument the President is a law to himself regarding anything touching military matters. “Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” And since intelligence gathering is so critical to modern warfare against terrorists, Congress certainly can’t interfere with that.

In short, it’s the same Nixonian argument all over: the DOJ can’t prosecute anyone who, in anything arguably connected to the war effort, does what the President tells them to.

But that’s not enough. The Memo then turns to other defenses besides Presidential authorization that might be raised by a person accused of torture. [I take it that this section of the memo applies to both accusations of “torture” which the authors admit is torture and accusations of “torture” that the memo writers would characterize as mere “cruel, inhuman, or degrading acts” that are not actual torture, but it’s a little vague on this, and it’s conceivable the authors mean this section only to apply to the latter. The memo speaks of force, even deadly force, which suggests it includes what they call torture, but elsewhere it notes that the force must be “proportional” to the need; given that the “need” is national security, and the memo treats this as the summum bonum, I read the memo to intend the defenses potentially to apply to all uses of force including the most severe torture.]

The first is the “necessity” defense, the second is a notion of “self-defense”. I will leave it to others to skewer these. But I do feel a need to point out just how far down the slippery slope this memo goes by page 45. It argues that otherwise criminal individual acts can be defended by invoking the nations’s not the individual’s right to self-defense (and even in a footnote argues that there’s a relevant analogy to the right to national self-defense under international law. And this applies to suspected prospective attackers and their associates as well as soldiers in the field. How this differs from saying that if the US even suspects anyone of wanting to harm it, it can do anything it wants to them is not clear on first reading.

Ultimately, the best legal commentary on this memo may belong to Professor Jay Leno:

According to the “New York Times”, last year White House lawyers concluded that President Bush could legally order interrogators to torture and even kill people in the interest of national security - so if that’s legal, what the hell are we charging Saddam Hussein with?

Remember: the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it — they’re people who really have the most to answer for.

Posted by DeLong at June 14, 2004 08:26 AM | TrackBack | | Other weblogs commenting on this post
Comments

The concluding paragraph really says it all, doesn't it?

My guess, by the way, is that we will eventually determine that the proximate cause of the use of torture in iraq in particular was the desperate desire to find WMDs.

And my further guess is that there's a reason why some iraqi scientists haven't been seen for a year....

Posted by: howard on June 14, 2004 08:57 AM

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Allowed are severe mental pain not intended to have lasting effects (pity if they do…), and physical pain less than that which acompanies “serious physical injury such as death or organ failure” (p. 46).

So flaming bamboo shoots under the fingernails is not torture.

Posted by: Dave of Maryland on June 14, 2004 09:00 AM

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I fully agree with you on Bybee, but he's there for life.

Froomkin's summary 'graph puts the real responsibility where it belongs.

It looks like the torture definition stuff is really bad, but I'm more concerned by the unlimited power they endorse for the CIC. Under this view, you and I could be locked up with the key thrown away, and tortured at will as long as they didn't have specific intent to harm. If they were just having fun, that would be ok.

Posted by: JimPortlandOR on June 14, 2004 09:07 AM

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What our military is doing to prisoners in the name of our country is not only wrong and offensive, it is stupid. Torturing people only invites retaliation and erodes support for the torturers. We need leaders that understand that the US torture policy is stupid, not leaders that believe it is justified.

Posted by: bakho on June 14, 2004 09:21 AM

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we need to call the righties on the blogosphere out on this stuff. They are utterly f'ing silent. No apologia, no criticism, no "wait for more facts, no nothing. wtf? It's as if they are ignoring it to make it go away.

Anyone seen anything from the right-wing on these memos (not including Volokh's 'I won't write about it because I don't have to' bit)?

Posted by: albert j on June 14, 2004 10:22 AM

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Republic, meet Empire.

How soon will torture be loosed on people in this country? After the next terror attack?

Please remember to go to the polls in November, and VOTE THESE STUPID VICIOUS ASSHOLES OUT

Posted by: Lee A. on June 14, 2004 10:25 AM

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And, in other news, it's still one nation, "under God"...

Posted by: Lee A. on June 14, 2004 10:37 AM

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None Dare Call It Fascism:

http://www.rense.com/general37/char.htm

Posted by: jim in austin on June 14, 2004 11:11 AM

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Albert J., how about Tacitus?

http://www.tacitus.org/story/2004/6/8/12307/20735

Posted by: Mark Lindeman on June 14, 2004 11:14 AM

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In deciding whether to pursue the "little fish" like Bybee, I'm not concerned about whether it's they or their masters who are more "at fault." Most of us would like to see Judge Bybee deprived of his juicy lifetime reward for sacrificing the prestige and moral standing of a valuable office of the DOJ to the anti-constitutional whims of his leaders. But an attack on him (via a Bar Assoc proceeding or impeachment) would move the focus from the forest, where it belongs, to the trees, where Bush supporters can seemingly legitimize the Admin's appalling behavior by debating legal niceties about which "reasonable men may differ."

Posted by: nadezhda on June 14, 2004 11:21 AM

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Albert J-

Andrew Sullivan is on the case as well...

Posted by: Brad Reed on June 14, 2004 11:22 AM

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Albert J-

Andrew Sullivan is on the case as well...

http://www.andrewsullivan.com/index.php?dish_inc=archives/2004_06_13_dish_archive.html#108723234191403793

Posted by: Brad Reed on June 14, 2004 11:23 AM

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Among many other bogus reasons proferred for invading Iraq was the claim that Iraq had failed to live up to international agreements relating to WMDs and support of terrorism. The pro-torture arguments devalue the pro-invasion ones. If it is legally justifiable for a head of state to unilaterally set aside international agreements when this is justified in his view, then why wasn't Iraq equally justified in abrogating the agreement that ended the Gulf War (if Iraq did in fact abrogate it)? One of the problems in advocating lawlessness is that you end up advocating it for your enemies as well as for yourself.

Posted by: solar on June 14, 2004 11:45 AM

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Howard -- on the scientists-- remember the last press conference? Bush made sonme off the cuff remarks about the scientists still being afraid to tell the truth and that they would still reveal where the WMD were. It sure struck me as funny at the time. Your putting them together with torrure sure makes sense.

Posted by: spencer on June 14, 2004 11:51 AM

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Here are two recent NR Online pieces on torture:

http://www.nationalreview.com/mccarthy/mccarthy200406140831.asp

And one by WF Buckley:

http://www.nationalreview.com/buckley/wfb200406140851.asp

Posted by: David on June 14, 2004 11:55 AM

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mark and brad - thanks for the links.
Pretty tepid stuff, though. No one taking a hard look at the memos and realizing how far down the wrong path we've gone.

Posted by: albert j on June 14, 2004 11:56 AM

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"the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. "

No they were doing there job - which, surprisingly involves giving legal advice - as frank and honest as necessary. There is nothing immoral about this, its ethical and it was the correct thing to do for the government to ask and it was then the duty of the lawyers to give advice.

In fact it would I think be gross negligence on the governments behalf if it didn’t take advise on where the law stands in relation to a conflict such as Iraq and the War on Terror – conflicts which sit uneasily between the Geneva Conventions – designed for wars fought by mass armies and the criminal law- designed for non war situations.

Posted by: Giles on June 14, 2004 11:57 AM

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But Iraq ISN’T a “non-war situation”, is it? The argument over on Andrew Sullivan’s site, particularly in the letters coumn, is even more instructively disjointed. The argument starts from “would you torture somebody if you knew he had information about another 9/11?” but then proceeds to “would you torture somebody in Abu Ghraib to save lives in a war presumed to be about terror, or otherwise where the cause is moral and just?”--oops! The U.S. is contravenes the Geneva Convention. in spirit if not letter, and dances upon boilerplate to do so. This does not bode well for the future of the world.

Were the lawyers doing their job, or just getting paid?

Posted by: Lee A. on June 14, 2004 12:16 PM

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Yes, Giles, I'm baffled as to how you've arrived at the conclusion that what happened in Iraq is a non-war. Perhaps it was the battalions of non-tanks firing on non-soldiers? Or was it the non-bombers dropping non-MOABS on non-persons?

If you're going to back off to claim that the insurgency is a non-war, I'd like to direct you to the history of every conquest on the record: the conquered rarely keep quiet, and it's a direct result of the war.

Furthermore, you appear to have no notion of "ethics." It is no more ethical for a lawyer to write memos justifying/rationalizing torture than it is for lawyers to advise serial killers on good ways to cover up (or prejudice) the evidence, _before the act_. It may not be legally prosecutable, but it is nonetheless unethical.

Gross negligence more accurately describes the act of telling the POTUS that his word is the supreme law of the land while neglecting to share that information with the the two coequal branches of gov't or the public.

Posted by: JRoth on June 14, 2004 12:26 PM

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A war is normally defined as a conflict between 2 countries - ergo it is not clear that there is a war going on. Similar problems arise in conflicts such as Northern Ireland, South Africa, the Basque country, Gaza etc.

The problem is that not only is there only one country involved, but there haven’t been declarations of war.

Thus the main reason why these standards are being upheld is because the US wants them to exist - i.e. it is volunteering to place its self under Geneva rules.

This is obviously noble but the problem is that the rules may then be inappropriate.

So for example, if it treats that Abu Gahrib prisoners as POW’s then they may be held indefinitely – because there’s no one on the other side to surrender, end the “war” and secure their release. If by contrast they are treated as criminals participating in terrorism under local law, they would have the right to release – and probably there would be no national interest defense to torture – since criminal law generally only looks at individual rights.

On the question of ethics, you’re clearly wrong as 90% of legal non contentitous work involves telling people where the law lies and what to do to avoid breaking it. This is what they were doing – like millions of lawyers around the world every day.

Posted by: Giles on June 14, 2004 12:43 PM

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"On the question of ethics, you're clearly wrong as 90% of legal non contentitous work involves telling people where the law lies and what to do to avoid breaking it. This is what they were doing - like millions of lawyers around the world every day."

The question of torture is one of basic human rights and the foundations of Western civilization and can't be answered in the way your tax consultant would point you at possible loopholes in the law. Any lawyer would have the moral obligation to point out the ethical problems, and the need for transparency and control of the executive when considering substantial cutbacks on peace-time civil rights. The Bybee memo, along with rather unqualified remarks on the justification of torture by people speaking as legal experts, doesn't strike me as an example of professional ethics.

Posted by: konrad on June 14, 2004 01:18 PM

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Giles--Do you mean World War II was not a war, because there were more than two countries? Or do you mean a "war" is only that which can go on between "countries" no mater how numerous, as (possible) signatories to Geneva? So that: the war and occupation against Iraq is not war and occupation, because once you overthrow the other government, there's not a signatory to the Geneva convention on the other side! But doesn't the Geneva convention state that only your OWN side need be signatory, for you to follow it? And what about the spirit of the law? If the "war against terror" is half psychological and religious, isn't it better to make a go at following Geneva, except for those circumstances where you "know" a guy has plans about another 9/11? Or are you arguing that the new era of mass-kill weapons obsolesces morality all the way around? Is there an end, short of worldwide tyranny, to that path?

Posted by: Lee A. on June 14, 2004 01:31 PM

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Buckley's piece is a touch muddled, but in the end he calls for punishment for those "who let it happen."

I wonder if this will extend to Bush, who pretty clearly "let it happen."

Posted by: Bernard Yomtov on June 14, 2004 01:35 PM

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As I understand it, when giving general advice a lawyer has a duty to label positions truthfully-- to lay out the current understanding of laws, treaties, provisions, etc., especially as they are generally agreed on by the relevant courts and other bodies. That's the ruling case law, after all. Where RCL isn't clear the advice needs to say so, but also to analogize and/or reason through the tendencies of the relevant authorities.

When defending a client, it's understood that a lawyer will do some amount of gnat-straining in order to construe the state of the law in the way most favorable to the client.

What Bybee did in this memo was to take the gnat-straining position of a defense lawyer rather than that of a counselor offering the best current legal advice.

One can only conclude, as Froomkin does, that they'd already decided they wanted to torture and were looking for ways to make it legally passable. That was Bybee's job, and that's why it sounds like a defense brief.

Posted by: Altoid on June 14, 2004 01:58 PM

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If anyone goes with those legal opinions there is one open question:

With these standards is there any crime left Saddam Hussein may be indicted for?

Posted by: Bernhard on June 14, 2004 02:11 PM

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Spencer, i certainly hope there are other reasons why we haven't seen some of the scientists, but it starts to look like the likeliest.

Giles, it is not the job of lawyers working on my nickel to explain to george bush how he has the right to do whatever he wants as long as its in his role as commander-in-chief, including torture as long as it doesn't meet a rather, uh, tortured standard of definition.

That's the behavior of Mafia attorneys providing advice to Tony Soprano....

Posted by: howard on June 14, 2004 02:26 PM

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I have never been in Bybee's shoes, exactly, but I have been asked to opine on deals that "people really want to do -- find some way for this to be legal please, pretty please" and I used to do it. But now, though I can still take them through the maze, I will usually tell them what Bybee should have said: Can we use staples, tape and paste, to build a defense if caught doing this? Sure we can -- here's how -- but look at it from the outside in -- it is fraught with awful consequences (like, how will we uphold international standards when violated by other countries? to name just one, and perhaps the most obvious, so obvious that even Jay Leno figured it out), and our legal reasoning will never, ever, win the day in the court of public opinion, and, indeed, may make us look even more culpable because we anticipated that what we are doing is potentially illegal and looked all too willing to take a calculated risk in breaking the law. I have frequently been impressed at how well this approach works.

Posted by: Barbara on June 14, 2004 02:35 PM

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"we anticipated that what we are doing is potentially illegal"

More than that - 6 months ago - well before the shrill brigade rode forth - the army was already investigating abuse?

Would they have been in a position to do if they did not know where they stood legally? No.


Which is why no civilized legal system operates under the rules Barbara has outlined. If you just have people doing what "they feel is right", well I'm afraid that there are some pretty stupid and nasty people out there.

Which is why we have laws. Which is why we have lawyers.

Posted by: Giles on June 14, 2004 02:59 PM

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Re the Iraqi scientists -- It's been pretty clear for a while that the scientists on the "high value" list have been at the very least held in pretty harsh conditions, including round the clock isolation. It seems that they're part of the crowd held at the Baghdad airport, about which the Generals (Sanchez and Kimmit) have asserted they know nothing and are permitted to know nothing. It's out of their jurisdiction, so they're not in the chain of command/reporting, and they wouldn't be allowed to check on who's being held and under what conditions even if they wanted to.

I've been puzzled why we haven't heard more in the press about the airport, or who theoretically is in charge there. Have I missed something? Has it been brought up in the Senate hearings? Once Sadaam got shipped out of the country, has the ICRC made any sort of fuss over the Baghdad airport situation?

I have the impression the airport is where the scientist who died during interrogation was held, though the reports have focused more on the manner of death than where he was interrogated. It seems that his death certificate only gave the mechanical reason for death (asphyxiation ? IIRC) and not how he came to be asphyxiated (again, IIRC, the autopsy concluded chest compression from being rolled around the ground while stuffed in a sleeping bag with someone repeatedly standing/jumping/sitting on him). But I've not seen reports about which gov't/military units are or were involved with the scientists -- in addition to those responsible for managing imprisonment conditions, those who are in charge of interrogation, those supplying cause-of-death info, and those determining when and where prisoners will be held and can be released.

Posted by: nadezhda on June 14, 2004 03:17 PM

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Giles's last point seems incoherent. It doesn't track with the rest of his comments at all. We have lawyers to tell us how to bend and break laws because we are nasty people who can not be trusted to do the right thing? All "civilized legal systems" are run so that illegal and immmoral things are routinely done and excused? Which is it? Are lawyers contractually obligated to explore and explain what the law is--especially in the case of signed torture conventions--because the people they serve don't know the law or are they hired guns hired to improperly inform their bosses that things that are patently illegal could be legal under certain circumstances?

After reading the memo, and froomkin, I'll settle for "whatever" as long as those who wrote the memo, and those who ordered it, are hung, drawn, and quartered under the rules of engagement formerly followed before the signing of the geneva convention.

Kate Gilbert.

Posted by: Kate Gilbert on June 14, 2004 04:15 PM

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Giles, poining out the logical possibility that the lawyers were just doing their job the way Johnny Cochrane was just doing his job is only part of a defense.
Is it really true that the role of the various counsels is more akin to that of a defense lawyer than, say, that of a judge.
I would certainly have expected some kind of "ticking bomb" style test to appear in the memoes.
In any case would you expand on exactly what advice it would be grossly negligent not to seek in time of non-war conflict.
Finally are you really suggesting that Barbara's suggesting commenting on what was being done would be a bad thing? I find that view astonishing. Maybe you have misread her.

Posted by: Jack on June 14, 2004 04:22 PM

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No - I think Barbara's is a very dangerous point of view; once a society starts thinking the law should be interpreted as whatever people feel it is, then you very quickly enter dangerous territory.

You define human rights as what you feel it is, then someone else defines national interest as what they feel it is. You define ethical as .., someone else etc... its how civilzed societies break down. Sorry children thats just the way it is.

Posted by: Giles on June 14, 2004 04:59 PM

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A resounding Duh! The memo in question was just exactly that action that you now decry- interpretation of the law as whatever they felt it to be (and wnated it to be), not what it is.

BTW in the parsing of the Geneva Convention and the word "war" above, one conveniently forgets that the Convention(s) quite comprehensively cover treatment of prisoners in other than officially declared wars, even those who are not members of standing armies. Even if they did not, there are other national and international laws that outlaw torture (and let's not forget murder).

Posted by: solar on June 14, 2004 05:19 PM

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i want to thank giles for demonstrating exactly how it is that such an offensive memo was written on my (and the country's) nickel: smug, shallow individuals like giles have no moral compass whatsoever, and only a limited grasp of the difference between the interpretation of the law and the total subordination of the law to whatever the powerful desire.

It's not really that hard a distinction to grasp, and yet giles is unable to tell the difference.

Rather pathetic, really.

Posted by: howard on June 14, 2004 05:31 PM

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I'm glad to see that I can go away from the Internet for the weekend, and when I come back Giles is still here defending torture.

Posted by: Walt Pohl on June 14, 2004 05:42 PM

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“But doesn't the Geneva convention state that only your OWN side need be signatory, for you to follow it? “

It does say that, but there is a proviso. Geneva III (1949) Article 2 states:

“Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”

This requires the non-signatory to conform provisions of the convention to enjoy the benefits of the convention. This makes sense. It would be unreasonable to expect a signatory to conform when his opponent (who is not a signatory) utterly rejects convention.

We see the same kind of thing in Geneva IV where article 4 states:

“Nationals of a State which is not bound by the Convention are not protected by it.”

Once a state rejects the convention by not signing it, and acting against the provisions of the convention, then its nationals do not enjoy protections of the convention.

Posted by: A. Zarkov on June 14, 2004 06:06 PM

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it appears that there is some or many who wanted to take the bush presidency down.

this is the same memo Asscroft refused to give to the senate last week.

I am wondering if Powell is one of them. Maybe we will see a smoking gun soon.

Posted by: dave on June 14, 2004 06:07 PM

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This blog has taught me a few things, not the secret of life or anything like that, but you have some good contributors. I mention bakho- some of b's comments irked me in the past. I find his comments on torture excellent and to the point.
This is serious stuff. Hamilton felt that the strong always try to take advantage and must be restrained by countervailing forces. He expected the Senate to restrain the executive, because Senators would be appointed by the states and not elected by "the rabble". That didn't last; none of our founding fathers would approve our Congress, people for whom politics is a lifetime pursuit and staying in office is the # 1 goal. Many are controlled by donations. We must object to these lies about the inherent powers of the Presidency and the need to throw people in jail without lawyers if they seem suspicious to the Feds.

The only real hope is a better Congress. I fear that this would require changing the Constitution. Remember that Rome went from a republic of sorts (The senate was never democratic) to an empire. That can happen here. Although I admire Truman over all, I think that failure to ask Congress for a declaration of War when North Korea invaded the South was a serious error, the first of many erosions of Congressional power. Truman should have asked and Congress should have demanded it. Failure to get a declaration of War in Vietnam compounded the felony- by the time we got to the vote on Iraq in 2003, Congress was deep down in the toilet. Torturing people, detentions without lawyers, this adds up to serious tyranny. Torture is never restricted to foreigners.

Posted by: anciano on June 14, 2004 06:36 PM

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Having read lots of CYA memos, I am surprised at how fair and balanced this memo happens to be, given the issues at stake and the political approach of the WH to every issue.

Taken as a whole, it appears to me that most of the analysis is fairly supported.

Those who complain about the memo miss the entire point. To the extent the Law is not what they want, the responsible agency is Congress.

Posted by: Moe Levine on June 14, 2004 06:54 PM

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Moe, there is nothing "fair and balanced" about the notion that the president, as commander-in-chief, can do whatever his little heart desires, and that's not a flaw that Congress needs to correct.

We the people need to kick the bums out of office who think and write and act on such misguided notions....

Posted by: howard on June 14, 2004 07:05 PM

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Time to dig up Hannah Arendt's Origins of Totalitarianism again. See also http://memory.loc.gov/ammem/arendthtml/essayb1.html

Posted by: laservisor on June 14, 2004 07:24 PM

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Ain't that Giles a fuckin' trip and a half, dude? My oh my!

The chilling thing for me is the way that the Bush administration consistently works to free itself from any restraints of any kind -- whether from the Constitution, American law, treaties the US has signed, or international law in general. We see it in different ways in the Patriot Act, Gunatanamo, and Iraq.

As far as I can tell, what Bush is doing is exactly, precisely (without any "interpretation" of the invidious sort) the kind of thing that the authors of the Constitution and the Declaration of Independence were trying to prevent: Star chamber proceedings, cruel and unusual punishment, denial of habeus corpus, bills of attainder and perhaps ex post facto laws.

What would the "original intent" people say to that?

I expect to see someone now explain that George III wasn't really all that bad and that a lot of the Founding Fathers were paranoid loonies. With a sophisticated legal argument cribbed from Scalia.

Posted by: Zizka on June 14, 2004 07:36 PM

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[[[[The U.S. is contravenes the Geneva Convention. in spirit if not letter, and dances upon boilerplate to do so. This does not bode well for the future of the world]]]]]

Depends on who we are talking about. Geneva is pretty damn clear as to the status of captured terrorists or guerillas. The Convention was set up, in part, with the idea of explicitly ignoring "illegal" combatants as an incentive to encourage cooperation. So from a purely legalistic standpoint coming via international law, there ain't a whole lot wrong with what was seemingly ordered against AQ prisoners. Note, I said ordered; I personally think that the use of attack dogs, hooding, and stress positions were probably ordered. But the sexual stuff is in my opinion the result of poor unit discipline, but this is of course debatable.

The real beef however isn't any presumed violations of international law, but rather those violations of domestic, US law. Given that all civilians in leadership positions, not to mention every fucking military officer, swears to support and defend the Constitution even up unto death, makes someone ordering the more extreme methods of interrogation rather disturbing.


[[[[[Re the Iraqi scientists -- It's been pretty clear for a while that the scientists on the "high value" list have been at the very least held in pretty harsh conditions, including round the clock isolation. It seems that they're part of the crowd held at the Baghdad airport, about which the Generals (Sanchez and Kimmit) have asserted they know nothing and are permitted to know nothing. It's out of their jurisdiction, so they're not in the chain of command/reporting, and they wouldn't be allowed to check on who's being held and under what conditions even if they wanted to.]]]]]

more info on this is definitely requested. the last time i checked baghdad airport was firmly under the control of the military. the CIA has nowhere near enough assets to secure the airport on their own, and it's quite silly to have CIA operators pulling perimeter security. At the very least there is going to be a strong military presence there to hold the fort down, consequently you can bet your ass that the generals are going to be wanting to know what goes on there. shit, given the fact that it is a major airport, you can pretty much be guaranteed that the affairs and operations of the facility are going to be important to the armed forces. i'm also confused why you would use an airport as a detention facility. i know that there is an issue with prison overcrowding, but having a major logistics hub also have on site a maximum security prison seems a tad strange to me.

Posted by: Jon on June 14, 2004 09:49 PM

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From Aticle 1, Section 8 of the U.S. Constitution:

The Congress shall have power... [t]o make rules for the government and regulation of the land and naval forces[.]

Posted by: Jim Naureckas on June 15, 2004 06:26 AM

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This rather brings up one more reason for the Right to be concerned about George Bush's performance: if he were to be re-elected there looks like a fair chance he would be impeached and removed from office.

If Cheney were to be his Vice-President, he looks like an equally likely candidate for impeachment and conviction.

Thus the defeat of Bush is the Right's main hope for avoiding a perhaps small, but very real, chance of the Republican Party -- and all the tax and business perqs that are far more valuable to them than anything in Middle-Eastern policy -- being destroyed for a generation or more.

FWIW, the Iowa Electronic Markets http://www.biz.uiowa.edu/iem/ still show Bush ahea of Kerry, but Rasmussen Reports consistently show Congressional Democratic support runing eight or more points ahead of Republican.

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