For the Spider's House is the Frailest of all Houses

The more I read, the more I consider, the more I reflect, the more I ignore, the more I work -- the more I do anything -- well, the more it just disgusts me.

This is not a screed against the Bush Administration; don't take it as such. I bear no malice towards Bush. I hunt here with a rifle, not a shotgun.

I am a lawyer. I'm not the oldest lawyer, or the wisest lawyer, or the most learned lawyer, but I am lawyer enough to remember that I took an oath to defend the Constitution. I took that oath willingly. It meant something.

The folks to drafted the DoD's torture memorandum (ably analyzed here and here and here, among other places) forgot their oath. They lost their compass. They ignored the law. They forgot that there is a difference between right and wrong, and that it doesn't change just 'cause you want it to. I'm disgusted, I'm sickened, I'm in despair. I am more ashamed of my profession now than I ever have been in my life. Because these folks -- these trusted lawyers, far more learned and careful and smart than I -- should've known better. They should've known better. They must have known better.

Disbar them. That's all there is to do. Strip them of their right to practice law. Go Dark Crystal on their asses. They ain't smart enough and they ain't ethical enough to chase ambulances. Disbar them. Expunge their names from the roll of every single Court in which they have appeared. Disbar them. Do it now.

UPDATE:

Reader Shad writes:

I'm clearly in the minority here (judging by the prior comments), but I find your incoherent rant advocating the bypass of due process in order to punish people based on just your say-so to be... unconvincing. (Not unsurprising, just unconvincing.)

This is a bit of a rant; let's see if I can nonethless convince you. There are many ways to attempt to justify torture, and there are many colorable arguments that (in appropriate circumstances) torture may be justified. Perhaps not winning arguments, but colorable ones. The DoD memorandum, however, makes an argument that is so weak, so contrary to the Constitution and our way of life, and so, well, evil, that no learned American lawyer can make it and remain true to her oath to defend the U.S. Constitution.

The DoD memorandum essentially contends that the President can choose to disregard any law that he, in his sole opinion, believes to conflict with his duties as Commander in Chief. Let that sink in. The President has full discretion to disregard law whenever he, and he alone, believes that (in his sole opinion) the law conflicts with what he deems to be the proper scope of his duties as Commander in Chief. No Court review. No appeals. The President controls.

This is not rule by law; it is rule by men. It is, roughly speaking, an argument for Fascism. As you might expect, it is an argument that is thoroughly and deeply flawed not only under the Consitution (under any reasonable reading thereof) but also under the entire course of Anglo-American law, post Blackstone. This is not a close or difficult question. The argument advanced by this memorandum is one that a half-drunk first year law student at a fourth tier law school could convincing retort between hits off his bong.

The thing speaks for itself as to the competency and morality of the lawyers who drafted and approved it.
As for whether this is an incoherent rant: Of course it is. I'm pissed.

*And, yes, of course I shouldn't sit in judgment of these folks (your "due process" concern).

Comments

[John Thullen]

Good for you!

Much has been wrecked by these people.

[Edward]

Great post Von. You don't need to know much about the law to be sickened by the spirit of those memos, but it's reassuring to know those who practice law see it as unacceptable too.

[Ted Barlow]

This is a very good post.

I hope it's not too partisan for me to ask: why don't you hold this against the Bush Administration?

[Catsy]

Ted raises a good question. I realize that you do agree with much of what Bush has tried to do in Iraq, von, so you're probably inclined to give them the benefit of the doubt. It makes you a good bellwether at times for whether knees are really jerking or whether there's really something there.

Frankly, I've tried and tried and can't really see a way in which this doesn't come right back to Bush and his senior staff. These legal opinions weren't drafted in a vacuum. Someone /requested/ them. Someone /wanted to know/ how to cirvumvent the law in this way. That someone, whoever it is, has absolutely no place in any position of authority in this country.

I think that someone includes Bush. I may be wrong, but to me this memo fits squarely with his consistent pattern of paying only pragmatic attention to the laws he swore to uphold.

[Nathan S.]

What concerns me the most is not that President Bush, apparently, wanted to look into his options regarding torture, but what drove him to do that.

Contrary, perhaps, to some others who frequent Obsidian Wings, I think that Bush is a pretty decent guy. I think that his time in office so far has fully apprised him of the ramifications of his actions. His actions, or lack thereof, can lead to the deaths of thousands. He knows this.

So, assuming that the speculation entertained here is accurate, why does he feel that he needs to do this? What does he know? Or suspect?

[JimPortlandOR]

I feel sincerity and grief in your post, which I share.

I hope we get to the place where the identities of the DoJ participants in this memo are known. My bet is that they are all political appointees. I noticed yesterday at the Senate hearing that all Ashcroft's advisors behind him appeared to be in their 20's and 30's, and they all looked like zealots.

I can't see the professional civil service attorneys doing this kind of thing. This is a blot on the Justice Dept, of lasting damage.

Maybe some of the civil servants will 'leak' some names forcing full disclosure.

The best bet, IMO, is to put pressure on the GOP members of the Senate Judiciary Committee so that they demand disclosure. Subpoenas or Contempt of Congress threats would get some action.

Ashcroft (and Rove) probably think they can stall this one out. If we let them get away with non-disclosure and no accountability, then we truly are lost if Bush is reelected.

[JimPortlandOR]

Nathan 5: Truth is not something that can be a sometime thing. Your trust in Bush's decency in the face of the many occasions when he has not been truthful is remarkable.

Recall Richard Clarke's recounting of Bush being determined immediately post 9/11 to pin it on Saddam. Bush makes gut level decisions and enforces them, never looking back to see if what he did is working or incorrect. That is very dangerous in any executive, but intolerable in the President of the US.

Today we don't know why Bush, Rumsfeld, etc. wanted to change our policy on interrogations by military personnel. We may never know.

But we can believe almost to a certainty that some change was made in how we would deal with prisoners.

I personnally can easily see Bush telling Rumsfeld and Ashcroft that he wanted intelligence at any price - damn the pinko-liberal laws that tied the hands of our team. He isn't a deep or reflective thinker, and he claims he gets his guidance from a higher power. Those are dangerous qualities for a Commander in Chief.

[Gary Farber]

"I can't see the professional civil service attorneys doing this kind of thing. This is a blot on the Justice Dept, of lasting damage."

Do not forget that Robert Taft IV, of impeccable Republican lineage, political appointee Legal Counsel to the State Department (confirmed by the Senate), opposed the conclusions of this memo.

[Shad]

von,

I am more ashamed of my profession now than I ever have been in my life. Because these folks -- these trusted lawyers, far more learned and careful and smart than I -- should've known better. They should've known better. They must have known better.

Disbar them. That's all there is to do. Strip them of their right to practice law. Go Dark Crystal on their asses. They ain't smart enough and they ain't ethical enough to chase ambulances. Disbar them. Expunge their names from the roll of every single Court in which they have appeared. Disbar them. Do it now.

I'm clearly in the minority here (judging by the prior comments), but I find your incoherent rant advocating the bypass of due process in order to punish people based on just your say-so to be... unconvincing. (Not unsurprising, just unconvincing.)

Congratulations to you and others like you for converting yet another controversial topic from something that could be discussed rationally between people with different viewpoints to something that is instead hurled feces-like at opponents who might disagree with you. I'm not sure if preventing reasoned discussion on the subject was your goal, but that's the effect of using such invective without any justification behind it (what's that lawyerish saying about facts, law, and banging on the table again?).

I can see the appeal of going directly to the table-banging route, though -- Why invest the time and effort to substantiate your case for anything when it's so much easier to just toxify an entire topic with harsh language and innuendo? It does seem contrary to the purpose of hosting a discussion blog, though.

Note: I don't advocate torture. But I believe that given there are actually laws and treaties dealing with the topic, it is not a failure to "defend the constitution" for lawyers to actually explore what those laws and treaties mean in a practical sense, what the limits are, and what the ramifications would be for violating them.

[Catsy]

Note: I don't advocate torture. But I believe that given there are actually laws and treaties dealing with the topic, it is not a failure to "defend the constitution" for lawyers to actually explore what those laws and treaties mean in a practical sense, what the limits are, and what the ramifications would be for violating them.

Which would be all well and good if that's what was happening here. But it's not. If you read the texts that are available at this time, it's clear that rather than an attempt to clarify the law, these memos were exploring how it could be circumvented in every meaningful way.

You may not advocate torture, but whoever requested these legal opinions does--and apparently wants to know how to get away with it within the letter of the law.

[victor falk]

Shad: it is not a way to "explore what those laws and treaties mean in a practical sense", but "quite literally, a cookbook approach for illegal government conduct" (Phil Carter)

I'm no lawyer, so I can't judge this statement on its merits, but it's seems the legal community is shocked, and not only anti-bush partisans by a far cry.

Maybe those lawyers should be disbared, but their failures stem from the fact that if the values to be honoured are democracy and human rights, then this administration is utterly corrupt, and the only choice is between beeing depraved or not collaborating.

[JKC]

To put it in terms less legalistic for Shad and Nathan:

If we allow our behavior to sink to the level of those we fight, so that in the end there is little, if any, distinction between the two sides, then what exactly are we fighting for?

[Edward]

Shad,

I think it boils down to whether you feel the President is supposed to protect the nation by any means necessary or whether he should be limited by US and international law. I can understand those who feel he should not be restrained by international law, but anyone who feels that he's above US law is confused about what's he's actually fighting for.

[von]

Ted --

I hope it's not too partisan for me to ask: why don't you hold this against the Bush Administration?

That the question was asked is far less disturbing to me than the fact that the answer given was so clearly, unequivocally, horribly wrong.

Shad --

My response will be included in an update.

[carsick]

Shouldn't the president turn to Rumsfeld and the DoD lawyers and in the words of Joseph Welch say, "Have you no shame? At long last, have you no shame?"

[Fabius]

Would we know it if Bushco have used a tactical nuclear device? I know they wanted to. Evidently, the 2000 ton bunker busters aren't strong enough and they want to use something that burrows deep and bangs big. I know of no international taboos they are unwilling to break.

Bushco is evil. They are anti-civilization. I say impeach and turn them over to the Hague.

[von]

FYI --

The title is a riff of a verse from the Koran, brought to my attention by the writer Paul Bowles, and roughly translated (memory):

"The likeness of those who choose a patron other than Allah is the likeness of the spider when she takes unto herself a house. For lo! The spider's house is the frailest of all houses, if they but knew."

Meaning that a web appears awfully strong to the spider sitting in it. Change your perspective, however, and it becomes something so exposed and so inconsequential that it can be brushed away with a wave of a hand.

If they but knew.

[JimPortlandOR]

Von said:
"but also under the entire course of Anglo-American law, post Blackstone."

The policy advocated in the working group memo is contrary to English common law even further back than Blackstone (1723-1780). The framers of our Constitution were well familiar with English history and law, and drew upon that experience to craft a checks and balances system that grew out of the experience with James II's behavior as King. When he was deposed, William and Mary were raised to the throne only after assenting to the 'rights and liberties of the subject' (below).

The power claimed for Bush in the memo can rightfully be compared to the behavior of a English monarch who was deposed for unlawful behavior.

English BILL OF RIGHTS, 1689

"An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown
...
"That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;"

(many other provisions, but this was the first listed)

Text

[Timmy the Wonder Dog]

Von, excellent post, as I see from your comments we have moved from the sharpshooter to the blunderbust, which should have been expected.

The disbarment and the seque to Anglo-American was a bit over the top.

The role of CIC in a time of war (and Bush made a huge mistake not getting a Declaration of War out of Congress after 9-11) has always created a bit of friction (War Powers Act and FDR's internment). In fact SOCTUS is reviewing two cases (CIC power) as we speak (I often wonder if the memos were leaked to influence the court on these cases).

As Britain is a parlimentary system there is no separation between the executive arm and the legislative arm and with no constitution, GB truely is a fluid system.

As for The Paquete Habana (1900), by 1900 there had been a long tradition of Maritime Law in this country (think of English Common Law of the Seas) but it isn't unusual for lawyers to try and create a precedent and then expand into other venues, which is exactly what this committee was trying to do.

That is, strengthen the role of the CIC through an aggressive interpretation of the separation of powers. The liberal equivalent of the "right of privacy".

Maybe lawyers should rethink their position of trying to legislate through the courts. We would all be better off and you would probably see fewer DoD memos of this ilk and people using a little more common sense (all lawyers should be required to take a course in that).

[JKC]

Shad, Nathan:

If all this talk of ethics, English Common Law and due process is too confusing, here's another perspective, courtesy of Fafnir.

[von]

Good point, Jim.

One further note, which I've made elsewhere but will restate here: The President almost certainly has the power to pardon torture after the fact as part of his (likely absolute) Pardon Power in Article II. This is very different, however, from what's proposed in the DoD memorandum. And a promise to pardon a future violation of U.S. may subject the President to an indictment for criminal conspiracy.* A conspiracy lies not in the violation of law by a conspirator, but in the conspirator's agreement to violate law. One act entirely within the law and still be guilty of conspiracy.

*"may subject" because there are more than a couple Constitutional issues that I'm not qualified to opine upon.

[von]

As Britain is a parlimentary system there is no separation between the executive arm and the legislative arm and with no constitution,

The British have a Constitution, TtWD, it's just not in a single Constitutional text. But I can see your other points.

[von]

This looks to be a reasonable source on the British Constitution, TTWD: http://www.historylearningsite.co.uk/british_constitution.htm

[asdf]

Timmy, if we're at war, has there been a formal Congressional declaration as such? Just wondering. I follow the news pretty closely, and I haven't seen such a thing. If there was one, who was it against?

[Timmy the Wonder Dog]

Ok, so Britain has a body of law (an unwritten constitution subject simple majority and Royal Assent) which is subject to majority rule and assent. Thus, British Law is more fluid, which was the purpose of my comment.

[Timmy the Wonder Dog]

Praktike, funny thing about that, we have been at war several times without a formal declaration. Afghanistan and Iraq are the last two occassion. I believe it was Joe Biden who believed that a declaration was not needed last time.

[asdf]

I don't see why not, though. Wouldn't Congress pass such a declaration? Basically, they've been laying down on the job for the past 50-odd years on this score. The Constitution is surprisingly clear on this one, it being an enumerated power of Congress and all.

Anyway, my main point is that you shouldn't really be able to invoke all the special considerations of wartime without actually, you know, declaring war.

I don't really give a crap what Joe Biden thinks about this issue, by the way.

[Timmy the Wonder Dog]

once you enumerate power, you become responsible.

Did you ever notice in the 9-11 hearings Congress was not mentioned.

[Timmy the Wonder Dog]

Oh, I don't really give crap about Joe Biden's position on any issue. I don't believe Joe is capable of thought.

[asdf]

FWIW, Joe Biden has been proven astonishingly correct regarding the need for multilateral involvement in Iraq.

[von]

Thus, British Law is more fluid, which was the purpose of my comment.

Not necessarily, though (as I first mentioned) I think most of your analysis is dead on. The decision over what is constitutional or not in Britain is, at bottom, left to the people -- albeit subject to substantial procedural hurdles. The result is that the people are very circumspect in proposing constitutional changes.

[von]

Oh, I don't really give crap about Joe Biden's position on any issue. I don't believe Joe is capable of thought.

Ahh, but is he capable of taking the thoughts of others and portraying them as his own? ;-)

(Trust you know the context for the snark . . . .)

[Timmy the Wonder Dog]

astonishingly correct about Iraq.

I'm just wondering if you could point out the material differences between Afghanistan (Bidden's multilateral) as compared to Iraq (the non-Bidden multilateral).

[Gary Farber]

"Did you ever notice in the 9-11 hearings Congress was not mentioned."

No. Having read the transcripts and reports, I am well aware of the number of times Congress was specifically faulted for lack of adequate oversight and action.

[Gary Farber]

"The result is that the people are very circumspect in proposing constitutional changes."

What, like the process of abolishing the hereditary House of Lords, abolishing the appointment of clerics to Lords, abolishing the office of the Lord Chancellor, which goes back to 605, abolishing the Judicial Committee of the Privy Council, the highest court in the land, creating new devolved Parliaments for Wales Scotland,and Northern Ireland,joining the European Union and accepting its jurisdiction and supreme authority in many areas?

That sort of circumspection?

Have you been following the radical constitutional changes of the Blair government, Von? (The near-drop of Cabinet government for government out of #10 on the couch is practical, not consitutional.)

[asdf]

Well, for starters, Timmy, multilateral and mutiple bi-lateral agreements are different concepts. Perhaps that isn't "material," but then, legitimacy isn't really a material concept.

In the case of Afghanistan, you have a NATO mission as of October 2003 that consists of 6,500 troops. The US has around 20,000 troops in Afghanistan, but these have largely been freed to undertake offensive operations against Taliban and Al Qaeda remnants.

In Iraq, you've got 138,000 American troops, less than 10,000 Brits, and a hodge podge of forces from other nations. On a percentage basis, a much higher portion of troops are non-American in Afghanistan.

Last I checked, no nations had withdrawn from Afghanistan in anguish. Germany, France, and Canada make up the bulk of NATO forces there. Generally speaking, these deployments have been uncontroversial, and the nations involved are invested in the success of the mission (yes, haven't delivered on their promises. Neither have we). Iraq, by contrast, has been a bone of contention between the US , Britain, and Italy on the one hand, and France, Germany, and Russia on the other.

One important point here is that America is widely mistrusted in Iraq because we are seen as having hidden motives -- occupying Iraq indefinitely, stealing the oil, running a puppet government, etc. Having a multilateral stamp on occupation takes the sting out of this criticism -- it is much more difficult for a group to have ulterior motives than for one entity to do so.

But hey, as Lavar Burton would say, you don't have to take my word for it.

[sidereal]

Digby channels my feelings on yon memo.

[von]

Have you been following the radical constitutional changes of the Blair government, Von?

I have, and also know that most of the proposed changes have stalled.

[Phil]

Does an explicit authorization for the use of force count for legal purposes as a "declaration of war?" Why would the Congress authorize the President to use force if not for war or something like it?

[Brian Alexander]

Does an explicit authorization for the use of force count for legal purposes as a "declaration of war?"

I can't find the link, but I remember that when a bunch of reporters asked why we went for an authorization of force instead of a declaration of war, he said something like, "We don't do that any more."

[Brian Alexander]

He being Henry Hyde.

[Timmy the Wonder Dog]

Praktike, the UN Oil for Food Program was a multilateral effort (Russia, France, Germany, UK, USA, UN) how does that program resonate with the Iraqis?

Gary, I have read the 9-11 Commission transcripts, I don't remember anyone from the Congress giving testimony. Did I miss a day.

[Jesurgislac]

how does that program resonate with the Iraqis?

Well, we know Ahmed Chalabi didn't like it. But as he was never in Iraq at the time the Oil for Food program was on, his opinion is pretty irrelevant.

Why don't you do some research, Timmy?

[Gary Farber]

Von: "I have, and also know that most of the proposed changes have stalled."

But, Von, you said: "...are very circumspect in proposing...."

Emphasis mine. Do you really assert that the Blair government has been "very circumspect" in proposing constitutional changes? That's all I'm saying, because that's all that stopped me in my tracks. Not a big deal, but it's very different from my view.

Perhaps you meant "...are very circumspect in passing constitutional change"? (Although the changes already made by creating parliaments devolved to Wales, Scotland, and N.I., and almost eliminating heredity membership in Lords, alone, seem not at all very circumspect to me, but never mind.)

[von]

OK, fair point Gary (and nice catch -- that is what I said).

[asdf]

Oh, Timmy, ask yourself -- what role did the UN Security Council play in the Oil For Food scandal?

Bonus points if you can name the North American country with veto power.

[Timmy the Wonder Dog]

Oversight

USA, but you can only use that veto to stop the enactment of resolutions. It isn't applicable for do overs.

My turn

The name of the American Admin which approved the UN Oil for Food program.

Bonus points, if you can answer why.

[Jesurgislac]

Tell me something, Timmy: what possible relevance does the UN Oil For Food program have to Von's post here?

[sidereal]

Timmy's laboring under the assumption that:

A & ~C implies ~(A->B)

AKA "I want to talk about C!"

[Timmy the Wonder Dog]

I don't know Jes & sidereal, Praktike started talking about the superiority of the UN and multilateral arrangements and the last agreement which meets both of those drivers is the UN Food for Oil Program. Thus,

UN + France + Russia +USA = Good, except

UN Food For Oil Program is not Good

Back to you Boys

Tear Down this Wall

[Mark Adams]

Von, it was remarkably refreshing to see another attorney recognize the fascist nature of the shenanigens going on in Washington lately. When we swore that oath to the Constitution, I always felt that we also owed an allegence to the entire anglo-american judicial system from which it sprang. Authoritarian, unaccountable tyrants are the antithesis to everything our system stands for.

To quote Edmund Burke: "Bad laws are the worst sort of tyranny." Bad legal analysis that not even Machievelli would endorse may be even worse.

[sidereal]

Content free tag cleanup comment Mark II

[sidereal]

Hm. If this doesn't work I give up.