On torture: Repudiating Professor Yoo's 2002 Memorandum

There is an extremely well done comparison of the new DOJ memorandum with the old (John Yoo) DOJ memorandum over at ACS blog.  Passing for a moment the memoranda's differing conclusions, the ACS blog highlights that there are real quality issues with respect to the Yoo Memorandum.  As in:  the Yoo memorandum, regardless of whether it reaches the right or wrong conclusion, is of poor quality.

I've made this point myself -- that, conclusions aside, Yoo just didn't do a very good job at his job (at least in this instance).  I've thus always found his defenders a bit perplexing.  This is hardly a perfect world, but, even so the question of whether an essay gets an "A" or an "F" should not solely depend on whether one agrees with its conclusions.  Good process matters. 

(HT:  Orin Kerr.)

Comments

[Neolith]

Good process matters.

Indeed, I would argue it is the most important thing. I can trust anyone, of any ideology, so long as I can track their logical processes through cleanly. No one is perfect, of course, and everyone has their little blindspots, but anyone that can make a logical argument for or against something earns my respect.

[SomeCallMeTim]

"Good process matters."

You know, this gets at perhaps what frightens me most about the electorate that re-chose this Administration - they necessarily have vastly different understandings of what qualifies as "successful" or "competent" or "worthy of promotion" or even "rational" or "reasonable," than I do. (Well, second scariest - Padilla scares me more). And I really don't mean this as snark; I just mean that the '04 election (for example) seemed like such a gimmee to me that the fact that I was wrong implies that the other side is working from a vastly different set of principles or priorities. And, where there are unspoken differences at such a basic level, I'm not sure how much communication is (a) possible, or (b) useful.

I don't mean "they're crazy." I mean something closer to "by my lights, they're crazy." For all I know, their set of principles is "right". But if they are "right" about all those terms (and I mean as they apply outside the political realm), me and mine are screwed. Because now I'm living in a world where I don't understand the referents. (E.g., maybe everything is going well in Iraq, maybe the right of a citizen to a trial isn't that basic to our country, etc.) And that's pretty freaky.

(This comment almost certainly sounds more alarmist than I feel at the moment. So I'm ineloquent - sue me).

[Neolith]

SCMTim: I think the best you can do is figure out the "other side's" axioms and assumptions. Then, plug them in and see if their argument is logical, even if it doesn't agree with your personal axioms and assumptions.

If they don't, then the first thing to do is fix the arguments themselves, or barring that you can at least write them off as wingnuts/moonbats.

If they do, then you can either take a hard look for weaknesses in your own personal worldview, directly attack the ones in theirs, or both, depending on the situation. If you can figure out from where the other guy is coming from, then you can gain understanding, which is a valuable thing in and of itself, but bad process obscures understanding, which is a bad thing of itself. When ever I hear a person say "I just can't understand why a person blah blah" it means either their opponent hasn't formulated a logical argument, they lack the sufficent empathy to undestand where their opponent is coming from, or their opponent is truly monstrous. The latter doesn't happen all that often, fortunately.

[sidereal]

SCT: you're not acknowledging the power of rationalization. It may be that the fundamental differences between two people that cause one to ally with one group and the other to ally with another or actually razor thin. A different feeling about the power of personal responsibility, a different amount of faith in people, whatever. . small differences. But once they've made those allegiances, they are capable of rationalizing any behavior of their allies and demonizing any behavior of their opponents until it seems like you're involved in a struggle of pure good against pure evil, and both sides think they're the good guy.

The problem here isn't the fundamental differences. Those are small. The problem is the power of allegiance and demonization.

[praktike]

Von, I think you may have a taker for your challenge here.

Based on the post, though, it might be too easy. He really sucks.

[Marty]

You will probably find Legal Fiction's analysis quite interesting, as I did:

http://lawandpolitics.blogspot.com/2005_01_01_lawandpolitics_archive.html#110507332233730120

[von]

Von, I think you may have a taker for your challenge here.

Based on the post, though, it might be too easy. He really sucks.

Yeah, I know. It's a pretty amazing article, particularly coming from a lawyer in private practice.

[Jadegold]

Based on the post, though, it might be too easy. He really sucks.

Powerline's an astroturf operation, so it's not surprising to see this.

[praktike]

"Powerline's an astroturf operation, so it's not surprising to see this."

Is that strictly true? I just thought they were slavering rightwing hacks who happened to have some affiliations with the VRWC. But I don't think that's so different from Jerome and Kos, who are now very much wired into the VLWC. All of those guys get a lot of traffic, so apparently there's a hungry market out there for completely one-sided commentary.

[von]

Jadegold, there's no evidence that Powerline's an "astroturf operation." They do tend hackish in their devotion to what they perceive to be the administration talking point of the moment, but no more than Atrios (and others) does for the other side.

[liberal japonicus]

I thought Powerline related to the Claremont Institute. Two of the guys are fellows there. Or is being a fellow not mean so much?

[Jadegold]

Jadegold, there's no evidence that Powerline's an "astroturf operation."

Of course it's an astroturf operation.

Not only are the operators of Powerline, fellows at the Claremont Instit., one works for Akin Gump which lobbies for many (well, actually all) of the causes espoused on Powerline.

Look, it's not wrong--indeed, it may even be admirable--to share the same opinions as your employer (Armstrong Williams take note). However, not revealing your financial ties to that opinion is somewhat less than ethical.

[praktike]

I don't think the Claremont affiliation means anything, and I don't think they're really tried to hide it, have they?

The main reason you can't call Powerline "astroturf," even if the connections didn't matter, is because it's not "fake grassroots" if the site is very popular.

[praktike]

I should add that it isn't like they don't disclose their identities on their site. If they were an astroturf operation, you wouldn't be able to tell so easily, would you?

[SomeCallMeTim]

Sidreal, neolith:

The problem is that I don't think "logic" (as sidreal adverts to) has much to with it; a lot of decisions are tantamount to rationalizations or something like rationalizations (i.e., a lot of times we're right, but we can't "prove" it).

There are a lot of standard proxies we use for judging certain policies and claims (number and reputation of experts for and opposed; how bright the claimant seems, as measured by verbal or mathematic acuity; actual results; std. consensus of the field; whether an argument conforms to a form we generally consider "valid"; etc.) when either (a) we don't as a matter of course understand things well enough to build anything approaching an even semi-testable model, or (b) we don't have time or energy to actually understand (i) the deep inner workings of a subject (like medicine), or (ii) even which of the "experts" on it are credible. I'm hard pressed to think of a situation in which the proxies, on balance, didn't point against this Administration. And the electorate just blew by that. Which means the proxies don't matter to them. Which means I have no idea how they are making decisions.

As an example of...something: people make a very good case that Cheney and/or Rumsfeld are more responsible for the foreign policy choices I doubt than Bush. But I would be substantially happier (if not actually happy) if Cheney or Rumsfeld were President. Because both of them (largely as a matter of culture) either meet or seem inclined to meet those proxies head on.

(I'm pretty sure that was deeply unclear).

[Jadegold]

Praktike: WRT disclosing identities, I think the operators of Powerline and their affiliated benefactors are sophisticated enough to understand it's a pretty fruitless exercise to attempt to hide it for several reasons. First, it's going to be darn near impossible. Second, when the true identity is revealed--your pretty much compromised.

Look at TCS, for example. They tried to bury their affiliations. They couldn't. Now, a TCS article generally has the credibility of a Steven Glass piece.

[praktike]

Well it was only because of Nick Confessore that the DLC connection was widely made known. What would be interesting to know is whether Powerline has always disclosed its identities or not.

[Katherine]

The new memo is a lot better but it didn't change the worst part of the Yoo/Bybee/OLC memo: the idea that if the President determines that torture is necessary to defend the country, it would be unconstitutional for Congress to stop him from ordering it.

I can't express how bad an idea this is. It means unlimited executive power to disobey the law. It contradicts a legal tradition that is older than our country. It contradicts the overwhelming weight of expert opinion. It contradicts Supreme Court precedents; the most famous is Youngstown Sheet & Tube v. Sawyer. Hamdi v. Rumsfeld makes it pretty clear that at least 8 of 9 justices on the current Supreme Court reject this view, and none in stronger terms than Antonin Scalia.

But most importantly: it also directly and clearly contradicts no less than four provisions of the Constitution.

Article I, Section 8, clause 10 of the Constitution gives Congress the power "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."

Torture is universally accepted as an offense of the law of nations. Congress may make it a crime, and provide for its punishment.

Article I, Section 8, clause 11 of the Constitution gives Congress the power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

This makes it clear that while the President is the Commander in Chief of the Armed Forces, it is given to Congress to make the laws regulating the capture and the treatment of prisoners.

Article I, Section 8, clause 14 of the Constitution gives Congress the power "To make Rules for the Government and Regulation of the land and naval Forces."

Again, this makes it clear while the President has the power to command the armed forces, Congress can pass laws regulating how that power is to be exercised. It is under this authority that the Uniform Code of Military Justice became law.

Article II, Section 3 of the Constitution states that the President "shall take Care that the Laws be faithfully executed."

This passage orders the President to obey and enforce the laws that Congress passes. The Constitution does not speak of any exceptions to this--not for emergencies, not for a short time, not when it comes to the military. And Article II, Section 4, about impeachment, makes it clear that the President can be removed from office to disobey the law.

The memo--which as I said the other day is supposed to give as accurate and complete a view as possible on all the relevant legal issues, rather than --not only did not consider all of these clear instructions important enough to obey. It did not consider them important enough to even mention.

Instead, citing nothing more than its own previous memos (some of which the administration is still withholding from Congress and the public), a few vague quotations from the Federalist papers, and out of context and not very relevant quotations from various court cases, the memo concludes that “any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief power in the President….Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.”

Again, the new OLC memo doesn’t repeat this position, but it doesn’t reject it either. Alberto Gonzales also refused to say whether he agreed with this or not at his hearings. He called it a hypothetical. Dick Durbin pointed out that it was a hypothetical the OLC came up with in a memo he commisssioned. He dodged again. And again. And again. Read">http://slate.msn.com/id/2111962">Read the details in Slate.

Judging by their behavior on the hearing, most of the Republicans on the judiciary committee are perfectly okay with this. Arlen Specter made a few perfunctory comments, but the only one who really showed any sign of caring Lindsey Graham. But don’t worry--it’s not just a partisan thing. Ken Salazar and Herb Kohl and Chuck Schumer didn’t seem to care very much either. Biden did, Kennedy did in his bloviating way, Feingold did, Leahy did, Durbin did. But even some of them, and Graham, and most of the Democrats in the Senate, seem to plan to vote for Gonzales anyway.