Torture Memo

by publius

As you likely know by now, the infamous Yoo torture memo is out (pdf here and here). I doubt it tells us anything we didn’t already know, but I have a few quick points to make in the meantime.

First, critics have quite correctly focused on Yoo’s utter disregard for both law and complexity. They’ve also expressed disgust at the “executive is king” theory. And I agree with all that. But, for you empiricists out there, it’s also worth noting that Yoo’s theory has already had terrible consequences. It doesn’t have to be an abstract debate about what these theories may lead to. We have proof – tortured dead people, Calvinball courts, revived communist prison camps, etc. – that vindicate the more abstract theory that executive power needs limits in wartime. Recent history has confirmed ancient wisdom in this respect. When executives can do what they want without checks, horrible things tend to happen – more precisely, horrible things have already happened.

Second, while surely recognizing Yoo’s obvious genius and his ability to navigate murky constitutional issues with moral clarity, I suspect the administration remained wary of the legal underpinnings of their actions. And frankly, I think this concern extended to the highest levels (there’s a reason Cheney himself was dispatched to defeat McCain’s anti-torture amendment). This concern explains in part why Roberts and Alito got the nod. The White House likely suspected that these issues would eventually bubble up through the judiciary. It was important then to have Justices who defer to executive authority in place. If McCain gets to add a Justice, they will have largely succeeded. (I had originally thought Scalia was a swing vote on torture issues until his paean to Jack Bauer -- I guess hippie hatred is more of a motivating force with him these days).

More later. (Marty Lederman has a lot more over at Balkanization).

Comments

[Ugh]

I suspect the administration remained wary of the legal underpinnings of their actions.

As CharleyCarp has said more than once, people who have confidence in their legal theories don't hide from having the judiciary validate said theories. The administration has ducked just about everything, either via pleading the state secrets doctrine or pivoting at the last second (e.g., Padilla).

In any event, I'm still pissed Yoo didn't share his "POTUS = King" theories with me in Con Law I. He kept all that learned wisdom to himself, selfish [email protected]

[Sebastian]

I'm with you until: "This concern explains in part why Roberts and Alito got the nod. The White House likely suspected that these issues would eventually bubble up through the judiciary. It was important then to have Justices who defer to executive authority in place."

Are you suggesting that Roberts and Alito were chosen instead of other conservative judges because of a special propensity to defer to executive authority?

And are you aware that presidents in general like judges who defer to their authority? (There is a rather famous court-packing threat from a still rather well-liked Democratic president.) That particular, anti-rule-of-law streak isn't unique to Bush, or even Republican presidents.

Ideally the Supreme Court would defer to the other branches on everything except those areas on which the Constitution or other law speaks. But even famous judges have a rather hard time with that balance (see for example Marshall and his "the death penalty is unconstitutional just because I say so" opinions).

Since until recently (when liberals have rediscovered the attraction of sticking to the text since they have been on the losing end of judicial adventurism) Republicans have been the ones burned by Courts failing to defer, it isn't shocking that those who grew up in the light of Roe tend to think the Court ought to defer more to the political branches.

Making it sound as if Roberts and Alito's judical philosophy has anything to do with the torture issue is just making things up unless you have evidence you'd like to share.

[Sebastian]

Hmm this has the potential to threadjack into a general judicial philosophy fight, which isn't what I want.

Let's focus on how bad Yoo is, unless you really want the general judicial philosophy fight. (Though this is a good illustration of how throwaway lines at the end can distract from the main point of the post).

:)

[publius]

fair enough seb - stay tuned. i've got a judicial philosophy one coming later tonight

[Ugh]

Are you suggesting that Roberts and Alito were chosen instead of other conservative judges because of a special propensity to defer to executive authority?

I think the fact that they were apparently vetted by Cheney lends special credence to the notion that they (along with the other potential nominees that made the final list) are especially deferential to th Executive. In fact I'm guessing that was Cheney's only criteria.

[J.B.]

It's fairly appalling that Yoo is treated as some sort of respectable legal scholar now, with a professorship at Berkeley. It's disturbing how people like him live in a zone free of consequences of their actions... while other people get tortured because of them.

[CharleyCarp]

Yoo’s obvious genius and his ability to navigate murky constitutional issues

This I reject completely.

[Jesurgislac]

Sebastian: (There is a rather famous court-packing threat from a still rather well-liked Democratic president.)

Most people would prefer Roosevelt's pro-Social Security judges to Bush's pro-torture judges, yes.

[CharleyCarp]

Roberts and Alito went on at some length about Youngstown at their confirmation hearings. At least, then, they admit what the proper framework is for a separation of powers analysis. Unlike the "genius."

[Sebastian]

Yoo is a hyper-legalist lawyer, the type that gives lawyers a bad name.

He creates ambiguity and then leverages it to destroy the obvious meaning of the law to support his own political agenda.

I wonder if he learned the tools from studying 2nd amendment lawyering. ;)

[cleek]

He creates ambiguity and then leverages it to destroy the obvious meaning of the law to support his own political agenda.

sounds... Clintonian.

[publius]

charley - i was being sarcastic there

[Gary Farber]

"It's disturbing how people like him live in a zone free of consequences of their actions... while other people get tortured because of them."

But, but, but, it mostly wasn't real torture, it was mostly just loud music and some air conditioning, and they got extremely delicious lemon chicken and an island resort stay that primitive Mooslims can usually only dream of, and it was almost all terrorist killers, and if there were any mistakes made, they were only made to a few people, and it was in the cause of protecting all of us, and we're America, the freedomyest, bestest, most moral and justiness, country in the world, and they weren't anyone I know, or members of my family, and they were around terroristyists, so, really, you must be one of them left-wing communist liberal Muslim types, you American-hating, wanting another major terrorist attack, person, you.

Don't you understand that 9/11 changed everything?

I better run some more pictures of the WTC attack, because you obviously don't care, you Koranic ignoramus, you!

As if water could hurt anyone! Hahaha, you stupid leftist.

I just pray that we can quadruple Guantanamo. It's the just and humane thing to do, as the only serious alternative is nuking Mecca from orbit, after all.

It's the only way to be sure we get all those face-grabbing Muslims, and we can save the few good ones, in the end.

Bill's with me, I'm pretty sure, aren'tcha, Bill?

[Sebastian]

"Most people would prefer Roosevelt's pro-Social Security judges to Bush's pro-torture judges, yes."

That's nice.

I'd prefer rule-of-law to smashing it when it doesn't suit your political preferences. There is a reason the rules are set up in advance, because it allows people who disagree with you to buy into the legitimacy of the process.

See also Clinton's garbage about Michigan delegates. It is very lawyerly, and undermines confidence in the rules by making it obvious that they only exist so long as they benefit Clinton.

[CharleyCarp]

Sebastian look at n. 13 of the memo, and then the case cited therein. That's not creating an ambiguity and exploiting it, that's dishonesty. If Yoo had orrectly characterized the question 'reserved' in Quirin, he'd have to see that his whole analysis is a crock.

[Jesurgislac]

I'd prefer rule-of-law to smashing it when it doesn't suit your political preferences.

Roosevelt's "political preferences": people too old to work should not be left to starve.

Bush's "political preferences": prisoners should be tortured by the US military and the CIA.

I see a serious problem with "smashing the rule of law" to allow people to torture prisoners without being prosecuted.

I do not, for some reason, see a similar serious problem with, ah, "smashing the rule of law" to ensure that the elderly do not starve.

That conservatives compare the two, as if they were equivalent? Is just ever so slightly bizarre.

[Sebastian]

"That's not creating an ambiguity and exploiting it, that's dishonesty. If Yoo had orrectly characterized the question 'reserved' in Quirin, he'd have to see that his whole analysis is a crock."

I agree that it is dishonestly creating ambiguity, but through incorrectly characterizing precedent and discussion of precedent. That is a typical lawyer distraction tool at the highest levels. See for example Marshall death penalty discussions. (The key fallacy in the Court's leading edge morality cases is that you can't have a term that BOTH changes to fit the moral understanding of the time AND have the Court go largely against public opinion. If you accept that 'cruel and unusual' is supposed to conform and evolve to current societal norms, you don't get to go against the current societal norm to strike down the death penalty. And the 'trend' analysis was transparent garbage as immediately revealed when the 'trend' reversed). But those were the early cases, in the late ones he had the much more honest 'because I say so' rationale. (Which isn't good for the rule of law, but there we are).

[Sebastian]

"That conservatives compare the two, as if they were equivalent? Is just ever so slightly bizarre."

Right, because you like your political preferences and you don't like mine.

And we have rules to decide which political preferences get implemented.

And you like those rules when they can be used against my political preferences, but you don't like them when they can be used against yours.

The Court packing threat was a more serious attack on constitutional judicial order than anything Yoo did (which is not to minimize Yoo's assault on the rule of law, it is awful and the kind of thing that should get you disbarred or in jail). If you are willing to sign off on the Court packing, you are just having a political disagreement with Yoo about the appropriateness of torture--not a legal disagreement. Because neither of you are interested in real law having practical effect in restraining political desire.

See--again--Clinton.

[Happy Jack]

But, for you empiricists out there, it’s also worth noting that Yoo’s theory has already had terrible consequences.

That depends. Yes, Charles Graner got ten years, but didn't Yoo get tenure?

[Jesurgislac]

Right, because you like your political preferences and you don't like mine.

Yes. I like elderly people not starving after a lifetime of hard work, and I abominate torture. You?

[Incertus (Brian)]

Yoo’s obvious genius and his ability to navigate murky constitutional issues with moral clarity,
There's nothing moral about Yoo's clarity. At best--and I'm giving a huge benefit of the doubt here--it's amoral. I think they're immoral, personally. He's playing rhetorical games and refusing to acknowledge the real world implications of his arguments.

[felix culpa]

Note 13, assuming its handy to the discussion:

Our Office has determined that Congress cannot exercise its authority to make rules for the Armed Forces to regulate military commissions. Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from Patrick F. Philbin, Deputy Assistant Attorney General,Office of Legal Counsel, Re: Swift Justice Authorization Act at 7 (Apr. 8,2002). If military commissions are considered an integral part of the conduct of military operations" then the conduct of interrogations of enemy combatants during wartime must be as much a core element of the President's power to successfully prosecute war. Any effort by Congress to use its power to make rules for the armed forces would thus be just as unconstitutional as such rules would be with regard to military commissions.

[Sebastian]

"Yes. I like elderly people not starving after a lifetime of hard work, and I abominate torture. You?"

I think that Social Security can be worked out without destroying the rule of law.

I hate torture.

We can play the spin your opponents position game all you want "I think that completely viable unborn children shouldn't be killed, you think that mothers should be able to if they want to".

But the most essential difference is that I'm not willing to break the legal order to get what I think is right. I think that I might be wrong about things, and that other people might come to different conclusions which might need to be worked out and mitigated through the political process.

You don't.

And in that, you are precisely like Yoo. You believe you are right, therefore legal requirements are merely stupid obstacles in the way of you getting what you want--to be ignored whenever you get a chance.

That attitude destroys trust in public institutions. Which is ironic if you want to employ it 'for' programs like Social Security.

[von]

End italics.

I do not see the connection to FDR's court-packing plan or social security. Why not focus on the issue at hand -- Yoo's memo?

[Jesurgislac]

I do not see the connection to FDR's court-packing plan or social security.

Sebastian argued that it's just as bad to break the law to save elderly people from starving, as it is to break the law to save people from being tortured. When I suggested this was bizarre, Sebastian suggested this was because of my political preferences.

The comparison of FDR's "court-packing" to Bush's DoJ shenanigans is a conservative meme - Sebastian isn't the first or the worst conservative to suggest this. I don't know whether they want to smear FDR by associating him with Bush, or argue that what Bush did wasn't so bad because liberals don't complain about FDR - or hell, possibly both! - and either way, yes, Von, I do see a connection between this conservative meme and Yoo being able to produce this torture memo and not be condemned out of hand.

[tomeck]

I'd say that the significant point about Roosevelt's court packing plan and Bush's torture plan is that Roosevelt couldn't bring his party in Congress to support it while the current Republicans in Congress have said repeatedly that torture is fine with them.

So the Democrats stood up to a popular president on a "rule of law" issue while Republicans back an unpopular president to break the rule of law.

So yeah, I see the resemblance.

[Jesurgislac]

Sebastian argued that it's just as bad to break the law to save elderly people from starving, as it is to break the law to save people from being tortured.

Sorry! I meant "Sebastian argued that it's just as bad to break the law to save elderly people from starving, as it is to break the law to allow people to be tortured" - I did not mean to imply that Sebastian thinks it's bad to save people from being tortured, that was a typo.

[Incertus (Brian)]

End italics.

Sorry about that. See? I really do know how to do it.

[Kevin]

Seb

Yoo and FDR aren't in the same class, even putting aside the obvious moral superiority of Social Security over Torture. FDR went though the normal and constitutional procedure for changing the court. Yoo, from everything I have read on the matter (and I am not a lawyer) was dishonest in his description of the relevant law, constitutional text and precedents.

The two things are not the same.

[trilobite]

Another point for the empircists out there: not only have we had terrible results, we have had no positive results.

I met a guy who was convinced that the Administration must be getting good intel from torture and keeping it a secret for national security reasons. The idea of this administration subordinating a PR triumph to national security considerations is laughable, but I can't argue with a complete lack of reasoning. For anyone less, um, faith-oriented than my acquaintance, however, it is worth noting that this practice is doing us harm and getting us nowhere.

I guess it's fun to strip, string up, and mock-drown people whose names sound terrorist, but honestly, can't the pro-torture crowd pay a call girl $4000 for the experience like everyone else?

[cityyear95]

I think a number of you are missing Sebastian's main point, which (I think) is that it is a bad idea to create bad law (i.e., precedent) in order to achieve a "good" result.

I'm sure I lean as left as anyone visiting this site, but I still believe that the Brennan-era Court overstepped its bounds in its redefinitions of various Fourth and Fifth Amendment freedoms.

The fact that FDR was right about the issues does not mean that he was not also sometimes (very) wrong in his approach.

[Hartmut]

I doubt that anyone here thinks that FDR was a saint. If we really want a comparision of badness here it would be the internment of people of Japanese descent during WW2 or the completely unnecessary Kangaroo court against German spies (not to speak of giving no shit about the rules of neutrality but that has been and still is a vice loved by the US in general). His court-packing may be debatable from a legal point of view but it is in a different category. It should not be difficult to find something categorically similar on Bush's account, and then comparisions would be valid.

[Kevin]

"The fact that FDR was right about the issues does not mean that he was not also sometimes (very) wrong in his approach. "

But that is not to say that every type of wrong is the same kind of wrong. There is nothing intrinsically sacred about the number of SC justices and the constitution does allow the congress to change that number as it sees fit. FDR went through the proper procedures and accepted his defeat once those proper procedures were followed.

Yoo has apparently invented, whole cloth, justifications for things that simply cannot be justified in our legal and Constitutional system. In other words, he went outside the proper rules and procedures to get what he wanted.

Sebastian appears to be equating the two and that is simply not correct.

[mightygodking]

Sorry! I meant "Sebastian argued that it's just as bad to break the law to save elderly people from starving, as it is to break the law to allow people to be tortured"

Which doesn't change the invalidity of the argument one whit, Jes. We're not talking about Franklin D. Roosevelt breaking into a supermarket to steal a loaf of bread to feed elderly Widow Slooner down the street. (Which is good, because come on, he'd have a hell of a time getting away in that wheelchair.)

We're talking about Roosevelt blatantly trying to wreck the final arbiters of constitutional law in America to feed elderly Widow Spooner and all the other elderly widowers and the elderly married and the elderly bachelors and spinsters.

The law isn't supposed to be cold and heartless when it comes to starving people or indeed anybody else. That doesn't mean it can't be used that way, and often it has been. But destroying its impartiality in order to feed people wrecks the law at its core.

[cityyear95]

a) I didn't read Sebastian as equating the two. Then again, he's wasted numerous opportunities to clarify the confusion, so maybe I'm the one who misunderstood his point.

b) Unfortunately, I think Yoo's "reasoning" may be less a new creation than it is an (undoubtedly significant) extension of previous U.S. administrations' attitudes toward human rights and international law. Yet another reason I am putting so much faith in Obama's promise to change our nation's mindset re: foreign relations.

[Sebastian]

"Yoo has apparently invented, whole cloth, justifications for things that simply cannot be justified in our legal and Constitutional system."

The problem is 'invented' and 'whole cloth'. Yoo is legal realism taken to its natural endpoint.

He illustrates exactly the worst of what is wrong with the profession in the US, but it isn't correct to act as if he is an abberation in the profession or if his lawyering style is found only in Republicans. His methodology is exactly the same as Clinton's in the Michigan issue.

Many lawyers think that the purpose of their craft is to push the law around to get whatever they/their clients want. The average person sees many lawyers as being willing to take perfectly clear concepts, throw dust in the air and choke us to death with the 'confusion'. Yoo offers a particularly ugly case of a very normal behaviour in the legal profession.

So when you say 'invented, whole cloth, justifications' you are talking about what lots of lawyers do. They know that the general understanding of the law says one thing, and they create confusion to get the opposite result. They create the confusion and then point to it and call it 'unsettled'.

Lots of people in power see the use of lawyerly arguments as a way to make an end run around having to deal with things in the normal political process. That isn't a good approach to the rule of law.

[Sebastian]

I'm not sure what I'm being asked to clarify so it is difficult to clarify.

Do I think the ends of torture and feeding grandma are the same.

No.

Do I think that both court packing (FDR) and misconstruing precdent (Yoo and unscrupulous lawyers everywhere) to evade court rulings are serious attacks on the rule of law that shouldn't happen.

Yes.

Do I think that maintaining the rule of law is more important than how almost any reasonably likely political question turns out even if I disagree with how it turns out politically?

Yes.

And in that, I disagree with Yoo and Jesurgislac and FDR and Bush (and lots of presidents in the past I'm afraid).

[Steve]

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[Turbulence]

Many lawyers think that the purpose of their craft is to push the law around to get whatever they/their clients want. The average person sees many lawyers as being willing to take perfectly clear concepts, throw dust in the air and choke us to death with the 'confusion'. Yoo offers a particularly ugly case of a very normal behaviour in the legal profession.

Seb, do you think that lawyers are more prone to this behavior than non-lawyers? I can see why you're displeased about this behavior and why you think it is corrosive, but it seems quite common to me amongst non-lawyers. Certainly many corporations I've dealt with adopt this posture as well.

I have difficulty faulting the legal profession for behavior that seems quite common amongst all professions.

[hairshirthedonist]

I'd say lawyers are supposed to know better and have more respect for the law than anyone.

[Turbulence]

hsh,

But it isn't just about the law: people in general seem willing to weasel their way past all sorts of obligations by attempting to confuse all manner of rules. Whether its constitutional law or homeowners' association rules or rules imposed by the boss at work or requests for proposal, human beings like to stretch the rules and engage in bad faith efforts to subvert otherwise clear directions.

I'm just saying that it seems a touch naive to claim that this is a recent trend or that it is in anyway restricted to the legal profession.

[russell]

Roosevelt's dead. The courts never actually got packed.

'Tu quoque' is Latin for 'let's all chase our tails until we get dizzy and puke'.

The thrust of Yoo's analysis is that, during any time of armed conflict, the President is above the law.

The practical result of Yoo's analysis is institutionalized torture, Guantanamo Bay, Baghram air base, Abu Ghraib, CIA black sites, and the general hollowing out of any moral standing the US might have had in the world.

It's the exposure of US military and intelligence personnel to charges of war crimes.

It's the undermining of any legal case that derives from intelligence gained from actors like Sheik Muhammed et al.

It's the co-opting of the US DOJ and the JAG into a policy of CYA.

It's the pissing away of a legacy this nation built up, at great cost, over generations of effort. A legacy many folks died for.

It is, broadly, the thorough and pernicious corruption of justice in the United States of America.

Yeah, Seb, you have a point, but I have to say I just don't give a crap. If Roosevelt was actually alive and still trying to do that stuff, or if he had been successful and then used his bogus court to cover up his own criminal activity, or if social security represented any kind of threat to anyone anywhere in the world, maybe then I would. But none of those things are so, so I don't.

Dude, the house is on fire. Right now, today.

Roosevelt's dead. You can sleep safely at night knowing that his attempt to pack the court was unsuccessful.

Thanks -

[Gary Farber]

"Any effort by Congress to use its power to make rules for the armed forces would thus be just as unconstitutional as such rules would be with regard to military commissions. "

IANAL, but I've read the Constitution:

The Congress shall have Power To [...] declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This has never struck me as terribly difficult to understand, or as particularly lacking clarity.

But obviously I must be reading the wrong Constitution, or something. Apparently John Yoo's Constitution doesn't include "and make Rules concerning Captures on Land and Water...."

[hairshirthedonist]

I did think you were specifically referring to the law in non-lawyer cases, Turb. But I think the same reasoning applies.

Complying with or upholding some set(s) of rules of whatever sort may or may not be the raison d'etre of non-lawyers. Even if a given person or institution has somehow agreed to follow some given set of rules, those rules may not be part of the core mission of that individual or institution. It seems to me that the law is at the very heart of the core mission of a lawyer.

People will go around rules, wrongly or rightly, that they don't feel are important to them, even if they are (supposed to be) subject to those rules. But how can the law not be important to a lawyer?

[russell]

In the interest of equal time for all parties:

If you want to fault Roosevelt for something comparable to what Yoo has done here, I'd pick on his insistence that Quirin et al be tried by military tribunal rather than civilian court, as was (I believe) originally intended.

The decision was driven (again, as I understand it) by the desire to maintain the impression that the sabotage mission was discovered by our super-duper intelligence work, rather than by one of the saboteurs turning himself in.

It was, I think, a decision which has left us with worse, and more serious, consequences than his unsuccessful attempt at packing the court.

Thanks -

[CharleyCarp]

Sebastian, that's not how I practice, or nearly any of the lawyers I come in contact with. When an opponent takes liberties with the precedents, I take great pleasure nailing him.

Sometimes judges buy bad arguments, and I guess there are a few times when judges are poredisposed to bad arguments. that's really the exception, though. Here, they kept the memo secret, although clearly without justification, because it's embarrassing.

[CharleyCarp]

I'm proud to have FDR on the license plates of my car, but I'll be the first to say that reliance on him as a constitutional scholar, or guardian of civil liberties, would be a very bad idea.

[Sebastian Holsclaw]

"Dude, the house is on fire. Right now, today.

Roosevelt's dead. You can sleep safely at night knowing that his attempt to pack the court was unsuccessful."

Yes it was on fire with FDR, it has been on fire a number of times with the Supreme Court, it is on fire with Clinton practically any time she can see an advantage. I'm saying, that when Bush leaves, if we all pretend that Yoo was some sort of unique abberration, there will be lots of future fires in the same vein. Yoo obscured precedent, twisted obvious meanings, and created ambiguity when there wasn't any. Which is to say he did what many lawyers of all political persuasions think of as their job. That isn't good. (Again if you want to see an immediately relevant example of it on the Democratic side, we have Clinton and Michigan. The rules were clear, Obama didnt even appear on the ballot, yet she argues that it should count. Even if she has a point on Florida--I tend to think not--she clearly doesn't have a good argument on Michigan.)

BTW, are you aware that your 'thanks' often comes off as sarcastic? Is that intentional?

Cultivating a respect for the rule of law isn't easy. But like cultivating a good understanding of statistics, or the fact that causation and correlation aren't the same thing, it can be greatly beneficial for society and the indviduals in it if it can be spread around.

Every conservative should ask of every Executive liberty they consider permitting to further their agenda: "would I want Clinton to get a hold of this". Every liberal should in the future ask of every legal tactic that they want to use to further their agenda: "what would someone like Yoo (or Bush) do with this tool". Because your opponents will use the tool you create. If you undermine the rule of law to get what you want, you have damaged your effectiveness in objecting when your opponent uses the same tool to further his objectives.

[Bernard Yomtov]

With respect to court-packing, I think Sebastian is stretching the analogy pretty far. Suppose a lawyer had prepared a memo for FDR declaring that in time of economic crisis the President had the authority to increase the size of the Court unilaterally, and to make appointments without requiring confirmation. Suppose further that FDR had acted on this advice.

I think that would be comparable to the Yoo situation.

The fact is, however heavy-handed the court-packing attempt was, it still carried out through Constitutional means. Indeed, while we have not seen a similar attempt since, the idea of making Court appointments that will promote the President's political agenda is very much a part of modern politics. It's not miles from the packing attempt.

[Turbulence]

Complying with or upholding some set(s) of rules of whatever sort may or may not be the raison d'etre of non-lawyers. Even if a given person or institution has somehow agreed to follow some given set of rules, those rules may not be part of the core mission of that individual or institution. It seems to me that the law is at the very heart of the core mission of a lawyer.

Really? Are you certain? Because I can easily imagine lawyers believing that "the quest for justice" is at the very heart of the core mission of a lawyer. Or the "desire to protect the constitution". Or maybe the "quest for a regular paycheck" is at the core. Or maybe "the desire to put away bad guys, as I define them" or even "the desire for personal power". Any of these motives can come into conflict with "the law" which I contend is actually a fairly nebulous construct to devote oneself towards. Certainly, I'd expect an attorney who though that devotion to the constitution was their core mission to do whatever they could to undermine unconstitutional statues.

It strikes me as silly bordering on dangerous to make grand pronouncements about what any group of professionals think of as their core mission. There are many lawyers; we don't live inside their heads. There's no room for all our stuff there.

People will go around rules, wrongly or rightly, that they don't feel are important to them, even if they are (supposed to be) subject to those rules. But how can the law not be important to a lawyer?

I promise you, an aggrieved homeowner will feel, with every fiber of their being, that the homeowners' association rules are important to them. In fact, they may scream at you that nothing, NOTHING is more important. I've certainly seen engineers arguing over the proper interpretation of a specification document deploy every dirty trick you can imagine.

[Brick Oven Bill]

I read Yoo’s work and it sounds pretty well reasoned. His job was to be an advocate of the President and his conclusions make sense to me as a good short-term solution.

The Germans could have sought protection by taking cover in Montecassino, but did not out of respect for the building and the fact that their presence would have made it a legitimate military target. They only moved in after we bombed the structure to rubble. That says something about both them and us.

Compare the German behavior with the behavior of those residing at Guantanamo. This problem will not go away. We need to establish a system that allows ‘good’ Muslims to stay, protects us against ‘bad’ Muslims, and preserves Western values.

A one-size-fits-all domestic justice system will eventually break down in a very unpretty way. The jury system in a place like Dearborn can very easily fall apart. The most ethical long term legal solution to the predicament of how to manage a ‘religion’ whose core texts are violent, supremacist, and incompatible with Western values is to ban it.

This could be done via the RICO Statutes, currently on the books. Or it could be done through a Constitutional Amendment, stripping the status of ‘religion’ from the teachings of Mohammed.

[Ugh]

Sebastian: BTW, are you aware that your 'thanks' often comes off as sarcastic? Is that intentional?

Sebastian, for as long as I can remember, russell has ended each and every one of his comments, no matter how long or short, with "Thanks-"

[Jay Jerome]

Det. Lennie Briscoe (on the state of the law in general):

“I want to go to law school so I can learn how to turn gold into lead.”

[russell]

BTW, are you aware that your 'thanks' often comes off as sarcastic? Is that intentional?

I was not, and it is not.

I'll leave it off.

[hairshirthedonist]

I'm not quite sure what we're arguing about anymore, Turb. Maybe I'm not expressing myself very well.

You were asking why lawyers should be pointed out over any other group for trying to get around the rules.

I'm not trying to put things into lawyers' heads. I'm describing why (I think) the standard is different. Of course there are lawyers who have all sorts of views about what is paramount to them, which may be different than what the practice of law is supposed to be about. That's the whole point, I guess.

Anyway, not to cop out, but I have to go and I've written beyond my caring and motivation on the subject.

[Sebastian]

Knowing that it isn't meant that way is enough for me.

[russell]

The Germans could have sought protection by taking cover in Montecassino, but did not out of respect for the building and the fact that their presence would have made it a legitimate military target. They only moved in after we bombed the structure to rubble. That says something about both them and us.

They had an admirable respect for Italian architecture?

I want to thank you for this comment, because, unless I'm misreading you, you've put yourself so far beyond the pale that I no longer feel obliged to give any serious consideration to your posts. It'll save me a lot of time.

Knowing that it isn't meant that way is enough for me.

Thanks for the reply.

Tone can be hard to read in blog posts. Like many folks (I think) I post a lot as time allows, in between doing other things. It doesn't always get my full attention, and I don't always say things the way I'd like them to come out. I often find my own posts kind of strident and annoying on later reading.

I appreciate your asking the question.

I'll probably leave it off anyway, just to avoid the misunderstanding.

[Ugh]

I was not, and it is not.

I'll leave it off.

russell - I always liked it, it seemed courteous to me (as in, "Thanks for reading what I have to say.")

[Ugh]

Hmm...Vanity Fair:

As the first anniversary of 9/11 approached, and a prized Guantánamo detainee wouldn’t talk, the Bush administration’s highest-ranking lawyers argued for extreme interrogation techniques, circumventing international law, the Geneva Conventions, and the army’s own Field Manual. The attorneys would even fly to Guantánamo to ratchet up the pressure—then blame abuses on the military. Philippe Sands follows the torture trail, and holds out the possibility of war-crimes charges.

[Phil]

Or it could be done through a Constitutional Amendment, stripping the status of ‘religion’ from the teachings of Mohammed.

I think this is a great idea, as I can think of a million ways through which, using the First Amendment and the equal protection amendments, and some other trickery, I can successfully have Christianity and Judaism equally so stripped. Please, call your Congressman immediately!

[Jeff]

His job was to be an advocate of the President

That's what fans of the unitary power think the job of the AG is, when those of us who live in RealityLand were taught the job of the AG was to advise the President on the legality of policies, proposals, et al. Not the same thing at al.

[mightygodking]

A one-size-fits-all domestic justice system will eventually break down in a very unpretty way.

See, it's only been working relatively well for hundreds of years, so it's gotta be due for eventual collapse any day now!

[CharleyCarp]

So, BOB, are you saying that you agree with Yoo's description of Quirin in footnote 13? With his unwillingness to apply the Youngstown analysis that Chief Justice Roberts and Justice Alito both said in their confirmation hearings was the right framework for this type of question?

And you are disagreeing with the officials from the Bush Administration's Justice Department who withdrew this memo, and told officials throughout the government that they couldn't rely on it?

[Klerk]

Russell, just to weigh in on a debate I have no horse in - I have often seen how the thanks could be sarcastic, but its omnipresence shows that you are a truly collegial debater rather than sarcastic partisan. I would encourage you to keep it in all your posts. In the alternative, dump it entirely, but dont let it creep back it -- it was a mark of respect while it lasted.

As to the Roberts/Alito vs. other conservatives debate, I think Publius has the better side on this. See a scholarly article here and an exemplar blog here. More examples on request....

Finally, for those interested, I did a post on MY VERSION of originalism vis-a-vis the commander-in-chief/king in wartime thesis over here, marking one of the few moments Im likely to agree with Publius. :)

[Catsy]

It is a rare thread indeed when I agree with nearly every single word written by Sebastian.

[russell]

it was a mark of respect while it lasted.

Not to make too much of it, but it was just intended as a polite way to end a post. Even when the rest of the post was not all that polite.

Hence the confusion, perhaps?

My tone here is not infrequently abrasive. I should probably dial that back, because it's pretty easy to read that as a lack of respect. I'd regret it if that was how my statements here were taken.

In the context of this thread especially, I'd find it particularly regrettable it if my comments were read as disrespect by Sebastian, who has, and deserves, my respect and appreciation for his early, and consistent, public positions against torture and other forms of executive overreach.

With no sarcasm whatsoever, Sebastian, thanks for all of that.

[Brick Oven Bill]

Russell;

I’ll break the two-beer rule.

The Germans had enough respect for civilization as to not take cover in buildings of historical significance as in the Montecassino scenario.

A different people that those who choose to store weapons in schools and place missiles in living rooms.

With respect;

[Hartmut]

concerning Montecassino
The German commander(s) on location expected the place to become a battlefield and removed all mobile valuables in order to save them (in this case not in order to decorate another Göring villa with it). To my knowledge the Allies bombarded the place because they thought the Germans were already in (they were not but moved in later). So this case is quite murky. This was not typical German behavior in WW2 and it was not an allied case of deliberate Baedeker bombing (as practiced elsewhere with gusto). Btw, the whole battle was unnecessary (a less botched Anzio landing and it would not have to be in any history book).

[russell]

I’ll break the two-beer rule.

Thanks for a measured and reasonable reply to my somewhat splenetic post.

A few points in response to your original post here.

I'm sure Yoo's work is well reasoned. It's also one that ignores, or even flies in the face of, the obvious intent of the Constitution it claims to be discussing.

I think that's what Sebastian means when he describes Yoo as 'hyper-lawyerly'. If so, he's correct when he says that's the kind of argument that gives lawyers a bad name.

It's sophism, rather than an argument in good faith. Either that, or he sincerely believes that the executive is above the law. I'm not sure which is worse.

The Germans did, in fact, have a high regard for culture. At least, white Aryan European culture. They had such a high regard for it that they considered it superior to every other culture, and sought to express that superiority by conquering and enslaving their neighbors.

And, of course, certain particularly undesirable inferiors were to be systematically exterminated, root and branch, like cockroaches.

So, in comparison with us specifically, I don't see their respect for the physical structure of Montecassino as particularly laudable.

I do understand your point there, I just think it misses the broader context.

It is true that Muslim insurgent or otherwise irregular forces commonly integrate themselves into civilian populations and locations.

I'm sure it is often a deliberate strategy to raise the risk level for their opponents -- nobody wants to kill innocents -- but I'd guess it's equally often because there is little or no distinction between militants and the civilian population they live among.

It's where they live. They don't have another place to be.

At any rate, there's nothing particularly Islamic about it. It's common in 'asymmetric' war.

Finally, the populations at Guantanamo, Abu Ghraib, Baghram, etc., include both the violent and the innocent. It appears that the physical abuse sanctioned by Yoo has been dealt out to all, without any particular regard for innocence or guilt.

In that context, we do not fare well in comparison with anyone.

Thanks again for your reply.

[Gary Farber]

"nobody wants to kill innocents"

Russell, that statement is clearly completely untrue.

Did you intend some modifiers that got left out, or you felt were unnecessary to state?

Because setting aside individual acts of slaughter without political intent, which happen every few minutes across the U.S. alone, I'm unclear how, say, anyone could walk onto a crowded civilian bus, or into a popular pizza joint, or whathaveyou, and blow themselves up, and it could be claimed that they
didn't "want[s] to kill innocents," unless perhaps you mean that everyone who ever kills another human being rationalizes that the killed people aren't in any way innocent.

And I'm, of course, setting aside a discussion of the meaning of "wants" in which someone might make statements interpretable as saying that they're entitled to declare what someone else "wants," regardless of how the actors themselves conceptualize their intent, so as to avoid a sidetrack into discussion of how much the U.S. government/military/people "want" to kill innocents with "collateral damage."

[liberal japonicus]

I'm unclear how, say, anyone could walk onto a crowded civilian bus, or into a popular pizza joint, or whathaveyou, and blow themselves up, and it could be claimed that they
didn't "want[s] to kill innocents," unless perhaps you mean that everyone who ever kills another human being rationalizes that the killed people aren't in any way innocent.

Not defending this in any way, but rationalization is probably 'I don't want to kill innocents, but the Israelis/Palestinians/Hutus/Tutsis/Americans/North Koreans/Vietnamese/Iranians/Iraqis/etc etc forced me to'. How much someone who commits one of the acts you mention holds the victims killed as innocent or guilty as part of the group that is considered to be the enemy is a question that can't be answered by anyone (and perhaps not even by the people themselves), but the assumption that people who commit these acts want something that is completely inexplicable prevents any possibility of reconciliation or understanding.

[Gary Farber]

"Not defending this in any way, but rationalization is probably...."

Rationalization, yes. No kidding.

I assumed that everyone was aware how that works.

Alternatively, if you are suggesting that there is no way to objectively conceptualize "innocent" in the context of "not deserving to be killed for the crime of being a civilian of a given nation or territory or group," beyond pure subjectivity, I disagree.

"...but the assumption that people who commit these acts want something that is completely inexplicable prevents any possibility of reconciliation or understanding."

Perfectly true, but I'm a tad unclear why you seem to think this is news to me. However, revelatory tip appreciated. People do things for reasons; understanding their reasons is useful knowledge: let's all agree we agree about that.

[liberal japonicus]

Gary, I didn't mean to suggest that this was some sort of revelation to you, it's just that I've read enough narratives of people saying that they had to do something because they were forced to do it by the acts of others, which seems different than rationalizing that the people killed were in some way guilty. That's all I was suggesting, and my apologies for not making that clear.

[russell]

Did you intend some modifiers that got left out, or you felt were unnecessary to state?

Quite right, the statement as written is demonstrably false.

Most countries will, all other things being equal, prefer to not kill non-combatant citizens in the course of military actions. The words "most" and "all other things being equal" are significant here.

This may be based in a moral calculus, or a pragmatic one, or both, but it is, I think, a real factor.

Irregular militants are often accused of exploiting that reluctance by deliberately locating themselves or their materiel in the middle of non-combatant populations.

No doubt, in a lot of cases there's something to that accusation, and also no doubt in some cases they are there just because that's where they happen to live.

I hope that's clearer, thanks for requesting the clarification.

[farmgirl]

Gary, with respect -- "No one expects the Spanish Inquisition." :)

[Gary Farber]

Digressing slightly, this is not a comfy chair.

[trilobite]

There is, or should be, a difference between what a lawyer will do to the law for most clients, and what a lawyer will do to the law for his client when his client is the government. Also, there is a huge difference between what you can and should say to a court once your client is already in trouble, and what you should tell your client before he gets into trouble.

Lawyers can and should look for any viable legal argument for their clients. And the line between interpretation and flat-out lying about what a case stands for or what a statute means can be hard to spot when you are full of enthusiasm for your client's cause.

But when you are advising your client, you tell him what the law is, not what the farthest-out argument you could possibly make is. The kind of hyperlawyerly at-least-borderline-false stuff we're talking about here has no place in an advisory memo to ANY client. Or, at the very least, it should be accompanied by a big fat disclaimer and an equally strong memo written on the other side of the question. It is downright unethical to encourage your client to believe that a weak legal position is a strong one.

It's even worse when your client is the government, because by definition, it is never in the best interest of the government to violate the law or encourage disrespect for the law. It is no excuse at all that in practice, Yoo was working for the President. A lawyer who works for a corporation is, in practice, hired by the CEO or Chairman. The law is very clear that their responsibility is not to the person who hired them, it is to shareholders. Lawyers get disbarred for preferring the interest of the CEO or Board member to that of the shareholders when there is a conflict.

Just so, a Justice Department attorney has no right to subordinate the interest of the public in seeing that the laws be faithfully executed, to the interest of a President in scoring political points -- or even winning a war.