Disbar Them

by hilzoy

From the NYT:

"An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.

The conclusions of the 220-page draft report are not final and have not yet been approved by Attorney General Eric H. Holder Jr. The officials said it is possible the final report might be subject to revision, but they did not expect major alterations in its main findings or recommendations.

The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency. Among the questions it is expected to consider is whether the memos reflected the lawyers’ independent judgments of the limits of the federal anti-torture statute or were skewed deliberately to justify what the C.I.A. proposed.

At issue are whether the Justice Department lawyers acted ethically in writing a series of legal opinions from 2002 to 2007. The main targets of criticism are John Yoo, Jay S. Bybee, and Steven G. Bradbury, who as senior officials in the department’s Office of Legal Counsel were the principal authors of the memos."

I really, really, really want to see those emails.

I can see not recommending prosecution. I am not a lawyer, so I could be wrong, but as I understand it, in order to convict someone in Yoo or Bybee's position, you'd have to show that they knew that what they were recommending violated the law. If anything could establish that, the emails could; but it's a high bar to meet. As, in general, it should be: while I think that in principle, offering legal counsel might well be part of a criminal conspiracy, I also think that one should have to meet a fairly high burden of proof before bringing charges on that basis.

(Please do not confuse this with some sort of solicitude for Messrs. Yoo, Bybee, and Bradbury. This is the way I think the system ought to work in general. When attorneys advise their clients about what's legal, it's always possible that they get it wrong, and say that something is legal when it's not. I would not want lawyers who made that kind of mistake to be prosecuted for conspiracy. Thus, the high bar. It's not about these particular people, any more than my belief that detainees at Guantanamo should have habeas rights has to do with my thinking that all of them are nice people.)

That said, I think disbarment would absolutely be appropriate. The difficulty with prosecution is establishing intent. When a lawyer makes a stupid legal argument, it's always possible that s/he is not malicious, just a terrible lawyer. When you've narrowed the options to criminal intent or complete ineptitude, you have not got enough to prosecute. You have, however, got enough to disbar someone, since while total ineptitude is not an indictable offense, it is a good reason not to let someone go on practicing law.

If Yoo, Bybee, and Bradbury did not write their memos in order to provide a shield for criminal activity, then I think they had to be completely inept as lawyers. Their job, remember, was to interpret the law for their clients, and to advise them on what was legal and what was not. By getting the law spectacularly wrong, they exposed their clients to serious legal liability, and in so doing completely failed to meet their obligations to their clients. Moreover, they made some fairly stunning mistakes, like failing to cite any of the cases in which the US government had prosecuted people for waterboarding when those cases were plainly relevant. 

I am somewhat puzzled by the fact that, if the NYT is right, the report does not recommend sanctions against Bradbury. His memos have many of the same mistakes as Yoo and Bybee's. In addition, as I noted earlier, Bradbury (like Yoo and Bybee) discusses the question whether the techniques he's writing about cause "prolonged mental harm", which is relevant to the question whether they constitute psychological torture under the law. In this discussion, he cites a number of background papers, scholarly publications, etc. But he does not discuss the most obvious source of evidence available to him: namely, the detainees themselves. 

His memos, like the others, go on and on (and on) about how often the detainees are examined by doctors and psychologists. Whereas Yoo and Bybee wrote their memos soon after the "enhanced techniques" were first used, Bradbury wrote his nearly three years later. Unlike Yoo and Bybee, therefore, he did not need to extrapolate from sleep deprivation studies carried out in very different circumstances to decide whether sleep deprivation, as practiced by the CIA, caused "prolonged mental harm". He could simply have asked all those doctors and psychologists who were, we are assured, examining the detainees regularly. 

And yet, oddly enough, he didn't.

Imagine, by analogy, that you were suing someone for damages resulting from the fact that that person had burned your house down, and you needed to show that you had endured real pain, suffering, and financial hardship as a result. Could it possibly fail to occur to your lawyer that in addition to citing various studies of what arson victims typically suffer, she might take advantage of the fact that she had you available, and ask what financial and emotional hardships you had suffered? If she avoided any mention of you in particular, and acted as though she had to make her case entirely on the basis of scholarly studies of arson victims in general, would it not be logical to suppose that she had some reason for not putting you on the stand? 

In this case, as before, I think that there are two options: it did occur to Bradbury that the psychological condition of the detainees was relevant, but he had some reason for not mentioning it, or it did not. In the first case, he is failing to mention something that is on its face crucial to determining whether the practices he is discussing constitute torture under the law. Doing so intentionally would make criminal intent a whole lot more likely. In the second, he is incompetent as a lawyer. In either case, he should be disbarred.

Yoo, Bybee, and Bradbury had a series of professional obligations. They had obligations to their clients: to inform them accurately of what the law required, and to err on the side of caution so as not to expose their clients to liability. They had obligations to the courts: to uphold our system of laws, and to represent those laws faithfully. In addition to those professional obligations, they had obligations to humanity: not to countenance torture. They violated all three, and made a mockery of the ethics of their profession. They deserve to be disbarred.

Comments

[bobbytwotimes]

i am currently drunk and reading ObWi, haha, but here is my comment:

the proposition that Bybee, a federal appeals court judge, and Yoo, a professor at Berkeley,are incompetent lawyers is ridiculous. They are demonstrably not incompetent.

Maybe you could not show that they knowingly violated the law, but I think you could show, at the very least, that they were recklessly indifferent as to whether they were violating the law. As to whether that would suffice to establish laibility in this case, I do not know.

[Hartmut]

You must understand that the victims of actions are not reliable sources. In order to avoid bias only completely uninvolved persons (i.e. people that have no idea what they are talking about) should be consulted (cf. the RCC where only celibate males are considered unbiased as far as female sexuality is concerned).
And don't forget that the ones the techniques were applied to are the worst of the worst (and also not white) that were specially trained for these situations. The mere fact that they claim to have been harmed should be seen as the best possible proof that they were not (all criminals claim to be innocent =>...).
[/snark].

First disbar then put behind bars (and at least consider to hang them from one, if the law gives that option). [rant]make that the scorpion pit[/rant]

[Doctor Science]

I also really, *really* want to see professional sanctions against the doctors and psychiatrists. Are there any moves being made in that direction?

[Ugh]

Does the OPR even have the authority to recommend criminal charges?

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department,

Can a purely ethical violation be criminal? Certainly one can act criminally and get disbarred, but I wonder if this whole "the OPR didn't recommend criminal charges" thing is cover for not prosecuting. I would think that recommendations for criminal charges for DOJ personnel would come from the Inspector General or a special prosecutor, and not from an office charged with determining whether DOJ lawyers fulfilled their professional, ethical responsibilities.

And I agree with bobbytwotimes, Yoo and Bybee are not incompetent, they knew exactly what they were doing. Hell, Yoo has gone around saying that the POTUS can specifically order things that even the MBFs at Redstate would concede are torture, so why would things that are closer (but not close) to the non-torture line bug him when writing the memos?

I also agree with hilzoy, I hope we get to see the emails. If anything, they will ensure that Yoo and Bybee (and whoever they were emailing with) will not be able to go to Europe any time soon. They may also show that in the memos the CIA lied about the facts and the DOJ lied about the law, such that the CIA could do what both it and Bush/Cheney wanted it to do, and both of the DOJ/CIA might think they could blam the other later.

There was a thread on Unfogged where someone likened the memos to tax opinions, where the client would prefer the lawyer lie about the law because the client could rely on such an opinion to get out of penalties for nonpayment and in the meantime not pay tax while the lawyer collects a nice fee. Same here: the CIA can (attempt) to claim reliance on the OLC's opinion on what's legal and (hope that they) not be criminally charged and Bush/Cheney get what they want via the OLC. All very convenient.

OT - speaking of taxes, Obama's recently announced tax plan is unlikely to accomplish its goals when it comes to the "incentives" for US multinationals to send jobs overseas (I'm happy to explain in a more pertinent thread).

[cleek]

I also really, *really* want to see professional sanctions against the doctors and psychiatrists.

and how...

have you heard this recent NPR interview with one of the psychologists ? the one where he gushes over how interesting and fascinating it was to watch people being tortured during SERE training, and where he says his duty as a doctor is to the US, not to the patient, etc..

"Mengele", i kept thinking. "this guy sounds like Dr. Mengele"

[KCinDC]

Cleek, yes, that was disgusting. And he had the usual torture supporter's inability to understand the concept of consent, saying that certain techniques must be okay because they were used in therapy.

[Woody]

Search "APA Torture Vote."

You'll find the tale of the near mortal split in the venerable American Psychological Association over whether the organization ought to tolerate members who participated in the USer torture regime. A majority voted for sanctions against participants, but the Assn by-laws required a 2/3 majority to bind them to the vote...

[Hartmut]

So are some powerful poisons that will kill the healthy while saving the sick. Maybe we should forcefeed them some heart pills (I have my snarly day).

[mckinneytexas]

Try to keep in mind that a legal opinion is just that, an opinion. It's a damned difficult line to draw to divide valid legal opinions from those that merit disbarrment, i.e. depriving a lawyer of his/her ability to practice his/her profession. Lawyers are advocates as well as counselors. The same principles that will be applied retrospectively to Yoo et al will be applied prospectively to death row inmate attorneys, the William Kuntsler's of the world, etc. The usual standard for when a lawyer crosses the line is hardly clear--an attorney acts within the bounds of the profession when he/she advocates for any position that falls within a good faith modification, extension or reversal of existing law. 'Good faith', particularly on a subject as highly charged emotionally as torture (the real legal question being 'whether a specific act falls above or below the line for torture as defined by statute') is highly subjective, as evidenced by the highly charged level of debate now in progress.

It is not uncommon to see absolutely bizarre arguments made by lawyers in support of all kinds of questionable positions. The liklihood that any of these lawyers will be disbarred, or even reprimanded, for this class of bad lawyering is so close to zero as to not matter.

Disbarment is reserved for conduct that is quasi-criminal--commingling client funds with the attorney's own funds, misappropriation of client funds, conviction of a crime involving moral turpitude, etc. Essentially, what Hilzoy is talking about is in the nature of malpractice, where competing experts opine that a particular lawyer's work does or does not meet the prevailing standard of care. Depending on venue, I am not sure even a malpractice claim could be made against Yoo--sorry to disappoint, but a jury of lay people who are not absolutists on torture would be at least as likely to acquit than convict if not more so.

And even then, focusing on the issue of malpractice, those memos were not written in a vacuum. There was a perception, under the Clinton administration, of counsel being too conservative, at least in hindsight, as to missions against Bin Laden and others--missions that, if they had been carried out, may have mitigated the number and severity of subsequent terrorist attacks (this is all inherently unknowable, but in the aftermath of 9-11, lawyers looking back and saying 'they were too conservative, too cautious, could be expected to overcompensate, producing the result we now see or some similar result).

For example, if it could be shown that a lawyer in the mid-90's was too timid, too risk averse, and opined that an action that would have killed Bin Laden could not be taken for various legal reasons--all of them objectively wrong--should we prosecute, disbar, pillory?

Just about every rule of law cuts both ways. Send a message that lawyers who opine too aggressively will be prosecuted or disbarred, and you'll get CYA legal opinions that barely function as bird cage liner.

[Hartmut]

To my knowledge it is not illegal to caution your clients that an action might be illegal (unless maybe it is an excuse for dereliction of an explicit duty and even then it would not be the lawyer's problem).
Anyway, if the alleged criminal actions of a lawyer were not actually, that is the purpose of an investigation and possible trial to decide. Remember: neither does imply proven guilt and there can be aquittals (unless the court itself is filled with people guilty of the same kind of conduct).

[Gree]

Hilzoy,

I am impressed with how well you ignore the "Culture of Corruption" that the Democrats have created. I am impressed with how well you ignore Obama bombing innocent civillians.

You truly are amazing.

[KM]

It's important to note a couple of things here. One key fact is that the sources for this article (and the rash of other recent articles on this topic) are some or all of Yoo/Bradbury/Bybee themselves, or their surrogates. (My money is on Bradbury. He is clearly in desperate CYA mode -- look at the recent apologist piece citing all his buddies. And note the constant emphasis that he's in the clear: "referring two of the three lawyers -- John Yoo and Jay Bybee --", and then, in case you didn't get the point, later on there's "professional sanctions against Bybee and Yoo, but not Bradbury".) We know that all 3 have already had access to the reports findings. The sources are clearly trying to "get ahead of the story" prior to the report's release, to engage in preemptive damage control and to reduce the political impact by dribbling out bits and pieces over time, and to put their spin on things (e.g. the inquiry as "politically loaded guessing game"; the internal divisions over criminal charges (like this is even at issue); and the headline and lede themselves, which portray the main story as the fact that criminal charges aren't in the offing).

The second (and closely related) point, as I've suggested above, and as pointed out by ugh, is that this is an ethics inquiry by OPR, and that the laying of criminal charges isn't even in its ambit. So more evidence that (a) the sources for the story are a tad invested, shall we say; and (b) we shouldn't read too much into this reporting, or at least view it with a sceptical eye.

[hairshirthedonist]

'Good faith', particularly on a subject as highly charged emotionally as torture (the real legal question being 'whether a specific act falls above or below the line for torture as defined by statute') is highly subjective, as evidenced by the highly charged level of debate now in progress.

Baloney! The only reason the specific subject of the torture now in question is so highly charged is because it happened. And the only reason the debate now in progress is so highly charged is because people are arguing in support of torture. If some scientist loses his marbles a publishes a paper stating that the sun was man-made in the 14th Century, that doesn't suddenly make it "subjective" because it sparks and argument. Any crazy or evil a-hole can start a highly charged debate on any number of not-subjective things without those things suddenly becoming subjective.

[cleek]

excellent use of cutting-edge GOP talking points, Gree !

[KM]

Oh yeah, and on the subject of this --

His memos, like the others, go on and on (and on) about how often the detainees are examined by doctors and psychologists.

-- I'd like to emphasise, along with cleek and Woody, that the public words and actions of some of those doctors and psychologists are very quickly undercutting any such defence.

In addition to the NPR interview, see also Spencer Ackerman on the utilitarian argument advanced in the NPR interview, Stephen Soldz and Steven Reisner on calls for an investigation of the APA's complicity in torture, and this piece on the case of one of the perpetrators.

[hairshirthedonist]

You truly are amazing.

I agree that Hilzoy is truly amazing, just for different reasons.

[Ugh]

mckinneytexas: an attorney acts within the bounds of the profession when he/she advocates for any position that falls within a good faith modification, extension or reversal of existing law.

Well, that raises the question of whether they were acting in good faith. such as it sounds, the emails may indicate that they weren't (i.e., Yoo: "you can't do that, that's torture and illegal, see cases X, Y, and Z directly on point"; Bush: "don't care, give me a memo that says it's legal"; Yoo: "Okay, here's a memo omitting mention of cases X, Y, & Z.")

The U.S. has recently criminally prosecuted lawyers for giving legal opinions that the U.S. considered wrong, specifically in the tax shelter area and the prosecution of employees of KPMG (and others). It obtained convictions of a number of lawyers. Of course, there were other bad facts surrounding their legal opinions, but the core case centered on those opinions as a conspiracy to defraud the US gov't of tax revenues (and presumably there are bad facts surrounding the issuance of the torture memos).

mckinneytexas: For example, if it could be shown that a lawyer in the mid-90's was too timid, too risk averse, and opined that an action that would have killed Bin Laden could not be taken for various legal reasons--all of them objectively wrong--should we prosecute, disbar, pillory?

Except there's a difference between saying "you can't do that, that's illegal" and having the client refrain from doing so, even though doing so is objectively legal, and a lawyer saying "of course you can do that, that's perfectly legal" and having the client do so, when in fact it is objectively illegal for the client to so act. You might disbar/pillory in both cases, but prosecution is a possibility in only the latter.

[hairshirthedonist]

For example, if it could be shown that a lawyer in the mid-90's was too timid, too risk averse, and opined that an action that would have killed Bin Laden could not be taken for various legal reasons--all of them objectively wrong--should we prosecute, disbar, pillory?

If the reasons behind the opinion were all truly objectively wrong, at least pillorying would probably be justified. So what? Is that what actually happened? Or were the legal reasons for not taking this bin Laden-killing action not so objectively wrong? Were they just wrong the same way sending your kicker onto the field to kick a 20-yard field goal with 10 seconds left in a game when you're down by 2 points is wrong after he misses?

[hilzoy]

mckinney: my whole point about disbarment is that at a certain level, incompetence is not a defense.

Fwiw, I agree that Yoo, Bybee, et al are not incompetent. I'm just unsure about how one would prove that in a court of law. It would be fun to hear them argue it, though.

[KM]

The liklihood that any of these lawyers will be disbarred, or even reprimanded, for this class of bad lawyering is so close to zero as to not matter.

It may well be that in the end they won't be, but this kind of assertion about the probabilities I find lacking in any credibility. IANAL, but the circumstantial evidence that the legal opinion was knowingly "fixed around" the action being proposed is already pretty darn powerful. And if broader access to the e-mails is obtained, I'm betting heavily that the evidence will no longer be simply circumstantial.

Oh, and many of your analogies are extremely problematic. Recall that most lawyers' arguments on behalf of their clients refer to actions already taken, not prospective actions for which an official opinion as to their legality is being requested. Well, that's not quite right -- in this case in most cases the actions had already been taken, only without any legal CYA whatsoever -- which is only that much deadlier for Bush Admin officials invoking specious "good faith" arguments about actions covered by legal opinions that were only provided to supply this "good faith" argument in the first place.

[nadezhda]

Ugh writes:

Does the OPR even have the authority to recommend criminal charges?

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department,

Can a purely ethical violation be criminal? Certainly one can act criminally and get disbarred, but I wonder if this whole "the OPR didn't recommend criminal charges" thing is cover for not prosecuting. I would think that recommendations for criminal charges for DOJ personnel would come from the Inspector General or a special prosecutor, and not from an office charged with determining whether DOJ lawyers fulfilled their professional, ethical responsibilities.

Yes, indeed. I think these stories suggesting the OPR report will be a get-out-of-jail card for the lawyers are a bit of a stretch and a great deal of self-interested spin. And the journalists who are reporting the leaks aren't framing the right questions in their stories.

I certainly wouldn't have expected OPR to deal with whether to prosecute. If the lawyers committed a crime (which I think they did -- they were central to facilitating what I think was a criminal conspiracy), prosecutors are going to have to define the particular actions that constituted crimes, and where the authors of the memos fit into those crimes. The OPR review is much too narrow and premature.

I'd expect, however, for the OPR investigation and findings to be exceedingly relevant to the broader investigation and decision as to whether, who and for what DOJ decides to prosecute. The OPR fndings and recommendations may either strengthen or weaken the likellihood that any one, including the lawyers, may be prosecuted. But I don't see the OPR as the decision-point on prosecution.

[russell]

mckinney: fine, if prosecution or other sanction here is just out of the question, let it be and the international courts will sort it out.

Then we'll be treated to weeks of shrieking when charges are filed in Spain or some other place. And God forbid any of these guys is actually stupid enough to take a European vacation and then gets arrested, there will be calls for a declaration of war against the EU.

Here is the problem: right now there is no clear statement that the US recognizes the techniques approved by these guys as torture, nor is there a clear statement that we eschew torture as an interrogation technique.

The strongest statement we have is Obama's stating that we renounce these practices.

If these guys, along with the psychologists, the physicians, and the policy makers who drove the whole damned bus, suffer no sanction for promoting and carrying out a policy of torturing prisoners, then it ain't gonna go away.

Instead of being something we renounce as a matter of law, torture will just be something that this particular president prefers not to employ.

Then, the next time something bad happens, it'll be back to the waterboard, and the fact that all of these crappy memos were allowed to stand without a clear legal response will be the precedent that justifies it.

Of course, for some folks that's feature, not a bug.

"It's not our policy" is not really a strong enough statement, IMO. These guys broke domestic and international law, and are at least complicit in war crimes.

We shouldn't make Spain, or whoever, clean up our mess for us.

[mckinneytexas]

Hairshirt--torture is a defined term by statute. Conduct that you or I would find completely unacceptable can be outside the statue and not subject to prosecution. There is a whole range of permissable mistreatment of terror suspects that would never pass constitutional muster under 5th Amendment 'self incrimination' standards. Think of it as 'consensus torture' as opposed to 'criminal torture', the former may be subject to prosecution, or not, and the latter is prosecutable. For example, as unpleasant as it might be to contemplate, it is a close call whether waterboarding crosses the statutory line and rises to the level of criminal torture--frequency, duration, intensity and other factors would play into the evaluation. This may be really bad law, but it is the only law on the books that will support an indictment. Long term sleep deprivation, long term isolation, stress positions, etc. actually come closer to crossing the torture line.

Ugh, 'good faith' is exactly the question and it is a very, very subjective concept in most applications, particularly involving matters of prospective opinion. It is possible the emails would produce a smoking gun, but not likely, since it would be necessary to link the smoking gun text to an act of criminal level torture. That remains to be seen.

KM-- if you find the assertion of probabilities lacking credibility or my analogies problematic, that is your issue. For what it is worth, I don't pull my legal
analysis'--as opposed to political--out of thin air. I've tried close to a hundred jury trials to verdict, mostly in large loss civil matters over the last 29 years and briefed and argued forty plus appeals. I've sued and defended lawyers and doctors for malpractice and have the same working knowledge of basic criminal law as any competent practitioner. A significant part of my practice involves advising clients prospectively on actions they would like to take, usually in the civil arena, but not infrequently with criminal implications (usually SEC or income tax related) and every civil trial lawyer is aware of perjury as a crime and our advice to our clients in that regard is almost always prospective, i.e. what a client can and cannot say without committing perjury (my personal rule for my clients is pretty simple: if we can't win on the truth, we lose, so you decide whether to go to trial or to compromise). In very nearly every case I handle, my clients want to know the chances of winning and losing. So, a big part of why I continue to be hired is because I have a fairly decent record for being able to predict outcomes. Transactional law is no different--drawing up a contract or doing a public offering involves future risk assessment/mitigation and future compliance with a whole range of laws. Contrary to your view, lawyers are hired as much or more to avoid legal problems in the future as they are to unscrew past screw-ups.

[Donald Johnson]

Were Gree's talking points Republican? "Culture of corruption" could be, though it could also be a lefty saying that Obama is too close to Wall Street. "Bombing civilians" is definitely leftwing and lefties are criticizing him for that, but I'd be interested in knowing if there are Republicans cynical enough to use it. (Excluding the anti-imperialist conservatives who might say such a thing in good faith--I don't know if they'd consider themselves Republican anyway.)

[Beau]

In reading all of this about legal advice given by Messrs. Yoo, Bybee, and Bradbury in there memos and whether they committed a crime or were just incompetently bad memos I can not help but be reminded of a story my Dad told me years ago.

At the time he was working for a defense contractor who was supplying a piece of hardware to very exact specifications. At a product acceptance review where the project manager stated, for the record, that the item in question not only met the specified requirements but exceeded them, it came out that the hardware delivered for acceptance testing, was in fact, not the item specified but a nonfunctional prototype (aka a mock-up). After listening to first the project manager and then the acceptance team report, the General chairing the meeting asked the fallowing question of the project manager. "You sir are either incompetent or a crook. Now which is it?" After a long pause the project manager responded "Well, sir, I guess I'm incompetent."

Messrs. Yoo, Bybee, and Bradbury are in a very similar situation. The option(s) they gave appear to be so bad as to be either criminal (they new that they were just giving legal cover for what they new, at the time, was a violation of US law) or just so flat wrong as to be incompetent. A main justification the legal profession gives the rest of us for having a Bar Ass. is so that the common man trust the quality of the legal advice he is given. The Bar does this by having the courts allow only members of the Bar practice law who have a license given by the Bar. The Bar keeps faith by removing from practice anyone who is demonstrated their incompetence by revoking the license.

If they answer, as the project manager they will get disbarred. If they answer "Well, sir, I guess I'm a crook." they can go to jail. Messrs. Yoo, Bybee, and Bradbury are now in the unenviable position of finding a third answer to the question of criminality vs. incompetence. This should get interesting.....

[Sebastian Dangerfield]

Re: The absence of a recommendation of prosecution in the OPR report. The answer is simple. As I understand the Office of Professional Responsibility, making calls about who should or should not be prosecuted is simply not within OPR's writ. OPR exists to determine whether or not professional ethics standards were adhered to, period. News accounts attempting to make a big deal out of an entity's failure to recommend that which the entity is not designed to recommend simply show a shallow fixation on a "no prosecutions" storyline (or at least a fixation on a "what does this tell us about the question of will they or won't they prosecute" storyline).

[hairshirthedonist]

Hairshirt--torture is a defined term by statute. Conduct that you or I would find completely unacceptable can be outside the statue and not subject to prosecution.

That's all well and good, but the fact that the debate is "highly charged" bears not at all on whether or not the issue is subjective, which was my point. As you wrote, it's defined by statute.

For example, as unpleasant as it might be to contemplate, it is a close call whether waterboarding crosses the statutory line and rises to the level of criminal torture--frequency, duration, intensity and other factors would play into the evaluation.

I don't know whether is crosses the line, but the United States has prosecuted people for it. And let's keep in mind that we're not just talking about prosecution, but disbarment. And we're not just talking about waterboarding, but a whole range of torture methods.

You seem to be shifting the debate to one of prosecution specifically for bad legal opinions in support of waterboarding from one of disbarment for bad legal opinions in support of numerous forms of torture.

[Sebastian Dangerfield]

Hairshirthedonist: "The only reason the specific subject of the torture now in question is so highly charged is because it happened. And the only reason the debate now in progress is so highly charged is because people are arguing in support of torture."
Indeed. And I would add only these words from Justice Jackson: "The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own."

[Oyster Tea]

Regardless, he's completely off thread.

[wonkie]

"it is a close call whether waterboarding crosses the statutory line and rises to the level of criminal torture--frequency, duration, intensity and other factors would play into the evaluation. "

I think the 183 times settles the frequency issue.

But I'm not sure why the focus is always on waterbooarding. At the instigation of the Bush administration people were beaten to death, hung from the ceiling until their arms pulled out of their shoulders, sleep deprived well into the torture range, kept in sensory depravation until mental illness was induced...

[mckinneytexas]

Actually, the debate is highly charged on the 'no torture' side because it happened, and so highly charged on the other side because, to widely varying degrees, some say 'no big deal, they are terrorist's while others say 'in highly defined circumstances, certain levels of torture might be the lesser of two evils.' My point is that subjective 'good faith' in this environment tends to be judged from the position one has on the merits of the debate, not a dispassionate analysis of the memos themselves or the larger context of what opinions can and cannot be held in good faith, or what is or is not grounds for prosecution or disbarment.

[Fraud Guy]

mckinneytexas,

Can you cite, in US law, cases where persons tortured and it was decided the activity was not illegal? Posters here have cited cases in war crimes trials and criminal prosecutions where activities similar to and the same as those approved in the memos were criminally prosecuted. Without such cites, claiming potential good faith is not, I think, in good faith.

[Carleton Wu]

When attorneys advise their clients about what's legal, it's always possible that they get it wrong, and say that something is legal when it's not. I would not want lawyers who made that kind of mistake to be prosecuted for conspiracy.

The problem I have with that is this- I also think we should give leeway to individuals who received legal opinions in good faith and acted on those opinions. So, between the lawyer and the client, someone has to be responsible when a bad opinion is acted on, otherwise it's a gigantic loophole.

And, of the two, the lawyer is the one with the professional knowledge that should allow them to make the correct decision; some kid who joined the Army to stay out of the mill and ended up on torture duty doesn't have the background to recognize that an order, sanctioned by the legal apparatus of the Executive, is actually illegal.

[KM]

Dear McKinney,

Thanks for the diagnosis and for your resume. Perhaps I should learn never to opine on anything quite so empyrean as matters legal.

Now let's talk specifics.

(1) IANAL, lowly me, but I'm going to venture a claim about legal analyses. They depend on facts of the matter. This entails that the quality of an armchair legal analysis depends not only on the extent of knowledge of and experience with the law, cases and precedents, and legal reasoning, but also on the extent of knowledge of the facts of the case being analysed. The same is true, of course, for your self-ascribed ability "to predict outcomes".

Let me give you an analogy. hilzoy is a philosopher. Philosophers and logicians are typically experts on the validity of arguments. But they have no more automatic qualification re: the truth or falsity of the premises of arguments than any other person. And to evaluate an argument's conclusions correctly you need to know both.

I said:

IANAL [fatal admission! -- invitation to sermons and the brandishing of resumes], but the circumstantial evidence that the legal opinion was knowingly "fixed around" the action being proposed is already pretty darn powerful. And if broader access to the e-mails is obtained, I'm betting heavily that the evidence will no longer be simply circumstantial.

In your sanctimonious response, I saw no direct reply of any kind to these points. I'm not surprised. Because that would require, you know, actually knowing something about what evidence exists in the public domain about OLC's "legal opinions" re: torture under the Bush Admin.

Now of course there was one assumption I was making about the law, and it is possible that it was mistaken. That assumption was that if it could be demonstrated that Yoo et al. were not providing a genuine, independent, "good-faith" (gosh, how I hate that phrase) legal opinion on the case in question, but had instead in fact drafted their opinion and its content for the sole purpose of providing "legal" cover for past actions and prospective actions the client was clearly determined to engage in anyway, then this would warrant disbarment, reprimand, and any other lesser punishments. It's worth noting that your own statement about the standard in these cases -- "The usual standard for when a lawyer crosses the line is hardly clear--an attorney acts within the bounds of the profession when he/she advocates for any position that falls within a good faith modification, extension or reversal of existing law" -- sounds fairly close to my starting assumption. And I contend that on the basis of what's already in the public domain, the circumstantial evidence that this standard was violated is very strong.

Now this does require knowing what does and does not constitute "circumstantial evidence" in this kind of a case. So I might well be wrong about some of it. Nevertheless, I'm fairly convinced that a good lawyer could use some of that evidence to make a fairly damning case about intent, etc. Would that case win? I don't know -- as I clearly emphasised in my first post. But legal expert or no, I'm pretty darn confident, given what I know about the issue, that (if my aforementioned assumption about disbarment is correct) the assertion that "the likelihood ... is so close to zero as not to matter" is itself unlikely in the extreme.

And are you really going to argue that it's impossible that there is evidence in the e-mails conclusively establishing intent, "bad faith", etc.?

(2) The only actual substantive point you make against any assertion I made in the post is the following:

Contrary to your view, lawyers are hired as much or more to avoid legal problems in the future as they are to unscrew past screw-ups.

My mistake for saying "most". My point -- and it seems to me fairly obvious in any case -- was that you were conflating cases where defence lawyers were presenting arguments about past acts in court with cases where lawyers were providing legal advice to clients before acting, and illegitimately eliding the distinction to suggest that the fact that defence lawyers try all kinds of ridiculous arguments on behalf of their prosecuted clients somehow meant that a disbarment of Yoo, etc. would create an absurd precedent for future defence lawyers. In your words:

The same principles that will be applied retrospectively to Yoo et al will be applied prospectively to death row inmate attorneys, the William Kuntsler's of the world, etc.

And, as you probably well know, those two examples -- the only ones you give -- are not what we are talking about here. So perhaps the lousy quality of your analogies isn't just my "issue".

[russell]

To be perfectly honest, I think the real underlying problem here is that so many Americans are perfectly fine with torturing our enemies.

The memos in question are, baldly, a justification for actions that plainly violate the US Code and international law. The reason I feel comfortable making this claim is that we have prosecuted people for doing them.

So, while I'm sure it might be a challenge to make charges stick, claims that they really and truly represent a good faith effort to draw a line between torture and merely harsh just don't pass the smell test. To me, anyway. Maybe my standards are just too high.

The problem is that there is no political will to pursue this. The reason there is no political will is because lots and lots of people just don't see a problem.

Obama has lots of things he wants to get done in four years. How much of his political capital is he going to spend on this? Because it would take a lot.

So torture will stand. These guys just won't be able to take overseas vacations.

[Warren Terra]

I think the real underlying problem here is that so many Americans are perfectly fine with torturing our enemies.

Well, in theory I am perfectly fine with torturing "our enemies", just like I've got no moral problem with the death penalty when it's applied to certified, proven, no-doubt-remaining-whatsoever monsters. This because I am basically a vindictive sort of person. But in the real world I'm less willing to see torture and less supportive of execution, because the moral costs of using either on the wrong person are so high.

The problem is that once you're using torture, you're going to be using it on people who turn out in fact not to be nemies, and on probable-enemies, and on cousins of enemies. After all, if "enhanced interrogation techniques" are so harmless and work so well, how can we possibly justify not using them on everyone who gets called in for questioning on any felony?

The same principles that will be applied retrospectively to Yoo et al will be applied prospectively to death row inmate attorneys, the William Kuntsler's of the world, etc.

Surely there's a difference between a lawyer who conspires to authorize (and thereby in effect to carry out) a criminal act, either through malign intent or through incompetence, and a lawyer who works their tail off within the bounds of the law and of professional ethics to ensure that all possible benefits of the law are accorded to a person accused of committing a criminal act? And just to take the slightly more parallel case, if a defense attorney can be proven to be deliberately and knowingly misrepresenting the law or the facts to serve their clients, or achieving the same ends through incompetence, wouldn't professional consequences be appropriate?

[mckinneytexas]

FraudGuy--I am not aware of any actual case citations on this post, but I could easily have missed one. But your inquiry regards people who actually tortured, not lawyers opining prospectively that "X is bad, but Y is ok." I am pretty sure there are no cases on point in the torture context.

MK--didn't mean to sound sanctimonious, just didn't want you thinking I didn't have a basis for my position. Legal analysis' are fact and law driven. The torture statute is pretty easy to get around. My point is that proving bad faith, proving intent, is very difficult when the subject is a lawyer giving prospective legal advice. You might infer or suspect, but proof is going to be very dicey.

[hilzoy]

Well, in addition to the usual wartime prosecutions, here's the 1983 prosecution, by the Reagan DOJ, of a sheriff and his deputies for waterboarding.

"As the trial of a former east Texas sheriff and three former deputies continued today, another former deputy testified that they had handcuffed prisoners to chairs, placed towels over their faces and poured water on the cloth until the prisoners gave what the officers considered confessions.

''I really didn't know what to think,'' said Gregg Magee, the former deputy at San Jacinto County. ''It worried me. I knew this wasn't something that was supposed to be going on. It was a frightening ordeal.''

Former Sheriff James Parker, 47 years old, and the former deputies, Carl Lee, Floyd Allen Baker and John Glover, are charged with violating the civil rights of at least six prisoners between 1976 and 1980 by using water torture and conducting illegal strip searches in the rural county about 60 miles northeast of Houston."

They were convicted.

[Fraud Guy]

mckinneytexas,

That was to my point, then, that there are cases where actions similar to and the same as those being considered by the OLC attorneys (as cited by other posters) were successfully criminally (and war criminally) prosecuted. The OLC members did not attempt to cite or differentiate the conduct they were giving an opinion on from those cases.

If you were providing advice to one of your clients, would you not do that or otherwise notify your clients of those precedents (uh, guys, this is a bad idea--people have gone to jail for this); otherwise, you would not be doing your duty to your client.

Failure to do due diligence, and, as MK pointed out, providing justification as requested after the fact strongly point to bad faith and intent. And if they destroyed evidence (competing memos, videotapes, prisoner's minds) after the fact, that should be prejudicial evidence against the "good faith" and intent arguments.

[Nell]

Prosecute them.

There is a ton of evidence even without the emails that these opinions were produced in bad faith -- and the emails would have to be produced as part of the discovery in those prosecutions.

That Bybee got a federal judgeship, and Bradbury continued appointment to the OLC against DoJ/Congressional regulations, is evidence of payoff for rendering these opinions.

The OPR's mandate does not permit those who did this investigation to recommend criminal prosecutions (see Jason Leopold's contributions to this Emptywheel thread), so the fact that this report does not do so is much less of a story than the NYT is making it out to be.

[The Crafty Trilobite]

mckinneytexas, I agree with most of your analysis, but I think you're skipping too lightly over key points that could justify a bar sanction.

First, consider the nature of the job and the client. The OLC is not, IIUC, intended to be an advocate, that's the AG's job. OLC opinion letters are not meant to provide cover for whatever the political arm happens to want to do. Instead, the OLC is meant to be something akin to an internal judiciary branch -- an objective, impartial counselor. It seems extremely likely that these memoranda were advocacy, not good faith interpretation.

The problem with doing advocacy in this particular job is, it does not serve the client. Importantly, the client is either the U.S. or the Executive Branch as an institution, not the particular officeholders.

Like a corporate in-house counsel, the OLC lawyer should not help the President break the rules, because he is supposed to serve the corporate entity. If an in-house lawyer for Enron bowed to pressure by the CEO and CFO and advised accounting staff that off-shore havens were lawful, knowing they probably were not, he would betray his client's interests, even though he obeyed the clients' top representatives. I don't have your malpractice experience, but it seems to me I have heard of disbarment, and even prosecution, in such cases.

In fact, a criminal conspiracy case where the compliance lawyer is indicted, is a better analogy in some ways than a malpractice claim or bar complaint, because we can't point to harm done to the client -- the U.S. didn't get prosecuted, jailed, or fined because of OLC's bad advice. But that's not because the advice was not really so bad, it is an almost inevitable result of OLC's unique role. In practice, there is no overriding enforcement body. Nobody can arrest the President, especially when the same party controls Congress. Even civil suits for torture can't get far in the face of sovereignty and national security doctrines, as we have seen far too often in recent years.

When the OLC is the lawyer, we may have to use a broader definition of 'harm' than with most lawyers. OLC is so bound up with the policymaking apparatus, that we may need to ask about the harm done by policy choices that violate international law -- the harm to the U.S's reputation, to the war effort. Or the costs of defending torture-based lawsuits in many courts in and out of the U.S. These are among the harms that sound OLC advice is meant to mitigate.

Then too, part of the reason the lawsuits against the U.S. or its officials fail is, as Carlton said, because the defendants point to the OLC memos themselves as proof of good faith. Thus, the opinions are quasi-regulatory: they make law, they don't just interpret it. So malpractice is different in this context. The whole point of the OLC is that we must have someone responsible and competent to interpret the law for the people on the ground, and their ability to avoid liability by pointing to OLC memos is based on a presumption that the OLC memo will be competent and in good faith.

But that presumption only works if the liability travels upstream -- otherwise, there is no liability AT ALL, anywhere, ever, no matter how vile the OLC's performance. The only solution for an executive branch conspiracy that includes OLC, would be impeachment of the President...and even then, the OLC staff themselves are immune.

Our government could work that way -- many do. "If the [ruler] does it, that means it's not illegal," has a long, venerable history. But it's not our system, I hope.

As for your fear of chilling honest legal communication, consider the other side of that coin. Yes, OLC lawyers must feel free to take an honest position without risking politically-motivated disbarment. But we the public are far more harmed when they take dishonest positions based on the far greater risk of losing their jobs and careers because the current administration disagrees with them for political reasons. Over the years we have given the OLC a lot of power to immunize government actors, and inevitably, OLC got co-opted for political purposes. We either need to roll back OLC's power, or provide a counterweight to the political pressure.

[Sebastian Dangerfield]

McKinney: One problem I have with your take on the subject is that you are eliding two very distinct concepts: Advocacy v. the role of an OLC counselor. The latter is what we are talking about, and that role is quasi-judicial. The OLC is designed not be an advocate for the President's position, the military's position, the CIA's position, or aynoen else's. That office exists within the Department of Justice to make reasoned, disinterested judgments about the state of the law, in the name of the United States and for the entire Executive Branch.

We are not talking about an advocate taking a position in court, like a criminal defense counsel who makes what you call "bizarre arguments" in support of his or her client -- where there is are the countervailing forces of an adversary to point out said "bizarre[ness]" and a judge to decide the dispute. In such cases, the standard you cite ("an attorney acts within the bounds of the profession when he/she advocates for any position that falls within a good faith modification, extension or reversal of existing law") is relevant. But the OLC memorandum is a very different animal. The OLC is not charged with advocating anything, let alone advocating for the modification of the law. When an Executive Branch agency or official asks the OLC for an opinion, the client is asking for a judgment as to what the state of the law is. There is no adversary to point out the flaws in the reasoning and no judge to decide the dispute. The OLC lawyer is expected not to simply take one side and ignore all evidence and authority that would support the other side. This is the standard against which the memos should be -- and likely will be -- judged.

At all events, even if the OLC memoranda were judged by the standard that is applicable to an advocate's submissions to a court, it is far from certain that they would be given a clean bill of health. The duty of candor to the tribunal requires an advocate to acknowledge binding precedent. The failure of Messrs. Yoo and Bybee to even acknowledge the existence of the Youngstown Sheet & Tube decision -- the starting point for any discussion of the power of the President in wartime -- would be inexusable in an advocate. The fact that the OLC's role is emphatically not that of an advocate makes that failure all the more inexcusable.

[jrudkis]

It seems to me that the memos all take an extraordinary effort to rely only on the facts provided by the CIA, and then base the opinions on those facts. Over and over the memos footnote that they are relying on CIA provided facts.

This is the part that most clearly shows a lack of good faith: what the memos really say is that if your facts are right, then this is legal. But the facts were clearly wrong, and any independent research would have shown counter information.

So I don't think there is a good faith argument for either the memo authors or the memo users: neither operated in good faith.

But I do not think the memos are likely to result in disbarment. The couching of the opinion only on the "facts" provided by the CIA is calculated specifically to prevent that. Opinion memos typically list ad nauseum the "facts" provided by the client in order to limit the extent to which an opinion can come back and bite the attorney. It would be an interesting argument, but I don't see a bar association attacking a fundamental protection for attorneys who rely on the facts provided by the client.

[Nell]

I hope the emails still exist, but have my doubts. Given the number of simultaneous criminal enterprises being conducted out of the the White House, the pattern of destruction fits more than one 'campaign'. But it fits disturbingly neatly with the periods needed to document the communications with these lawyers.

[LizardBreath]

I am not a lawyer, so I could be wrong, but as I understand it, in order to convict someone in Yoo or Bybee's position, you'd have to show that they knew that what they were recommending violated the law.

I really think this is wrong.

Start out by assuming that there's no special shelter from criminal liability for lawyers; that which it would be illegal for anyone else to do, it's illegal for a lawyer to do.

Now, to establish conspiracy, you need an agreement to commit an act that is a violation of law. No one needs to know that the act agreed upon is a violation of law -- you just need to know what the act is. A conspiracy to rob a bank is a conspiracy even if no one involved knows there are laws against it.

Internal evidence from the memos makes it clear that the OLC lawyers (1) had been asked to assist in the interrogation of prisoners; interrogation was going on, but how it would be carried out would depend on the content of the memos (2) had agreed to participate in assisting that interrogation by writing the memos, and specifically in assisting interrogation that would include specific tactics such as waterboarding that are as a matter of law torture whether or not the OLC lawyers considered them torture, and (3) had performed overt acts (writing memos) toward the accomplishment of the agreed-upon goal (waterboarding prisoners).

Knowledge of the law isn't an element of conspiracy, and good faith mistake of law isn't generally a defense to criminal liability. And it's certainly not more of a defense for a lawyer than for anyone else.

[Sebastian Dangerfield]

jrudkis: Although I'm not as certain as you that there won't be bar discipline, I heartily agree that the memos -- particulrly the ByBee-Rizzo Pas de Deux memo -- "take an extraordinary effort to rely on the facts provided by the CIA." And I also agree that those "facts" were loaded in order to make the legal advice look as non-odious as possible and provide maximum cover for the lawyers. But I don't think it works. Here's why.

One passage in the 8/1/2002 memo from Bybee to rizzo is key. Bybee tells Rizzo that "you" have told us that the CIA is “certain” that Abu Zubaydah had information that he was withholding. That is a prime example — albeit one of very many — in which Bybee is stuffing rabbits into the hat in order to say, "hey presto!" later in the memo. But no lawyer worth her salt would have simply uncritically accepted that and many other of these "factual" representations — even if you assume that the Rizzo-Bybee colloquy before the memo was drafted was a good-faith effort to uncover the facts upon which the legal opinion is supposed to be based, rather than what is was: a fully choreographed pas de deux in which Bybee and Rizzo pretend to engage in a good-faith solicitation and rendering of an opinion. That is, anyone with a brain would have cross-examined Rizzo on his “certain[ty]” that Zubaydah withheld vital information. How can anyone be “certain” of something like that (unless they already possessed the supposedly withheld information in which case amping up the cruelty would certainly be unjustified)? Vulcan mind-meld? One simply cannot in good faith accept that representation. Yet that representation is critical to the attempted justification. It’s the closest thing that the torture lawyers had to the peurile Jack Bauer scenario. Bybee’s uncritical, unquestioning acceptance of that facially incredible assertion by itself exposes the bad faith underlying the entire enterprise.

[KM]

The couching of the opinion only on the "facts" provided by the CIA is calculated specifically to prevent that.

And yet the memos did on several occasions rely on, and grossly distort (or cherry-pick), external (as well as internal), independent analyses as factual "corroboration" for a number of arguments -- e.g. whether 11 days of continuous sleep deprivation produced physical harm/damage.

That aside from Sebastian Dangerfield's point about the OLC's actual legal role/duty.

[KM]

I hope the emails still exist, but have my doubts.

Well, they existed at least since late 2004 and 2005 -- recently enough, that is, for the OPR inquiry to have relied on them heavily in drafting their report and recommendations.

[jrudkis]

KM,

I think even the 11 day deprivation with no ill effects is a "fact" provided by the CIA:

You have indicated the studies of lengthy sleep deprivation showed no
psychosis, loosening ofthoughts, flattening or emotions, delusions, or paranoid ideas. In One case, even after eleven days of deprivation..

[ThatLeftTurnInABQ]

"Prosecute them."

Ditto that. I think there is enough evidence already in the public domain to close this question. We now should be debating the details of how to proceed with a prosecution (does Holder appoint a special prosecutor, or something else?).

If this was pointed out here recently I must have missed it - but a few days ago Larison made what seems to me to be an extremely powerful point: the repeated citation of past precedent which torture justifiers made at the time and are continuing to make now in defense of the decision to torture constitute a logical one-way rachet mechanism which, if it is likely to sway future decision makers make it more urgent for us to prosecute them now, rather than less urgent:

'I would add that the recourse to past crimes to evade accountability for new crimes is a good argument in favor of enforcing strict accountability for crimes recently committed. If such crimes are permitted to go unpunished, their apologists will continue to work overtime to shape the debate in later years and decades in favor of the decisions leading up to those crimes, and the more time goes by the apologist will be able to fall back on one unassailable retort: "If this was a crime, why didn’t anyone in the government investigate and prosecute it as such?" Having warned against witch hunts and "criminalizing policy differences" in the beginning to intimidate the responsible institutions into inaction, the apologists will then remind the public that no charges were ever filed and no convictions were secured.

So, ironically, some of the defenders of the torture regime are making the best argument for the prosecution of past administration officials by their own invocations of past government illegalities. They are unwittingly reminding us that crimes unpunished today can easily become tomorrow’s conventionally accepted “correct” decisions. Every usurpation or instance of lawbreaking that is not challenged and reversed creates a precedent for the next round of usurpation and lawbreaking, and the fact that there is a non-trivial number of people in America who think that the illegal acts of Lincoln, FDR, Truman or others should have some mitigating effect on how we treat illegal acts under a more recent administration is one of the best reasons why crimes committed during the last administration must be investigated and lawbreakers must be prosecuted.'

[jrudkis]

Sebastian Dangerfield,

Yes, I agree that the reliance on the "facts" is not reasonable, but the memo starts out with:

Our advice is based upon the following facts, which you have provided to us. we also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change this advice would not
necessarily apply.

The drafters were explicit about accepting the facts as given, and not delving into them for actual truth. They do not claim them to be true, and give advice that is valid only if they are true. I think that is typical of legal opinions that I have seen from civil firms who are asked to provide an assessment of the likely legality of a corporate action.

[russell]

"If such crimes are permitted to go unpunished, their apologists will continue to work overtime to shape the debate in later years and decades in favor of the decisions leading up to those crimes, and the more time goes by the apologist will be able to fall back on one unassailable retort: "If this was a crime, why didn’t anyone in the government investigate and prosecute it as such?" "

Exactly.

Let it stand in the name of "moving on", and it will become the new normal.

It's already halfway there.

[Nell]

@jrudkis:

Then you completely misunderstand the function of the Office of Legal Counsel and the nature of a 'reliance opinion' offered by them, which by its nature involves the OLC lawyers seeking out facts that might contradict those supplied by the client, and searching for legal cases on point, whether or not those cases are likely to uphold the direction the clients want to go.

[KM]

jrudkis,

(1) That was but one example; there are many others.

(2) The CIA (Office of Medical Services) may have pointed Bradbury to Horne's study, etc., but Bradbury repeatedly referred to his own investigation of the scientific literature on sleep deprivation and gave arguments based on his reading thereof, nowhere attributing them to the CIA or OMS. See e.g. pp. 36-40 in the Bradbury memo to John Rizzo of 10 May 2005, starting with "We understand from OMS, and from our review of the literature on the physiology of sleep, that even very extended sleep deprivation does not cause physical pain, let alone severe, physical pain." (emphasis added) And so on.

[jrudkis]

Nell,

I don't think I misunderstand the nature: perhaps Bybee and Yoo et al misunderstand it.

[KM]

Come on. These acrobatics are getting silly. You said:

It would be an interesting argument, but I don't see a bar association attacking a fundamental protection for attorneys who rely on the facts provided by the client.

That's not about Yoo, Bybee and Bradbury's understanding of the OLC's function (and if a deputy assistant attorney general and two assistant attorney generals (i.e. heads of OLC) don't understand the function of the agency they work for and lead, then I don't know what could possibly qualify for disbarment -- not that ignorance is an excuse in any case). It's about your understanding of OLC's function -- or, most charitably, about the bar association's. And if the latter, unless the association simply considers irrelevant the actual office and function held by the lawyer in question, I just don't see what on earth you're basing such a prediction on.

[LizardBreath]

I feel a little aggressive here, but how does relying on the facts provided by the client protect them? Even given those facts, the interrogation methods permitted in the memos were torture.

[joel hanes]

in the real world I'm less willing to see torture and less supportive of execution, because the moral costs of using either on the wrong person are so high.

Perhaps in time you will come to see that the moral costs of torture and capital punishment are the same, no matter who is tortured or killed. We are what we do.

[russell]

"Client says nailing his prisoner's head to the floor did not cause extreme pain. Assuming client's statements are accurate, nailing the prisoner's head to the floor is not torture".

The OLC is a cruel office, but fair.

[Ugh]

Even given those facts, the interrogation methods permitted in the memos were torture.

Right, the argument would be "given these facts, what were authorized wasn't torture." Then, if the CIA had lied to them or went beyond what the memo permitted, they can say "well, what we authorized wasn't torture and you went beyond that, so what you did was torture."

It all falls apart if, as you say, even on the given facts what was authorized was torture.

[Mike]

Being a terrible lawyer is not grounds for disbarrment.

[John]

This is insane. In-the-tank Holder is scraping the barrel for some sort of criminality to bring charges in what is a political witch-hunt.

There is absolutely nothing to indicate that any of the three lawyers broke any law whatsoever. NOT.ONE.

And yet the witch-hunt continues.

Resorting to subjecting them to what most likely will be extremely liberal bars in their respective states, is a desperate attempt at demagoguery and trying to ruin the careers of innocent Americans. Policy differences should not be a basis for enforcing legal statutes and utilizing the power of the government on political opponents. This is a disgrace.

[Pinter Neesbak]

Has anyone pointed out that neither law professors nor judges need to be admitted to the bar, so that disbarment would have limited impact on the careers of Yoo or Bybee?

[gwangung]

This is insane.

Nope.

Try again.

[russell]

"Policy differences should not be a basis for enforcing legal statutes and utilizing the power of the government on political opponents. "

"Policy differences"

A spokesman for the association, attorney Gonzalo Boye, said the six Americans had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.

The association referenced above is the Association for the Dignity of Inmates, who requested charges be brought against Yoo, Bybee, and others in Spanish courts.

The request was granted.

[The Crafty Trilobite]

John, it is interesting that you assume bar associations are "extremely liberal." That is not my experience of bar associations, which reflect the ideals of their members.

For obvious reasons, most lawyers are extremely pro-business. We also generally favor strong police to protect our nice homes, etc. So in most ways, lawyers and bar associations are not terribly liberal.

There is one way, however, that lawyers and bar associations are somewhat more "liberal" than the general population, and it may well apply here: we tend to favor civil liberties. Not all of us, but more than the general population.

This is not because lawyers are gullible bleeding-hearts, it is because we, unlike most people, have actually read the Constitution and the laws, thought about why they exist, and respect them. We have also generaly seen how badly the government can abuse people. Since conservative ideals supposedly include tradition, weak government, and liberty, one would expect conservatives to share these views. Because conservatism in the modern world is actually much more about wealth, Christian sexual ideals, and authoritarianism, this does not happen. But the hypocrisy of the modern "conservative" movement does not change the fact that lawyers (and therefore bar associations) trend "liberal" only in the area of their own expertise.

So if you find that most lawyers disagree with you on a matter of law, consider that we might actually know what we are talking about, and you may not.

[nadezhda]

Ah ha! As expected, the issue of criminal prosecution isn't in the OPR jurisdiction. The journalists who are regurgitating "but the report isn't recommending prosecution" are passing along pre-release spin nonsense. The report can, however, be used as info as DoJ considers prosecution more generally. Scott Horton writes:

The New York Times reports that the OPR report recommends against criminal charges, but Justice sources with whom I spoke disputed the accuracy of the Times report on this point. They noted that while it might be literally true that the OPR report did not recommend criminal action, that follows from OPR’s jurisdiction, which covers only ethics matters and a fairly narrow area of criminal law directly associated with professional ethics. The ethics office would therefore not be expected to make recommendations about criminal charges. They note that the OPR report’s factual conclusions and recommendations will be passed to Attorney General Holder and will be weighed by him in connection with pending requests for a criminal investigation. At present, Holder has three options: to assign the matter to a U.S. attorney, to appoint a special counsel (as Congressmen Conyers and Nadler and Senators Leahy and Levin have requested), or to decide that no criminal probe is appropriate. If he elects to open a criminal investigation, then the OPR report and underlying investigative materials would be provided to the prosecutor handling the matter who would be free to pursue the case as appropriate—possibly including the development of criminal charges involving the OLC lawyers. If the factual account is as described, it will add to the pressure on Holder to appoint a special counsel to address the matter.

[snip]
The OPR report’s conclusions could also have broader consequences for a possible criminal investigation into the torture program. Former Attorney General Mukasey had blocked any criminal probe on the grounds the OLC memoranda were written in good faith and those who introduced and implemented the torture program were entitled to reply upon them. If the Justice Department’s own internal probe concludes that the memos were not created in good faith, then the last roadblock to a criminal investigation would be removed. No decision would be made as to criminal charges until such a probe is completed.

Excellent!

[The Crafty Trilobite]

jrudkis -- thanks for quoting the disclaimer. It makes me wonder:

(a) whether there is authority (in statute, agency policy statements, or precedent) for the notion that an OLC reliance memo requires some level of independent investigation, at least of the same "reasonable under the circumstances" variety required when a lawyer signs a legal brief or a discovery response. For instance, several prominent California attorneys got slammed last year (huge fine, community service, and bar complaint) for not following up when they stumbled on a smoking-gun document that their client had not produced, and continued to argue in court that there were no such documents and that the client had done an adequate investigation. The judge said that even aside from lying, once the lawyers knew the client's investigation was either dishonest or inadequate, they had an obligation to go through the client's files themselves.

b) whether the disclaimer invalidates the defense (by the memo's recipients) of reasonable reliance on the memo. Russell's reductio ad absurdum is actually very close to the facts. How can you justifiably rely on a memo you know is based on a false hypothetical?

[mckinneytexas]

Hilzoy, a conviction for violating someone's civil rights by using torture, 42 USC 1983, is not the same as criminal torture, 18 USC 2340. As I stated above, a lot of conduct that would violate the 5th Amendment may not be 'torture' as defined by 18 USC 2340 but it would still run afoul of the constitution for domestic criminal purposes, whether as a basis for suppressing a confession or forming the basis for a 42 USC 1983 prosecution. Conduct can be 'torture' as that term is commonly understood and still fall short of statutory torture.

Sebastian--this entire subject is so fraught with nuance that discussion in this medium is difficult. I am not current on the OLC's stated role, although your description sounds and seems like the role the OLC ought to have. However, the issue is whether the conduct of the lawyers subjects some or all of them to prosecution, disbarment or mere pillory. In the first two instances, regardless of the role of the OLC, the lawyers will not be held to any higher standard than that to which the profession in general is held. For sure, an OLC lawyer cannot be prosecuted because he/she acted adversarial as opposed to as a neutral counsel. As for disbarment, if every lawyer who failed to acknowledge binding precedent got so much as a private reprimand, the grievance docket would be so clogged that the Yoo group would have their day in court sometime in the 3rd millennium.

Another lurking issue here, not to beat this dead horse any harder, is that of attorney/client privilege. Absolutists on the 'no torture' side may get their way and achieve some kind of punitive effort. If it fails, they've not only failed to accomplish anything, they've made things worse. If they succeed in any respect, the 'crime/fraud' exception to the attorney/client privilege will wind up being the exception that swallows the rule. Every memo ever written by a lawyer that a politician claims to have relied on in doing X or Y will become subject to subpeona and in camera review.

[mckinneytexas]

I am pretty sure, BTW, as a matter of constitutional law, that any judge with the authority to imprison has to be a licensed attorney. This may be state constitutional law here in Texas, but my vague recall is that it is a matter of US constitutional law.

Disbarment practice varies from state to state. In Texas, a Grievance Committee refers the complaint to the State Bar who then prosecutes the case in district court, with the defendant having the right to trial by jury. Good luck getting a conviction in Texas against a lawyer who said it is ok to waterboard a terrorist. Rather than the liberality or not of a particular Bar Association, its more likely the liberality or not of the trial venue.

[The Crafty Trilobite]

regardless of the role of the OLC, the lawyers will not be held to any higher standard than that to which the profession in general is held

Sure, but you're not using "standard" the same way Sebastian was. The standards of performance remain the same whether a lawyer litigates, advises, drafts a will, whatever - a lawyer must provide zealous representation, must not accept representation in an area where he lacks basic competence, must act with due care, etc. But the application changes depending on the job. A great contract is a lousy will. A fine contract for sale of goods is probably a miserable failure as a real estate sale & purchase agreement. And a great piece of advocacy will almost surely be lousy legal advice.

Thus, Sebastian said to judge them against the standard of a counselor, not the standard of an advocate -- in other words, apply the professional negligence standards with respect to the job they were hired to do, not some other job they might have preferred to do. The real question is whether a bar, or a jury, will find a lawyer professionally negligent because he provided advocacy when hired to do counseling. Has that question come up in your practice?

[Ugh]

they succeed in any respect, the 'crime/fraud' exception to the attorney/client privilege will wind up being the exception that swallows the rule. Every memo ever written by a lawyer that a politician claims to have relied on in doing X or Y will become subject to subpeona and in camera review.

Wha? Isn't that how it should be? You can't claim reliance on the opinion of counsel and then refuse to disclose said opinion (even assuming that such an opinion is relevant, which in most cases it isn't). How would a court even know you got an opinion?

Defendant: "Oh, my lawyer gave me an opinion that robbing banks is legal, so you have to let me off the hook/reduce my sentence."

Court: "Okay, let me see the opinion."

Defendant: "Can't, it's priviliged."

[OCSteve]

The law here is certainly over my head, but Andrew McCarthy is saying that the Obama DOJ is making the same arguments concerning Demjanjuk as Bybee and Yoo. And that they are relying heavily on the Third Circuit’s Pierre case, which also reflects the Bybee and Yoo argument.

I’d say prosecute and/or disbar them myself – but if this is true, then the hypocrisy here stinks to high heaven.

[mckinneytexas]

Trilobite writes, "The real question is whether a bar, or a jury, will find a lawyer professionally negligent because he provided advocacy when hired to do counseling. Has that question come up in your practice?"

This is my point exactly. Regardless of the actual role OLC counsel are supposed to fulfill, and regardless of the higher standard, they will likely be held to the ordinary standard and will then likely walk.

Most of the actionable lawyer malpractice I see is much more mundane--although the standard is the same--missing a jurisdictional deadline and defaulting a client out of court is fairly typical. It is difficult, if not impossible, to prosecute a malpractice claim on a 'judgment call' if the 'call' is within yelling distance of arguable.

Also, typically a party cannot claim reliance on legal opinion and then refuse to disclose that opinion. By asserting the opinion as a basis for reliance, that is typically deemed a waiver of the privilege. The concern I have is a party being asked, "did you seek legal advice?", the answer to which is not privileged since it doesn't disclose the content of the communication. The next step for an investigator would be demand the opinion and move against the lawyer. This is problematical for a lot of reasons.

A final note--professional negligence is seldom, if ever, grounds for disbarment. The fact is, you can't practice law without making a mistake. In nearly every instance, disbarment is grounded on quasi-criminal or actual criminal conduct.

[KM]

On Bush's OPR and referring lawyers to bar disciplinary proceedings:

One Law for Them, Another Law for Us

[biosparite]

Fat chance to have a state bar disciplinary committee disbar the perps. Anyone who has practiced awhile and done insurance defense work knows the carrier will press the lawyer to engage in unethical conduct to harass the other side; you gotta play to be paid. Anyone who has dealt with a large law firm in a state where the judiciary is elected also knows the big contributors get away with a lot more discovery abuse and the like than lawyers who are not financially connected to the judiciary through large campaign contributions. Remember, Vinson & Elkins walked the entire enablement of Enron off-the-books partnerships for a settlement of around $10 million. So any disciplinary committee with common sense will punt on this matter since they will realize Yoo, et al., were engaging in standard legal practice of yielding up opinions that would ensure they kept their jobs. And, by the way, if you resign from a Republican administration on ethical grounds and the word gets out, the Repubs will destroy your reputation through their right-wing noise machine. Give these guys a break, for Chrissake.

[Pinter Neesbak]

Mckinney - judges do not have to be licensed attorneys under the constitution. the following is from the US Courts website (http://www.uscourts.gov/faq.html):

Q: What are the qualifications for becoming a federal judge?

The Constitution sets forth no specific requirements. However, members of Congress, who typically recommend potential nominees, and the Department of Justice, which reviews nominees' qualifications, have developed their own informal criteria.

[mythago]

Having read the Bybee memo: it looks EXACTLY like many of the briefs I get from defense lawyers who are either stuck with an indefensible position they must nonetheless defend, or who are True Believers who don't really care what the law is, because they know what the result should be.

It's the same kind of bad logic, the same failure to cite to any actual legal authority, the same tap-dancing about how we don't have any law that actually has decided on our position, but the law is still on our side; the same clumsy sleight-of-hand about how the law requires A, B, and C, and since we have B, we win.

[OCSteve]

The law here is certainly over my head, but Andrew McCarthy is saying that the Obama DOJ is making the same arguments concerning Demjanjuk as Bybee and Yoo. And that they are relying heavily on the Third Circuit’s Pierre case, which also reflects the Bybee and Yoo argument.

I hate to take silence for agreement… Can one of the house lawyers opine on this? Obama says he is open to prosecution. Holder says he will follow all evidence to where it takes him.

Yet at the same time they appear to be using the same arguments concerning Demjanjuk. McCarthy convinced me (as a non-lawyer) that this is blatant hypocrisy - so I’m ready to stick with that unless someone wants to convince me that “one of these things is not like the other”…

[Gary Farber]

"McCarthy convinced me (as a non-lawyer) that this is blatant hypocrisy"

McCarthy quotes the DOJ brief:

[...] Moreover, as has been explained by the Third Circuit, CAT requires “a showing of specific intent before the Court can make a finding that a petitioner will be tortured.” [...] requiring that the act “be specifically intended to inflict severe physical or mental pain or suffering”)

McCarthy's and your claim is that our government had no intent to "inflict severe physical or mental pain or suffering" on the detainees?

Really?

Because it seems to me that that intent, and the absense of it with simply extraditing John Demjanjuk to Germany for trial, is clear and obvious.

There's no hypocrisy when the cases are completely different on the vital point.

I'd really like to know what the point of waterboarding, stress positions, etc., is, if not to "inflict severe physical or mental pain or suffering": could you explain, if that's your belief?

[Gary Farber]

Incidentally, McCarthy claims that "it is simply shameful for the Justice Department to be pursuing this partisan witch-hunt."

I'd like to assure you that if members of a Democratic administration were or had engaged in torture, or defense of torture, I'd be emphatically all for investigating, and if warranted, prosecuting, them.

Feel free to hold me to this.

I suspect I'm not alone in this.

[Warren Terra]

OCSteve, I'm ashamed for you. I followed your link and skimmed the McCarthy post, against my better judgement. I mostly know McCarthy as the online moron who spouts disingenuous crap on the internet and who famously thumped the tub on the so-called birth certificate "issue", but I'm also aware that he's a former assistant US attorney, and you were linking and indicating that he had an important point about legal matters. I could not imagine what the connection between the Obama Admnistration's attitudes towards Demanjuk and Bybee could possibly be, but I trusted you enough to follow the link. I'm sorry I did.

To spare anyone else the trouble, the following are an expurgated but fair version of the relevant part's of McCarthy's "argument":

Demjanjuk claims that his extradition would violate U.S. and international torture law .. he contends that extradition to Germany for trial and incarceration will cause him severe pain and suffering.
The Justice Department brief [states that] Demjanjuk .. had not shown that German officials had deliberately created and maintained conditions that were specifically intended to cause severe pain and suffering
...
This is precisely the theory that Bybee and Yoo outlined in the memos that the Justice Department is now citing as a premise for subjecting them to ethical rebuke — and that Obama and Holder have intimated may be grounds for prosecution.

This comparison is sheer unadulterated nonsense, an embarrassment to everyone involved. Bybee et al oversaw the creation of a scheme intended to inflict suffering, with of course some disingenuous claims that the suffering would in some way be acceptable. Demjanjuk, by contrast, is being transported to stand trial in a wealthy and well-equipped country, and no-one serious is alleging that he will be denied necessary medical care, or that he will be subjected to any procedures designed with the goal of inflicting suffering. If he were arguing medical incapability of facing trial, that might mean something, but instead he's simply arguing that facing trial is equivalent to torture.

Demjanjuk's is a silly and a transparently, graspingly disingenuous claim, and treating it as such does require one to dismiss any and all other claims that detention schemes had been created that would inflict suffering.

[OCSteve]

Warren: I specifically said that the legalese was over my head and that as a layperson I found his arguments convincing (with no dissenting POV). I’m not sure I entirely buy yours, but at least you (and Gary) offered a response.

As for McCarthy – many here should admire him. He is after all the prosecutor responsible for actually convicting a terrorist in our court system – which is exactly how many here believe it should be done.

[OCSteve]

Oh – and welcome back Gary. We missed you.

[The Crafty Trilobite]

biosparite, you're probably right about the forgiving nature of state bar disciplinary committees, but all that means is that we're defining deviancy down. Shine this big a spotlight on the complaint, and the committee might just remember what the RPCs say.

As for the idea that we should "give these guys a break," b/c they would have gotten trashed in the media:

a) neither they nor the Administration would have wanted publicity. They would simply have resigned "to spend more time with their families," With good references, if the WH had any sense.

b) Yeah, poor Archibald Cox was ruined for life, wasn't he? And David Kuo is just about on death's door.

c) No, we should not give them a break for helping torture innocent people because they could have suffered some temporary freaking career damage! Come on, is that really a close call in your mind? "Everyone cheats a little" is not a good excuse when you steal billions, "everyone puffs a little" is not a defense to fraud, and torture is not just a standard defense attorney overreach.

I can't believe we are even having this conversation. It's like Molly Ivins said, some days, having Bush in office is like opening the refrigerator and finding Fidel Castro inside, smoking a cigar. We have grown accustomed to chatting about degrees of torture as if it made some kind of difference...could you have imagined ten years ago that this country could sink so low, so fast? Give these guys a break? They got a break: they weren't stoned on sight! They have jobs! They're treated like they were normal members of society!

It particularly flabbergasts me, that conservatives are so uniformly in favor of official government torture policies. These are the exact same people who ten years ago were ranting about 'jack-booted thugs' daring to enforce actual laws at Waco and Ruby Ridge. What the he!! would they have said if the BATF or FBI had crucified (non-PC term for "stress position") or mock-drowned the Branch Davidians? And if Vernon Jordan had authorized it? You think he would be able to leave his home without a military escort?

Not a close call.

[Gary Farber]

"Oh – and welcome back Gary. We missed you."

Thanks. On the bright side, I regained the lost art of book reading. :-)

[Hartmut]

If Demjanjuk is unable to stand trial for medical reasons then the trial will be discontinued. A number of GDR defendants after 1989 walked free for that reason (and some laughed all the way back home about the weakness of the democratic rule of law state). Ironically one of their lawyers got a trial of his own when a victim recognised him in court. And over here we had a torture discussion of our own not that long ago and the result was that even 'justified' torture can be at best cited as mitigating but not as exculpatory evidence.

[mckinneytexas]

"What the he!! would they have said if the BATF or FBI had crucified (non-PC term for "stress position") or mock-drowned the Branch Davidians?"

As I recall, most of the Branch Davidians were incinerated. I don't recall a lot of outrage on the left when that happened.

GF--you would prosecute someone for 'defending' the use of torture? Just for arguing its potential necessity under limited circumstances? That might stifle discussion just a bit, don't you think?

[bc]

Warren Terra/OCSteve:

This comparison is sheer unadulterated nonsense, an embarrassment to everyone involved.

I agree that the factual comparison is not apt but the legal comparison appears to be to a significant degree.

I haven't read the entire Bybee memo closely, but legally both (Bybee memo and DOJ brief) are using the exact same legal arguments on this point. Both argue: 1) Torture is a specific intent crime: and 2) Torture (as opposed to torture) is an "extreme" form of cruel and inhuman treatment, as opposed to lesser forms of cruel and inhuman treatment.

Of course in the Demjanjuk case the statutory definition of torture excludes pain and suffering "incident to lawful sanctions" which is the first argument in that case. But as a backup argument, DOJ did argue that Demjanjuk didn't show that Germany had a specific intent to torture. And further, DOJ argued, albeit briefly, that torture does not include "lesser forms of cruel, inhuman or degrading treatment or punishment . . . .” However, the DOJ brief does not state what those lesser forms would be because it was not necessary for the case. Sure, so the argument goes, having to go back to Germany might be "cruel or inhuman" but even then it wouldn't be torture because it is not severe enough.

The question OLC faced was defining "cruel, inhuman or degrading treatment or punishment" that falls outside the definition of torture. Walling may be cruel, inhuman or degrading. Is it "torture" (lesser forms of cruel and inhuman treatment) or "Torture?"

Interestingly, in the Bybee memo on the specific intent issue, he points out that while technically the defense exists (frex that while you were aware that certain techniques might or probably would produce severe pain and suffering you did not actually intend to produce sever pain and suffering and therefore you lacked the specific intent), it really isn't a good defense. He essentially states "good luck with that one!"

Bybee goes on to address the "good faith" defense to specific intent crimes, which really is a prelude to later analysis of whether the specific techniques fall within the definition of torture.

Is it therefore fair to say DOJ made the same argument as Bybee? To some degree, yes. Just because Demjanjuk wasn't alleging anything close to walling, waterboarding, etc. doesn't erase the fact that DOJ made the argument, even if it didn't need to. However, DOJ didn't elaborate on what would constitute cruel and inhuman treatment short of torture. Didn't need to.

I think McCarthy stretches it a bit to say that the memos are criticized for this analysis alone. Not that he says that, but it is somewhat implied. The memos were criticized mainly IMO for the analysis of "severe pain and suffering" language (and severe mental pain and suffering) as applied to the techniques and for the analysis of executive power.

However, reading Bybee and the Demjanjuk brief together is interesting. It highlights, IMO, the vagueness of the language at issue. What the heck is cruel and inhuman treatment that does not qualify as torture? Bybee cites Ireland v. U.K. before the European Court of Human Rights which found that wall standing, hooding, sleep deprivation, food manipulation in combination was not torture nor were those techniques when combined with beatings that caused at least in one instance "massive" injuries.

I think the comparison is relevant to this thread's argument re disbarment and/or criminal sanctions. An attorney cannot counsel a client to break the law. The law here was not that clear. There is, IMO, a huge vagueness problem to prosecution or disbarment.

Really these questions could be addressed legislatively. Just add waterboarding to the definition of torture and there you go.

And it is important to note that in these types of memos are not asking for personal opinions or moral compunctions. While those can be stated as well, the question is does it violate the law. Similarly, while most may agree that the specific techniques are "torture," that isn't the question. That question is are they "Torture."

[Gary Farber]

"GF--you would prosecute someone for 'defending' the use of torture?"

Per se, of course not. As part of a conspiracy to commit torture, yes. Two different things, and my apologies for not being more clear.

[russell]

I don't recall a lot of outrage on the left when that happened.

Personally, I thought both Waco and Ruby Ridge were total train wrecks, and could have been addressed without bringing military levels of force to bear against citizens. I thought the government actions is both cases were extraordinary, excessive, and wrong.

And to this day I'd be hard pressed to tell you why we need a quasi-military domestic police force dedicated to addressing the scourges of alcohol, tobacco, and firearms.

My two cents, FWIW.

Really these questions could be addressed legislatively. Just add waterboarding to the definition of torture and there you go.

Look, I'm sorry but this has become absurd. The entire public conversation has veered into the land of total horse crap.

The purpose of the OLC memos was to define torture narrowly enough that we could torture people and pretend we weren't torturing them. I'm quite sure you understand this. The reason I'm quite sure you understand this is because of your use of a capital "T" to distinguish between "go to jail" Torture and "torture but not bad enough to go to jail" torture.

The fact that these guys were spending this much time and energy dancing around that line tells you all you need to know.

We tortured Zubaydah, KSM, and numerous others. We tortured quite a number of folks to death.

There is absolutely no doubt about that.

The only thing in question here is whether the OLC folks screwed up and didn't quite cover their @sses quite well enough.

If they did, lucky them. They get to avoid the consequences for their collusion in war crimes.

If they did not, they should go to jail.

Obama should have nothing whatsoever to do with this, because it's not a political question. Someone, either Holder or an independent prosecutor, should follow the evidence where it leads.

Maybe they'll be able to mince their words closely enough in a court of law to avoid jail. If not, they should go to jail.

But discussing whether the prisoners were tortured or not is absurd.

You want to make a guy sit in a hard chair, shine a light in his eyes, wake him up from a deep sleep before talking to him, I doubt anyone's going to make a fuss.

Chaining people to the ceiling for days, dousing them with cold water and making them stand naked to induce hypothermia, waterboarding them to asphyxiate them just short of drowning, slamming them against walls, confining them to coffin sized boxes?

You say that's not torture? Get real. I can't take you seriously.

[mckinneytexas]

What I am not clear on is: how many people, by who's orders (or on who's watch), were tortured; and, for each person tortured, what were (1) the probable cause for selecting that person for torture, (2) what information was that person believed, beforehand, to have possessed that justified his/her selection and (3) what information was actually obtained. I'd want the raw data on all three points, not someone's interpretation. I'd also probably want to quantify the resources spent running down rabbit trails.

Asking these questions suggests some kind of meaningful, independent inquiry is required.

I am, by the standards of most who post here, a moral degenerate. I would permit, i.e. pass legislation authorizing, waterboarding of high value terrorist detainees if, after independent review, it was determined that the detainee, to a high degree of probability, had high value intelligence of organizational structure or future operations and either (1) would not talk under traditional interrogation methods or (2) demonstrable exigent circumstances would not allow for the deployment of traditional interrogation methods. A third stipulation would be that the information was not already reliably known or reasonably knowable by other methods.

Go ahead. Kill me.

[Fraud Guy]

I am, by the standards of most who post here, a moral degenerate. I would permit, i.e. pass legislation authorizing, waterboarding of high value terrorist detainees if, after independent review, it was determined that the detainee, to a high degree of probability, had high value intelligence of organizational structure or future operations and either (1) would not talk under traditional interrogation methods or (2) demonstrable exigent circumstances would not allow for the deployment of traditional interrogation methods. A third stipulation would be that the information was not already reliably known or reasonably knowable by other methods.

Ignoring the first claim, the rest of this paragraph effectively eliminates the ticking time bomb, which means that there is really no reason to torture. Torture is about control, not information.

[Gary Farber]

"...if, after independent review, it was determined that the detainee, to a high degree of probability, had high value intelligence of organizational structure or future operations and either (1) would not talk under traditional interrogation methods"

How could you know what they know if what you need to know is what they know?

Your hypothetical stipulates a logical impossibility. If they're not talking, you can't know that they know what you want to know. If you, in fact, know what they know, then you obviously don't need other methods to determine what they know.

Setting aside the whole "we're choosing to model ourselves on the Nazis" thing.

And setting aside that "demonstrable exigent circumstances would not allow for the deployment of traditional interrogation methods" couldn't allow for any given information to be relied upon in time to be useful; if time allowed for the information to be checked, it'd allow for deployment of traditional interrogation methods.

Impossible hypotheticals aren't useful.

[mckinneytexas]

"Torture is about control, not information."

No, it's about information. But, you can believe what you want.

"How could you know what they know if what you need to know is what they know?"

Sorry, but you are mistaken. I know for a fact, as do you, that George Tenant used to know a great deal about the inner workings of the CIA and many ongoing operations, even though I know virtually nothing about either subject. Tenant, during his tenure, would have been a high value detainee in reverse.

"Setting aside the whole 'we're choosing to model ourselves on the Nazis' thing."

People to the left bristle when called 'socialists', but don't hesitate to sling this particular N word around. The Nazis did a lot of things that we did too, like have an army and a navy and agriculture policy. It's a quick non-substantive response to a position someone finds repugnant. You know, like when pro-life people call abortion murder, the tone of the conversation tends to degenerate.

To answer the objection that follows: I can envision the chatter level going up, electonic intelligence indicating an operation (attack on US or allied citizens) is set in the near future and that person X--whose whereabouts are known to us--is providing some kind of support either immediately before or after the operation. Person X would be a high value detainee and the circumstances would be in the exigent zone. You can't say for sure that waterboarding would be necessary because X might have a laptop or a cell phone or papers that would supply all of the information needed. Or he might not. Extraordinary safeguards would have to be in place to ensure, for example, that the person picked up is, in fact, this can't be ascertained, you'd never get to the waterboarding part. But, you ask for a hypo, here it is, off the cuff and at the end of a long day.

I will trade very rare deployments of legally authorized waterboarding in exchange for a high likelihood of saving lives in the context of terrorist attacks. I don't need to save a whole city and the attack doesn't have to involve WMD, although something like WMD would raise the exigency calculus by a significant factor.

GF-the flip side of your contention is that it is simply outside the realm of real life possibility for our intelligence services to ever capture someone who knows of an imminent attack. I think the chances of something very much like this are such that waterboarding ought to be, under tightly controlled circumstances, an option available as a last resort. You know, just like the Nazis restricted themselves to only certain kinds of torture and then only when all other options had failed and even then, only for use against terrorist attacks by non-state terrorist movements. :-)

[Gary Farber]

"Torture is about control, not information."

No, it's about information.

Sometimes, but historically rarely.

It's George Tenet, by the way.

"People to the left bristle when called 'socialists', but don't hesitate to sling this particular N word around."

I'm not a generic person, I'm me, and I only refer to people "choosing to model themselves on Nazis" when people do that. It takes either death camps or torture. YMMV.

You can substitute "KGB" or "Chinese communist" or "North Korean," or "WWII Japanese," if you prefer.

"People to the left bristle when called 'socialists', but don't hesitate to sling this particular N word around."

So, to use your hypo, the detainee in question then spouts an answer: how do you know the answer is true or not before it's too late? And if it's false, what's the use?

And since the detainee knows the answer can't be checked before it's too late, and that the torture won't stop until the answer has proven out one way or another, the detainee has no incentive not to lie.

And since we're discussing your hypo, which you say is reality based (in so many words), I'd love to see you give a couple of historical examples of such torture providing such a useful response. From anywhere, any time. Presumably, given the usefulness of torture for obtaining information that you allege, this should be easy.

[Gary Farber]

Socialists don't bristle at being called socialists, incidentally, last I looked. People who aren't might.

I'm perfectly comfortable identifying as a social democrat, and happily describe some of my views as socialist.

A social democrat believes in a mixed, democratic, economy, of course.

[bc]

The purpose of the OLC memos was to define torture narrowly enough that we could torture people and pretend we weren't torturing them. I'm quite sure you understand this. The reason I'm quite sure you understand this is because of your use of a capital "T" to distinguish between "go to jail" Torture and "torture but not bad enough to go to jail" torture.

You miss my point, Russell. I'm not arguing about whether or not it is torture in a general sense (except for the caterpillar; that's not torture:)). My point is that the U.S. has specifically decided to leave it vague (over several administrations). The attorneys were not asked whether it was torture from the dictionary definition. They were asked whether it constituted torture under a criminal statute.

It is a bit weird to read such memos before the fact. It reads (as an earlier poster stated) like a defense attorney's brief. On the one hand, I would have put my own two bits in there on the morality of it all. They did not.

However, Bybee doesn't say: "oh, gee, go get 'em!" He doesn't express his own personal moral view on the subject. He simply points out what is criminal under U.S. law. If it's not illegal under the statute, the statute needs to change. The proper targets (other than the Pres and those actually doing it) are the legislators that knew this was going on knew the law and did nothing.

You say that's not torture? Get real. I can't take you seriously.

I never said that. Whether or not I think it is torture (small t) is irrelevant. I might think a high school boy even looking at my daughter constitutes statutory rape and subjects him to criminal liability with no trial and a speedy execution with my shotgun. My thinking that (hypothetically, of course) doesn't make it so.

State policy and criminal liability are two different things. The issue in this post is whether Bybee et al committed or counseled committing a crime. And my response was particularly directed at OCSteve's point re the DOJ brief. What do you think about that? What does Holder's DOJ argument that "cruel and inhuman" treatment does not constitute torture mean to you? Is it hypocritical?

And what about the cases cited in Bybee's memo? The tactics there are a far cry from what the U.S. was doing.

[OCSteve]

What does Holder's DOJ argument that "cruel and inhuman" treatment does not constitute torture mean to you? Is it hypocritical?

It means someone may be “ashamed for you” for raising the question. ;)

but the legal comparison appears to be to a significant degree

That’s what struck me. But IANAL and heaven forbid we discuss that.

[Gary Farber]

"My point is that the U.S. has specifically decided to leave it vague (over several administrations)."

So all those past prosecutions for torture by the U.S. of people who enaged in waterboarding (including executing some found guilty) never happened? Yukio Asano wasn't sentenced to 15 years at hard labor? Sheriff Parker wasn't convicted in 1983? Were Bybee, Yoo, and and Bradbury ignorant of these facts, and thus giving incompetent advice, or deliberately ignoring them in their opinions?