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Thanks very much, Eric, for the clarification. Perhaps I misread your tone and, if so, I, too, am sorry for the disconnect. I had understood you to be suggesting that Philippe Sands and others of us were generally motivated by our alleged "pleasure" in punishing our "ideological opponents,” rather than by sincere outrage at what has been done. (A horse/cart confusion: What makes them “ideological opponents” worthy of such sustained opposition in the first place is precisely that they wrote these opinions, and authorized these crimes.)
So, in the spirit of conciliation, allow me to briefly address your two principal substantive themes: international tribunals for lawyers; and characterizing the Yoo/Addington project as a failed effort at “living constitutionalism.”
International tribunals: Unlike Philippe, I don’t find that this question advances our debate very much. I agree with you that, if there were such trials, the lawyers should hardly be the first or only ones to be tried. Moreover, I tend to believe (although I haven’t thought it through sufficiently) that criminal trials would be appropriate here only to the extent there was evidence that the lawyers, and others, sincerely believed they were facilitating unlawful conduct. I doubt such evidence will emerge (but who knows?). And if such evidence did come to light, there are plenty of domestic laws that would be implicated, without need to resort to international-law tribunals. Most importantly, this is a fairly academic question, because it’s simply hard to imagine there will be any such trials, domestic or international. For me, the much more practical, salient question, in terms of accountability, is to ask what the bar, and the academy, ought to be doing in reaction to memos such as these.
I do think, however, that there is at least one important question to be considered with respect to the question of war-crimes trials, namely: What, exactly, were the legal theories on which we prosecuted the German Justice attorneys in the Justice Case at Nuremburg—and what would those legal theories of prosecution tell us about the obligations of our own government lawyers with respect to the relationship of domestic law to the laws of war? (Topic for further research.)
Living constitutionalism: I agree with you in small part—namely, that Dick Cheney and David Addington have been assiduously and indefatigably attempting, over more than 20 years, to effect a radical change in our nation’s understanding of the relative powers of the president and Congress (and the courts, and the laws of war, etc.). And they have done so “on the ground,” as it were, by patient accretion: raising novel constitutional objections at every opportunity, whether at the Pentagon or in the White House (or even in Congress), whenever statutes or treaties impinged in the slightest on executive prerogatives. Eventually, other executives (including Clinton) have embraced similar rhetoric, although to much less extreme ends, and almost everyone else who might have been skeptical of such theories slowly but surely wears down and gives in. (Or that was the plan, anyway. This is one of the main topics of my recent articles with David Barron, where we attempt to demonstrate that this is a stark break with a long constitutional tradition.)
But I don’t think that explains the OLC memos. The Bush lawyers did not believe “that the political establishment would accept their expansive theories of presidential power”—if they believed it, they would have made the arguments in broad daylight and would have been much more tempered (i.e., reasonable) in the way they proffered their claims, in order to make them more palatable. Instead, this was all done in secret, with administration officials at every turn insisting that they were playing by the letter of the law, and that torture was categorically condemned. They were not content to leave the debate over constitutional visions to “politics”; they were trying to win by secret fiat.
OK, but what if this had been an honest, open effort to press and instantiate a radically new constitutional vision? Would it then be legitimate? I don’t think so. Why not? Well, for one thing, many of the worst arguments in the memos are simply awful, tendentious readings of statutes and treaties—i.e., of legislative intent (such as the notion that Congress did not intend to prohibit the military from pouring corrosive acid on detainees in wartime). For another, as you now appear to agree, there is an egregious amount of what you now euphemistically refer to as “legal-craft error.” The arguments are simply implausible, radically incomplete, and dishonest. (I am heartened that you are no longer defending the idea that the Yoo/Addington theories are the better readings of the text, structure and history.)
You’re right, however, that some historical examples of “legal-craft error” are the result not only of incompetence and bad faith (although those are, sure enough, the main ingredients here), but also of deliberate envelope-pushing, for the very purpose of trying to establish new constitutional norms. To what extent is it permissible for executive branch lawyers to press such views, not in legal briefs, nor in congressional testimony, but in OLC opinions that will effectively govern the conduct of the executive branch? Is such a strategy consistent with the president’s constitutional duty to take care that the law is faithfully executed? Faithful to what, exactly? I hazard a partial (and inadequate) answer to these extremely important and thorny questions here. (Preview: If it’s ever acceptable for OLC to push an unorthodox view, it is so only where it does so publicly and forthrightly.)
A final word about Kosovo: It’s ironic, I think, that you invoke Kosovo as your exemplary case in which the executive branch effected a change in the law—in your words, that Clinton’s bombing campaign established an “implicit exception [to the U.N. Charter prohibition on aggressive action] for humanitarian intervention.” Ironic because the United States specifically rejected the doctrine of humanitarian intervention as an exception to the Charter’s rule, and went even further to insist that the Kosovo campaign (like Bush v. Gore) was a one-off that would not establish any new doctrines or precedents. That’s exactly what troubles me about it: that President Clinton did not even proffer any theory under which he would have had the constitutional authority to act unilaterally, nor any legal explanation of why his actions did not breach the U.N. Charter, in violation of his Take Care obligation.
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Marty, you sure read a lot into my post, which was meant as a critique of Sands' view that American lawyers should be prosecuted in foreign courts if they give legal advice that results in international law violations, not as a defense of the torture memo. I certainly am not going to defend the memo. With the benefit of hindsight, it is clear that this memo and the other legal memos issued by the Bush administration were a failed effort in living constitutionalism. The Bush lawyers apparently believed that the political establishment would accept their expansive theories of presidential power-that they could take further steps forward on behalf of the executive branch, which has been accumulating power for hundreds of years, as a result of changing attitudes caused by the 9/11 attacks. It is clear that they were wrong, and now they are paying the price. It is possible that the failure was due to the legal-craft defects in the memos. More likely, the lawyers simply misjudged the response of Congress, the public, and the media. After all, all efforts at constitutional change outside the formal amendment process necessarily involve aggressive readings of the law, which lawyers recognize as legal-craft failures but which may nonetheless succeed. It is an important example for Jack's theory, which needs an account as to why some efforts to entrench the preferences of temporally extended majorities succeed and others fail.
It is equally clear, I think, that the Kosovo decision did exactly what the torture decision failed to do: it effected a change in the law. Whereas before the Kosovo intervention it was clear that a non-defensive invasion of a foreign country without Security Council authorization violated international law, after the intervention all kinds of people-international lawyers, diplomats, politicians-claimed that there was an implicit exception for humanitarian intervention. The intervention had other implications for international law that are being felt to this day. Whether this quite obviously illegal act had a good or bad effect on international law is a political and moral question. This was exactly my point: is this the sort of question that should be answered by foreign courts, as Sands would have it? If you think that the effect on international law of that decision has has been a good one, then you cannot agree with Sands's view, unless you believe that it is right for trial judges in European countries to set the rules for nations in the course of adjudicating criminal trials of American and other foreign lawyers.
As for your claim that my view is cynical, I was actually more afraid that someone like Jack would say that it is trite. Jack, after all, accused Dahlia of literocrisy when she said that she was appalled by the influence of politics on supreme court decisionmaking. I'm "shocked, shocked," says Jack, to see the political views of supreme court justices influencing their decisions, and he won't be a bit surprised, he continues, if the court recognizes gun rights on the basis of an incorrect reading of the Constitution. Your reaction to me was, in substance if not in tone, exactly the same as Dahlia's reaction to Jack. How can you be so "insouciant," she said (actually she didn't use that word), about the justices inventing gun rights? His response is that he does care but he is interested in a different question, the question of how constitutional change occurs. Jack's vision of constitutional change is court-centered; in my own work I have focused on how constitutional change occurs through struggles among the three branches as well, and so a further question is how the executive branch effects constitutional change. You see, and how many times am I going to quote this line from Jack?, the purpose of judicial review is "to represent and protect (in as legally principled a way as possible) the constitutional values of temporally extended majorities." This prescription assumes, correctly in my view, that legal-craft error is not just the result of incompetence or bad faith or evil; it has to happen if we are to have a living constitution. And it will be done by all three branches, not just the courts, in the course of advancing substantive views about their constitutional roles. So the whole question boils down to the issue of who gets to determine whether a craft-error was a mere error or constitutional change. Jack would say, "social movements." I would say, "politics." Sands would say, "judges." But why should judges make such essential political-constitutional decisions? They are not the arbiters of the living constitution, as Jack has so painstakingly demonstrated.
I am sorry that my teasing of Philippe Sands (who is made of sterner stuff than you might think) led you to believe that I think that there is nothing of moral significance in this debate, or that your (or his) indignation was feigned. If you still don't understand the source of our miscommunication, read again Dahlia's post to Jack, and his response to her. I don't think anything could be clearer, and I feel that we have already tested our readers' patience.
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Seems to me that about the most useless thing any of us can do with the Yoo memo is form character judgments. Whether his work at OLC was animated by bad motives or a well-intentioned desire to avert a terror attack is beyond the scope of a legal blog. Let’s leave that to the angels. This discussion is only useful insofar as we grant that folks at OLC will always face enormous pressure, particularly in the wake of a tragedy like 9/11, to make decisions that may look really bad in hindsight. Doug has some prescriptions for checking that pressure, as does Dawn. Instead of bickering about character facts not in evidence, we should be thinking about what happens the next time.
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Via Scott Horton comes the news that the U.S. Marine Corps has charged an Iraqi-Canadian civilian contractor in Iraq with brandishing a knife and stabbing another contractor. The charges follow an important change to the Uniform Code of Military Justice in September 2006, which, in theory, extended the code's reach to include civilians and contractors on the battlefield. As Scott notes, there's still much we don't know here. But this case does represent a significant development in the application of U.S. law to contractors overseas, and I think there will be a lengthy court fight over whether the UCMJ can be applied to civilians in this manner.
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Eric,
With all respect, I think that post really is beyond the pale. The allegation that we critics of the Yoo memos and of the United States' descent into a torture regime have been motivated by the "pleasure" of punishing "ideological opponents," an "indulgence" of our "fantasies" (going so far as to describe Philippe Sands as "purring" with “delight” like a cat ready to pounce), is, not to put too fine a point on it, a calumny. It degrades and trivializes the discourse on this blog about matters of profound moral and legal significance.
Your post does prove, I suppose, that there can be no such thing as complete consensus in the legal academy, not even on the easiest questions of law and morality: It demonstrates that there are, indeed, some very smart people out there who have no sense of moral and professional outrage and incredulity about what happened here—who apparently think of this as "business as usual," what we should or must expect from our government in times of crisis; that it makes no sense at all to critique the work of government lawyers. Fine. I suppose exposing such insouciance has its own value: It helps to explain how evil can come to be embraced even in enlightened cultures, among the educated elite.
Perhaps, as your tone suggests, you think we are naive to be shocked by what we've seen come out of OLC over the past seven years. You're certainly entitled to make that claim, though I think it is mistaken. But please, do not impugn the sincere motives of the vast majority of us who have spent a great deal of time and energy over the past few years arguing that this is, indeed, a very big deal, and a serious breach in our constitutional culture.
You do make one important point, concerning the relative lack of legal concern in response to President Clinton’s decision to unilaterally authorize the Kosovo air campaign in 1999. It’s not that I think there is really any qualitative comparison, either morally or in terms of OLC's legal product, between the two cases. The Yoo memo is an opinion that unselfconsciously spends several pages explaining why Congress should not be presumed to have prohibited the military, in wartime, from throwing corrosive acid on detainees, from plucking out their eyes—and then adds, to boot, several untenable arguments about why the president’s uncheckable authority to authorize such things would, in any event, preclude Congress from legislating to the contrary even in the most specific of terms. The memo was the crucial link in laying waste to a decadeslong military culture that taught strict adherence to the laws of war, the UCMJ, and our treaty obligations.
Moreover, I think the arguments in the Clinton OLC opinion, about whether the Kosovo bombing violated the War Powers Resolution, are close ones; and, in any event, whatever one thinks of its conclusions, that opinion is scrupulously candid, fair, and balanced in acknowledging the difficulty of the question and the arguments on the other side. Furthermore, the Kosovo campaign was not, of course, conducted in secret—whatever its legal faults, Clinton's decision allowed the ordinary constitutional checks and balances to operate. (I also happen to think that, unlike our recent regime of torture and cruel treatment, the Kosovo campaign was morally justified, but, of course, others might disagree.)
Nevertheless, you are correct that there was another legal question—two, actually—about which OLC apparently did not opine with respect to Kosovo: (i) whether, prior to Congress' possible authorization by way of appropriations, the president had the constitutional authority to unilaterally initiate the campaign without the assent of the House; and (ii) whether the president ignored his constitutional obligation to take care that the U.N. Charter was faithfully executed prior to the time the Congress (arguably) approved the campaign. I suspect, but am not certain, that the White House deliberately chose not to ask OLC these questions. (I have no independent knowledge: I was not privy to any OLC matters related to Kosovo.) If that is correct, it would be very troubling and ought to be condemned. The State Department, on the other hand, reportedly did debate the U.N. Charter question at great length and eventually concluded, publicly, that the legal issue could be overcome. (See footnote 619 of this.) Personally, I have serious doubts about the correctness of that conclusion. And it certainly warrants much more attention from we misty-eyed believers in the rule of law.
But the important point is this: If, as you suggest, you think that the two cases are roughly equivalent in terms of how badly the executive abused the rule of law, then, frankly, you should be condemning both, not neither. If I understand your posture, however, it's that we should all just shrug our shoulders whenever the executive violates the law, no matter the stakes; no matter how egregiously wrong and outrageous the legal reasoning; no matter how secretive the program and legal rationale; no matter how many contrary voices in the executive branch were cut out of the process.
I am willing to assume, Eric, that your radical cynicism about the law, the president's take-care obligation, and the proper role of government lawyers, is sincere—that it is not simply your way of gleefully tweaking your "ideological opponents." Please do not assume that the rest of us, who do not share your deep cynicism, are any less sincerely motivated.
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Few pleasures are more intense than that of contemplating one's ideological opponents being punished for their errors, an activity that we law professors have so far been able to indulge only in our fantasies. But the times are changing, or seem to be. Witness Philippe Sands' almost palpable delight at the prospect of John Yoo and others in the Bush administration being picked up by the police when they are traveling in foreign countries and tried for international crimes in foreign courts: "And for some the future may hold a tap on the shoulder," he purrs. Jack Balkin agrees. Sands has also been involved in a popular play in London titled Called To Account, which features a trial (actually, a pretrial hearing) of former British Prime Minister Tony Blair to determine whether his participation in the invasion of Iraq amounted to a crime of aggression under international law.
I'm all in favor of letting people live out their fantasies, but we're lawyers here at Convictions, and even our fantasies must conform to the rule of law. The principle is that American lawyers should be called to account in foreign courts if their legal advice leads to violations of international law by the United States and (as is virtually always the case) domestic courts offer no remedy. And unless we are to live in a world in which only lawyers go to jail, and not the people who actually make the decisions based on the legal advice, foreign courts are going to have to try the relevant political decision-makers as well. They will be busy.
Nuremberg established the crime of aggression, which though not yet formally incorporated in an international instrument ratified by the United States is widely believed to be a part of customary international law, bolstered by the rules of the U.N. Charter, which permit the use of military force only in self-defense or with the authorization of the Security Council. It is on this premise that Sands' play considers the indictment of Blair—from which it would follow that there should be indictments of Bush and other high-level officials in Britain, the United States, and other countries that participated in the intervention. The invasion of Iraq was not authorized by the Security Council, and it was not an act of self-defense. The crime-of-aggression argument is really not bad—impractical (for both political and jurisdictional reasons), to be sure, but in our fantasies, and on the stage, impracticality is no barrier to action.
Which brings us to the Clinton administration, which in 1999 launched an invasion of Yugoslavia on behalf of Kosovo, its renegade province, now independent. The Clinton administration failed to secure the consent of the Security Council (or even the consent of Congress) but went ahead anyway. In May 1999, the Office of Legal Counsel gave its approval in an oral opinion later memorialized in a memo issued in December 2000. The memo fails to mention that international law prohibited the invasion, perhaps because OLC had exhausted itself trying to prove that Congress had agreed to the use of military force even though the bill to authorize it was voted down. Panting and winded, it had no energy left to address international law. John Yoo, are you listening? Do you see how the pros do it? Next time, refrain from mentioning the Convention Against Torture rather than trying to explain it away.
Should these Clinton lawyers also be "called to account" (along with Clinton himself, of course, and his senior staff, and the former decision-makers and legal advisers of all other NATO countries)? We don't know whether Clinton's lawyers failed to warn him of the relevant international legal prohibitions, or did so only orally, or in a secret memo. Perhaps they gave him good legal advice that he chose to ignore, and they silently resigned their positions in protest. An investigation should be launched so that the truth can be ascertained. Subpoenas issued, witnesses corralled, suspects named. We will also need to look for any legal advice, oral or written, pertaining to other Clinton-era actions that were dubious on international law grounds—the launching of missiles against Afghanistan and Sudan, bombing tactics in Yugoslavia, and the economic sanctions against Iraq, which caused many foreseeable deaths.
Alas, it's not going to happen. International justice has achieved such perfection only in the vivid hallucinations of international lawyers. You former OLC lawyers—next time you're vacationing in Europe, don't be alarmed if you feel a tap on your shoulder. It'll just be me: Boo!