-
sponsorship
America's version of banal evil lurks in the bloodless abstractions of mid-level lawyers, rather than in the gray efficiency of faceless bureaucrats.
The reference, of course, is to a term coined fully 45 years ago, in the trial reportage compiled into the book
Eichmann in Jerusalem: A Report on the Banality of Evil. As described in this
post,
Banality was philosopher
Hannah Arendt's account of that early effort by a nation-state, Israel, to prosecute an individual in its national courts for internationally condemned crimes. In describing actions "so obscene in their nature and consequences" as "'banal,'" it's explained
here, Arendt
meant to contest the prevalent depictions of the Nazi's inexplicable atrocities as having emanated from a malevolent will to do evil, a delight in murder. As far as Arendt could discern, Eichmann came to his willing involvement with the program of genocide through a failure or absence of the faculties of sound thinking and judgement. ...
Eradicating abusive policies and, at least as importantly, the institutional structures within which they found root, indeed must be a priority item on the next president's to-do list.
-
sponsorship
Marty says I am "simply mistaken" to argue that there is considerable space between the lines set by the Army Field Manual and the legal lines imposed by various international obligations of the United States. I don't think I'm mistaken—certainly not simply so.
In rewriting the Army Field Manual, the military rejected almost all of the new techniques that Donald Rumsfeld earlier approved for use at Guantanamo. Some of these, to be sure, involved pretty coercive stuff. Some of them, by contrast, were pretty anodyne: yelling at detainees, denying them hot rations, and the like. I find it hard to believe that this kind of thing even approaches the legal line of cruel, degrading, and inhuman treatment, let alone torture. Even some of the harsher techniques, like temperature manipulations and sleep adjustments—which can certainly be torturous at one end of the spectrum—can also be done in ways that would be merely unpleasant. There is, after all, surely no legal requirements in the Geneva Conventions or elsewhere that detention facilities set their air conditionings to the optimum temperature for a given detainee's comfort. Nor, in my judgment, is it cruel or inhuman to interrogate detainees in the middle of the night instead of the middle of the day.
Don't get me wrong; I'm not advocating these techniques, and I fully concur with the military's judgment that military interrogators should keep well away from them. I'm merely arguing that their rejection by the military was in large measure a prudential, not a legal, judgment. And the CIA might have good reason to adopt interrogation methods that more closely approach the actual legal limits.
The CIA, after all, never detains POWs. Except in the situations of foul-ups, moreover, it only detains the true worst of the worst—very small numbers of the most dangerous people in the world. Its interrogation crew is small, nothing like the legions of young kids the military sends into combat zones all over the world to interview vast numbers of detainees, many of whom are entitled to treatment as POWs. So where the Army decided to keep clear of what the law might theoretically tolerate, the CIA might reasonably make a different judgment: that given its interrogators and its crop of detainees, it wants to make every tactic whose lawfulness it can defend available to its people. I don't think Congress should preclude that judgment.
-
sponsorship
A reader of the
newly declassified "torture memo" finds herself tempted to live-blog it; that is, to offer online, real-time notes that otherwise would be scrawled in the margins replete with all manner of punctuation symbols (! and ? and, yes, @*?%!). Examples from the 81-page document issued on March 14, 2003, by
John C. Yoo, then deputy assistant attorney general, entitled Memorandum for
William J. Haynes II, General Counsel of the Department of Defense,
Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States:
P. 4:
obtaining advance information about the identity of al Qaeda operatives and their plans may provide to be the only way to prevent direct attacks on the United States.
Underline's mine, and here's my marginal scrawl: Gov't admits own humint failure.
P. 4, again:
Interrogation of capture al Qaeda operatives could provide that information; indeed, in many cases interrogation may be the only method to obtain it.
My underline; marginal scrawl: if true, why did gov't use unreliable methods?
A cathartic exercise, perhaps. But it may be better to push back and take a broader look, as I tried to do after the first slew of such memos was released. In a 2005 article I
wrote (P. 2,123):
The torrent of documents leaked in the course of the Abu Ghraib scandal revealed that, in point of fact, government lawyers had been well aware of the intricate legal terrain that the executive detention policy was traversing.
I
noted (P. 2,124) that some of the disclosed
legal memoranda, particularly those that established legal sanction for the Executive’s detention and interrogation policies, relied on a legal opinion that the Constitution gives the "President alone" power to determine "any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response," in order to deflect treaty language that might have circumscribed executive action.
This latest memorandum is much in that vein. It oft repeats the "president alone" mantra, and it casts aside all law, domestic as well as foreign, that would appear to constrain the executive. What troubles no less now than it did in 2005 is the fact that aspects of
international law had evolved in ways that aided (Pp. 2,124-25) U.S. deflection of international obligation:
[I]nternational human rights law ... reflects the universalist tendencies of ancient natural law yet is codified in positive instruments of law. Yet the internal enforceability of those instruments remained subject to the buffer mechanisms that public international law condones. It was on these mechanisms that government lawyers relied in order to insulate the United States from the effect of international obligations assumed when it became a state party to certain treaties. ...
The newly disclosed memo likewise points to mechanisms such as the non-self-execution doctrine and the conditioning of treaty ratification upon reservations as reasons that laws do not constrain executive officials—military interrogators as an initial matter and, it may be presumed, their superiors, military and civilian.
This March 2003 memorandum goes a step further, turning its analysis inward in a way intended to shield individuals not only from the enforcement of the law of nations, but also from the enforcement of the law of this nation.
Take as an example the
Fifth Amendment, which contains the guarantee not only of due process, but also of specific items such as the privilege against self-incrimination. That amendment does not apply to interrogation, it is claimed on Pages 6-8,
► for the reason that it "was not designed to restrict the unique war powers of the President as Commander in Chief"; and
► with regard to extraterritorial interrogation, by reason of the Fourth Amendment-based opinion by Chief Justice William H. Rehnquist in
United States v. Verdugo-Urquidez (1990).
Is a reader to infer from the latter assertion, about interrogation outside the United States, that a president has the "war power" to set aside the Fifth Amendment inside the United States? Footnote 10 on Page 8 bolsters such an inference. Citing an October 2001 memo that appears not yet to have been disclosed, the footnote states, supplying its emphasis, that
our Office recently concluded that the Fourth Amendment had no application to domestic military operations.
Is a reader properly to assume, moreover, that
Verdugo's discussion of the Fourth Amendment's extraterritorial application
vel non applies without further ado to post-9/11 matters?
I have argued to the contrary (Pp. 295-99) with regard to the Fourth Amendment itself, and most surely with regard to the Fifth Amendment, which varies in text and background from the Fourth. Counterarguments do not appear within the dense single spaces of this memorandum, however.
Instead, what is found is a steady train of affirming assertions. And more. In 2005 I had
found (P. 2,123) in disclosed memoranda a general lack of resort to "the
ipse dixits that had characterized public statements" of the executive. Not so in this memorandum. Sweeping assertions like those on Page 13, of executive power to the exclusion of other branches, are supported almost solely by past memoranda of the Office of Legal Counsel.
In short, this latest document does nothing to alter my 2005
conclusion (P. 2,126), one that's at odds with what's been called the "
lawyerly" nature of all this:
The disclosed memoranda provided rare and troubling evidence of the deliberate construction of a framework that appeared to be ruled by law, but was not. The framework might better be termed "legalist" rather than "legal"; within it, the only laws recognized were those allowing free rein for presidential prerogative dressed in the guise of legal constraints. For more than two years, laws that the Executive chose neither to acknowledge nor to accommodate seemed not to operate as law at all.
-
sponsorship
I've now completed reading the March 14th OLC opinion. As you might expect, there is a great deal within it that warrants very careful attention and analysis. There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the commander in chief can authorize pouring corrosive acid on a detainee—can authorize cutting out a tongue and poking out an eye —nothwithstanding a statute that would prohibit that very conduct?
I think what I'll do is to publish a series of numbered posts (this is No. 4—Numbers 1-3 are at Balkinization), each centering on a discrete topic or portion of the memo. My reactions must, of course, be tentative and preliminary: I have not yet had the time to research most of these questions or to give them the attention (some of them) might deserve. But I hope that by the end of the endeavor, we'll be able to see clearly just how radical and extraordinary this memo was.
Before I start in on the memo itself, however, I'll begin with a handful of posts about process and ramifications rather than the specific substantive issues raised.
Continue reading ...
-
sponsorship
OK, true, Orin and Jack, lawyerly can mean trussing up bad and thin arguments with questionable analogies from other cases and a horde of citations. (Though an awful lot of the ones in this Yoo memo are to other OLC memos from the same era—the ones Marty wants to see.) And I wouldn't say a thoughtful and responsible weighing of counterarguments is the m.o. here.
Any reactions to how this discussion relates to the excellently timed Vanity Fair piece on Guantanamo and torture interrogation posted today? The article concentrates on the 2002 memos that had previously been disclosed, which Phil has pointed out previewed much of the reasoning in the newly released March 14, 2003, memo. Since I'm the one arguing that the legal reasoning of Yoo and the other torture lawyers is shoddy and unmoored, I am struck by this exchange between the writer, Phillippe Sands, and Doug Feith:
Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantánamo? "Oh yes, sure," [Feith] shot back. Was that the intended result?, I asked. "Absolutely," he replied. I asked again: Under the Geneva Conventions, no one at Guantánamo was entitled to any protection? "That’s the point," Feith reiterated ... That indeed was the point. The principled legal arguments were a fig leaf.
Yoo of course argues otherwise. I believe Feith. And even if these bald quotes aren't a surprise—apparently to him, they're uncontroversial—what's useful about these moments when new memos drop from DoJ, I think, is that they give us a chance to remember that we should be shocked, even if we no longer can be.
On another note, Nick Rosenkranz points us to this Federalist Society debate over Medillin v. Texas.
-
sponsorship
continue reading this post at Balkinization . . .
-
sponsorship
After reading the March 2003 memo (NYT and WP), I feel like the youngest kid at Passover dinner, who by tradition asks the question "How is this night different from all other nights?" Except that in this case, I'm left with the question of "How is this torture memo different from all the others we've read so far?"
I agree with Marty that the answer has to do partly with the bureaucratic manner it which it was conceived, authored, published, and classified. It's highly unusual for such a broad statement of administration policy to be issued over the signature of a deputy assistant attorney general—and that such a low-ranking official would basically be speaking for the Justice Department and the White House on these issues through the interagency process to the Pentagon. So, this memo is different to the extent that it didn't come from Alberto Gonzales or Jay Bybee or someone else of significant rank.
It's also different because it appears to have been conceived entirely by the super-secret-squirrel (a military doctrinal term) working group of lawyers that included David Addington, John Yoo, and a handful of others. That cloistered environment facilitated much of the legal reasoning in the memo; it also ensured it would be highly classified and kept from public view for a long time.
But what about the legal reasoning? Is this really any different from other memos we've seen (and written about) so far? It's certainly longer. And as Orin points out, it alternates between solid and shaky analysis. But in general, I think Emily's right that this reflects the same broad, sweeping rhetoric we have seen before in other torture memoranda hatched in the White House, Justice Department, and Pentagon. What makes this memo significant, I think, is the way that Defense Department (and other government agency) personnel relied on this memo to create the detention and interrogation regime at Guantanamo, Abu Ghraib, and Bagram Air Base.
-
sponsorship
My reaction to the Yoo memo is almost the exact opposite of Emily's: I'm struck by how lawyerly it reads. It cites tons of authority, hedges arguments, discusses counterarguments, and generally reads like a careful lawyer's work. In fact, if it were a Supreme Court opinion rather than an OLC memo, I believe it would be entirely acceptable under Jack Balkin's theory of living constitutionalism. (Or so it seems to me—I remain a bit unsure of what Jack's theory rules in or rules out.) As Jack might say, Let Yoo be Yoo!
Instead, I think the problem with the memo is that the quality of the doctrinal analysis is generally poor. At least that's what I've been struck by in the sections that touch on the areas I teach. Take the discussion of the necessity defense and self-defense. I think it's probably right that in a genuine, real-deal "ticking time bomb" scenario, there could be a necessity defense to torture in some way. But while the memo notes the doctrine is fact-specific, it weirdly does not explain just how narrow those circumstances would have to be for the doctrine to apply. You end up with a chunk of the memo saying there's a possible defense "depending on the facts," but without explaining that those facts would have to be pretty extreme to matter. That's the impression I get from the sections I know well, at least.
-
sponsorship
What takes my breath away about the Yoo memos, now that we can finally read them, is their air of uttery certainty. One after another, complex questions of constitutional law are dispatched as if there's no cause for any debate. The president has all the war-making power. Congress has none. The president's commander in chief powers extend to interrogations (no matter how far from the battlefield in space and time they take place). Guantanamo Bay detainees and enemy aliens enjoy no constitutional protections. And then the pages Jack points us to, which include "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." In other words, Congress cannot prohibit any sort of treatment that the president chooses to allow. No wonder Jack Goldsmith thought Yoo was reaching far beyond where he needed to go, not to mention what the state of the law would actually support. And yet he brooks no doubt. It's as if he's writing as a Supreme Court justice, not a government lawyer. Which is understandable in one sense, since the Office of Legal Counsel functions like the government's internal Supreme Court—but also exhibits the terrifying results of dishonest, glib analysis by lawyers drunk on that very power.
More tripping lightly over what should be boulders: "We conclude that the War Crimes Act does not apply to the interrogation of al Qaeda and Taliban detainees because, as illegal belligerents, they do not qualify for the legal protections under the Geneva or Hague Conventions." Also blithely concluded, the prohibition against torture "does not apply to interrogations conducted within the territorial United States or on permanent military bases outside the territory of the United States." And again, Common Article 3 of the Geneva Convention—the backstop shielding enemy detainees—does not cover "an international conflict with a non-governmental terrorist organization." As David Luban has taken pains to explain, that's a tendentious and discredited view of Common Article 3. Yet there's no hint of all the debate and argument roiling just beneath the surface.The effect is entirely unsober and lawyerly.
On Page 47 of the Yoo memo, if I'm not mistaken, there's the amazing assertion that the Convention Against Torture doesn't apply whenever the president says it doesn't. "Any presidential decision to order interrogations methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions." Doesn't this mean that whether or not a treaty has been ratified, with or without express reservations, Yoo is saying that the president can implicitly and on his own authority withdraw the United States from the treaty simply by not abiding by it? Is there precedent for such a claim? In my quick scan so far of the tortured (sorry) reasoning here, I can't find anything other than ipso facto—because I say so, the president says so.
-
sponsorship
Reading the Yoo memo as fast as I can, but here it is—Part 1 and Part 2—for your evening reading. Thanks to the Washington Post and Marty.
-
sponsorship
Over at Balkinization, Marty Lederman discusses the revelation of the previously secret March 14, 2003, memo by John Yoo that extends the theory of the 2002 torture memo (which sought to excuse the CIA) to the military's operations. Pages 18 and 19 of this memo make the now-familiar and infamous argument that the torture statute would be unconstitutional as applied to the president acting in his capacity as commander in chief. As Marty explains, this memo "" If you want evidence of how the law was badly twisted and misused in the Bush Justice Department, you need look no further than here.