Convictions: Slate's blog on legal issues

Hostile Witnesses

"Democracy dies behind closed doors," Judge Damon Keith wrote in an opinion for the 6th Circuit Court of Appeals regarding media and public access to terrorism cases.

Our theory of government also dies in hearings like this one, featuring David Addington and John Yoo—memorably described by Dana Milbank and Emily Bazelon in a pair of columns for the Post and Slate, respectively. Calling Addington and Yoo hostile witnesses doesn't begin to describe the level of their contempt for Congress, the hearing, and the democratic processes that brought them to testify by way of a subpoena.

Check out this exchange:

Could the president ever be justified in breaking the law? "I'm not going to answer a legal opinion on every imaginable set of facts any human being could think of," Addington growled. Did he consult Congress when interpreting torture laws? "That's irrelevant," he barked. Would it be legal to torture a detainee's child? "I'm not here to render legal advice to your committee," he snarled. "You do have attorneys of your own."

He had the grace of Gollum as he quarreled with his questioners. In response to one of the chairman's questions, he neither looked up nor spoke before finishing a note he was writing to himself. When Rep. Debbie Wasserman Schultz, D-Fla., questioned his failure to remember conversations about interrogation techniques, he only looked at her and asked: "Is there a question pending, ma'am?" Finally, at the end of the hearing, Addington was asked whether he would meet privately to discuss classified matters. "You have my number," he said. "If you issue a subpoena, we'll go through this again."

Crikey. No wonder they kept Addington in the shadows; public advocacy is clearly not his gig.

The Genesis of Torture

Yesterday, the Senate armed services committee released a 63-page set of documents that illuminates how the Pentagon developed, selected, and approved its list of coercive interrogation techniques for Guantanamo Bay.

As Joby Warrick reports in today's Post, the documents clarify the role that the CIA (and senior government officials such as DoD General Counsel William "Jim" Haynes) played. "If the detainee dies, you're doing it wrong," CIA lawyer Jonathan Friedman proclaimed in a working group meeting that led to the development of this DoD memo on approved interrogation techniques.

Even more significant, the documents show how the military's Joint Personnel Recovery Agency helped develop interrogation techniques, borrowing extensively from the military's Survival, Evasion, Resistance, and Escape courses. (Mark Benjamin provides a detailed timeline in Salon for precisely how this unfolded.) These techniques—which include water-boarding, confinement to small boxes, and stress positions, among others—were developed to mimic the interrogation practices of our worst enemies, such as the North Koreans and the North Vietnamese. It speaks volumes that they were adopted by the United States at Gitmo.

Several things struck me while reading the documents last night:

Tabs 2 and 3 confirm Jane Mayer's reporting on the use of SERE practices as an interrogation template—both at Guantanamo and elsewhere by the CIA. There wasn't a lot of hard evidence to support this narrative, though, and many chalked up the similarities between the Guantanamo and SERE techniques to coincidence or chance. For instance, in Philippe Sands' new book, retired JAG officer Diane Beaver and retired Maj. Gen. Michael Dunlavey recount a somewhat hazy process by which tactics made their way into memo form. Both hint that personnel from the CIA and other agencies were placed at Guantanamo to seed ideas. The memos released yesterday, however, indicate that there was a much more deliberate effort to share the SERE/JPRA community's tactics, techniques, and procedures (TTPs, in military parlance) with the interrogation community at Guantanamo. (Tab 16 shows this link, too.)

Tab 4 discusses the military's psychological assessment of personnel during SERE training. Taken by itself, this is a sign that the military cares about its personnel and wants to avoid "crushing the spirit of the students." But in the interrogation context, this memo reads uncomfortably like Mengele or Cold War-era research on torture.

In the October 2002 meeting described in Tab 7, FBI agents report talk of "wet towel" treatment during interrogations, despite the fact that water-boarding was explicitly not authorized by Haynes and Rumsfeld at that point. So, it appears that DoD personnel at Guantanamo took the initiative to use SERE techniques before they were approved by higher HQ. These meeting notes also confirm the presence and role of CIA personnel. And they strongly suggest that the Justice Department memoranda authored in Washington—but previously thought to have not reached Guantanamo—were probably shared with Guantanamo lawyers and intelligence personnel in some manner. This connects those memoranda with the one that then-Lt. Col. Beaver authored, which ultimately made its way to Rumsfeld's desk in December 2002.

Tab 19 further documents the relationship between SERE training and the interrogation practices at Guantanamo. But at some point, probably around the time of Abu Ghraib and the post-scandal investigations of all Defense Department detention and interrogation operations, there comes a break. Tab 24 contains a memo by the head of the Joint Personnel Recovery Agency that comes pretty darn close to refusing any future orders to participate in interrogations. The uniformed military seems to be trying to correct its course—insisting that SERE techniques could only be used for "defensive" use (i.e., training pilots, special forces, etc.), not for "offensive" use (interrogating enemy fighters). 

But by that point, three years had passed, and it may have been too late to undo the damage wrought by the Pentagon's torture policies.

Apples and Oranges

Guess I'm missing something, Phil, but what's the connection you see between the Iqbal grant and the prosecution-planning conference?

Ashcroft v. Iqbal concerns the resort by an individual plaintiff to federal court to seek civil damages against high-ranking federal officials. In so doing, he followed  a decades-old path: In Bivens v. Six Unknown Federal Narcotics Agents (1971) the court, by a 6-3 margin, had established such actions as a corollary to 42 U.S.C. § 1983, that portion of the Civil Rights Act of 1871 authorizing suits against state officials alleged to have committed deprivations of civil rights. In contrast, the conference appears to be an effort by private persons to develop a criminal case against high-ranking U.S. officials.

The first case ought to be routine. Deborah's post thus is spot-on in assuming an unfriendly grant of review. The loser below was a high-ranking U.S. official, challenged on account of his actions post-9/11, by means of a litigation vehicle, the Bivens action, that has drawn conservative ire since its inception.

The second instance is quite different. It is true that, in many countries adhering to a continental legal tradition, private persons may act as parties civiles who develop a criminal case and present it to public prosecutors for further investigation, prosecution, and punishment. The procedure's been invoked a number of times—to date unsuccessfully—in efforts to use courts in Germany and elsewhere as forums for criminal actions against U.S. officials like former Defense Secretary Donald Rumsfeld for post-9/11 policies. But there exists no such mechanism in the United States by which the "planning conference" might bear fruit. In any event, there's an apples-and-oranges difference between civil-damages suits and criminal prosecutions ending in imprisonment.

So what's the link?

Next Up at the Court

Guess Justice Kennedy wasn't kidding when he suggested in Boumediene a few days ago that the court might have to get more engaged in deciding "war on terror"-related cases.

Mr. Iqbal alleged that he was beaten and denied medical care, deprived of food (losing 40 pounds during his detention), subjected to extreme hot and cold temperatures, left in solitary confinement, often shackled, repeatedly subjected to strip and body-cavity searches, and subjected to racial ethnic and religious discrimination of various kinds. The 2nd Circuit rejected the defendants' motion to dismiss the case, and the Justice Department sought review.

On its face, the grant of cert doesn't look good for Mr. Iqbal (who has since been deported to his native Pakistan). It takes only four to grant cert, and I'm going out on a limb in guessing that Scalia, Thomas, Alito, and Roberts aren't huge fans of the Bivens doctrine (affording individuals a right to sue government officials who violate the Constitution). Then there's the conventional wisdom that the court doesn't grant cert to affirm. The 2nd Circuit allowed the case to go forward to permit limited discovery in the case, including the possible deposition of Mssrs. Ashcroft and Mueller on post-9/11 decisions about detainee treatment. If the court had no problem with that outcome, it could easily have waited until the case reached the merits before weighing in. But a lot of the justices have expressed concern about the burden of such discovery on government officials.

Apart from wondering where Justice Kennedy sits on these issues, it seems like a key question is whether the court will stick with its own precedent and recognize that it has to address the substantive validity of Mr. Iqbal's constitutional claims—were his Fifth Amendment rights violated?—before determining whether those rights were "clearly established" enough for a reasonable officer to have known better. (If the law wasn't clear enough for officials to have known better, the officials can invoke "qualified immunity" and stop the suit in its tracks.) Whatever the court decides about the qualified immunity defense, a holding by the Supreme Court on the merits that the Constitution bars this kind of treatment of detainees would be huge (and welcome) news.

And under it all there'll be the great question of whether Justice Scalia should recuse himself from consideration. He did, after all, just recently announce to the international press that he didn't particularly think torture amounted to punishment prohibited by the Eighth Amendment and that the constitutionality of detainee abuse depended on the circumstances (like, say, the days just after 9/11?). Here's betting there's a motion for recusal—and that Scalia stays in.

Command Responsibility in Croatia

While flying home after a week of vacation, I read this brief in the International Herald Tribune, via the Associated Press:

ZAGREB, Croatia—A court convicted a retired Croatian general of war crimes Friday for failing to stop his soldiers from torturing and killing Serbs in a wartime operation once deplored by UN peacekeepers as a "scorched earth" campaign.

General Mirko Norac condoned crimes committed by those under his command, the Zagreb district court judge Marin Mrcela said in the ruling. He sentenced Norac to seven years in prison.

The judge acquitted another retired general, Rahim Ademi, in the case.

Of course, the important thing here is the crime with which Norac was charged. Norac did not stand accused of personally torturing and killing Serbs. Or even directly ordering those acts. Rather, the court convicted him of "condoning" such crimes under his command. In reaching this verdict, the court relied on a principle deeply ingrained within the law of war: that of command responsibility. Simply stated, the rule makes a commander responsible for all his unit does, either where he knew of the conduct or should have known of the conduct, although scholars and jurists continue to debate this knowledge requirement. In a famous WWII case, the Supreme Court affirmed a war crimes conviction for Tomoyuki Yamshita, a Japanese field commander charged with "unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes." 

In this case, it appears that Norac did indeed know of his troops' crimes, making this an easier case in some respects. Nonetheless, this decision reaffirms the general rule, and it should remind senior military commanders everywhere of their duty to heed the law of war. "It was his duty to prevent" the crimes, the judge wrote in his ruling, continuing that "by not taking legal actions against the soldiers after learning that they committed war crimes, a commander (Norac) in fact provided a pattern on how soldiers should behave."

DoJ Absolves FBI on Torture

The Justice Department released its inspector general report (PDF) today clearing the FBI of most wrongdoing in connection with the coercive interrogations (read: torture) of prisoners at Guantanamo Bay, Cuba. For the most part, the report concludes that FBI agents did the right thing by objecting to the interrogation methods they saw that were abusive, and that FBI agents did not participate in these questioning sessions. However, the report faults senior leaders at the Justice Department and FBI for not giving clearer guidance to their agents in the field, allowing some special agents to be confused about "how to draw the line between behavior that was 'abusive' or merely harsh, such as the use of loud music and stripping."

According to the Post:

"The FBI could have provided clearer guidance earlier and pressed harder its concerns about detainee abuse by other agencies," Fine said. "But we believe the FBI should be credited for its conduct and professionalism in detainee interrogations in the military zones and in generally avoiding participation in detainee abuse."

Interrogation practices—including the use of dogs, sleep deprivation and simulated drowning or waterboarding—repeatedly created friction between FBI agents and military leaders. FBI Director Robert S. Mueller III has stressed that the bureau prefers to build rapport with detainees as the most effective way of eliciting accurate information from them.

In congressional testimony last month, Mueller hinted that the FBI's hands were tied in part by opinions from the Justice Department's Office of Legal Counsel, which approved several of the coercive interrogation strategies.

Seems to me like it would have been tough for the DoJ and FBI to issue better guidance while this guy was calling the shots. But that's just me.

"Relaxed Procedural Protections" in Terrorism Cases: What the Military Commissions Debate Is Really About

Eric writes: "We are agreed, yes? That procedural protections in civilian courts are too high for war-on-terror prosecutions? ... If yes, then there is just an empirical question of whether we should demand that federal judges relax procedural protections in terrorism cases or use an alternative military-commissions system—a question that it is far too early to answer because there is so far very little evidence as to how this alternative system will perform."

The flurry of posts on the military commissions seems to me to obscure the elephant sitting in the middle of the room, namely, that the principal "relaxed procedural protection" at issue here—the one that has caused the administration to insist upon newfangled commissions rather than courts-martial all along—is that a great deal of the relevant evidence has been obtained unlawfully.

That is to say, as with most of the great debates in the "War on Terror," even when the particular dispute is nominally about the legality of military commissions . . . it's all about the torture. 

Not only would much of the evidence in these cases be inadmissible because it's the fruit of coerced testimony, but the administration is hellbent on keeping secret what it has in fact done to the detainees in its control. In any legitimate proceeding—be it court-martial or civilian trial or military commission or even congressional investigation—that information would and should be disclosed. And in a court-martial or civilian trial, there's a good chance that would happen.  (Wish I could say the same about congressional hearings.)  But that's nonnegotiable for the Bush administration . . . and so, the endless debates about military commissions, which are designed largely to obscure the manner in which we obtained the relevant evidence.

The interesting question, then, is whether the McCain or Obama administration would be more willing in 2009 to make transparent what happened during these interrogations—after which perhaps we could figure out whether there is any tribunal in which fair trials could take place, without unreliable evidence gleaned from torture and cruel treatment. (That is to say: It's awfully difficult to conduct war-crimes trials when a good portion of the evidence was obtained by way of ... war crimes.)

(There's one other big issue, too—namely, that it is not at all clear that a great deal of the conduct alleged against some of the lower-level defendants, such as Hamdan and Khadr (e.g., driving bin Laden, delivering weapons to the front, tossing grenades at soldiers), actually violated any laws of war that were in place at the time of the conduct. But I don't see why those sorts of questions can't be resolved fairly, without regard to the nature of the tribunal.)

Charges Dropped Against Detainee 063

The Associated Press reports this morning that Pentagon officials have dropped military commissions charges (for now) against Mohammed al-Qahtani—better known as Detainee 063 after the Time cover story detailing his interrogation. Prosecutors alleged that al-Qahtani was the "20th hijacker," who narrowly missed participating in the 9/11 attacks after being detained at a Florida airport. However, the prosecution stalled because of government admissions that some evidence against al-Qahtani was gleaned through coercive interrogation (read: torture), like water-boarding, and that al-Qahtani himself was harshly treated (read: tortured) at Gitmo.

And so, yet again, the decision to "take the gloves off" in prisoner interrogations comes back to haunt us. The prosecution of al-Qahtani should have been an opportunity for the government to prove its case against this defendant and al-Qaida—and to confer some legitimacy on America's war on terrorism through the legal process. Instead, the military commissions remain mired in a morass of legal problems. And this particular prosecution may never go forward, beacuse it was tainted by torture.

Correction, May 14, 2008: This post originally contained a photo of a man identified as Mohammed al-Qahtani. However, the man pictured was not the Mohammed al-Qahtani discussed in the post/article. The photograph has been removed.

Obama fires a shot across the bow of the Bush administration's lawyers

Will Bunch, columnist for the Philadelphia Inquirer, asked Sen. Barack Obama about the question we've been batting around for the last week or two on Convictions -- whether some Bush administration officials might face a criminal investigation or prosecution for ordering certain detention and interrogation practices.  Sen. Obama has made his opposition to torture and the administration's detention regime a recurring point in his campaign speeches.  (Full disclosure: I am a volunteer adviser for the Obama campaign on defense and veterans policy.) However, this response to Mr. Blunt goes further:

What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.  [emphasis added]

So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing betyween really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.

21st Century Turn of an Arendtian Phrase

America's version of banal evil lurks in the bloodless abstractions of mid-level lawyers, rather than in the gray efficiency of faceless bureaucrats.

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. ...

Simply Mistaken?

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.

More Yoo

In a modest attempt to allow equal time, I note that Esquire magazine has posted what it calls the first interview with John Yoo since this week's release of the latest memo. You can find it here. Not that the interview sheds much light, but my favorite excerpt is when the interviewer presses Yoo on his decision to extract the pain-associated-with-organ-failure-or-death standard from an unrelated statute as a means of fleshing out the definition of the federal crime of torture.

Esquire: But at the same time, you as a human being writing that phrase -- this is not legal theory anymore. We're in the real world and its going to have a body count.

Yoo: This is unpleasant. Don't interpret what I'm saying as though I was happy to do this or eager, or I felt some satisfaction. Mainly because I had read what the British and the Israelis had gone through—they had their own struggle with this issue and they had their own judicial decisions—and I had read all kinds of articles and books about this issue. I mean, it's a difficult issue. You have to draw the line. What the government is doing is unpleasant. It's the use of violence. I don't disagree with that. But I also think that part of the job unfortunately of being a lawyer sometimes is you have to draw those lines. I think I could have written it in a much more—we could have written it in a much more palatable way, but it would have been vague.

Can't tell from this whether the greater unpleasantness for Yoo is in the topic or in the interview.

Is an Objective Appraisal of John Yoo's Work Possible?

While there has been a feeding frenzy of criticism directed toward his recently released 2003 memorandum, and some of that criticism is deserved or understandable, some frankly is over-the-top, and insufficiently appreciative of the law and the facts as Professor Yoo confronted them.

Geneva Conventions

First, on the Geneva Conventions applicability to al Qaeda there was virtually no one in any part of the government, presidential appointment or career public servant, who thought this Convention applied to these unlawful combatants. Justice Stevens thought differently about Common Article 3 in Hamdan, but his interpretation was hardly accepted wisdom. That makes sense then and now. Individuals who observe no dignity of human life and who, contrary to every law of war, target civilian populations have been since the time of Bracton or before outside the protections of civil society. There was some discussion, nevertheless, of whether as a policy matter the Conventions should have been extended to al Qaeda and there was considerable disagreement about how the Conventions applied to the Afghanistan and the Taliban.  Here there is reason to believe that the administration in not opting to apply the Convention committed error.  But, of course, this is wonderfully clear hindsight.  Functionally, the administration proclaimed itself to be extending equivalent humane treatment, and perhaps in the main, it did, but the photos of Abu Ghraib would leave an indelible refutation.

Better to Put It in Writing

There is reason to believe that Professor Yoo presented both sides of these difficult questions in his oral briefings to his superiors.  It is unfortunate this more balanced appraisal was not memorialized.  Recently, in Esquire, the Professor stated:  "these were not easy questions. Whether it was a war or not, the question of whether Geneva Conventions applied to al Qaeda was a straightforward question, at least to me. The policy question is much more difficult, whether they should apply to them as a matter of policy."  Professor Yoo here shows a keen appreciation for the fact that what is legally permitted is not necessarily what should be prudently done.  He shows an extraordinary appreciation for not misleading his military clients, which is somewhat remarkable, given the later, more sweeping nature of the memorandum.  Nevertheless, the Professor reports that he was concerned about the "balance" of the advice giving, asking "Is this going to degrade military discipline? Is it going to give us a bad image versus does it produce gains in security? Is it part of the message that terrorists are not going to be given the same status as people who follow the rules? It's a very difficult trade off. And then it's harder and harder because there's the question that if you don't give them full Geneva Convention protection, what are you going to give them? That's a hard question, too. I think the legal questions are much easier than those fine hard-grained policy issues. I think those are very hard questions. It's not my job to say what they should do."

Not His Job

The last point - that it was not OLC's job to set policy is very important to remember.  One wonders if the decision-makers remembered this, or if OLC should have even more strenuously than usual given emphasis to this point that is virtually a uniform recital in OLC advice giving.   It may be convenient for the fingers to be pointed at Professor Yoo, but it is not beyond reason to think that there was a fundamental confusion in the White House between what was "legal" and what was "right."  To be sure, Professor Yoo cannot be fully excused here because it is OLC's job to both make that plain and also not to overstate what is "legal" as an advocate would, and unfortunately, the memos are not the ideal on either score.

If You Can Do Better, Why Didn't You?

Professor Yoo's work has been called "slapdash" by Professor Goldsmith.  Professor Goldsmith has written an important book on his very short tenure in OLC (nine months).  I have reviewed and complimented the book in part in the forthcoming issue of the Harvard Journal of Law & Public Policy, but in fairness, Professor Goldsmith did his nation a disservice by "dropping into" the OLC role for such a short period.  He is an able lawyer, but allowing himself to use government service in this pivotal spot between two academic appointments added more than he may fully appreciate to the ill-considered advice going to the White House from DOJ generally.  Professor Yoo was Jack Goldsmith's mentor and supporter, and it is hard for him to comment beyond saying that some of his criticism is "unfair."  It is "because Goldsmith never issued an opinion of his own. He's certainly free to criticize. It goes back to unless you've actually made the hard decision yourself, then you don't really know how you think it through, what you would do. So he says "slapdash opinion," but we have no idea what he would have done, because he left."

Nobody Home

Professor Yoo relies also on the "normal" review process in the Department, but in truth, that did not exist both because of the abnormal times, the extraordinary turnover in the Office, and the strength of John's talent.  To say that the Attorney General signed off is simply not to say a great deal since those selected for even that post in this administration were more likely "friends," or saw themselves as answerable to the White House rather than the keepers of the integrity of the executive and the law.

In his book, Professor Goldsmith dwells on the statute Professor Yoo borrowed by analogy to give meaning to the often vaguely worded provisions against torture.  He does not say what source he would have used and why it was more analogous.  The phraseology "organ failure or death," was at least specific, and had been written into law by Congress.  Professor Yoo concedes that it is fair to criticize his legal analogy, but then, one has to supply something else to make things specific.  Of course, once having chosen this phraseology, with all of its attendant harshness, it should have brought home to the Professor and those who he was advising that the United States was sailing into very troubled waters.  It would likely be accused of besting the terrorists at their own awful game - of disregarding the sanctity of the human person.  It is not at all clear this was grasped that what the government was proposing to do in interrogation practice was not just "unpleasant" as the Professor put it, but except in the most extraordinary of circumstances (ticking bombs about to take out millions), unthinkable and wrong.

Law Is Not Morality

When Esquire asks if he had "any moral qualms," of course he says yes, but reverts to the law, saying "again, just because the statute says -- that doesn't mean you have to do it. You're right, there's still the moral question -- after you've answered the legal question -- whether you should do it at all."  John was relying on the usually narrow role of OLC to convey that or the balance of his memorandum, but having written in a style contrary to the usual OLC role, could that really be grasped?  As it turned out, it was not.

The Totality of the Circumstances 

The Fourth Amendment portions of the Yoo memorandum are likewise subject to misreading for similar reasons.  Again, I think it fair to note that any memorandum written within a few weeks of the fall of the twin towers would naturally view the nation as under attack and at war.  Soldiers on a foreign field of battle do not have Fourth Amendment limits on their operations.  It was logical to think that was true for domestic military action aimed at enemies or belligerents within the United States as well.  The passage of the AUMF was then, and is now, viewed as a legislative endorsement of making war on those who executed the attack against us as well as those who aided and abetted them.  What is remarkable is that two years later in 2003 the same proposition seems to have become doctrine even as the context was different.

It is also possible to fault Professor Yoo for not writing more narrowly given what he likely knew was the anticipated audience.  Statements like "Our office recently concluded that the Fourth Amendment had no application to domestic military operations," without qualification were certain to mislead non-lawyers receiving the document. In the legal context of foreign affairs which our founders painted with fine point brush in hazy gray to deliberately allow for the unforeseen, it is seldom prudent to spray paint in black and white.

The Professor relies upon Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity.  This is plausible, but should also have been acknowledged to be scant precedent derived from considerably different facts. U.S.v Verdugo-Urquidez involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government. Obviously, there is nothing domestic about that. 

To his credit, Professor Yoo did caution that his analysis "should not be confused with a theory that the Constitution somehow does not "apply" during wartime."  But this again warranted greater explanation, since his point of reference is the civil war case of Ex parte Milligan, 1866), which had it been fully explained would have been a reminder that the Bill of Rights is fully applicable domestically in wartime to U.S. Citizens.

Of course, the Justice Department has since disavowed both memoranda, properly noting that "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

When the administration gave its legal reasons for the Terrorist Surveillance Program in January 2006, it gave a far more nuanced appraisal of the Fourth Amendment, focusing on special needs exceptions and the like.

What Have We Learned?

What is the importance, then, of the recently released 2003 memorandum?  In part, it illustrates that the nation was in crisis in 2001, and the crisis mentality shaped the legal analysis being given.  What is remarkable is that this attitude continued right through 2003.  When facing what was perceived to be a profound threat of uncertain dimension with the fear of even more devastating attack, I am not prepared to say that -- in the 2001 memorandum that has yet to be released -- the legal statement and reasoning should have been more carefully given, but two years later, when the circumstances could have been more objectively assessed, the standard arguably should have been different. 

Again, I am reasonably confident that thoughtful appraisers of executive branch lawyering like Professors Dawn Johnsen and Marty Lederman share my regret that the president never staffed OLC with individuals, who could have brought to bear a longer, more mature institutional memory that would have given him the full benefit of legal advice.  It was important for a Deputy like John Yoo, with his strong conception of presidential power to be present, but it was also important to have a senior counsel heading OLC who was not in the president's usual orbit of hand-picked friends or advocates and who would have ensured that the Professor's advice was juxtaposed and tested by the diplomatic and practical thinking of the Legal Advisor at State and the General Counsels of the military branches.  Of course, it would have been especially handy if there had been a steady hand in the front office capable of synthesizing the contradictory views of this complex area and withstanding the kind of internal political skepticism directed at the OLC lawyer in the room who raises a note of caution.

It seems unlikely that a lawyer attempting to preserve the objective, non-advocacy role of the OLC tradition would have concluded without qualification on the basis of little or no direct precedent that:

"Even if these statutes were [construed] to apply to persons acting at the direction of the President during the conduct of war, the Department of  Justice could not enforce this law or any of the other crirninal statutes applicable to the special maritime and territorial jurisdiction against federal officials acting pursuant to the President's constitutional authority to direct a war. Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute w6uld be unconstitutional as applied in this context."

No doubt that is what the CIA wanted to hear, but given all the legal and policy imponderables that Professor Yoo has since acknowledged, that could not be said.

Outrage at the Latest OLC Torture Memo

I want to second Dahlia's frustration with those who don't see the newly released Office of Legal Counsel (OLC) torture memo as a big deal.  Where is the outrage, the public outcry?!  The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it--all demand our outrage.

Yes, we've seen much of it before.  And yes, we are counting down the remaining months.  But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power.  Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law--and not just for the remaining nine months of this administration, but for years and administrations to come. 

Dahlia's aptly summarizes this just-released memo's constitutional conclusion: "if the president authorizes it, it isn't illegal."  

OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted.  That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants.  The earlier-leaked 2002 OLC torture memo said the same in connection with the CIA (a program the Bush administration sought to reassure us was extremely limited and controlled).  Here, the military is the group exempt from the laws.

One striking example of the memo's plainly flawed reasoning:  In an 81-page memo, Yoo relegates to a footnote (footnote 13) and then quickly dismisses the clearly correct counter-argument that Congress may regulate interrogations under its constitutional authority to "make Rules for the Government and Regulation of the land and naval Forces."  His only support to the contrary is another still-secret OLC Bush administration memo, issued just the year before, that concluded Congress "cannot ... make rules for the Armed Forces to regulate military commissions."  If Congress cannot regulate military commissions, Yoo argues, it cannot regulate interrogations.  Of course, the Supreme Court in Hamdan has since held that not only does Congress have the authority to regulate military commissions, it had regulated them to render Bush's military commissions unlawful. 

John Yoo, the memo's author, has the gall to continue to defend the legal reasoning in this memo, in the face even of Bush administration OLC head Jack Goldsmith's harsh criticism--and withdrawal--of the memo.  Not only that, Yoo attempts to spin the memo's advice on presidential power as "near boilerplate:"  "Far from inventing some novel interpretations of the Constitution, our legal advice to the President, in fact, was near boilerplate."

I served at OLC for 5 years, including in the very position Yoo held and then later as its head (as acting assistant attorney general from 1997-98) and I have studied OLC and presidential power for the 10 years since.  I know (many of us know) Yoo's statement to be false.  And not merely false, but irresponsibly and dangerously false in a way that impugns OLC's integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law. 

Far from "near boilerplate," recall that the last President who took the view that "when the President does it that means that it is not illegal" was forced to resign in disgrace. 

To be precise, President Bush has not been foolish enough himself to say "If I authorize [torture, domestic surveillance, fill in the blank], notwithstanding federal statutes to the contrary, it isn't illegal."  At least not so that he can be directly quoted.  (Actually, President Nixon didn't say it that clearly either until after he had resigned.)  

Is it possible John Yoo alone merits our outrage, as some kind of rogue legal advisor?  Of course not.

As Dahlia points out, Bush has not fired anyone responsible for devising the legal arguments that have allowed the Bush administration to act contrary to federal statutes with close to immunity--or for breaking the laws.  In fact, the ones at Justice who didn't last are the officials (like Goldsmith) who dared to say "no" to the President-which, by the way, is OLC's core job description.

Far from firing anyone, President Bush asked for this kind of distorted legal advice.  Remember, from day one the President sent his lawyers the express message that they were NOT to interpret the law impartially and straight up.  Instead they were to further his and Vice President Cheney's agenda of expanding presidential power, of restoring it to its pre-Watergate condition, and leaving the presidency stronger than when Bush took office.  And that was before 9/11.  After the terrorist attacks, "Legally, the watchword became "forward-leaning," by which everybody meant:  ‘We want to be aggressive.  We want to take risks.'"  (For support for all this, and more, read the excellent recent books by Jack Goldsmith and Charlie Savage.)

One relatively rare attempt to tell the President "no" led to the outrageous (though still too-little-known and condemned) trip by Bush's counsel Alberto Gonzales and chief of staff Andrew Card to Attorney General John Ashcroft's hospital bedside in intensive care, in a failed attempt to get him to overrule Acting Attorney General James Comey's and Jack Goldsmith's determination the President did have to comply with the law.  (Remember this Youtube Comey-testimony/Godfather classic?)  After being forced to make a change in the face of the threatened resignation of much of the Justice Department leadership, what did President Bush do?  He nominated Gonzales to be his next Attorney General, to replace Ashcroft!

Even today, President Bush insists on his re-nomination of Steven Bradbury to head OLC, despite (because of?) Bradbury's continued flawed, unjustifiably still-secret advice in support of extreme methods of interrogation (among other issues).

The correct response to all this?  Marty has several good suggestions to start.  And outrage.  Directed where it belongs:  at President Bush, as well as his lawyers.

Because Ipse Dixit Says So

The Yoo/Chertoff/Ashcroft Memo?

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 ...

Doug Feith's Fig Leaf

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. 

The Legality of Evil: The Torture Memos and the Living Constitution

Orin notes that John Yoo's torture memo sounds very lawyerly in its arguments. This observation points to an important fact about legal discourse: Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal-sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past, lawyers have used legal-sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and nonspousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization. (Oh, and they also decided a presidential election using the flimsiest of legal reasoning. But I digress.)

continue reading this post at Balkinization . . .

Another Stinkin' Memo

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.

Yoo's Utter Glib Certainty

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.