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The past few weeks have provided numerous headlines about torture authorized by the American government. The stories quickly climbed up the dungeon ladder from John Yoo’s second torture memo to the revelation that Cabinet-level discussions were held specifically about whether and how to “interrogate” — that is, torture — prisoners, to the revelation that Dubya himself knew of those meetings and approved this message, so to speak.

Of course none of these things are surprising any more. As Thoreau once observed, you find a trout in the milk, that’s pretty good circumstantial evidence the farmer’s been watering the milk, even if you never actually saw him do it.* You find a bunch of MPs proudly mugging, thumbs up and smiles wide, for photographs of curious, cruel, abusive, torturous, illegal, and revolting practices contradicting literally centuries of American military practice and policy, you have the distinct feeling the gloves are off and the trail leads upwards.

A partial catalogue of lies
By deliberately and continuously hiding what they’ve done, and by stonewalling internal and outside investigations, the Bush/Cheney administration has succeeded in making it boring and hard to understand what each new piece of the puzzle adds, if anything, to understanding what was done by whom.

However, these deceptions and delays are evidence in their own right, and deserve to be examined closely, with a view to eventual war crimes prosecution either here or abroad. Consider:

• Douglas Feith:
  

  Feith described how, as he and Myers spoke with Rumsfeld, he jumped protectively in front of the general. He reprised his “little speech” for me. “There is no country in the world that has a larger interest in promoting respect for the Geneva Conventions as law than the United States,” he told Rumsfeld, according to his own account, “and there is no institution in the U.S. government that has a stronger interest than the Pentagon.” So Geneva had to be followed? “Obeying the Geneva Conventions is not optional,” Feith replied. “The Geneva Convention is a treaty in force. It is as much part of the supreme law of the United States as a statute.” Myers jumped in. “I agree completely with what Doug said and furthermore it is our military culture It’s not even a matter of whether it is reciprocated—it’s a matter of who we are.” [...]

  …The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible. Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law—the speech he made to Myers and Rumsfeld—and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers continued to believe Geneva’s protections remained in force—he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me.

  (Philippe Sands, “The Green Light“, Vanity Fair, May 2008)

• William Haynes II:
  

  In June [2003], press accounts asserted that the U.S. was subjecting detainees to “stress and duress” techniques, including beatings and food deprivation. Senator Patrick Leahy, Democrat of Vermont, wrote to Secretary of State Condoleezza Rice, asking for a clear statement of the Administration’s detainee policy. Haynes wrote a letter back to Leahy, which was subsequently released to the press, saying that the Pentagon’s policy was never to engage in torture, or cruel, inhumane, or degrading treatment—just the sort of statement Mora had argued for. He wrote in his memo that he saw Haynes’s letter as “the happy culmination of the long debates in the Pentagon.” He sent an appreciative note to Haynes, saying that he was glad to be on his team.On April 28, 2004, ten months later, the first pictures from Abu Ghraib became public. Mora said, “I felt saddened and dismayed. Everything we had warned against in Guantánamo had happened—but in a different setting. I was stunned.” He was further taken aback when he learned, while watching Senate hearings on Abu Ghraib on C-SPAN, that Rumsfeld had signed the working-group report—the draft based on Yoo’s opinion—a year earlier, without the knowledge of Mora or any other internal legal critics. Rumsfeld’s signature gave it the weight of a military order. “This was the first I’d heard of it!” Mora told me.

  (Jane Mayer, “The Memo“, The New Yorker, Feb 6, 2007)

• David Addington:
  

  On January 25 [2003], Alberto Gonzales put his name to a memo to the president supporting Haynes and Rumsfeld over Powell and Taft. This memo, which is believed to have been written by Addington, presented a “new paradigm” and described Geneva’s “strict limitations on questioning of enemy prisoners” as “obsolete.” Addington was particularly distrustful of the military lawyers. “Don’t bring the TJAGs [military lawyers in the office of the judge advocate general -- ed.] into the process—they aren’t reliable,” he was once overheard to say.

  (Philippe Sands, “The Green Light“, Vanity Fair, May 2008)

• John Yoo (and/or Jay Bybee and/or John Ashcroft):
  

  …John Yoo did not have the legal authority to issue this opinion… unless either Jay Bybee or John Ashcroft delegated Yoo the authority to issue such a momentous opinion without the supervision of the head of the office. So the obvious question is:Did John Ashcroft or Jay Bybee sign off on this memo? Did either authorize Yoo to issue it without any review by the AAG or AG? If the answer to both questions is “no,” then why did John Yoo think he was empowered to issue it? Why did Jim Haynes accept it as the official view of the Office of Legal Counsel? Didn’t anyone check with [correction: Bybee] and/or Ashcroft? If not, why not?

  This was, in my view, a serious abuse of authority and/or violation of protocol. And it demonstrates exactly why it is so important to abide by such procedural norms — so that an unconfirmed, rogue deputy in OLC can’t just go around offering the most important and ground-shifting legal advice in the Executive branch without that advice having been thoroughly scrubbed and critiqued by others who are more accountable and more seasoned. [Something similar appears to have occurred with respect to the landmark September 25, 2001 OLC Opinion on the President’s unilateral power to take whatever military steps he thinks necessary to preemptively deter terrorist actions — the memo that first argued that Congress is powerless to regulate the Commander in Chief. That, too, went out under Yoo’s name, rather than under the name of the Acting AAG, who at the time was the much more careful and temperate (and superlative) career attorney, Dan Koffsky. How could that have happened?

  (Marty Lederman, “The Yoo/Chertoff/Ashcroft Memo?
  How Did the OLC Opinion Come to Be Issued from DOJ, Anyway?,”
  Balkinization 4/2/2008

In each case, a deception or — what amounts to the same thing in a bureaucracy — a knowing violation of protocol was carried out. In each case, the deception was needed in order to grease the skids for an immoral and criminal policy, by either sidestepping persons or offices with inconvenient integrity, or by pretending to agree with them even as the diametrically opposite decision was taken. In each case above the deception itself answers the question, “was the torture policy advocate acting in good faith?”

“Consciousness of guilt”
“Of course he wasn’t,” many will say; others will add, “that shouldn’t matter, anyway.” I agree with both reactions. But some disagree, even when — like Georgetown law professor (and former OLC lawyer) Marty Lederman — they’re at the forefront of efforts to oppose the Bush administrations torture and detainee habeas policies. Lederman argued last year that “unless there’s a smoking gun memo out there somewhere showing that John or others did not really believe the advice they were giving, and that they were simply trying to justify conduct that they knew to be unlawful, I think it’s inconceivable that DOJ would ever prosecute them, either.”

In a post I wrote in response last year (”A fortiori“), I argued that the sincerity of Yoo et al’s legal advice shouldn’t matter — and am thus taking a kind of “strict liability” approach to war crimes or legally advocating for them. But if it must matter, then I hope this post helps suggest that “smoking gun memos” aren’t needed to establish that good faith was lacking; the deceptions practiced by these actors show a “consciousness of guilt” (like ‘good faith’ and ’strict liability’, a legal term of art) that strongly argues against it.**

While details vary by jurisdiction, the outlines of evidence for “consciousness of guilt” are a longstanding feature of Anglo-Saxon criminal procedure. A nice treatment of it for laypersons like myself was written by Dan Stigall, using the plot of “Crime and Punishment” as a touchstone (”Prosecuting Raskolnikov: a literary and legal look at “consciousness of guilt” evidence, Army Lawyer, Dec. 2005). Stigall distinguishes “four separate categories of action that are, and have historically been, considered admissible for purposes of demonstrating a criminal’s consciousness of guilt: disposing of the evidence, giving false exculpatory statements, flight, and evidence of the accused’s demeanor.”

While no suspect has fled (yet), one may fairly classify the deceptions practiced on Mora, Senator Leahy and others as “false exculpatory statements.”** It’s hard to be any more blatant about disposing of evidence than burning tapes of interrogations. And as to demeanor, Philippe Sands recounts an interesting anecdote about William Haynes:

…the death blow to the administration’s outlook did not occur for three more years. It came on June 29, 2006, with the U.S. Supreme Court’s ruling in Hamdan v. Rumsfeld, holding that Guantánamo detainees were entitled to the protections provided under Geneva’s Common Article 3. The Court invoked the legal precedents that had been sidestepped by Douglas Feith and John Yoo, and laid bare the blatant illegality of al-Qahtani’s interrogation. A colleague having lunch with Haynes that day described him as looking “shocked” when the news arrived, adding, “He just went pale.”

Beyond the pale, one might say.

One objection to this line of inquiry might be that secrecy was required by national security. Yet this objection founders — and founders in nearly every instance of pro-torture policies developed by the civilian Bush administration — on just who was being kept in the dark at first by the irregular procedures used to develop and promulgate those policies: generals, top military lawyers, the Senate. All had security clearances, all had a right and the authority to know what was going on. All were misled by furtive, guilty tactics emanating from Vice President Cheney’s office — no doubt with a firm, gruff “great work, keep in touch” nod of approval from our bicyclist-in-chief.

Looking ahead
Sands’s article is probably best known for an assertion by a European prosecutor looking at the text of the Military Commissions Act:

The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.

Maybe so, and such a tap on the shoulder would be better than nothing. But international criminal courts are no guarantee of justice — just ask the survivors of Srebrenica, who watched the ICC find the ethnic slaughter there was no genocide by studiously ignoring documents proving it was.

More importantly, I think, Americans shouldn’t welcome the prospect of others doing justice we won’t do ourselves. The political fallout in the U.S. of American politicians held and tried overseas would be, I think, significantly worse than those of impeachment or domestic criminal trial.

Yet what may we expect from our next chief law enforcement official? I confess I have no idea when it comes to Hillary Clinton; she may be a lion for justice, or she may be a finger-to-the-wind trimmer.*** As a chief architect of the MCA, John McCain’s version of straight talk on prosecuting war criminals is liable to be either “no” or a thousand words involving “honor”, “patriotism,” “time honored principles,” and “national greatness” followed by “no.”

For his part, Barack Obama answered Philadelphia journalist/blogger Will Bunch last week about whether an Obama Justice Department would “aggressively go after and investigate whether crimes have been committed.” Obama was forthright about not looking forward to the prospect (and as disappointing as ever on his attitude about impeachment). He even seems to think there’s the possibility that Abu Ghraib, over a hundred dead after interrogation, etc. were perhaps just the result of “really bad policies,” and not “genuine crimes.”

But he doesn’t rule out investigation and prosecution altogether. And note what he’s looking for:

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.

If such a case is made for a President Obama, “consciousness of guilt” will be a part of it. That case can be made. Obama supporters must insist he understands that, and sees to it.

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RELATED POSTS: Alberto J. Mora; William Haynes II: not just no — hell no; Judgment at Nuremberg; A fortiori.

* NOTES: Thoreau’s version is pithier than mine, but assumes familiarity with milk-watering. Haynes’s deceptions led to an unprecedented joint plea by 20 retired military officers that the Senate Judiciary Committee reject his nomination as to the 4th Circuit Court of appeals. For more on “consciousness of guilt,” see John Wigmore’s classic 1929 treatise A Treatise on the System of Evidence in Trials at Common Law” or the “Pocket Code” version (ony 970 pages!), both available via GoogleBooks. Title via Sir Walter Scott, 1771-1832: “Oh what a tangled web we weave, When first we practise to deceive!”
** While I’m guessing it’s a mock court document rather than one with much legal relevance in its own right, those with criminal law experience may find legal citations in this “Sample Suppressed Evidence Instruction” of interest. As a lawyer at the OLC, Yoo had obligations similar to a prosecutor’s. The legal precedents cited here might be relevant for judging Yoo’s work (the torture memoranda are generally considered to be particularly weak specimens of legal reasoning), rather than ’simply’ his behavior or the consequences of that work.
*** For a sample of Clinton’s general (and generally good) stated framework on the issue of torture and other abuses of power, see “2008 presidential candidates on executive powers” (12/27/07) on this site. However, Charlie Savage’s questionnaire only addressed what the candidates would do as President themselves, not what they might do to bring justice to members of the prior administration.

EDIT, 4/23: “the sincerity of Yoo et al’s legal advice” added for clarity. In “A fortiori,” I argue

“For my part, I think Yoo and Addington knew full well that they were gutting laws and a Constitution, not interpreting them, and I think they took pride in that rather than shame. But I also don’t much care whether they believed themselves or not, any more than a traffic cop cares whether I believed the traffic light wasn’t red when I ran it.”

I’ll amend the “pride” part; they still knew they still needed to be deceptive about their advice and actions.
UPDATE, 4/23: Lawyer/veteran Philip Carter (”Intel Dump”) argues Myers failed in his command responsibility by letting himself be too easily duped by Feith. Via Dan Froomkin, Avedon Carol.