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We have, in my view, a fairly simple set of connected propositions:

1. Torture is illegal under United States law and international law.*
2. The United States of America knows of Americans who have committed torture, as well as of Americans who have conspired to commit torture.**
3. The United States of America is required by U.S. statute and international treaty to prosecute such crimes when it becomes aware of them.***

It’s really all over but the shouting and denials when you set these propositions next to each other.

Of course, shouting and denials there will be.  But while I’d expect it from borderline psychopaths like Karl Rove, Rush Limbaugh, and Dick Cheney, it remains unsettling to see it from David Broder, who this weekend penned the most shameful editorial of a once illustrious career. Broder’s Sunday “Stop Scapegoating” piece is a kind of negative Gettysburg Address: a radical downward redefinition of the American creed.  His lazy, deeply dangerous argument against prosecution boils down to one irrelevant canard, one telling assertion, and one pitiful abdication of what it means to be an American citizen.

Accountability cloaks vengeance – so no accountability
Broder’s irrelevant canard comes early in the piece in guessing at the motives of those who want prosecution, and pretending that should matter:

Obama is being lobbied by politicians and voters who want something more — the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps — or, at least, careers and reputations. Their argument is that without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

As hilzoy writes, “First, who died and made David Broder Sigmund Freud? How on earth does he presume to know what the actually motivates those of us who think that the people who authorized torture should be investigated?” But also: “So what? Suppose our “plausible-sounding argument” is actually true: “without identifying and punishing the perpetrators, there can be no accountability — and therefore no deterrent lesson for future administrations.” In that case, by not investigating torture now, we would be setting ourselves up for future government lawbreaking. Isn’t it obvious that preventing this matters more than anyone’s motives?”

Everything was done properly
But Broder’s most telling assertion — and, in the context of the rest of his opinion piece, the most deeply shameful one — comes next:

The memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places — the White House, the intelligence agencies and the Justice Department — by the proper officials.

Let’s assume Broder was right (although he isn’t****).  Would that be sufficient?
Read the rest of this entry »

It turns out Jay Bybee may not be proud of those memoranda he signed either.  Karl Volz, writing for the Washington Post (“Amid Outcry on Memo, Signer’s Private Regret“):

Five years along in his new life as a federal judge, Bybee gathered the lawyers and their dates for a reunion, telling them he was proud of the legal work they had together produced.

And then, according to two of his guests, Bybee added that he wished he could say the same about his previous position.

It was, in the private room of a public restaurant, the kind of joyless judgment that some friends and associates say the jurist arrived at well before the public release of four additional memos last week and the resulting uproar that has engulfed Washington. One of the documents, dated Aug. 1, 2002, offered a helpfully narrow definition of torture to the CIA and soon became known as the “Bybee memo,” because it bore his signature.  [...]

Tuan Samahon, a former clerk who recalled Bybee’s remarks at the reunion dinner, said in an e-mail that the judge defended the legal reasoning behind the memos but not the policy decision. Bybee was disappointed by what was done to prisoners, saying that “the spirit of liberty has left the republic,” Samahon said.

Well, Bybee helped show it the door.

And now his P.R. campaign — or that of the pro bono(!) lawyers he’s selected — is clearly underway to help him evade responsibility for doing so.  I’d have to question these tactics, though, because as written, the story makes it sound very much as if Bybee signed something he didn’t believe in:

“”I’ve heard him express regret at the contents of the memo,” said a fellow legal scholar and longtime friend, who spoke on the condition of anonymity while offering remarks that might appear as “piling on.” “I’ve heard him express regret that the memo was misused. I’ve heard him express regret at the lack of context — of the enormous pressure and the enormous time pressure that he was under. …”  [...]

I got the impression that he was not pleased with that bit of scholarship,” said an associate who asked not be identified sharing private conversations. “I don’t know that he ‘owned it.’ . . . The way he put it was: He was head of the OLC, and it was written, and he was not pleased with it.”

Regret at the contents; not pleased with the scholarship; it was written, and he was not pleased with it.  Bearing in mind that this is hearsay, it’s pretty damning hearsay, because it implies he signed his name to official legal advice not believing in that advice.  I.e., conscious, bad faith advice.

There remains the curious notion that the memos were “misused.”  Bybee ought to be asked — under oath — what uses he thought page after page of advice on the “proper” methods of waterboarding, wall slams, sleep deprivation, and stress positions would be put to.  He wasn’t putting his name on an article for the Wabash University Law Journal here, he was the head of the Office of Legal Counsel, responding to some deadly serious inquiries from the Central Intelligence Agency.  As Volz reports, not everyone is buying Bybee’s line:

Jameel Jaffer, director of the ACLU’s National Security Project, which filed a freedom-of-information request regarding the latest memos, said any distinction Bybee may make between the logic of the memos and their application in secret prisons is theoretical at best.

“I don’t think the August 2002 memos reflect serious attempts to grapple in good faith with the law,” Jaffer said. “These are documents that are meant to justify predetermined ends. They’re not objective legal memos at all.”

Yup.

I know — in a minor way — what it feels like to have written something I’d now like not to have written, and even to have cloaked that in regret.  Assuming for the moment that’s really the case for Bybee, I won’t pile on here about how suspicious it is that his regrets have suddenly surfaced at this late date.  That may be more his lawyers’ doing than his own.

But merely expressing regret doesn’t satisfy justice.  The question is, what should Bybee do now if he seriously regrets signing those memoranda. He could do worse than to resign his judgeship and invite legal jeopardy by explaining just what it is that he regrets.  He might debate John Yoo publicly, explaining the thousand and one things that were wrong with those memoranda.  And he should explain why he felt compelled to sign those memoranda anyway.

I have a hunch that Jay Bybee could be the John Dean of this sorry chapter in our history — the guy who blows the case wide open, who reveals the things you thought you’d never, ever have a chance of learning.

I frankly also have the feeling he won’t be, because the story suggests he tends to see himself as a passive victim of circumstances.  That would be too bad.  Jay Bybee would serve his country best — and be better off himself — if he would take responsibility for what he did, and help lead liberty, accountability, and the rule of law back into the republic he once served so poorly.

As attention focuses on the many flimsy legal arguments crafted to green light torture, it will be tempting to many to credit a “good faith” defense of the authors.  As the last of the Bush administration chiefs of the critical Office of Legal Counsel (OLC),  Steven Bradbury — not entirely disinterested in the argument — seeded his repudiations of numerous Yoo/Bybee memoranda with statements such as:

It is important to understand the context of the 10/23/01 Memorandum… the immediate aftermath of the attacks of 9/11.  … [It] represents a departure, though perhaps for understandable reasons, from the preferred practice of OLC to render formal opinions only with respect to specific and concrete policy proposals and not to undertake a general survey of a broad area of law…
(“Re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities,” 10/6/08)

In the months following 9/11, attorneys in the Office of Legal Counsel and in the Intelligence Community confronted novel and complex legal questions in a time of great danger and under extraordinary time pressure.   [...]

Neither memorandum is intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility.
(“Re: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001,” 1/15/09)

The Justice Department’s Office of Professional Responsibility (OPR) is investigating just that, however, and in an interview earlier this week, Senate Judiciary Committee member Sheldon Whitehouse (D-RI) told MSNBC’s Rachel Maddow that he had “every reason to believe it will be a devastating opinion.” Now the OPR may need to deal with a new bombshell thrown into the mix by former State Department lawyer Philip Zelikow, writing at the “Foreign Policy” web site.  After concluding that a May 30, 2005 OLC memorandum by Steven Bradbury was a dangerously flawed piece of legal reasoning, Zelikow drafted a rebuttal:

Read the rest of this entry »

The Legal Times’s Joe Palazzolo reports that Obama’s Department of Justice transition team has run into a little not unexpected difficulty:

A senior Justice Department official said today that “99.8 percent” of the department’s work with President-elect Barack Obama’s transition team has gone smoothly. The 0.2 percent snag: The department has reservations about granting the team’s request to review classified legal opinions related to secret CIA and National Security Agency programs.  [...]

The opinions, some of which have been released to Congress in redacted form, contain the legal rationale of the NSA’s warrantless spying program and the CIA’s detention and interrogation policies, among other intelligence initiatives.

A reasonable guess about some of the documents involved can be gleaned from an October 2007 list of documents OLC chief Steven Bradbury refused to release in in response to an ACLU/EPIC lawsuit , summarized by ‘emptywheel’ in “Warrantless Wiretap Memos Timeline.”*  Palazzolo continues:

In an unprecedented move, the Justice Department began providing provisional security clearances to Obama’s staff prior to the election. A select group was cleared for access to even more sensitive information, but [Attorney General] Mukasey said last week that some documents may not be made available to Obama’s staff until they take their oath of office.  [...]

The Justice official said the dispute over access to the NSA and CIA opinions has made its way up to Williams & Connolly’s Gregory Craig, who earlier this month was named to be Obama’s White House counsel. Craig was expected to meet with current White House counsel Fred Fielding to discuss the issue, the official said. It’s unclear whether such a meeting has already taken place.

Given the past eight years, it’s hard not to be suspicious that the “99.8%” cooperation is the easy stuff, for public relations.  Meanwhile, that “0.2% snag” — stuff Obama’s transition team will have to wait until January 21st for — might also be relabeled “stuff Bush will pardon people for on January 20th.”  Still, it’s interesting and heartening to learn just who is on that transition team:

Obama’s Justice Department transition team is led by Wilmer Cutler Pickering Hale and Dorr’s David Ogden. Also on the team are OLC veterans Dawn Johnsen, a professor at Indiana University School of Law; Martin Lederman, a professor at Georgetown University Law Center; and Christopher Schroeder, a professor at Duke University School of Law.

Read the rest of this entry »

Though we’ve never met, Marty Lederman, a Georgetown law professor who writes frequently for the blog “Balkinization,” is someone I hold in high esteem. As a former Office of Legal Counsel (OLC) lawyer in the Department of Justice, he has great insight into the procedures and importance of that agency. He has also been a passionate advocate against abuses of power by the Bush administration, and has been an particularly invaluable guide in the past years through the maze of treaties, statutes and legislation governing detainee treatment — and protecting their human rights.

Yet there is something quite dispiriting about some of what Mr. Lederman has written lately, specifically about legal accountability for war crimes. For what he seems to be saying is that there is none, not in this country at any rate. If I’m right about what he’s saying, and he’s right about what he’s saying, that’s a shame. If he’s not right, though, it’s a strange corner for him to have painted himself into.

The subject arose during Lederman’s discussion of Judge — and now Attorney General — Mukasey’s refusal to simply characterize waterboarding as torture. Lederman argued that “if one’s interpretative principles and legal analysis of the terms “torture” or “cruel treatment” lead to the conclusion that waterboarding is not torture or is not cruel, then a fortiori one must abandon those interpretive principles and that form of legal analysis.” (Emphasis in original). In a memorable comparison to the legal chestnut (I take it) of interpreting a law like “no vehicles in the park,” he writes,

…if, in parsing the “no vehicles” rule, one arrives at the conclusion that a souped-up Corvette may be driven through the center of the park, then that’s a pretty good clue that you need to find yourself some new interpretive principles. [...]

Waterboarding is the souped-up Corvette of the torture ban.

Lederman’s point was that, contra Ben Wittes’ article for The New Republic, Mukasey could indeed repudiate waterboarding as a “paradigmatic,” archetypal example of torture: “The bottom line is that the OLC legal analysis in support of waterboarding is indefensible — I think Ben would agree — and Judge Mukasey should simply say so.”

No prosecution for reliance on war crime advice
The gist of Wittes’ point however — and Lederman’s own point in an earlier post — was that since CIA operatives have acted in reliance on advice that waterboarding isn’t torture, Mukasey doesn’t want to pull the rug out from under them. Wittes agrees that waterboarding crosses a legal line, but understands Mukasey’s reluctance to before he’s read the latest, greatest OLC memo defending it:

…it would be very wrong for a nominee to call foul on a series of opinions which he cannot read, on which a major covert action program depends, which individuals serving their country have used to assure themselves that they operate within the law, and which happen to represent the position of the department Mukasey aspires to lead.

Lederman believes this isn’t such a big problem, though. Why? Because

[t]here is no possibility — none — that the Department of Justice would ever prosecute anyone who acted in reliance on OLC’s legal advice about what techniques were lawful. (Such a prosecution would, in my view, violate due process to the extent such reliance were reasonable…)

What Lederman seems to be reporting — no, what he is reporting — from the legal profession to those of us gathered outside in the hallway, is that the “only following orders” dodge lives. “Judgment at Nuremberg” truly was only victor’s justice, it seems; the only way a CIA waterboarder will ever face justice is if she’s tried by a foreign country that has caught her and/or defeated us. I’m not saying I’m sure he’s wrong as a practical or legal matter — how could I? I’m just summing up the news for myself.

But that’s not the half of it.

No prosecution for giving war crime advice
I wrote in to suggest it wasn’t necessarily the waterboarders themselves whose plight concerned Mukasey or his handlers. No, it was those who gave those waterboarders the “souped up Corvette” advice: the Yoos, the Addingtons, the Bybees. The precedent, I suggested, was U.S. v. Altstötter, the so-called “Judges Trial” at Nuremberg establishing — at minimum, I think — that giving the color and imprimatur of law to what are plainly war crimes against humanity is itself a war crime against humanity. No again, Lederman replies

…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. And I strongly suspect that there is no such smoking gun because John [Yoo], and Jay Bybee, did actually believe the advice they were providing was legitimate, possibly even “correct.” [...] …I think the providers of the 2002 and 2004 OLC advice probably believed in what they were writing. Or, in any event, there’s unlikely to be evidence to the contrary.*

Returning to Lederman’s first quote above, it turns out that “a fortiori” means “to the stronger” argument, i.e., “even more so,” so that Lederman was saying that a patently wrong conclusion should force abandoning the premises leading to that conclusion.

But surely it should do more than that for those of us watching such “conclusions” being drawn.

There is simply no way that you can in good faith conclude that “no vehicles in the park” means “souped up Corvettes are OK” — you are doing more than bending the rules, you’re breaking them. Likewise, there is simply no way that you can conclude in good faith that waterboarding is not torture. To employ another metaphor Lederman has discussed, secret torture analyses that speciously justified waterboarding and other horrors short of organ failure weren’t Yoo et al just getting “chalk on their spikes” — i.e., nearly going out of bounds in a football game. They were eluding tackles by running off the field, using their teammates on the sideline for blockers, and sneaking into the end zone for a touchdown. (Lederman says as much himself: “The chalk is but a distant memory there.”)

In such cases, Lederman’s prescription that brushes with the legal sidelines must at least not occur in secret is no longer sufficient — and he skids from calling waterboard opinions “souped up Corvettes in a no vehicles zone” to considering it critical whether people like Yoo and Addington believed in their own advice.

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. Like me, even lawyers — and even lawyers at the OLC — are subject to law; like me, even lawyers — and even lawyers at the OLC — must face penalties when they cause laws to be broken, or there is no reason to believe that laws will be followed.

If lawyers like Yoo and Addington find themselves solemnly advising the executive branch that waterboarding is not torture — and drafting, signing, and approving documents with legal force to that effect — then “finding some new interpretive principles” is merely the first thing that should be done. A “fortissimiori,” such advice is a patent war crime — and the advisors should face the legal penalties.

Herbert Klemm — a fortiori, John Yoo
Consider, for example, Josef Altstötter’s co-defendant Herbert Klemm, who like almost all the defendants in the case was found guilty of “war crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, and plunder of property.” (Emphasis added.) Among the specific acts proven against Klemm was his knowing complicity in torture during a stint at the Reich Ministry of Justice:

…after transfer to Berlin in 1935, the defendant dealt with acts against the State and Party and, later, the malicious acts law. In this field prosecution could be ordered only by the Ministry of Justice with the permission of the office of the deputy of the Fuehrer, which later became the Party Chancellery. It was during this period that the following circular, dated Berlin, 18 October 1937, and initialed by Klemm, was issued (NG-310, Pros. Ex. 33):

1. Criminal procedures concerning more severe interrogations by the Stapo will be dealt with centrally by Chief Prosecutor Klemm. They are to be sent to the competent co-worker Prosecutor Winkler. [...]

Klemm’s sentence? Life in prison.

Klemm deserved that punishment — even though he worked in a system that had already bent and rewritten laws to the point where they were in themselves institutionalized crimes against humanity. But if Klemm deserved punishment for his deeds in that system, then a fortiori Yoo et al do for theirs in a system that had not — yet — reached such levels of depravity.

=====
* Lederman repeats this in a post today about the re-opened Office of Professional Responsibility (OPR) investigation of the OLC.

NOTES: “U.S. v. Altstötter” — Wikipedia “Justice Trial” entry; “knowing complicity,” “life in prison” — The Mazal Library.
PREVIOUSLY: Judgment at Nuremberg, 2006/09/18.
EDITS, 11/15: subtitles added; 11/16: Judgment at Nuremberg link added.