a citizen’s journal by Thomas Nephew

“Law and the Long War,” by Benjamin Wittes – a blog discussion

Posted by Thomas Nephew on 18th September 2009

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This post announces an ambitious and possibly quixotic effort — the attempt of a legal layperson like myself to launch and carry on a discussion about Benjamin Wittes’ “Law and the Long War: The Future of Justice in the Age of Terror,” published in 2008.

Luckily, I’ll be joined in this discussion by my friend “The Talking Dog,” whose legal acumen and training — as well as self-deprecating wit and engaging writing — are always in evidence at his blog of the same name.  “TD’s” interviews of lawyers, policy makers, human rights leaders (most recently with NYU’s Karen Greenberg), and even Guantanamo detainees have been genuine journalism, and are among the finest things the American blogosphere has produced.

Our plan is to take the book chapter by chapter, at no precise schedule other than to take the chapters in sequence.  We hope readers will check Wittes’ book out from the library, borrow it from a friend, or buy a copy for themselves, so they can read along with us and join the discussions we hope for.

We’ve tentatively decided to divide the chapters up as follows:

Announcements – here at newsrackblog and the talking dog
Introduction – discussions at both newsrackblog and the talking dog
Chapter 1.  The Law of September 10 – discussion here at newsrackblog
Chapter 2.  The Administration’s Response – discussion at talking dog
Chapter 3.  The Real Guantanamo – discussion at the talking dog
Chapter 4.  The Necessity and Impossibility of Judicial Review – discussion here at newsrackblog
Chapter 5.  The Case for Congress – discussion here at newsrackblog
Chapter 6.  The Twin Problems of Detention and Trial – discussion at the talking dog
Chapter 7.  An Honest Interrogation Law – discussion at the talking dog
Chapter 8.  Surveillance Law for a New Century – discussion here at newsrackblog
Conclusion – discussions both at newsrackblog and the talking dog

To leave some time for readers to join in (and for me, at least, to gather my thoughts), our first posts about Wittes’ introduction will be sometime around the middle of next week.  At this blog, this post will serve as one “home page” for the overall effort, and the outline above will link to each post as it is written.  We’ll also try to provide “prior chapter” and “next chapter” and other useful navigational links within each post, time permitting.


Why is this worth doing?  I’m tempted to simply answer: what could be more important?  Whether it’s always clear or not, our lives and our rights are both at risk.  We have to evaluate those risks, and decide what to do about them.

For my part, though, this is also partly just an attempt to become more “fluent” in the legal underpinnings of the debates about the habeas corpus and other human rights of detainees, the costs and benefits of the expansion of executive powers,  and the conduct of international relations and military force in this so-called “long war” of ours.

There are also more immediate reasons to do so: Wittes and his book have proved quite influential, perhaps especially of late.  On its publication, the book merited extended discussion at numerous legal blogs, and gained respectful and often warm reviews in the popular media and the academic press.

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Department of followups

Posted by Thomas Nephew on 12th July 2009

An occasional review of further developments in stuff I’ve written about before.

Practice to deceive, 04/22/08 — This was a post about how several key figures like John Yoo, Douglas Feith, David Addington, and William Haynes II used outright deceit to advance the torture policies they favored. I argued that

“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?”

That, in turn, arguably speaks to a so-called “consciousness of guilt“, which can be proven by showing such deceptions and which is admissible circumstantial evidence in criminal trials.

Eric Holder: Yes We Can

The question may well be on Attorney General Eric Holder’s mind.  A number of reports over the weekend have suggested that Holder is seriously considering a special prosecutor, at least of those actors who overstepped even the loose legal limits imposed by the flawed Yoo/Bybee and Bradbury OLC memoranda.  The memo writers themselves shouldn’t rest easy quite yet, either.  At the “Daily Beast,” human rights legal expert Scott Horton writes,

As he read through the latter two documents, my sources said, Holder came to realize the focal and instrumental role that Department of Justice lawyers had played in constructing the torture regime and in pushing it through when career lawyers raised objection. He also took note of how the entire process was orchestrated from within the Bush White House—so that more-senior lawyers in Justice, sometimes even the attorney general, did not know what was being done. And he noted the fact that the United Nations Convention Against Torture, to which the United States is a party, requires that a criminal inquiry be undertaken whenever credible allegations of torture are presented.

(See also Marcy Wheeler’s comments here.)

It’s by no means clear (to put it mildly) that Holder will call for a special prosecutor; while he values the independence of the Justice Department, it can’t hurt to remind him you have his back if he bucks the likes of the West Wing Weasels (TM, but please use widely) David Axelrod and Rahm Emanuel on this.  Please avail yourselves of the opportunity to do so using the ACLU button to the right or the Holder “Yes We Can” button on the left.  You can also visit the “AfterDowningStreet” site linked by the orange “Torture is a war crime! Prosecute” button at the upper right; David Swanson is currently asking people to call or write the Justice Department at 202-514-2001 or

Weymouth: What did I know and when did I know it?, 07/09/09 — Washington Post ombudsman Andrew Alexander had a lengthy post-mortem of the “pay to play” Post ‘salon’ proposal in the Sunday, July 12 edition. Calling it an “ethical lapse of monumental proportions,”, Alexander found that early scapegoat and Post business exec Charles Pelton had in fact tried to sound out “questions about ethics […] with both [CEO K. Weymouth and executive editor Marcus Brauchli] months ago.” For their part, the two seem to have believed that their underlings’ silence at a June 24 meeting signalled consent, when of course it merely signaled wanting to stay employed:

Several [newsroom employees] now say they didn’t speak up because they assumed top managers would eventually ensure that traditional ethics boundaries would not be breached. […] Neither Weymouth nor Brauchli can recall anyone raising concerns, although both say they wish someone had. […] In an interview, Brauchli said it was his responsibility to vet the concept and that it is “understandable” that no news managers at the meeting raised a caution. “When the publisher and the editor both appear to have signed off on an idea, I think it is perhaps true that a certain complacency sets in,” he said. For that reason, lower-level managers might be less inclined “to stand up and say: ‘Whoa, this is a bad idea.’ ”

Ya think? Alexander draws on interviews with Weymouth and Brauchli for the piece. Meanwhile, in “Veteran editors offer advice to the Post,” Northwestern media ethics professor Loren Ghiglione displays a keen eye for the main chance: “The board has audit, compensation and finance committees. Why not one focused on the company’s values and ethics, headed by an ethics prof?” Oh hell, why not.

On the irrelevance of “Balkinization in particular and the legal profession in general, 05/25/09 — In an irritated post I decried the growing irrelevance of the legal blog ‘Balkinization’ to ongoing, urgent issues such as torture, the abrogation of habeas corpus at Guantanamo and elsewhere, and other abuses of executive power — all matters that the blog had once been at the forefront of covering.

Of late, though, there have been a number of posts on precisely these subjects, including ones by Jack Balkin, (“The Inspector General’s Report and The Horse that is Already Out of the Barn Door“, “We believe that anyone suspected of war crimes should be thoroughly investigated“)  Sandy Levinson (“A further disappointment from the Obama Administration“, and newcomer Deborah Pearlstein (“Post-Acquittal Detention“).

While I don’t agree with all of what they have to say, I agree with a lot of it.  Regardless, it’s all worth reading — and it’s rarely wise to generalize too much along the lines of “the dog that didn’t bark” with blogs or the busy people who are taking time out to write them.  I shall meditate on my impatience.

NOTES: links to my posts are highlighted in gray and dated. Washington Post item via Yglesias.

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Reactions to the Obama and Cheney speeches

Posted by Thomas Nephew on 22nd May 2009

Word cloud of Obama’s speech, via Aziz
. Originally uploaded by abde,
used here by permission.

President Obama and former Vice Torturer Cheney gave much-anticipated speeches in Washington on Thursday. I tend to agree with critics who are a little weary of Obama’s trademark eloquent lip service to constitutional values and rule of law, while belittling those who actually insist on defending it as “finger pointers.” For me, Obama’s most telling lines were these:

…the recent debate has been obscured by two opposite and absolutist ends.

On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: “anything goes.” Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants – provided that it is a President with whom they agree. Both sides may be sincere in their views, but neither side is right.

That first part sounds like a bit of payback for a reportedly testy meeting between Obama, high level staff, and leading civil liberties advocates in the White House on Wednesday, in which “one of the attendees warned the President he was letting George Bush’s policies become his own […] Obama was not pleased by that characterization.” Thanks a bunch for using weasel words like “little allowance” and “almost never” while balancing off the ACLU, CCR, HRW, and HRF against a miscreant like Cheney — a tired “if they’re all mad at me, I’m doing something right” approach.  Yet it’s been groups like these — far more than Obama’s own party — who have been plinking away at U.S. government excesses these last 8 years; it’s an open question whether Obama would be president at all without their work.

Of course, Obama looks and sounds great compared to Cheney:

Some are even demanding that those who recommended and approved the interrogations be prosecuted, in effect treating political disagreements as a punishable offense, and political opponents as criminals. It’s hard to imagine a worse precedent, filled with more possibilities for trouble and abuse, than to have an incoming administration criminalize the policy decisions of its predecessors.

No, it’s hard to imagine a worse precedent, filled with more possibilities for trouble and abuse, than to have an incoming administration shrink from prosecuting the crimes of its predecessors for the sake of expediency.

Trouble is, Obama sees that as some kind of unseemly food fight:

I understand that it is no secret that there is a tendency in Washington to spend our time pointing fingers at one another. And our media culture feeds the impulses that lead to a good fight. Nothing will contribute more to that than an extended re-litigation of the last eight years. Already, we have seen how that kind of effort only leads those in Washington to different sides laying blame, and can distract us from focusing our time, our effort, and our politics on the challenges of the future.

With that, here are some reactions from other respected writers in the blogosphere and among activists.

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About those photos — Part II

Posted by Thomas Nephew on 21st May 2009

Obama image, with slogan 'But We Won't'

In the previous post, I took up some of Aziz Poonawalla’s defense of Obama’s decision to resist the release of photos showing past detainee abuse — principally the notion that the risks posed by the release were particularly great, or outweighed the benefits. As noted there, my original comment didn’t fully address the arguments Aziz made in his second post, “release the prisoner abuse photos – but not right now“;  I attempt to do so here.

OK, just release them later
When exactly? Aziz (emphasis his own):

These photos will need to be released someday, and there will indeed need to be a full accounting and formal congressional invetigation, backed by force of law, regarding American policy towards detainees during the Bush Administration. However, with the resurgent Taliban in Pakistan (incidentally increasing its nuclear stockpile), the utter helplessness of Mayor Karzai against the Taliban in Afghanistan, and the increasing power of Al Shabab in Somalia, total transparency can wait.

It is not altogether unfair to reply to this, “That is, never.”  It is quite fair to reply, “that’s not what Obama said”:

…the individuals who were involved have been identified, and appropriate actions have been taken. It’s therefore my belief that the publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals.

End of story.  However generous Aziz’s timetable for the release of the photos may be, there’s no discernible timetable whatsoever in Obama’s remarks.  The photos, so Obama would have us believe, are at most Appendix C material in some dusty military history book thirty years from now.  He has no plans to release them.  Ever. But Obama’s critical argument — and one that Aziz repeatedly echoes — is that only a “small number of individuals” were involved.  Aziz formulates the distinction as criminality versus official, explict policy:

…we must draw a clean and clear distinction between what happened at Abu Ghraib and the official, explicitly sanctioned policy of waterboarding of detainees at Guantanamo Bay. The former were criminal actions that were not sanctioned by any military or government official, though of course the sheer sadistic brutality of the abuse gave rise to typical conspiracy theories.  […] To attempt to force the issue now, by drawing a false equivalence between torture policy and criminal abuse, is to undermine the very real war going on, one in which ordinary muslims are still the primary victims, at the hands of those who do far worse than anything we have done.

Abu Ghraib was the fruit of the Bush/Cheney torture tree
But that equivalence is not false.   The connections between what happened in Abu Ghraib, Afghanistan, and the torture, humiliation, and abuse at Guantanamo are manifold, direct and undeniable.  Officers like Major General Geoffrey Miller and Captain Carolyn Wood who oversaw the torture and abuse at Guantanamo and Bagram, respectively, were in leadership roles for Iraqi detainee operations (including Abu Ghraib) before the abuses there took place, and relied on guidance from the highest levels of the Pentagon to authorize their deeds.  As early as 2004, Miller confirmed the use of abusive techniques including

hooding, sleep deprivation, time disorientation and depriving prisoners not only of dignity, but of fundamental human needs, such as warmth, water and food. The US commander in charge of military jails in Iraq, Major General Geoffrey Miller, has confirmed that a battery of 50-odd special “coercive techniques” can be used against enemy detainees. The general, who previously ran the prison camp at Guantánamo Bay, said his main role was to extract as much intelligence as possible.

As a summary (by Brian Knowlton of the New York Times) of a Senate Armed Services Report declassified in April puts it:

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About those photos — Part I

Posted by Thomas Nephew on 21st May 2009

Obama image, with slogan 'But We Won't'

A few days ago, my friend Aziz Poonawalla published a couple of posts — “Obama is right not to release the prisoner abuse photos” and “release the prisoner abuse photos – but not right now” — on his “City of Brass” blog.  I disagreed and posted a somewhat lengthy comment to that effect at Aziz’s second post.

While I stand by that comment, on review it didn’t fully engage the arguments of the post it was attached to (“release later”) as well as it (perhaps) did those of Aziz’s initial post (“right not to release”).  Since Aziz has graciously asked me to make a post out of my comment and engage in a fuller dialogue about the issue, I’ll try to correct that here, in a couple of posts.

Right not to release the prisoner photos?
In his first article, Aziz echoes Obama’s statement to the press that the photos are “not particularly sensational” when he argues that

…If these photos had new information in them – for example, abuse of children, as alleged by Seymour Hersh, then in the interest of justice they should be released. But Obama says he has personally reviewed the photos, and I am inclined to give him the benefit of the doubt when he says that they contain nothing significantly new.

Publishing these photos would ensure the next day they are plastered across newspapers throughout the middle east. I have argued in support of a ban on aerial bombardment in Pakistan and a disavowal of collateral damage as acceptable military doctrine on the grounds that these policies harm our cause by providing recruitment for our enemies and turning the muslim public against us; release of these photos would have much the same effect.

…and draws essentially the same puzzling conclusion Obama does; in Obama’s words, a release “would not add any additional benefit to our understanding” ; rather, “…the most direct consequence would be to further inflame anti-American opinion.”

Both Aziz and (more importantly, of course) President Obama make arguments here that seem narrowly crafted to the situation at hand, but carry disturbing implications for future decisions.  Based on Obama’s statements, are we truly to believe that Obama would not oppose the publication of photos that did contain “significantly new” elements, let alone “sensational” ones?  Viewed through the prism of Obama’s own description — again, “not particularly sensational,” “[no] additional benefit to our understanding” — these photos are among the revelations least likely to inflame anything .  As I argued in my comment:

By these arguments — trust the President, we elected him to make these decisions, it might harm the troops — you would or should have agreed that Abu Ghraib photos shouldn’t have been released. The combat situation was far more explosive then than it is now, plus the photos revealed something qualitatively new. Neither is the case now; I therefore strongly dispute whether American soldiers would be additionally disadvantaged by their release.

Obama’s arguments are far more important than the question of these particular photos, for they all but slam the door on his administration being forthcoming about any misdeeds on its own watch in anything resembling “real time.”*

Just as troublingly, Aziz’s support (and that of other committed Obama supporters) suggests that’s OK with elements of Obama’s base.  Now, Aziz is by no means a knee jerk Obama supporter — as his call for a ban on aerial bombardment shows.  (Nor — needless to say for those who’ve read him over the years — does he support torture or abuse in any way.)  Nevertheless, the trouble is that in this case, his position strongly resembles — indeed, is effectively indistinguishable from — those of died-in-the-wool Bush administration supporters when the first inklings of torture and abuse were reaching us in 2003 and 2004.

Taken at face value, Obama’s arguments (and Aziz’s echoing arguments) prove too much: on these bases, there will never be enough reason to release information of this kind.  As ACLU lawyers Jameel Jaffer and Amrit Singh argue:

…the fundamental problem with the government’s argument is that it lacks a limiting principle.

Any photograph of prisoner abuse, civilian casualties in Afghanistan, or U.S. military operations in Iraq could be used to “inflame anti-American opinion”; indeed, the same is true of any news article that discusses (for example) torture, Guantanamo, or the CIA’s secret prisons.

To give the government the power to suppress information because it might anger an unidentified set of people in an unspecified part of the world and ultimately endanger an ill-defined group of U.S. personnel would be to invest it with a virtually unlimited censorial power.

Finally, as long as we’re weighing imponderables, it’s important to recognize that revealing such information could have benefited U.S. stature abroad, even in the Muslim world — perhaps especially now, when it was allegedly risky to do so.  As I argued in my comment (link added):

A second point, however hard to believe, is that the US stature in the world is strengthened when we show we will not shrink from confronting our own excesses. I rather think Obama has hurt himself rather than helped himself with his upcoming Cairo speech. Muslim critics will be right to say “words are fine, but when push comes to shove, Obama lets his generals push him around — he won’t even keep his promises to his own supporters, let alone to us.”

That’s enough for one post.  In the next one, I’ll take up some of Aziz’s (and other writers’) arguments that they’re for releasing the photos later — just not right now.  Aziz makes the error (in my view) that there’s an important, bright line distinction to be made between the photographed, but allegedly completely unofficial abuses documented at Abu Ghraib and the still unseen, but “explicitly sanctioned” policies like waterboarding at Guantanamo.

CROSSPOSTED to “City of Brass.”
* It’s particularly rich in this respect that Obama fretted, in his statement to the press, about the possible impact on whistleblowers should the photos be revealed. It’s not clear to me yet whether the particular photos involved here were provided by whistleblowers or simply confiscated from perpetrators.  But getting information out is presumably the point of what whistleblowers do; on the face of it, Obama’s last minute intervention in this case mainly proves that he supports suppressing embarrassing information or images, even when the arguments for doing so are weak.

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A nationwide, government organized system of cruelty and injustice

Posted by Thomas Nephew on 18th May 2009

What we once aspired to.

From “Judgment at Nuremberg“:

…the charge is that of conscious participation in a nationwide, government organized system of cruelty and injustice in violation of every moral and legal principle known to all civilized nations. The Tribunal has carefully studied the record and found therein abundant evidence to support beyond a reasonable doubt the charges against these defendants.”

I’m put in mind of this again today, after reading the Editors’ succinct summary of the Bush-Obama era verdict (so far) on torture:

We’ve got what amounts to a reverse Nuremberg defense, where Bush administration officials are let off the hook because they were only giving orders. I’m not sure that’s such a great idea.

Perhaps the single most important property of a “right” is that you can’t let anyone — anyone — pretend to be able to choose who gets it and who does not. Or it isn’t a right. Yes, at least some of the people who were waterboarded (or abused and tortured in other ways) were in all likelihood people who’d committed crimes and had information. But many were not, and knew nothing.  You can’t tell which is which just by their looks or where “on the battlefield” you happened to pick them up.  The rights we accord to the worst of us and the rest of us protect all of us — or should: it’s happened here, too, not “just” at Guantanamo or Bagram or some conveniently invisible site in Eastern Ruthenia or Godforsakistan.

The words (written by Abby Mann) from the verdict in “Judgment at Nuremberg” remain uncannily apt:

“…this trial has shown that under a national crisis, ordinary — even able and extraordinary — men can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination. […]

There are those in our own country too who today speak of the “protection of country” — of “survival.” A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient — to look the other way.

Well, the answer to that is “survival as what?” A country isn’t a rock. It’s not an extension of one’s self. It’s what it stands for. It’s what it stands for when standing for something is the most difficult!

Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth, and the value of a single human being.

But we won\'tIt is therefore deeply regrettable to me that a President I worked to elect would stand in the way of revealing even a single fact about the misdeeds of the United States government, let alone stand in the way of an organized fact finding commission and eventual prosecution of the wrongdoers.

This really is not complicated. Laws were broken. Morality so basic even laboratory rats demonstrate it was broken. That those responsible were government officials, soldiers, and others who claim to “keep us safe” — but do the opposite, as their own unending bleats for secrecy reveal — is a reason for urgency in investigating and punishing the wrong-doers, not delay. That such action may prove controversial should be a point of pride to those in the right, not a source of concern or even a moment’s lost sleep.

Obama is the chief law enforcement official of the United States.

He has a duty.

He should do it.

I regret to say that I do not believe that he will. He must therefore be prodded, provoked, and opposed until and unless he does.

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Rice: “If it was authorized by the President, it did not violate our obligations”

Posted by Thomas Nephew on 1st May 2009

Via Hullabaloo, here is some remarkable amateur footage of former Secretary of State Condoleeza Rice being questioned (on Monday) by students in Stanford University’s Roble Hall dormitory.  The whole thing is worth watching — from between your fingers — as Rice puts on a surreal performance:

1ST QUESTIONER [3:30]: …even in World War II, as we faced Nazi Germany, probably the greatest threat that America has ever faced, even then…
RICE [3:37]: With all due respect, Nazi Germany never attacked the homeland of the United States.
1ST QUESTIONER [3:44]: They bombed our allies.
RICE [3:46]: Just a second. Three thousand Americans died in the Twin Towers and in the Pentagon.
1ST QUESTIONER [3:52]: Five hundred thousand died in World War II, and yet we did not torture the prisoners of war.
RICE [3:55] (waving finger no): …And we didn’t torture anybody here either.
1ST QUESTIONER [4:00]: We tortured them in Guantanamo Bay.
RICE [4:03]: No.  No, dear. You’re wrong. You’re wrong.  We did not. torture. anyone.  And Guantanamo Bay by the way was considered a model quote [makes air quotes] medium security prison by representatives of the Organization for Security and Cooperation in Europe who went there to see it.  Did you know that?
1ST QUESTIONER [4:20]: Were they present for the interrogations?
RICE [4:22]: No – did you know that the Organization — just answer me — did you know that the Organization of Security and Cooperation in Europe said Guantanamo was a *model* medium security prison?
1ST QUESTIONER [4:20]: No, but I feel that changes nothing.
RICE [4:33]: No – did you know that?
1ST QUESTIONER [4:35]: I did not know that but that…
RICE [4:36]: All right, no,, now wait a second if you didn’t know that, maybe before you make allegations about Guantanamo you should read.  All right?  Now, the ICRC also had access to Guantanamo, and they made no allegations about interrogations at Guantanamo.  What they did say is that they believed that indefinite detention — where people didn’t know whether they could come up for trial — which is why we tried through the military commissions system to let people come up for trial.  Those trials were stayed by whom?  Who kept us from holding the trials?
1ST QUESTIONER [5:17]: I can’t answer that question.
RICE [5:18]: Do your homework first.

Passing over Rice’s implication that defeating Hitler was both optional and easy, it turns out (via 2PoliticalJunkies) that the alleged OSCE “stamp of approval” came from a guy who tagged along with an OSCE delegation, but  — according to the OSCE — was “not employed or commissioned by the OSCE” and whose views should “not be taken as being made on behalf of the 55-nation body.”

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On Broder’s “Stop Scapegoating”

Posted by Thomas Nephew on 27th April 2009

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?
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Bybee’s choices matter more than his regrets

Posted by Thomas Nephew on 26th April 2009

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.”


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.

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“Please let us know if we may be of further assistance”

Posted by Thomas Nephew on 24th April 2009

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:

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