a citizen’s journal by Thomas Nephew

A fortiori

Posted by Thomas Nephew on November 15th, 2007

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.

3 Responses to “A fortiori”

  1. Nell Says:

    Thank you; this is a post that really needed to be written. I’ve gotten more and more and more uneasy reading Balkinization over the last couple of months, and I can’t escape the feeling that it has to do with the (relative) imminence of the return to power of people ML worked for.
    The idea that OLC staff are somehow immune from accountability is poison. The general lassitude about accountability on the part of many commenters is deeply disturbing, but it’s especially unsettling from someone who’s contributed so much to our understanding of the breaches committed under this regime.

  2. Thomas Nephew Says:

    Thanks for this comment, Nell; sorry for leaving it unanswered until now. I was trying to not “pile on” here in some fashion before Mr. Lederman had a chance to respond. In an e-mail since then, he said thanks for engaging the topic, but didn’t respond to the substance of what I said. I suppose/hope he’ll post on the general topic again sometime and we’ll see more of his thoughts.

  3. » Blog Archive » Practice to deceive Says:

    […] 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 […]

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