That Article 17 Problem
Today it looks like the international interest in prosecuting the Bush lawyers is heating up once again. The Spanish central criminal court has apparently decided, notwithstanding the Spanish attorney general's intervention, that it will charge forward in the case against the Bush Six. Indeed, it seems to be reading all the documents that come out of Washington as they break, because the investigating magistrate has expanded his case to take into account and he opinion reflects special attention to the OLC memoranda and to the Senate Intelligence Committee's play-by-play recounting of the steps involved in the creation of the OLC memos. At the same time, Judge Jay Bybee, who has kept quiet up to this point, has decided to answer a series of questions put to him by the New York Times. He wrote those opinions in good faith, he insists to the paper of record. He holds to the same views today.
My, Jay Bybee sounds an awful lot like his fellow memo writer, John Yoo. No apologies. Not even an "oops, I must have missed that case."
But there's a reason for all this. Jay Bybee and John Yoo are both good enough lawyers to realize that their best defense to the criminal charges that are now hurdling their way (first from Madrid, but perhaps from Washington a little later) is to argue "good faith." Namely, they must insist that the memos reflect their best effort at legal analysis and the views staked out in the memos are views they honestly reflect. And this is a point that civil debate will almost immediately concede to them.
Let me go on record. I consider this "good faith" defense to be a sure looser. Why? Neither Bybee nor Yoo is an incompetent lawyer. But these memos are legally, professionally incompetent. And there is a reason why. Bybee and Yoo strained to give their friends in the White House (and the CIA) "clean opinions," unencumbered by a real discussion of the law. So even the 1983 Reagan administration waterboarding prosecution is suppressed, not to mention the long list of earlier cases (some of them meting out capital punishment to the offenders--something you think the reader might want to know, right?) Did Bybee and Yoo just miss this? Did the Department of Justice forget to pay its Lexis bills? Were all those volumes of case reports just checked out of the library? Fat chance.
Karen Greenberg's book, Least Worst Place, gives us a very compelling answer. It's found in a passage in which Will Taft (who emerges from all of this as a minor hero who genuinely believes the values that he articulates) relays a discussion he had with John Yoo. He didn't understand why there was such ferocious pushback against the Geneva Conventions--why not just accept and live with these standards? America had done so for fifty years. The room got quiet, and Yoo said, "We have an Article 17 problem."
That was a key point. Article 17 says, "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war," and John Yoo and the others did not want to have to agree to that. Taft understood what was going on, and he fought back. The State Department team wrote a memo calling Yoo's opinion "seriously flawed" and "fundamentally inaccurate." They were saying that John Yoo's lawyering was incompetent.
But we learn from Greenberg's book that there was a point to all of this. Yoo's analysis of the law was dishonest. It was driven by a need to get a certain result--to introduce a system of torture of the prisoners. He was intent on twisting the law to get all the restrictions out of the way.
Good-faith opinion writing? I think not.
Good-faith opinion writing? I think not.
No doubt correct. But will we be able to prove it in a court of law?
April 29, 2009 4:39 PM | Reply | Permalink
"He (Bybee) wrote those opinions in good faith, he insists to the paper of record. He holds to the same views today."
Of course Bybee wrote those opinions in the good faith that writing them would get him a judgeship on a Federal Court. It did.
April 30, 2009 10:54 AM | Reply | Permalink
The one advantage of conducting investigations and airing out all this dirty laundry is that the people responsible and their enablers will be identified and prevented from coming back with a vengeance under a future Republican Administration.
Had the Iran-Contra scandal been thoroughly investigated and the perpetrators, including possibly Dick Cheney, punished, the last eight years would have been much different.
Unless the perpetrators of these war crimes are identified and punished, the next time will be even worse.
April 30, 2009 11:09 AM | Reply | Permalink
conspiracy to introduce and implement a regime of torture
I'm betting that the dinosaurs involved in this atrocity left electronic trails as wide as a four lane highway--you can burn paper, but you can't burn internet packets.
April 29, 2009 4:51 PM | Reply | Permalink
I don't know about that--partly because you can hire people to burn your internet packets for you, but also because conspiracy is so easy to do without having to directly speak about it. Like-minded people seek one another out, and just by agreeing on five specific things, they know that they agree on the sixth as well.
April 30, 2009 2:36 AM | Reply | Permalink
Yeah nobodies ever destroyed White House emails before.
April 30, 2009 2:54 AM | Reply | Permalink
"But these memos are legally, professionally incompetent."
Pardon my political incompetence, but that's mere opinion. Can you point to the exact problems in for example the Bybee-Rizzo memo of Aug 2002 which make it legally, professionally incompetent? I've looked at that one, and it's one which went directly to the CIA in 2002.
If not, you're writing fiction or merely regurgitating hearsay treading into the realm of libel (defamation). There's a lot of hot air about how bad these memos are, but so far it's a lot of smoke and little to no fire.
April 29, 2009 5:52 PM | Reply | Permalink
La, la, la, la, la,.....I can't hear you!
April 29, 2009 6:47 PM | Reply | Permalink
Excellent Hoppy! You've got me heartily chuckling. Thanks!
April 30, 2009 2:17 AM | Reply | Permalink
eds,
I don't get your defamation angle but I too would like to know exactly what point of law would be brought forward to accuse Bybee of a criminal act.
April 29, 2009 9:44 PM | Reply | Permalink
You can think of it as hyperbole. Public figures can generally be attacked with impunity, so calling some public figure or their work product "incompetent" won't get you a lawsuit.
As for criminal charges, that would be something. I don't even get what's so damned awful about the Rizzo memo which is the one sent directly to the CIA and thus the most obvious candidate for a "cover story" for torture (as alleged by many). The Gonzalez memo is more iffy, imo. But my position is that focussing on the memos misses the larger picture of how the memos were used or abused by Ashcroft, Gonazalez, or others.
April 30, 2009 4:19 AM | Reply | Permalink
The one advantage of conducting investigations and airing out all this dirty laundry is that the people responsible and their enablers will be identified and prevented from coming back with a vengeance under a future Republican Administration.
Had the Iran-Contra scandal been thoroughly investigated and the perpetrators, including possibly Dick Cheney, punished, the last eight years would have been much different.
Unless the perpetrators of these war crimes are identified and punished, the next time will be even worse.
April 30, 2009 11:11 AM | Reply | Permalink
I'm definitely not in favor of sweeping radioactive dust under the rug!!
April 30, 2009 3:16 PM | Reply | Permalink
It depends on how this unfolded.
Scenario 1: The Bush Administration asked Jay Bybee and John Yoo for advice on what interrogation methods are legally permissible. Bybee and Yoo provided the Administration with their good faith opinions on what the law allows. Under this scenario, I have trouble seeing how Bybee or Yoo could be convicted of a crime. Even if Bybee and Yoo provided incompetent opinions, they were still acting only as legal advisors. At worst, they might suffer civil repercussions (like disbarrment).
Scenario 2: The Bush Administration informed Jay Bybee and John Yoo what interrogation techniques it wanted the CIA intended to use and then asked them to provide an opinion to assuage operatives' concerns about that the techniques were criminal. Bybee and Yoo then crafted the best argument they could make that the techniques were lawful. Under this scenario, I would say that Bybee and Yoo have crossed the line from legal advisors to criminal accomplices. Instead of providing the client with their assessments of the law, they are using their profession to help their client commit torture.
I suspect that reality lies somewhere between those two scenarios. Scott Horton apparently believes that the reality is closer to Scenario 2 because he considers Bybee and Yoo competent attorneys but thinks the memos are clearly incompetent. I'm inclined to agree with him. I would, however, concede that the incompetence of the memos might be explained by the authors' professional judgments being clouded from the events of 9/11 rather than bad faith.
April 30, 2009 3:29 PM | Reply | Permalink
That is a useful dialectic. Well said.
It's not the only frame at issue. I would love to hear Bybee defend his competence, and apparently some in Congress have invited him to do so. But that as a public hearing would mostly be for theatre of a kind I don't generally go fo.
April 30, 2009 3:34 PM | Reply | Permalink
Sorry, forgot to follow up re Framing...
It's possible that some or all of the memos are competent while being far from brilliant, while not being so bad as to warrant disbarment etc. We mostly have the opinions of Bush era antagonists at this point. And nobody except maybe Cheney and Limbaugh, wants to be seen as defending torture, so it's easy to believe that the "charges" of incompetence (re the persons or the products) are a bit trumped up. The Bybee-Rizzo memo is clearly aimed at a very narrow question, for instance. If Bybee was asked to review 2340 in a specific view, where's the beef, regardless of your frame of 1 vs. 2, when it comes to this memo?
April 30, 2009 3:41 PM | Reply | Permalink
I think that my comment here addresses your question above. Let me know if I misunderstand your point.
April 30, 2009 4:31 PM | Reply | Permalink
replied there. My main point here was that there is more than one frame at issue.
April 30, 2009 4:46 PM | Reply | Permalink
Mr. Horton, would you consider a slight alteration of phrase that might resolve eds' dilemma:
Rather than "legally, professionally incompetent" I would suggest "professionally, legally incompetent."
I think it's important to be clear that in this case Mr. Bybee's legal "incompetence" could have been an important part of his being a most excellent professional.
Hence: professionally, legally incompetent.
****
And with regard to our attempts to understand and respond to this professional, legal incompetence:
The journey from hearing what people said, to drawing conclusions about what they meant is always a tricky one, but it's a huge part of good judgment.
For example, Jesus was known to say that one should "render unto Caesar what is Caesar's, and unto God what is God's." Some folks take that to mean that people should pay their taxes and listen to the police, but in the context of the rest of what Jesus was up to, the better judgment is that Jesus was pointing toward the idea that there is a higher moral authority than politicians of the day might admit. (We can argue about whether he was correct or not, but it's fairly clear what he was trying to say.)
In the case of the torture memos, hey, there's always going to be some way to construct a legal argument for anything. It's important to be careful in evaluating one argument against another and to leave room for other opinions, but at the end of the process, it's not simply a question of bias one way or another. There's expertise involved, and in the end, the argument that holds more legal weight and...dignity...for lack of a better term, is the one that will hold.
I think (and of course I could be wrong) that when we have this discussion that eds considers fiction, hearsay or even metaphysics--making moral judgments about the people who wrote these memos--we are actually attempting to get at the foundational ideas and laws that put the lie to the memos. It's not a flighty discussion, but a foundational one, and it sounds flighty because for so long we've had the relative luxury of not having to consider too much what our rules and laws really mean.
Back in the last lazy century a fellow ennui junkie and I were listening to some of our politically passionate Romanian expat friends arguing about one Horrifying Iron Curtain Governmental Atrocity or other, and my friend leaned over and whispered "My God, what must it be like to actually BE Romanian?" After eight NeoCon years, I have a better sense of why they cared.
***
It's not out of the question that the people who put this torture thing together (and indeed, who engineered the whole NeoCon power grab) knew that at some point things could go wrong and they might have to plead a golly-jeepers stupidity far below their pay grade, a sort of lawyerly "I was drunk at the time" defense. They may shake their heads, cry a few tears and say they were "legally, professionally incompetent," but the weight of the evidence, if we care to look for it, will show that they were "professionally, legally incompetent."
So--you go, eds, every defendant needs a public defender. Your insistence on following the detailed logic by which this little band of Caesars resolved their Rubicon Cube (TM) is laudable and perhaps even useful. However, I think you need to be prepared for the idea that when the foundational arguments--the ones with real weight--roll in, they are going to reveal that Cheney et al pretty much busted that thing up with a hammer and glued it back together in a way that suited them.
(And ok, that's what I did with my Rubik's Cube, but I wasn't running the country.)
April 30, 2009 2:29 AM | Reply | Permalink
That's mostly fair enough. I do understand that there is more to life than evidence, we could say that people use such discussions to "polish their concepts" and mean that in a good way (work the kinks or knots out of their confused notions thus clarifying deeper concepts or values). I do that myself a lot -- putting things into words helps me think straight, or bouncing ideas off of other people helps.
In the face of a lot of vague conceptual buckle polishing, I do sometimes take an apparently adversarial evidenced-weighted position. One reason to do this is that not all conceptual bloviating amounts to good polishing, some of it needs to be "attacked" or corrected.
I don't mind admitting I might be playing the role of Fool, or Court Jester, for some.
"The journey from hearing what people said, to drawing conclusions about what they meant is always a tricky one, but it's a huge part of good judgment."
We don't know if particular judgments are "good" overall until the opera is over, right?
I do think the focus on Bybee is wrong-headed at this time. Not sure about Yoo, I have not read his memos closely. But I think the Principals Committee deserves inspection. If Yoo et al fashioned the "legal bullets" which killed decency and the rule of law, others surely pulled the trigger. Was it criminal misconduct, was it egregious, was it not illegal but still immoral by broadly held standards, ... ?
I look forward to the Spanish Inquisition's progress. For 6 years I've held that Bush&Co needed convictions (though not about torture per se, rather in re Iraq in general).
April 30, 2009 3:31 PM | Reply | Permalink
Eds:
You are trying to defend the indefensible. Even the interrogators knew that what they were doing was both wrong and illegal. Why do you think that in every video that has been published showing waterboarding, the interrogators are wearing hoods?
If the interrogators thought that what they were doing was all good and legal, and they were proud of what they were doing, there would be no reason to wear those hoods.
April 30, 2009 11:18 AM | Reply | Permalink
You're kidding right? The only video I've seen was a demonstration video.
"Even the interrogators knew that what they were doing was both wrong and illegal."
I don't know that for a fact in all cases. I'm sure that homicide exceeds the limits, and I've said so. But I'm not defending such conduct at all.
So, was your comment a joke or not?
April 30, 2009 3:45 PM | Reply | Permalink
Scott Horton answered your question here:
One of the main reasons that the memos are professionally and legally incompetent is that they failed to address the relevant precedents that Horton mentions. A lawyer engaged in advocacy might choose not to rely on certain adverse precedents, but a lawyer advising a client has a duty to thoroughly consider relevant precedents. These memos were issued by OLC, so they ought to have been legal advice, not legal advocacy.
April 30, 2009 3:06 PM | Reply | Permalink
Not Rizzo. You're making the same mistake as is discussed down the page in http://tpmcafe.talkingpointsmemo.com/2009/04/29/that_article_17_problem/index.php#comment-3452965 and my reply to that, as I see it.
Rizzo did not ask for a wide-ranging literature study.
April 30, 2009 3:50 PM | Reply | Permalink
I disagree strongly. In the United States, legal analysis is fundamentally about analogizing or distinguishing precedents. An attorney who is asked for an specific opinion about whether waterboarding meets the definition of torture found in 18 USC 2340 can only give that opinion by examining the relevent precedents. That's not a "wide ranging literature survey". That's basic legal analysis; it's how it's done in a common law system like ours.
A person reading those memos might think that the question of whether waterboarding is torture is an entirely new. In fact, the United States has a long history of prosecuting waterboarding as torture, but you would never know that from the memos. The memos aren't saved by the fact that those prosecutions weren't done under 18 USC 2340A (which hadn't been enacted yet). For the memos to be competent, the author would still need to explain why that difference distinguishes those cases from the instant question. Its entirely possible that there is a valid way to distinguish those earlier prosecutions -- perhaps the definition of torture used then was so broad that those cases tell us nothing about 18 USC 2340. The point is that the author didn't do that analysis in the memo.
It's not the conclusions of the memos that render them incompetent. These memos are incompetent because the authors failed to follow the legal reasoning process -- analogizing or distinguishing precedents -- that all lawyers are trained to employ.
April 30, 2009 4:27 PM | Reply | Permalink
Maybe you're right. I'd like to see an expert rebuttal if there is one. I do agree that Bybee's definition of "severe" seems ad hoc. But the memo doesn't even pretend to do what you say it should have, and that makes me think that you're missing the mark on what its legal intent was (nevermind any political intent). If the memo cited some case law but left out contrary but relevant case law, I could see that as incompetence or misconduct. It was written for Rizzo. Is that a reason why it's not filled with 100s of footnotes etc?
I did not know that 2340 was not law at the time. Or did you mean 2340A was an amendment in process at the time? If so, was Rizzo written in a forward thinking way, and maybe to guide the CIA in its response to 2340/A drafts in Congress?
The Gonzalez memo does have more citations.
April 30, 2009 4:45 PM | Reply | Permalink
Just to clarify, I meant that the U.S. torture statute (18 U.S.C. 2340A - 2340B) hadn't been enacted yet at the time of the prior waterboarding prosecutions. I know little about those prosecutions, but the most recent one I've seen referenced is the 1983 case that Scott Horton mentions above. The torture statute was enacted in 1994.
I'm not sure how the fact that the memo was written for CIA General Counsel John Rizzo might make a difference. Could you explain your thinking?
April 30, 2009 5:03 PM | Reply | Permalink
Oh, silly me.
What I'm wondering is what was the purpose of the memo which would frame the intent (legal or political). That is not evident in the opening section of the memo (as I recall it). Anti-Bush folks assume that the sole (or at least main) purpose was a whitewash, or a criminal conspiracy. While part of me would love for proof of this to come out, my "due process" side calls for more evidence and less extreme theory or pattern-matching. I remain a pessimist, but I hear a bunch more stuff is just coming out this week.
April 30, 2009 5:34 PM | Reply | Permalink
I agree that the central question is the purpose of the memos. Because the memos came from OLC, their purpose ought to have only been to advise the administration about the law. I think that Scott Horton presents a convincing, but not conclusive, argument that the purpose was corrupt. That's why I would like to see the issue thoroughly investigated.
April 30, 2009 6:12 PM | Reply | Permalink
Thanks again for the extended discussion.
We await further buzz or info as the case may be!
April 30, 2009 10:25 PM | Reply | Permalink
Here is one speculative analysis regarding the declassified torture memos. They went into great detail about specific acts. They described just how to waterboard, for instance. That could indicate that agents in the field offered some push-back against what they were being instructed to do. They knew they could be in legal jeopardy. They wanted specific authorization for specific acts or they would not do them.
If they had been instructed to pull out fingernails the memos would have specified how many nails could be pulled out and what kind of pliers would be used.
April 30, 2009 6:19 PM | Reply | Permalink
That has plausibility. Field agents wanted something showing that HQ had ordered borderline or suspect methods. But it doesn't necessarily point to any criminal or immoral conduct by Bybee (my main focus) or others in OLC.
Again, the memos do not read to me as "permission slips". If they were used that way, find out who used them that way and how they were used.
I figure the Principals Committee felt they had to do whatever they legally could to get info out of high value suspects. Did they go too far? The devil might be in the details.
April 30, 2009 10:29 PM | Reply | Permalink
I still don't see how this amounts to bad faith on Yoo's part.
His client wanted a legally cognizable theory that would shelter its treatment of foreign-born detainees as something other than torture, and the whole enterprise of secret prisons and extraordinary rendition as something other than a war crime. He provided one. Unlike your normal attorney - who has to advise his client of the theory's expectation of success in light of the facts and the opponent's expected argument - Yoo never had to worry about persuading disinterested outsiders.
I won't argue the ethics ramifications, but how you can hold Yoo or Bybee criminally liable for their opinions, I don't know.
April 29, 2009 7:37 PM | Reply | Permalink
What makes you think that the opinions rendered by Yoo and Bybee were their own? It seems more likely that they were writing the opinions wanted by Dick Cheney.
April 30, 2009 11:22 AM | Reply | Permalink
As attorneys in the Office of Legal Counsel, Jay Bybee and John Yoo's job was to act as legal advisors, not as legal advocates. Here is the difference: A legal advisor researches the law and then offers the client his or her disinterested opinion on what the law requires. A legal advocate researches the law and then constructs an argument to support his or her client's position.
The charge against Bybee and Yoo is that they acted as legal advocates (i.e., that they did precisely what you write: constructed a "legally cognizable theory" to meet their client's needs) instead of performing their duties as legal advisors.
April 30, 2009 2:45 PM | Reply | Permalink
Not quite. The memos are not briefs submitted to a court, thus they are not advocacies in that sense. Maybe this is too fine a point and I'm in over my head, but that's my gut reaction. You're providing a false frame, whether you are correctly reporting on some real debate which is falsely framed or you are just speaking for your own views here.
I've heard about how some memos "authorized torture" etc. But I don't see Rizzo or Gonzalez from Bybee as being a permission slip. What I do see as possible is that others, say the Principals Committee, abused the memos as permission slips when dictating down the chain of command. This gets into the mess of "just following orders".
April 30, 2009 4:52 PM | Reply | Permalink
Even if the memos weren't advocacy briefs submitted to a court, the charge that many critics make of Jay Bybee and John Yoo is that their legal argument is more in the nature of legal advocacy than legal advise. That charge is made because the memos fail to address obvious counter-arguments. Explaining counter-arguments is something that a legal advisor must do so that the client can make a fully informed decision. (In may ways, its how lawyers CYA.) An advocate, however, might choose to disregard counter-arguments.
Perhaps this will clarify: I'm not claiming that the memos were actual advocacy briefs.* Instead, I am saying that Byboo and Yoo are accused of improperly writing the memos in an advocacy manner.
(*Although, if you believe that the memos were drafted to persuade other administration lawyers with their legal reasoning - remember there was significant disagreement within the administration about the legality of these techniques - then the memos could be called actual advocacy documents.)
April 30, 2009 5:24 PM | Reply | Permalink
I understand your position. The truth is generally subject to attack from all sides, and some attacks are warranted. Those attacks can help clarify or distinguish the truth more clearly.
I don't know enough about practical legal ethics (or the details of ethical legal practice!) to take this further in that direction. I do think it comes down to specifically what they were asked to do; rules of thumb are only general guidelines and 'advocacy' is clearly ambiguous if not ambivalent.
Thanks for the discussion.
April 30, 2009 5:41 PM | Reply | Permalink
put the facts in front of a jury.
claims by bybee and yoo that this was good faith analysis simply do not pass the smell test.
the clearest cut proof that bybee and yoo were lacking in good faith are their claims that torture raised tricky questions of law in conjunction with their failure to address any of those "tricky" issues in their analysis.
April 29, 2009 7:49 PM | Reply | Permalink
So, did he mean that they had an Article 17 problem vis a vis things they had already done, or that they had an Article 17 problem with respect to how they wanted to proceed.
Either is bad, but the exchange with Taft would have been pretty early on. Still the Jan 2002 Gonzales memo that seeks to sell the President on using the "enemy combatant" approach seems to speak in terms of things already done when it talks about how using the term will help with avoidance of the War Crimes Act applications.
April 29, 2009 7:55 PM | Reply | Permalink
eds writes:
"But these memos are legally, professionally incompetent."
Pardon my political incompetence, but that's mere opinion. Can you point to the exact problems in for example the Bybee-Rizzo memo of Aug 2002 which make it legally, professionally incompetent?
I can point to a big one.
Bybee never mentions that waterboarding has been considered (and prosecuted by the USA) as a war crime.
He ignores precedent -- incompetence is a rather benign interpretation of Bybee's advice. Our entire body of law is based in applying precedent, and Bybee's client deserved to be warned of the danger of following such a course of action.
Bybee, as a lawyer is obliged to conduct thorough research into the factual basis of the issues he is advising on. This either wasn't done, or he deliberately omitted any information that argued against the course of action that the Bush administration wanted to have rubber stamped.
April 29, 2009 8:05 PM | Reply | Permalink
Horton mentions a 1983 case under Reagan.
April 30, 2009 12:20 AM | Reply | Permalink
No, he was not asked, as far as that memo goes, to make an exhaustive study of precedent. Rizzo is quite clear. It's about 2340. If he had been asked, in that specific instance, to discuss the legal history in general, Rizzo would look entirely different. Your view is just not credible at all.
See, this is the problem. People blur lines and then get all upset at their own illusions. When their upset can focus on something tangible, they might become a lynch mob. Then regardless of whether they lynch someone, their attention is distracted from the true culprit.
April 30, 2009 3:49 PM | Reply | Permalink
I don't see how a trained attorney can answer the specific question of whether waterboarding falls within the 18 USC 2340 definition of torture without mentioning the United States' history of prosecuting waterboarding as torture. As I explain here, that is fundamentally at odds with my understanding of what it means to provide competent legal advice.
April 30, 2009 4:40 PM | Reply | Permalink
So basically you're saying that Bybee should have rejected the request for a narrow analysis (assuming that is what he was asked for) or provided better foundation?
You seem to be pretty well-informed about attorney practices. Have you read other opinions or memos from Bybee in other contexts which contrast sharply with these two from this context? That might highlight some deviation from his professional practice.
April 30, 2009 5:27 PM | Reply | Permalink
I wouldn't phrase it that way. I would say that a narrow request to render a legal opinion on whether waterboarding falls within the 18 USC 2340 torture definition is a request to analyze the relevant precedents. That's inherent in any request for a legal opinion. If they were asked to look only at the plain language of the statute, without considering relevant precedents, then they should have stated that in the memo.
I don't have any particular familiarity with the work of Jay Bybee or John Yoo. I'm speaking from my own training and experience as a government attorney (state, not federal).
April 30, 2009 6:04 PM | Reply | Permalink
What would be the purpose of asking a lawyer for an opinion about torture without reference to his specific expertise which is case law?
Absent any discussion of precedent as per your satisfaction, what else did Bybee have available to offer in the way of legal advice? (Note: I did read all four OLC memos.)
Answer: Just what Bybee provided -- responses tailored from Rizzo's not fully accurate representations about the importance of Abu Zubaydah to Al Qaeda, the pre-EIT mental health of Zubaydah, and the benign nature of SERE techniques.
Whether Abu Zubaydah was high-ranking or not makes no difference to a legitimate interpretation of 2340. Bybee is incompetent (or worse) to not have made this point.
Bybee was professionally reckless to rely upon Rizzo's word as to the mental health of Zubaydah especially since he was going be the person putting his signature on a justification for coercive physical treatment of the prisoner. Just because someone is healthy isn't a caveat in the prohibition of torture under 2340.
And for Bybee to equate the prospective use of U.S. military survival school techniques -- in which the participant can cry uncle -- with their use upon a non-voluntary subject does not just constitute faulty logic, but negligence to a degree that Bar Associations have trouble ignoring.
Bybee may be your idea of a upstanding lawyer, but he is anything but that in reality. His OLC memo of August 1, 2002 is the proof.
BTW his omission of precedent -- no matter how much you like it -- is a classic example of the legal principle of non-feasance. (And doesn't speak too highly of his professional aptitude.)
Of course, Bybee knows all about his responsibilities in this respect and was crafting a fraudulent covering opinion that was never intended to be made public. It was so bad that it was repudiated by Bush's Justice Department in December 2004. But not before it had been relied upon for its intended purpose.
April 30, 2009 6:21 PM | Reply | Permalink
There are two quite different Aug 1, 2002 Bybee memos. I'm mostly talking about Rizzo. I have no idea what you are talking about outside of your imagination. :(
"reckless"? No.
Really, your whole demeanor on this topic is rude and crude when it's not just outright wrong-headed. I'm not going to clean up your many messes for you here.
April 30, 2009 10:24 PM | Reply | Permalink
There is only one August 2002 Bybee memo, not two. The other three OLC memos were from 2005, and written by Steven Bradbury. You are talking out of your ass, or purposely trying to muddy the water.
You say, "I'm mostly talking about Rizzo." Wrong, your challenge was for commenters here to make the case that Bybee's legal advice was problematic.
Your exact words were, "Can you point to the exact problems in for example the Bybee-Rizzo memo of Aug 2002 which make it legally, professionally incompetent?
I demonstrated this to be the case by pointing to the lack of citation of precedent. But when that didn't satisfy the requirements of your clearly inadequate grasp of the law, I was able to show other professional shortcomings in Bybee's memo.
Face it, you are on the wrong side of this issue factually, legally, morally, and politically.
Don't feign the high road here by saying that I was "rude and crude" when I had not previously been.
You are the one who is making apologies for torturers, the high road is not open to the likes of you.
May 1, 2009 9:17 AM | Reply | Permalink
Thanks for your excellent comments, Clive. And particularly for pointing to the Yoo-and-Bybee-accepted assumptions that the proposed torture process would not be harmful. I myself am interested in the raw data and the pscych assessments which Bybee's assumptions were based on. Because I too am completely convinced that not only did the lawyers practice malfeasance but so too did the psychologists practice unethically and immorally. They drew completely incorrect conclusions from dubious "research," proceeded to do unethical "research" on human subjects, incarcerated without benefit of legal recourse, and they violated the principle of "First do no harm." Plus conflicts of interest in many ways.
This gets away from the thrust of your legal arguments, but has bearing because these OLC lawyers did not do due diligence to get accurate facts, whether psychological or legal.
May 1, 2009 12:06 PM | Reply | Permalink
The Rizzo memo is this one cited by Propublica so you're the one blowing smoke out your ass, and continuing the rudeness you started:
copy paste from propublica site:
8/1/2002 Jay S. Bybee, Assistant Attorney General, OLC
Determines whether a specific interrogation was torture
This memo contains the OLC's views on whether the tactics used in a specific interrogation constitute torture, based on details provided by the agency requesting the opinion. The memo concludes that the personnel carrying out the interrogation didn't have specific intent to cause severe pain to the detainee, and therefore, didn't torture that person. A heavily redacted version of this memo has been released, but its substance remains secret.
Document: A heavily redacted version of the memo was made public by the ACLU. On Apr. 17, 2009, the memo was released by the Obama administration.
Recipient: John Rizzo, Acting General Counsel of the CIA
May 1, 2009 4:10 PM | Reply | Permalink
and here is the Gonzalez memo ref. of the same date:
8/1/02 Jay S. Bybee, Assistant Attorney General, OLC
Redefines torture
This memo determines that interrogation techniques should be considered torture only when they inflict pain as severe as that accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. The memo is titled RE: Standards of Conduct For Interrogation Under 18 U.S.C. ßß 2340-2340A.
Document: Made public by the Washington Post
Recipient: Alberto R. Gonzales, Counsel to the President
May 1, 2009 4:15 PM | Reply | Permalink
It is just not credible that either Yoo or Bybee was making a good faith effort to do anything other than justify an otherwise illegal program of torturing prisoners.
This sort of "good faith" metastasized all over the Bush administration during it's 8 year reign of error and most particularly in the Justice Department. Please recall the laughable political hacks that were not only leading the department but also doing the real legal legwork. Their mission was never about upholding the law, bu bending the law to their political aims and preferences. In this instance, the preference was to make it okay to torture prisoners despite the fact that all involved from the very first instant knew quite well what constitutes torture and that it is entirely illegal without exception under our domestic law and international law.
Recall how Ashcroft and then Gonzales ran the DOJ in a way that deliberately selected hacks for key apointed posts and packed the civil service positions with the ideological spawn as well. The ends justifies the means mentality was rife throughout the DOJ and the Bush administration. Their political hackery crossed the line into plain old lawlessness when they began to view legal opinions as licenses to do whatever they wished on any number of issues. In this case, torture, it was highly sensitive and the mindset of using the law to justify the means clearly was in play.
We saw how in the District Attorney fiting scandal how Bush loyalists didn't hesitate to lie outright or portray illegal and unethical behavior as good faith efforts to run the department in a professional manner. These were all transparent lies from people who had deluded themselves into thinking that their rinky dink political games would never be questioned or found out because they had always operated under some legal cover or excuse. The torture laws do not allow this out even a little bit.
But this didn't start or stop at the doorways of Yoo and Bybee. This train rolled right out of the oval office and the office of the Vice President as well as the Secretary of Defense. All involved need to be investigated and where evidence warrants, they should be prosecuted and let the chips fall where they may. Have we not had enough of these people and their lies on every conceivable subject and in every conceivable issue of corruption and lawbreaking?
April 30, 2009 2:29 AM | Reply | Permalink
"Have we not had enough of these people and their lies on every conceivable subject and in every conceivable issue of corruption and lawbreaking?"
I've had about enough of yours.
Otherwise illegal? You mean their memos MADE torture legal?? Now you are the one without credibility, dude.
April 30, 2009 3:55 PM | Reply | Permalink
The thing I don't get about you is how you are so frequently rude and personal without any cause whatsoever. I have seen you do it to many people. I think you should examine that part of your presence here. If you got rid of it, you would actually gain some credibility. But your habit of being rude and personally insulting to people for no reason is just silly.
As for your comment, you either deliberately miss the meaning in what I wrote or you are (once again) trying to find a technicality to hang your rude hat on. Well, sorry, but I'm not biting. I am sorry that you either can't understand or are just disagreeable for the sake of it. I can't help you out and actually feel sorry for you, though I'm at a loss as to why.
April 30, 2009 10:01 PM | Reply | Permalink
It's your life and your delusion. I won't try to force you to "see the light".
"The thing I don't get about you is how you are so frequently rude and personal without any cause whatsoever. "
That would generally be ZERO times, so dunno why I am so polite nor why you need to post so rudely and at such irrelevant lengths! But I will say that your inability to discern grounds for what you call my frequent rude and personal conduct here is only your own failing. You'll have to trust me on this, it's not topical that I can see even if it could make a good analogy for the failings I often discuss in the larger topical debate.
Does that make us even?
April 30, 2009 10:35 PM | Reply | Permalink
A rant well worth it, oleeb! (and your other comments are on target as well)
May 1, 2009 12:09 PM | Reply | Permalink
No pal. You are rude, over and over again, not just to me but frequently to others on this board. It's totally unjustified.
You sometimes (rarely, but on occasion) have a point to make, but typically you're just a naysayer who is rude. So why don't you just cut that ill-mannered crap out and stick to your naysaying? What I'm trying to say, since I know you're kinda slow on the uptake, is that you can make your points without being personally offensive which you quite often are for no good reason. Just use some manners.
May 1, 2009 2:19 AM | Reply | Permalink
Sorry to all, this is a reply to eds above. He's got a rudeness problem.
May 1, 2009 2:23 AM | Reply | Permalink
I believe you've already been answered. Why are you rudely pontificating ad nauseam here?
Don't offer insult in the first place. Don't take insult where it's not offered. Too hard? Sorry. Lighten up and say more with fewer words.
Just some advice for you...
May 1, 2009 3:38 AM | Reply | Permalink