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Reprimands for torture
May 5, 2009 2:42 PM Subscribe

"An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted... The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions..." Meanwhile, "former Bush administration officials are launching a behind-the-scenes lobbying campaign to urge Justice Department leaders to soften" the report.
posted by Joe Beese (51 comments total) 4 users marked this as a favorite

Yes, disbarment is clearly way too harsh of a punishment for drawing up legal arguments to authorize torture. What about community service instead? Maybe working weekends at the Salvation Army. If they can work it into their schedules.
posted by Marisa Stole the Precious Thing at 2:52 PM on May 5, 2009

"The United States participated actively and effectively in the negotiation of the Convention . It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called 'universal jurisdiction.' Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution." - Ronald Reagan, signing statement, UN Convention Against Torture.

What was that about the republicans being the party of Reagan?
posted by mullingitover at 2:57 PM on May 5, 2009 [2 favorites]

Why not just prosecute the actual persons ordering the torture?
posted by Ironmouth at 3:11 PM on May 5, 2009 [5 favorites]

While I see the argument for not prosecuting the lawyers who drafted the memos in general, one has to ask: if this is not a serious enough "lapse in judgment" to demand prosecution, what would be? Surely acting in good faith only goes so far.
posted by selenized at 3:12 PM on May 5, 2009

Why not just prosecute the actual persons ordering the torture?

Yes.
posted by The World Famous at 3:12 PM on May 5, 2009 [2 favorites]

[I]n future what lawyer in his right mind would want to work for that office in the government?

How about an ethical one? I guess I could see how that would pose a problem.
posted by Blazecock Pileon at 3:14 PM on May 5, 2009 [13 favorites]

Disbarment should be the absolute minimum for anyone found guilty of such a negligent interpretation of what is considered allowable.

However, since criminal prosecutions are not going to be forthcoming, might I suggest some other alternatives which are, by these people's own estimations, perfectly acceptable:

The opinions permitted the C.I.A. to use a number of interrogation methods that human rights groups have condemned as torture, including waterboarding, wall-slamming, head-slapping and other techniques. The opinions allowed many of these practices to be used repeatedly and in combination.
posted by quin at 3:17 PM on May 5, 2009

When I was young and still had a now-charming faith in the powers of reason (which, in the distance of age, is not unlike remembering the hat your imaginary friend wore), I wondered if it would ever be possible to construct a calculus of ethics. Some terrible act = x units of badness. That x could be totaled up through smaller units of culpability, x₁, x₂ ... x_n, over all of the responsible parties.

I'm interested here in how the responsible parties want to take themselves out of the loop. As if they were printers, or fax machines, and these memos were only transmitted through them by a divine voice.

I suppose I could accept that, so long as that culpability piled up somewhere. Like on a desk with something reading "The buck stops here."
posted by adipocere at 3:20 PM on May 5, 2009 [3 favorites]

Remember when the ABA Journal named Alberto Gonzales 'Lawyer of the Year'?

That, combined with this, make me want to cock-punch everybody in the higher echelons of the goddamned profession until they start inhabiting the same reality as the rest of lesser pedestrian-type folk.
posted by bhance at 3:23 PM on May 5, 2009 [2 favorites]

Is it in bad taste to find humor in disbarring the lawyers, but not criminally prosecuting them? They're no longer upholding the standards of lawyers, but are they criminals? Eh, not quite.
posted by filthy light thief at 3:23 PM on May 5, 2009

russilwvong, Ironmouth, et.al. made some good points on this topic a bit back (I seem to have meandered aimlessly, m'self) Convinced me, anyway.
So I think following prosecution based on some sort of omission or based on the opinion is misguided.
On the other hand - if the advice was specifically tailored to suit the administration's position, that would seem to be a whole other kind of deal, ethically.
Though I think it's misleading (in the NYT piece) to say "The opinions permitted the C.I.A...." since the opinions, stupid as they are, didn't give the order.
(I also think the "to use a number of interrogation methods that human rights groups have condemned as torture" is vacillating b.s., there's no question it was torture)

"What was that about the republicans being the party of Reagan?"

Yeah, the Dems are all over themselves with compassion.
posted by Smedleyman at 3:24 PM on May 5, 2009 [1 favorite]

Are the lawyers really the ones you want criminally prosecuted?
The real criminals are too powerful to be touched. That pisses me off, too. But don't let that be an excuse to go after somebody - anybody - just because you crave some kind of justice.
posted by rocket88 at 3:25 PM on May 5, 2009

If the lawyers involved in this, who were acting in good faith (despite what you may think) are eventually persecuted for it, perhaps professionally ruined, and maybe even imprisoned, then in future what lawyer in his right mind would want to work for that office in the government?

If you think advocating torture can be done with good faith, we're not going to be able to talk about anything, because I don't know what those words mean when you use them.

See, this is easy.

Torture is wrong, and illegal. This is obvious -- the clear statement and intent of the law and our treaties is that this is wrong. Indeed, it has been considered so since the very start of this country, which is why we bar "cruel and unusual punishments." Torture is that without due process of law -- a double whammy.

Anyone being paid to advise the President who tells them that this is untrue is, at best, criminally incompetent, at worst, is in active conspiracy.

So, if the definition of a lawyer in his right mind is who honestly believes that torture is legal, and will make a good faith argument to assert this position, then I want them to stay out of government. And if the definition is one who thinks that because we prosecuted lawyers who helped make this happen means that they will be prosecuted for acting in a legal, professional manner, then I really don't want any right-minded lawyers in government, because they're stupid.
posted by eriko at 3:29 PM on May 5, 2009 [18 favorites]

Theft, robbery, murder, fraud, etc. can all be attributed to "serious lapses of judgment" but for some reason the consequences are a bit harsher.
posted by chillmost at 3:32 PM on May 5, 2009 [1 favorite]

As above, "good faith" my ass.

One of these opinions was procured from a lawyer parked in the Bush White House until the 9th Circuit position opened up for him.

This is the kind of hiding behind institutional legalism bullshit that we set up Nuremberg to prosecute.
posted by mrt at 3:34 PM on May 5, 2009

Have any of you actually read the Bybee memo?
posted by The World Famous at 3:39 PM on May 5, 2009

adipocere: "I'm interested here in how the responsible parties want to take themselves out of the loop. As if they were printers, or fax machines, and these memos were only transmitted through them by a divine voice."

Dr. Rice would like to emphasize that she did not authorize torture. She only conveyed someone else's authorization.
posted by Joe Beese at 3:41 PM on May 5, 2009

Dr. Rice would like to emphasize that she did not authorize torture. She only conveyed someone else's authorization.

Acting out of good faith is certainly an interesting rhetorical progression from just following orders. Condie just needed to get with the hip new lingo our Young Turk lawyers are now throwing down.
posted by Blazecock Pileon at 3:47 PM on May 5, 2009

There's an "unintended consequences" aspect to this business. If the lawyers involved in this, who were acting in good faith (despite what you may think) are eventually persecuted for it, perhaps professionally ruined, and maybe even imprisoned, then in future what lawyer in his right mind would want to work for that office in the government?

Maybe people who are not planning on breaking the law.

The OLC exists because it's needed. But if no one with any skill and talent will work for it, out of fear, then all you get are incompetent hacks, which means the rate of bad advice coming out of there will increase in future.

The purpose of the OLC is not to come up with justifications for whatever the president wants. The purpose is to tell the president what is and is not legal. If they don't know whether or not something is illegal, then they shouldn't have the job in the first place.

Have any of you actually read the Bybee memo?

I was waiting all day for it to get posted, because I heard that it was the most "extreme". I read it right away, and actually it was pretty well written and easy to read, hardly a dense thicket of legal jargon or anything like that, perfectly straightforward. I found it pretty fucked up. To me it actually seemed like it was written in a sort of lighthearted way, almost as if the author found the material kind of funny. Particularly memorable was the choice of a "caterpillar" as an example of the kind of insect that would be placed in the box with a prisoner. A caterpillar is probably the cutesest and least frightening insect you could think of, and it seemed like mentioning it that way was kind of a joke, as well as a kind of way to minimize what was being talked about.
posted by delmoi at 3:58 PM on May 5, 2009 [8 favorites]

President Obama, a man of good will and sharp political instincts, seems willing and sold on the idea of "moving on. For some reason or other, some people in our govt refused to forget crimes that had taken place and would not accept "taking orders from above" as a justification.
posted by Postroad at 4:05 PM on May 5, 2009 [1 favorite]

In the book, The Dark Side by New Yorker reporter Jane Mayer, she suggested there was a turf war between CIA and FBI related to interrogations of "war on terror" detainees. She wrote that when CIA Director George Tenet learned that it was the FBI agents whose “rapport-building” approach resulted in valuable intelligence from Zubaydah Tenet sent in a CIA team in April 2002, led by Dr. James Mitchell, a psychologist under contract to the agency, to take over the interrogations, which became more aggressive.

Mayer wrote that when Mitchell arrived he told Soufan and the other FBI agent that Zubaydah needed to be treated “like a dog in a cage.”

Mitchell said Zubaydah was “like an experiment, when you apply electric shocks to a caged dog, after a while he’s so diminished, he can’t resist.”

Soufan and the other FBI agent argued that Zubaydah was “not a dog, he was a human being” to which Mitchell responded: “Science is science.”

I'm guessing no prosecution for this "good faith actor" either.
posted by Joe Beese at 4:12 PM on May 5, 2009 [2 favorites]

I find it distressing that these horrible things happened and there will be no consequences for any of the bad actors, many of whom have a get tough on crime mentality. Well they committed crimes and its time to do the time.
posted by caddis at 4:20 PM on May 5, 2009

If waterboarding isn't torture, perhaps it would make a good punishment for these lawyers and their "serious lapses of judgement".

Hell, let's use it for ALL serious lapses of judgement. I'll bet it would work great on these driving-while-texting jerks.

They terrify me, so doesn't that make them terrorists?
posted by chronkite at 4:29 PM on May 5, 2009 [1 favorite]

Ah! Republicans- once lead by the likes of Charles Sumner who argued during the civil war:

A humane and civilized people cannot suddenly become inhumane and uncivilized. We cannot be cruel, or barbarous, or savage, because the Rebels we now meet in warfare are cruel, barbarous and savage. We cannot imitate the detested example.

Sumner was a leader of the Radical Reconstructionist Republicans, nowadays radical republicans can be viewed for your online pleasures depicted as a bunch of clowns. Here is a picture of Benjamin Wade so we all can remember the days when the Republican party was full of win and greatness. Every time I read about the republican shenanigans of late I'm going to go remind myself of what once was, and morn a little for all of those who have strayed from the path of righteousness and justice.
posted by zenon at 4:33 PM on May 5, 2009 [1 favorite]

"Have any of you actually read the Bybee memo?"

This guy? (Read it because it brought up the Vuckovic thing)

"Torture is wrong, and illegal. This is obvious -- the clear statement and intent of the law and our treaties is that this is wrong."

Torture is wrong. But the question of where the limits are hadn't really been explored. Bit like the Larry Flynt thing but from the other side. Pornography is illegal, but what, exactly, is pornography? What's acceptable and what isn't?

I'll grant that if someone comes to me and says "Hey, how far can I go to seriously fuck up a prisoner without it being torture?" ahmana sort of back off from that, but I'm not a lawyer nor was I tasked by the government to plumb those limits.
But, like pornography, interrogation isn't a science.
Now the question of whether they should have tasked professional interrogators as to what the most effective means were aside (and they damned well should have), they asked their lawyers - 'can we do 'x'?'

Their lawyers gave them legal counsel. That is what lawyers are supposed to do. You should not prosecute a lawyer for that any more than you should prosecute a lawyer who, say, defends/advises/etc. a child pornographer because child pornography is obviously wrong.

Now, should they be prosecuted for the *way* they gave the advice to act as an excuse - 'b-bu-but our lawyers said!' - for the administration? Yeah, I think so. But you'd have to prove that's how it went down. Which, given many of the facts at hand, shouldn't be too hard to do, I'd think.

Not to say that the advice isn't insidious and hell, downright evil on it's own merits, but it's just advice. Where it crosses the line is where it's alloy with a political agenda and so, to my mind, prosecutable (I made this same argument in the thread I referenced earlier regarding Dr. Wilhelm Stuckart).
But I will say Ironmouth's (et.al) arguments on rule of law convinced me to rethink the matter and take a different tack.
I don't think merely giving legal advice on any subject no matter how odious should be prosecutable, because of the rule of law, because there needs to be speech between legal counsel and a client that is protected and - mostly - because I'm concerned that certain elements in the law should be immutable especially in a case where 'everyone knows' something is wrong (such as Flynt and pornography).

With the caveat that we can split hairs all day but, yeah, of course I think they should be prosecuted (just not for the subject of the advice part), there are good reasons courts, legal systems, et.al. had not specifically defined torture - no one wants to get too close to the subject and risk being a torturing bastard.
posted by Smedleyman at 4:34 PM on May 5, 2009 [1 favorite]

Soufan and the other FBI agent argued that Zubaydah was “not a dog, he was a human being” to which Mitchell responded: “Science is science.”

Allow me to Godwin the thead and just commend those two on their ode to Joseph Menegele. They are fine upholders of the technical end of fascism.

Also, "good faith"? That kind of statement shows someone's true colors, I think. It's ok cause they're Muslim terrorists, right?
posted by Burhanistan at 4:42 PM on May 5, 2009

Here's my idea. These are lawyers paid for by tax dollars. Can they be sued for malpractice by taxpayers?
posted by Pliskie at 4:44 PM on May 5, 2009

Smedleyman: "Torture is wrong. But the question of where the limits are hadn't really been explored."

Nonsense.

Ronald Reagan’s Justice Department thought otherwise, prosecuting a Texas sheriff and three deputies for using the practice to get confessions.

Federal prosecutors secured a 10-year sentence against the sheriff and four years in prison for the deputies. But that 1983 case – which would seem to be directly on point for a legal analysis on waterboarding two decades later – was never mentioned in the four Bush administration opinions released last week.
posted by Joe Beese at 4:51 PM on May 5, 2009 [4 favorites]

The lawyers weren't there to give "advice" their (official) job was to declare what was legal and what wasn't. When you are using pain, fear and humliation to extract confessions, you are torturing. In addition, nearly every torture technique that was employed had previously been determined to be torture, and people had in the past been prosecuted by the U.S. for employing those techniques. Waterboarding, sleep deprivation, humiliation, stress positions, these things have been around FOREVER. They are not new, and the law is perfectly unambiguous in regards to their usage. It is illegal, always. There's no need to speculate about what if the lawyers were merely providing cover for a conspiracy to torture. That is what they were doing. They are war criminals, and deserve to be prosecuted as such, just as we have done in the past. It is only by completely forgetting the past that we can even have this debate.

Politicians believe that they can break the law and get away with it. They believe this because it is true. When someone powerful is caught committing a crime, no matter how heinous, immediately one hears about forgiveness, mercy, moving forward, coming together, healing wounds, etc. And the cycle begins again with the next clown to hold office. There is only one way to disabuse politicians of this notion. That is to put some of them in prison.
posted by Humanzee at 5:06 PM on May 5, 2009 [4 favorites]

Waterboarding, Interrogations: The CIA's $1,000 a Day Specialists

According to current and former government officials, the CIA's secret waterboarding program was designed and assured to be safe by two well-paid psychologists now working out of an unmarked office building in Spokane, Washington.

Bruce Jessen and Jim Mitchell, former military officers, together founded Mitchell Jessen and Associates.
. . .

"It's clear that these psychologists had an important role in developing what became the CIA's torture program," said Jameel Jaffer, an attorney with the American Civil Liberties Union.

Former U.S. officials say the two men were essentially the architects of the CIA's 10-step interrogation plan that culminated in waterboarding.
. . .

The new documents show the CIA later came to learn that the two psychologists' waterboarding "expertise" was probably "misrepresented" and thus, there was no reason to believe it was "medically safe" or effective. The waterboarding used on al Qaeda detainees was far more intense than the brief sessions used on U.S. military personnel in the training classes.

posted by Kirth Gerson at 5:09 PM on May 5, 2009

Can they be sued for malpractice by taxpayers?
No. Individual taxpayers don't have legal standing to sue in a case like this. They rarely do have such standing.

The people who need to be prosecuted are the political officials who ordered this treatment, and the individual soldiers, contractors, and CIA agents who conducted torture. Every single person who actively participated in or authorized torture is criminally liable. "Just following orders" or "just doing their jobs" aren't excuses for illegal conduct, for the simple reason that superior officers do not have the power to give you authority to torture, any more than they have the power to authorize murder or rape. Soldiers are legally obligated to refuse illegal orders, even if the result is professional censure or other personal jeopardy.

It seems that the Obama administration is relying on the entrapment by estoppel defense, which prevents prosecution of people who acted under legal advice from a government official. I think the key point here is that, in order to use the defense, the reliance on this advice must be "reasonable," at least according to my understanding of United States v. Lansing. If someone tells you that it's OK to drown a prisoner, is reliance on such a statement ever reasonable? Further, the defense embraces the "concept of unintentional entrapment by an official who mistakenly misleads a person into a violation of the law." And that's where the thought process behind these OLC statements are REALLY important - if the statements were produced by attorneys who knew that they were not reasonable interpretations of the law, then from my reading of United States v. Tallmadge no one can claim entrapment by estoppel based on them. Can someone with please correct me if I'm wrong about this?
posted by 1adam12 at 5:25 PM on May 5, 2009 [2 favorites]

Kiss the Era of Human Rights Goodbye: What Bush Willed to Obama and the World
posted by homunculus at 6:08 PM on May 5, 2009

I apologize... but I need to quote this again:

there was a turf war between CIA and FBI related to interrogations of "war on terror" detainees... when CIA Director George Tenet learned that it was the FBI agents whose “rapport-building” approach resulted in valuable intelligence from Zubaydah Tenet sent in a CIA team in April 2002, led by Dr. James Mitchell, a psychologist under contract to the agency, to take over the interrogations, which became more aggressive.

Let's be clear. George Tenet unleashed this human vermin in a physician's coast and his henchmen torturers. Not due to a "ticking time bomb". Not out of zealous devotion to his country. Quite the contrary. He was actively undermining its security.

No, George Tenet put a human being to torment because he was losing an interdepartmental pissing contest.

And George W. Bush awarded him the Presidential Medal of Freedom.
posted by Joe Beese at 6:27 PM on May 5, 2009 [5 favorites]

Mengele would be proud. Disgusting all around. Fuck the DoJ. To the Hague.
posted by fourcheesemac at 6:52 PM on May 5, 2009

It might take the Hague, and if it does there is one more layer of American independence and power that was peeled away by Bush. He thought he was making us stronger, but in his fear, and really I think this was mostly Cheney's fear, he made us so much weaker. Dick Cheney did more to weaken this country than Osama ever could. He is such a fearful man, he must have had a terrifying childhood, yet the country, and perhaps the world, will pay the price for his angst.
posted by caddis at 7:21 PM on May 5, 2009 [2 favorites]

Has Mitchell gotten his ass kicked by the APA?
posted by kldickson at 8:33 PM on May 5, 2009

It's my understanding that, under the Convention banning torture, we don't have a choice; we must prosecute. For Obama and his JD to not prosecute makes them accomplices.
posted by Pope Guilty at 10:03 PM on May 5, 2009 [4 favorites]

"When you are using pain, fear and humliation to extract confessions, you are torturing."

If someone sits me down in a room and asks me if I'm a child molester, that's pretty humiliating, no?
Vagaries aside, what constitutes torture is clear. That's not what I'm saying. Where the techniques approach torture was at issue, what powers the President has to authorize in time of war was at issue (and given congress has pretty much abdicated their role in declaring war over the past 60 years, is it that much of a stretch, logically, to say "hey, maybe the president can do whatever he wants"). And again, I'm not saying that's not an invalid assertion, quite the contrary, I'm merely saying that prosecuting the matter in such a way risks injuring the law and, worse, turning any prosecution into another Ollie North trial.

You're going to tell me that there's any way North should have walked? And yet, he did.
Go that route and the subject can be drowned in this "war powers of the president" b.s. "maybe we messed up" blah blah blah - and all the other things that can be argued - not validly, but effectively - as giving advice and it will look like a witch hunt and those people will walk.

Argue from the position that what they did was in service to a political agenda and you can mirror the Nuremberg trials.
The fact of the matter is most people don't know what the hell effective interrogation is.
On something like this, the terms, the focus, the objectives, have to be absolutely crystal clear.
Now, I'm willing to cut Humanzee slack because A. I know what he's talking about; B. I agree with what he's talking about and C. this is informal and I'm not Mr. Precision in language myself, so hey.

But in any prosecution you're going to have to show the difference between valid interrogation and torture because it's going to be so political and visible. What happened in Texas doesn't matter. What waterboarding is doesn't matter - it makes people feel better, even if it doesn't work, and often ESPECIALLY if it's inhumane. Hell, they don't even want to know about it, they're just signing a blank check.
("I don’t want to know how they stop terrorist attacks…just as long as they do it."
Posted by Brad Franko )

What has to be shown is that the Bush administration was not trying to protect U.S. citizens from terrorism, but rather, manufacture evidence in order to invade Iraq.
That is not as hard as it sounds. You already have loads of expert interrogators yelling at congress for help to make the field manual the end all be all bible.

They will gladly, copiously, delineate the line between what is effective interrogation and what isn't. They would gladly attest to whomever would listen that inhuman and/or abuse interrogations degrade the quality of information and damage the rapport building expert interrogators depend on. That there are time tested methods that yield actionable information and above all high confidence information in contrast to information gained from torture in which a victim (it's the only apt name) will say anything to stop it.
That interrogators are trained experts and technicians and that waterboarding, depriving someone of sleep, beating on them - mirrors Nazi techniques only because the Nazis later in the war had lost all of their expert interrogators and relied on amateurs - meaning even the Nazis knew better, but had to devolve into this rinky dink b.s.
But some people stop there, lay it off on negligence. I don't. They wouldn't take the techniques from SERE, stuff they knew was used by the communists to force false confessions, et.al. in order to glean information.
And the fact of it, the fact they used it, has already been well established (Kiriakou, Hayden, f'ing Cheney said it outright)

Some of you are arguing these people, lawyers included, should be prosecuted because torture is bad. You had lawyers, high ranking officials, plenty of military lawyers, the FBI and a lot of the other alphabet soup outfits in the intelligence community saying it was illegal, wrong, bad, etc.
Hell you have general counsel of the Navy Albert Mora saying flat out he thought the interrogation methods under Bushco would be unlawful (and 'unworthy' of the military).

I'm saying, that's not enough. Let's prosecute them for what they did. Outline the motive. That's the only way people will buy it. And show them that it doesn't work, that it's counterproductive. It's not enough for it to be wrong, you have to show that it hurt the country. That they hurt the country, and that they meant to hurt the country.
Otherwise this is just tap dancing bullshit. All of that is not to say I'm not 100% go on this. But it ain't enough to be right, you have to be effective.
posted by Smedleyman at 10:09 PM on May 5, 2009 [2 favorites]

And I'll add, it's not what you know, it's what you can prove. Good luck proving morality. I believe we argue abortion here cyclically, feel free to join that clusterfumelee.
Want to prove whether something works or doesn't - whether it's practical in its application?
Bit easier. And showing these guys bent their advice to suit the administrations agenda should be a piece of cake. No one's going to forgive that.
Everyone likes good ol square jawed Ollie North, shreddin' away those documents for the good of the country (need I remind you of citizen Brad Franko's opinion?) heroically protecting our freedom by selling weapons to the Iranians through our buddy Mannie Noriega...but no one likes a toady.
posted by Smedleyman at 10:22 PM on May 5, 2009 [1 favorite]

I don't know, I feel like (especially given your past posting history) you and I probably agree like 95%, but I don't think I agree with what you've just written there. Here's the way I see things.

Supposedly, we live in a democracy, and maybe morality informs our laws, maybe it's just effectiveness or some such. Either way, we have laws. Now there are people who broke laws that have existed for decades. And these laws aren't vague, they're crystal clear. It's true that I've never carried out an interrogation, but the laws and legal precedent are not difficult to understand. There's a world of difference between accusing someone of a crime (which may be humiliating) and stripping him naked, putting panties over his head, and leading him around on a leash. No one can honestly confuse these things. Any lawyer charged with interpreting law would know this, would know that all the other authorized tortures were specifically illegal, and since we have perviously tried lawyers for dispensing "bad advice" it is simply a matter of law that they must be put on trial. So when it comes to what we can prove, we already have enough to try and convict many high-ranking officials.

So now we can obey our own laws (laws we routinely put other world leaders on trial for) or we can say, "oh no, our torture-authorizing lawyers were acting in good faith, screw the law!" I think your example of Oliver North precisely brings the point home. We have a cultural over-class that sees little or no punishment for its crimes, and therefore feels free to commit crimes regularly. Only by holding them accountable will they be stopped. The alternative is that we continue down the path of democracy as thinly-veiled joke, where elites pass laws whose sole purpose is to keep the underclass in check.

And if you want to go after the big guys, that's fine. They way that ALWAYS works is you get the little guys first, threaten them with massive prison sentences, then they flip for a reduced sentence. That's why no one of any importance can be allowed to face justice ---the fear is that they'll talk.
posted by Humanzee at 6:57 AM on May 6, 2009

Well, I for one, am going to wait and see what the report, when it's actually released, actually says before I perform the moral calculus required to either get my panties in a bunch or not.

Several times in recent weeks, I've seen media reports based on "sources familiar with the report" or "officials within the administration," etc., suggesting the administration is planning to take some soft line on an issue, only to find that, in the end, the reports were misleading.

Take the so-called "stress tests" of the banks. For weeks now, every pundit with fingers and a keyboard or a face and a camera in front of them has been predicting this would be a soft-peddle affair, mere political theater designed to create the false impression that everything's just fine after all in the banking world. Again and again, I've read articles claiming to be based on accounts from sources inside the Treasury that, at most, one or two out of the 19 banks subject to the stress tests would be singled out as potentially at risk.

Well, it turns out that 10 of the 19 stress tested banks are being named as requiring more capital. And despite all the insinuations about more of the same bailouts, the Obama administration has no plans to give the ailing banks more public money.

So until I see the final report, I'm withholding judgment.
posted by saulgoodman at 8:16 AM on May 6, 2009

I want you lawyers to sit in the corner for ten minutes and think about what you've done.
posted by Legomancer at 9:16 AM on May 6, 2009

I want those lawyers to sit in Gitmo for ten months or until they confess, whichever comes later. ;)
posted by caddis at 9:45 AM on May 6, 2009

Humanzee, we differ on 'how' they should be prosecuted. Not 'if.'

Certainly morality informs law, but it doesn't form the basis. And I don't think it is crystal clear - at least not in execution.
Let me put it this way, and say first that I'm probably butchering this argument playing devils advocate because I'm pretty fanatically against torture and I agree the basis for this argument is fallacious, from a moral standpoint - all the things the laws against torture are based on rest on certain legal relationships. It's not torture that isn't crystal clear, it's those legal relationships. What the president can do, what he's bound to, what he can authorize on his own authority without congress, etc etc.

For example, Bushco's reinterpretation of 'enemy combatant.' So - they don't wear uniforms, they're terrorists, are they subject to the treatment that prisoners of war are subject to? Yes? No? Ok, howabout if they're not on U.S. soil, but on a U.S. military base which is technically under the direct control of the executive branch?

I'm not saying it's not b.s., but it's a tack that hasn't really been brought up. Mostly, I suspect, because no one's really wanted to look for ways to torture someone.
So you have these questions in the power relationships as well as treaty obligations for people who - technically - may be without a country in an engagement that crosses political borders routinely.

Now, that there's a mechanism in place for all of this, that counterterrorism outfits like GSG9, who are basically law enforcement. Specialized law enforcement, granted, but law enforcement nevertheless. Or, for example, the Israeli Yamam, Bushco would handle stuff through just the military - so, like the IDF, but that doesn't work (for a number of reasons) and plus it's redundant.
It's the redundancy that - to me - is fishy. Much like all the other shadow government garbage Bushco had going on, political apparatus replicated within the party, etc.

So - all that aside - the stuff that happened at Nuremberg, I'm saying, worked because Stuckart, et.al. were part of the party machine. I disagree with the statement (from your link) "Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated?"

If those 'lawyerly tricks' are indeed usual - why then are they tolerated in the law?
I guess my only point is that there has to be equitability. We can't say 'but in this case it's special' any more than we can do that with, say, punishment. The constitution prohibits 'cruel and unusual' punishment.
So I'm saying - regardless of the subject - be it torture, be it a car accident, be it a pedophile or some fine detail in the law - it has to be treated as all other cases.

In this case the 'advice' thing stands, I think, as advice. So - and bear with me here - we CAN say "oh no, our torture-authorizing lawyers were acting in good faith" because that is the law.
However - and it's a BIG however - we can also say, that the advice departed from being simply advice because it was crafted to fit an agenda designed to circumvent the law as it regards torture.
And I think that's provable.

This was said in the other thread (I referenced above), been a bit, so maybe I've got it wrong - but my understanding of it (as a layman) is - you can go to a lawyer and say "Look, I want to know how far I can go in interrogating a guy before it's torture - can you tell me where I stand legally here?"
What you can't do is go to a lawyer and say "Look, I want to know how far I can go in interrogating a guy - can you help me get around the torture laws so it looks like I've got a legitimate legal basis here?"

They're arguing the first. And, like most lawyers, they're pretty stiff necked about it. But, after a bit, I came to agree. That is the law. Lawyers do need to feel free to offer any kind of advice - given it's strictly advice - as to their legal opinion even if it's grossly wrong.
And indeed, many things people believe, strongly that are morally wrong are subject to debate - abortion for example.
So there's a debate to be had in terms of practical application. And again - no one had really brought those nuances up. Mostly because they're so odious. Like thinking of how I could, realistically, seduce my grandmother. - Gah! But there is a thought process there and a decision matrix, etc. which could lead to 'success.' Disgusting as that may be.

But the revulsion over torture aside - what's provable is not so much they were merely wrong about the law or torture or their advice was wrong - what I'm saying is it's not about the advice at all.

Because it wasn't advice they were giving. It's pretty clear to me (and to you obviously) that the were advising the administration in how to circumvent the law and/or craft law so that it served the political end of manufacturing evidence for the war, through torture and other means, and ultimately grossly endangered the security of the country.

From your position, one could argue negligence or accident or stupidity - being just plain wrong. I'm saying, treat the lawyers not as lawyers but as co-conspirators and obviate the whole idea of 'advice' as irrelevant.

Just cede - ok, you gave advice. You're not on the hook for that. But what's all this gaming the law and crafting the advice to tailor it to the administration's agenda? That's not advice.

My visceral reaction? Put them in a room and torture it out of them. Bit of a catch-22 there because then it really is a witchhunt because it doesn't matter what they say, they'll say anything.

But I'd put a bullet in anyone who I knew was a torturer. I respect the soldier who took her life instead of tortured. But I would have slaughtered everyone I could have gotten my hands on in that program.
That's immediacy talking. Sort of like someone now on a plane who stands up and says they're going to hijack it. He'd be group assaulted instantly. It'd be a survival instinct.
Same way I feel about certain things - far too dangerous not to take their lives. Torture being one of them. Perhaps the only conceptual thing.
I strongly resist doing something about that visceral reaction though. Sometimes it's quite a task. And I think part of that is recognizing that this has to be dismantled with due process and due course within the law. Otherwise it will be felt one way or another. Whether through some guy like myself who is not so self-disciplined or through the political blowback like what France suffered over Algeria - myriad ways it can come back and bite.

But again, not a doubt in my mind that it should be dealt with now and prosecuted, so we're pretty much on the same page. And I want everyone who was involved. Lawyers, politicians, officers, operators, agency men, anyone and their mothers who had any proactive involvement.
posted by Smedleyman at 4:52 PM on May 6, 2009 [3 favorites]

smedley, that was beautiful.
posted by caddis at 7:11 PM on May 6, 2009

Okay, I think we're in agreement. I'll just say two things.

I don't think that jurisdiction, presidential authority, or nationality will be a major issue. The U.S. is party to the U.N. convention against torture (making it constitutionaly U.S. law) which recognizes such boundaries only in regards to who has the primary responsibility to investigate and hold trials. But those boundaries are not absolute, which is why for instance, a spanish judge is potentially planning to launch his own inquiry into U.S. torture, potentially trying Americans in absentia.

I agree about lawyers having the right/responsibility to give advice. If someone in the CIA had asked "hey, I want to rape an enemy combatant" and a lawyer wrote back "hell no, you could face prosecution", and the whole exchange was kept secret ---there's no problem there. Well, perhaps plenty of reason to be concerned, but the lawyer's ass is covered. But if the lawyer said, "go for it", there's a problem, because the law on that matter is so clear that the only possible explanation for that response is conspiracy. That is, I don't think any lawyer could go to a court and argue they made a "mistake" without everyone laughing at them. Anyway, I think we were arguing at cross-purposes. I agree that the lawyers should be charged as co-conspirators (not for being asked and giving an opinion in regards to torture).

Finally, I would like to congratulate you on your use of metaphor. I believe your grandmother-seduction analogy might constitute torture by itself. Fortunately I already have some booze poured.
posted by Humanzee at 7:36 PM on May 6, 2009

"Well, perhaps plenty of reason to be concerned, but the lawyer's ass is covered. But if the lawyer said, "go for it", there's a problem, because the law on that matter is so clear that the only possible explanation for that response is conspiracy."

No, I agree with that point. I'm just saying it's a bit more complex than that. Not so cut and dried. And I'll cede that I can't adequately defend precisely what it is (IANAL). I wish I could explain it better. If you read the thread I posted you might get the general idea. I seem to have had a perspective similar to yours.

I guess more - can I have sex with someone who's an enemy combatant if I'm not visibly using the threat of violence as coercion, at the time.
Any reasonable individual would say "What the hell do you think you're playing at?" but you could hire a lawyer to say "ok, look, here's where it's rape, here's where it isn't" sort of thing.
Like "here's where you'd be prosecuted. here's where you wouldn't be"
(Granted - anyone with any morality would add "But I wouldn't come anywhere close to putting my dick in someone in custody, are you nuts?")

But yeah, we're both on the same page as to the latter case not being what really happened. So, kinda moot.
posted by Smedleyman at 8:03 PM on May 6, 2009

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