The Torture Lawyers
(updated below)
Marty Lederman, a former OLC attorney, reacts to this truly astounding story from ABC News (you might want to read the ABC story first):
UPDATE: Then again, maybe we've already gone too far down this road.
Marty Lederman, a former OLC attorney, reacts to this truly astounding story from ABC News (you might want to read the ABC story first):
What can one add to this? And what does it tell us that the story has been met with a collective yawn from the rest of the media? We have become so accustomed, so inured, to what would once have been unthinkable, that a story such as this, right out of a bad B-movie, is seen as business-as-usual, dog-bites-man.When future generations look back on this era of American history, I'm increasingly convinced that the harshest verdicts will be saved for the lawyers, people like David Addington, John Yoo, and Alberto Gonzales. These were the people who were supposed to be the brakes, not the gas. They're the people who were supposed to speak up for the law and for the Constitution, the people whose job it was to ensure that we are governed by laws and not men. And not only did they abdicate this responsibility, they chose to use their power of interpretation to make a mockery of the law. That's the worse kind of betrayal. It's like a doctor who uses his knowledge to harm instead of heal. Such will be the legacy of the torture lawyers.
I have been reluctant to say such things before now, but those stubborn facts keep adding up, and, if the Greenburg story is accurate, it's hard to resist the simple conclusion that Gonzales and others were engaged, not only in an effort to completely distort the proper function of OLC (see generally Jack Goldsmith's book), but also in a conspiracy to violate the Torture Act and the War Crimes Act (which at the time prohibited such conduct). When responsible, thoughtful lawyers -- loyal conservative, Republican lawyers, mind you --- told them that what they had approved was unlawful, they got rid of the lawyers, and concocted alternative, and patently ridiculous, legal advice (and rewarded the lawyer who was willing to sign his name to that advice).
I'm trying to avoid hyperbole, honest. But how is this not a huge scandal, in form (but certainly not in degree) directly analogous to what we, at Nuremburg, prosecuted German Justice Department lawyers for having done? (And no, I am am not saying that the crimes committed here are analogous to those approved by German lawyers, so please don't go there in the comments thread.)
UPDATE: Then again, maybe we've already gone too far down this road.
posted by A.L. at 12:44 AM
13 Comments:
AL, I agree with you that 'the lawyers' are culpable. But whether posterity condemns them or not is open to speculation I suppose. It may be that posterity is as uncaring and apathetic as we appear to be today.
But in addition to your lawyers with blood (and water) on their hands, our congress should also be singled out. I recently recived a letter from my congressman responding to my arguments for impeachment. He wrote:
But on the question of how best to deal with this wrongdoing, I agree with my friend, Rep. Barney Frank who said, "In an ironic way it [impeachment] does George Bush a favor. He is losing the national debate on most issues, he is losing support among Republicans, and impeachment would almost certainly allow him to rally lots of Republicans." Impeachment certainly satisfies our shared desire to repudiate all that disgusts us about this Administration, but I believe this is not the way to allocate our limited resources and narrow majority in the final year of Bush-Cheney.
Even liberal congress members such as mine have become culpable on the torture issue, simply because they have the power to stop it, but won't. They view constitutional violations, torture, and a raft of other clearly radical, illegal and unamerican acts by this administration as a political battle--not a legal or constitutional one. Congress, every bit as much as the administration, has failed to uphold the rule of law. Not only have they not done their part to uphold it. They have lost sight of it.
CO, I completely agree. I don't think people like Dianne Feinstein and Chuck Shumer will look to great through the lens of history either.
The Lawyers? The legislative branch, the executive, the courts, the media? Spreading blame will be easy but who is ultimately to blame?
How do we feel about those "good Germans" of the 1930's and 40's? I now how I feel about them and I know how I feel about the American people too. At some point "the people" have to take responsibility for a governmental system that is supposedly of, by and for said people.
History will not look kindly on any of us.
.
I'm afraid that the harshest criticism will be saved for us common folks, AL. Part of me thinks that folks will look at all the warnings we had, and wonder why we didn't get more angry.
This is what bothers me the most. It seems like everyone is waiting for something called "history" to determine how horrible this period was. Well, history is written by the winners, and right now, the winners are those who endorse torture.
Well,AL, the events of the last six years just show how very fragile the rule of law and civil liberties are in any country. This is happening in AMERICA!
For some real perspective on the danger that we all faced during the cold war in contrast to the danger we face in this phantom "War on Terror", watch the 1959 movie ON THE BEACH.
If we want "America" we have to be willing to do WHATEVER IS NECESSARY to get it and KEEP it.
We haven't been willing. We've all just sat around watching tv, going to the movies, parties, games, and shopping malls, and expected SOMEBODY ELSE to take care of our patriotic obligations for us.
It's us.
The ultimate secret to getting anything you want has 2 parts:
1) Know exactly what you want, and
2) Be willing to do whatever is necessary to get it.
It should be obvious what's necessary by now, for those who are willing to even think about their responsibilities as citizens to defend the law and the Constitution.
adnoto,
yes, sad but true.
Oh my. This sort of duplicity makes me want to break something. America has created some sort of a god-damned bizzaro world for itself to inhabit. I literally feel as though I am going insane.
Lawyers..
Salutary in the most dismal way is a remarkable scene from the HBO film "Conspiracy"--a re-enactment of the Wansee Conference--wherein one of the participants asks the assembled Nazi bureaucrats "how many lawyers here?" and nearly everyone raises their hand.
This in the context of discussing how to modify the Nuremburg Laws to allow for the mass extermination of the jews.
The fact that lawyers are at the center of this administration's savaging of basic human rights is no surprise. Quite the reverse. It's inevitable.
What will be the verdict on Chuck Schumer, the lawyer who uttered the following sentiment in 2004?:
"So it's easy to sit back in the armchair and say that torture can never be used. But when you're in the foxhole, it's a very different deal.
"And I respect -- I think we all respect the fact that the president's in the foxhole every day. So he can hardly be blamed for asking you or his White House counsel or the Department of Defense to figure out when it comes to torture, what the law allows and when the law allows it and what there is permission to do."
And the next president--Hillary, Obama, or whoever--will be in that same foxhole. And we shall see what we shall see. Meantime, we will not want for high-toned moral posturing from apple-cheeked lawyers driving flashy sedans.
Well, there's the "mass extermination of the Jews" on the one hand, and then there's the gathering vital intelligence from unlawful enemy combatants on the other hand. Nice judgments have to be made. Hysterical children cannot make them.
Unfortunately not all the detainees in gitmo have vital intelligence to provide because they are not all terrorists. But apparently that doesn't bother the torture apologists.
All the detainees at Gitmo have been adjudicated Unlawful Enemy Combatants by a competent tribunal in accordance with Article 4 of the Geneva Convention and U.S. law.
But they are not being tortured in any event.
How can any listing of "torture lawyers" exclude Messrs. Schumer, Dershowitz and Clinton, all of whom have acknowledged the necessity for its use under appropriated circumstances? (Oh, I forgot--Mr. Clinton has been disbarred.)
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