Blame the Lawyers
I've been getting a number of emails lately from people wondering why the few posts I've managed to write lately have been about the election and not about issues I'd normally be all over, like the FISA debate or the Bush administration's admission that it has water-boarded detainees. The short answer is that I've been spending a lot of time in court lately, and so I've had to depend much more heavily on news radio and television (as opposed to the internet) to keep up with current events. And as you've probably noticed, it's pretty hard to find anything but election coverage on the t.v. or radio. I'd love to be writing about the legislative wrangling over FISA, but the sad truth is that I really don't have much to contribute on that front right now. I just don't have the time to follow it closely enough to comment intelligently about what's happening.
That said, I do want to take a moment to weigh in on the latest developments in torture-gate. CIA Director Michael Hayden finally admitted this week what everyone has long known, that the Bush Administration has "water-boarded" (i.e. tortured) several people in U.S. custody since 9/11. This revelation was followed by Attorney General Mukasey's testimony that the DOJ does not plan to open a criminal investigation into the operatives and contractors who engaged in this activity. The latter declaration in particular has generated a lot of anger among left-leaning commentators and bloggers. Like Marty Lederman, though, I find this anger to be largely misdirected.
The CIA agents and contractors who tortured detainees at the behest of this administration were acting pursuant to legal opinions issued by the Office of Legal Counsel, the office which serves as the ultimate authority on legal issues within the executive branch. To criminally prosecute government officials who relied on such advice would be to set a terrible precedent. It would completely hamstring the government. We have an incredibly complex system of laws which includes the Constitution, federal and state statutes, treaties, and administrative regulations, all of which interplay and overlap in complicated ways. We don't want a situation where CIA agents, soldiers, and other U.S. officials, most of whom have no legal training, are put in a position where they have to try to evaluate the soundness of the legal advice they're being given.
I believe very strongly that the OLC opinions that authorized the use of techniques like water-boarding are disgraceful and legally erroneous, but I say that from the perspective of someone with legal training and a familiarity with constitutional law. It's not like the legal opinions at issue here were scribbled on napkins or signed by Dick Cheney's personal assistant. These were opinions drafted and signed by well-respected (at least at the time) lawyers like Jay Bybee and John Yoo, lawyers who graduated at the top of their classes at elite law schools and had impeccable credentials. Their opinions cited obscure legal precedents and historical documents and dealt with complex issues involving the interplay of various statutes, treaties, and constitutional provisions. In other words, this wasn't a situation where people were being told to do something that any reasonable person would have known was illegal or to rely on legal opinions that any layman would have realized were illegitimate or erroneous.
Rather, this is a situation where the lawyers at the OLC--lawyers who were entrusted with the important job of keeping the executive branch within the confines of the law--completely abdicated their responsibility. They abused their authority, using their power to interpret the law as a means of obscuring and circumventing it. They are the culprits here, the David Addingtons and John Yoos of the world.
In a lot of ways, the proper functioning of our system of government (of any government really) relies on the integrity of the people who find themselves in positions of responsibility within it. The problem here is not that the OLC has the power to issue legal opinions that effectively immunize those who follow them of criminal responsiblity. Some entity within the government has to have that power in order for the government to function property. The problem here is that the people put in positions of power in the OLC during the early years of the Bush administration abused their power.
Blame the lawyers.
UPDATE: For a well-reasoned dissenting opinion, see this post by Kevin Jon Heller.
That said, I do want to take a moment to weigh in on the latest developments in torture-gate. CIA Director Michael Hayden finally admitted this week what everyone has long known, that the Bush Administration has "water-boarded" (i.e. tortured) several people in U.S. custody since 9/11. This revelation was followed by Attorney General Mukasey's testimony that the DOJ does not plan to open a criminal investigation into the operatives and contractors who engaged in this activity. The latter declaration in particular has generated a lot of anger among left-leaning commentators and bloggers. Like Marty Lederman, though, I find this anger to be largely misdirected.
The CIA agents and contractors who tortured detainees at the behest of this administration were acting pursuant to legal opinions issued by the Office of Legal Counsel, the office which serves as the ultimate authority on legal issues within the executive branch. To criminally prosecute government officials who relied on such advice would be to set a terrible precedent. It would completely hamstring the government. We have an incredibly complex system of laws which includes the Constitution, federal and state statutes, treaties, and administrative regulations, all of which interplay and overlap in complicated ways. We don't want a situation where CIA agents, soldiers, and other U.S. officials, most of whom have no legal training, are put in a position where they have to try to evaluate the soundness of the legal advice they're being given.
I believe very strongly that the OLC opinions that authorized the use of techniques like water-boarding are disgraceful and legally erroneous, but I say that from the perspective of someone with legal training and a familiarity with constitutional law. It's not like the legal opinions at issue here were scribbled on napkins or signed by Dick Cheney's personal assistant. These were opinions drafted and signed by well-respected (at least at the time) lawyers like Jay Bybee and John Yoo, lawyers who graduated at the top of their classes at elite law schools and had impeccable credentials. Their opinions cited obscure legal precedents and historical documents and dealt with complex issues involving the interplay of various statutes, treaties, and constitutional provisions. In other words, this wasn't a situation where people were being told to do something that any reasonable person would have known was illegal or to rely on legal opinions that any layman would have realized were illegitimate or erroneous.
Rather, this is a situation where the lawyers at the OLC--lawyers who were entrusted with the important job of keeping the executive branch within the confines of the law--completely abdicated their responsibility. They abused their authority, using their power to interpret the law as a means of obscuring and circumventing it. They are the culprits here, the David Addingtons and John Yoos of the world.
In a lot of ways, the proper functioning of our system of government (of any government really) relies on the integrity of the people who find themselves in positions of responsibility within it. The problem here is not that the OLC has the power to issue legal opinions that effectively immunize those who follow them of criminal responsiblity. Some entity within the government has to have that power in order for the government to function property. The problem here is that the people put in positions of power in the OLC during the early years of the Bush administration abused their power.
Blame the lawyers.
UPDATE: For a well-reasoned dissenting opinion, see this post by Kevin Jon Heller.
posted by A.L. at 10:24 PM
20 Comments:
A.L., I don't quite buy it. Granted that Bush hires incredibly badly, I still don't see how he could have hired a bunch of OLC types that would uniformly work to come up with the most twisted opinions possible.
I think the real answer is that these guys were told that torture, or at least "enhanced interrogations," were vital to national security and that they had to find a legal justification. Remember, back in 2002, we were all still freaked out--the administration most of all, since they were responsible for doing something. So you had Cofer Black running around the White House talking about flies on people's eyes. There was quite the competition to see who could be the most aggressive.
Mind you, I don't necessarily think that that was unwarranted. But, seen from a distance of five or six years where nothing very serious has happened on the domestic terrorism front, those actions seem a bit bizarre to us. I suspect that the circumstances forced the opinions, rather than the personnel.
A.L., it seems like you are validating the 'Nuremburg' defense, that orders from above can be obeyed without question. "Yes, although it looked like torture to a layman, we were assured it was OK." I don't say this sarcastically -- would it be today's legal atmosphere to accept that defense?
R.M., I think it is revisionist and counterfactual to view the post 9/11 hysteria as reasonable. Three thousand people are killed by some lunatics who were almost stopped by a bumbling government. We know that so few deaths are virtually irrelevant to our worldview when they occur as auto accidents or disease transmission. Even a good-size ferry sinking in the third world will kill more than that. (And of course our invasions have killed a hundred times more.) This was a classic case of frenzy whipped up by a calculating leadership, seeking to overthrow established protections and anything else they can manage.
I see over-reaction as the root crime, which should not be forgotten or trivialized. Of course it was permitted by the silliness of the citizenry "If you will only wiretap me and post armed guards on the airport sidewalk, I know my village of 5,000 people will at last be safe from terrorism."
It was lawyers who bequeathed the concepts of Nürnberg defense, and malum in se to us. Let's not forget why.
As a non-lawyer, I can only say that torturers shouldn't need an OLC opinion to know that someone might hang them for what they've done. A modest knowledge of our own history could tell them that. Frankly, I do hope that they find themselves on the gallows one day for what they've done, and the OLC lawyers themselves, for that matter.
AL, get some more sleep, and then take another look. Your 'blame the lawyers' isn't consistent with our own history, as WT says. We didn't blame [just] the lawyers in the case of German or Japanese waterboarding and other tortures. We didn't do it for Abu Graib. And it was appropriate that we did not just hold lawyers accountable.
by the way, I'm surprised you let that smear of Obama by looseheadprop at FDL go by with no reply. The more I reflect on that post, the more convinced I am that the piece is fundamentally dishonest.
The actual story seems more to be that the WH, or at least the OVP, went shopping for lawyers who would write opinions that gave them legal cover -- and found them, as searches like this always do.
In my opinion, we should charge those who lawyer-shopped as well as the lawyers who pandered to the law-breakers. As for those pathetic, twisted souls who actually carried out the deeds, there should be no place for them in a civil government or society.
Glad you had time to write at least a little.
A.L., it seems like you are validating the 'Nuremburg' defense, that orders from above can be obeyed without question.
Respectfully, I don't think this is right. Marty does a good job of addressing this point in his post. This isn't a situation where people are being ordered to do something by there superiors that she obviously know is illegal (wrong yes, illegal no). Here, the chief law enforcement body, the entity that interprets what the law says, opined that these techniques did not violate the law.
I just don't think it is reasonable to criminally prosecute agents who acted in accordance with clear and definitive legal pronouncements from the OLC.
This doesn't absolve the agents of moral responsbility, but I think it probably should absolve them of legal responsibility. The legal responsibility, if any, should lie with the OLC lawyers and the president.
Never mind Marty Lederman, I'll stick with Dickens:
If the law supposes that, the law is a ass -- a idot.
It's quite clear from ample precedent in U.S. and international law that following an illegal order -- regardless of who has told you it's legal -- is punishable under the law. What these torturers did was, in fact, illegal.
Let the punishment fit the crime.
I wrote:
"A.L., it seems like you are validating the 'Nuremburg' defense, that orders from above can be obeyed without question."
A.L. replied:
"This isn't a situation where people are being ordered to do something by there superiors that she obviously know is illegal (wrong yes, illegal no). Here, the chief law enforcement body, the entity that interprets what the law says, opined that these techniques did not violate the law."
In fifth grade we were taught "Ignorance of the law is no excuse." So I think it is illegitimate for a bought and paid counsel to 'immunize' a torturer, a president, or anybody on the chain in-between.
Again from my fifth grade understanding, the Germans' 'I was only following orders' was not considered adequate defense at Nuremburg..... but maybe it would be today? That their entire structure validated their orders did not protect the actions.
A.L. writes "I just don't think it is reasonable to criminally prosecute agents who acted in accordance with clear and definitive legal pronouncements from the OLC."
Is it that they COULD NOT be prosecuted by any United States entity, but COULD be prosecuted by an outside agency for war crimes or crimes against humanity? Where is the accountability for evil orders or behavior?
Thanks for your thoughts, and for your wonderful blog
AL, I agree with the main thrust of your post. While I do not want to hamstring the government I would like to see some accountability. In this case the lawyers at the OLC knew or ought to have known that their opinions were on shaky legal ground at best. They are the ones who ought to be responsible and they are the ones who ought to be prosecuted.tominwindsor
If you were one of the people whose job was to interrogate prisoners for the CIA, don't you think it would be the teensiest bit suspicious that after decades of this kind of treatment of subjects being strictly forbidden that suddenly there is a brand new interpretation of the law?
If the interrogators themselves didn't realize this, at the very least there are people in many layers of the Justice department and CIA who would reasonably have suspicions about the legal opinion. Also, I might be mistaken, but aren't these the legal opinions that are so secret that even Congressional committees with oversight responsibility are prevented from seeing them? If that is the case, it would raise serious doubts that CIA functionaries took any steps to see if the legal opinions had any merit. The correct answer, if you asked the Justice department about torture (or waterboarding in specific) and heard that it was suddenly legal but that they couldn't tell you why so just trust them, is no, I won't do it.
I can't help but feel that a real investigation into this would turn up way too many people who should have know better, but alas, that investigation isn't going to come any time soon - f ever.
To paraphrase Clemenceau, Law is too important to be left to the lawyers. And A.L. just proved it.
Hitler's Eichmanns deserved to be hung as much as the Fuhrer himself. A.L.'s argument could have been used to excuse the Holocaust as...bad advice from lawyers--a self-parody of a lawyerly argument.
AL writes: "the proper functioning of our system of government (of any government really) relies on the integrity of the people who find themselves in positions of responsibility"
I completely agree. But the Bush notion of the Unitary Executive is designed to override the professionalism throughout government (justice dept lawyers, EPA scientists, CIA analysts). I wish there was more attention paid to the damage the Unitary Executive claims have done over the years.
Let us be a bit more precise about what the administration has "admitted" with respect to waterboarding. In sworn testimony General Hayden said that a total of three detainees had been waterboarded, the most recent in 2003. Is there a sentient being who didn't already know about those three?
Might as well acknowledge that the same witness testified under oath that the waterboarding of those three undoubtedly saved lives.
I suppose many on the left will disagree, particularly because it was done under the Bush administration, but I for one am damned glad it was done. And does the left want a congressional investigation of secret prisons and extraordinary renditions during the Clinton period? Don't hold your breath.
AI,
A sad comment on our life and times that even you would fall sway to the Mukasy "just following orders" hogwash. I am quite sure that Yoo ("the President can authorize crushing the testicles of a detainee's child if he has a good reason"), Addington and the rest of this Administration's clever lawyers can come up with a legal justification for putting a few million Jews in ovens, too. Of course, we shouldn't hold accountable those who turn on the gas -- after all, they are just following orders -- we should just disbar (more likely private censure) those clever lawyers who cobbled together a ridiculously weak and result-oriented a legal theory to justify the result.
For shame.
AL
Seems like not too many of your readers follow Bertrand Russell's admonition regarding holding opinions dogmatically. A few more posts like this and they will be demanding that you change your name to "Anonymous Nazi."
MLS,
Call me illiberal if you like, but it seems unlikely that there will be any "new evidence" forthcoming -- ever -- that torture is anything but a despicable act, and that those who torture, especially for the state, are anything but the most disgusting kind of criminals.
Here's another admonition for you: "extraordinary claims require extraordinary proof." Given that the only real knowledge we have of the illegal acts of this government is by agents of this government, it is wise to regard what we know as the "tip of the iceberg".
I'll also go on record to call for an investigation of "extraordinary rendition" by anybody at any time.
Neutral wrote:
"Might as well acknowledge that the same witness testified under oath that the waterboarding of those three undoubtedly saved lives."
I hate to say it, but administration claims have very little credibility with me, after years of outright lies. I don't really believe they have caught any terrorist masterminds, I don't believe they have stopped any genuine plots, I don't believe anyone had genuine evidence of WMD, I don't believe they were committed to reconstruction of Afghanistan, I don't believe Bush was ignorant of the failing levees in New Orleans, I don't believe the Fisa rules were burdensome and dangerous, I don't think that 'mission accomplished' was an informed comment.
If we genuinely wanted to damp down terrorist influence and ardor, we would deal equitably with the rest of the world, temper our over-support of israel, and play hardball with Pakistan (the nuclear proliferators) and Saudi Arabia (the madrassa funders). Also we would forswear our own terrorist adventures, such as creating the mujahedeen to attack the Soviets. Not to mention spending 1% of the total war cost to develop domestic energy resources.
Whew, where was I? Oh yes, I am extremely dubious of US shills assuring us that torture was effective and essential.
I'm also infinitely disgusted by the pretense that the US cares about 'lives', whether they fall to unsafe autos, environmental poisons, poor healthcare, or military adventures. GIVE ME A BREAK!
Give me a break.
If the legal opinions stating that water-boarding is legal are valid, why is it that the Attorney General has said that no one outside of the Executive Branch can examine them, not even the Judiciary Committees of the Senate and House?
And as an aside, hasn't the AG just made the Congress irrelevant when it comes to what the law is?
As a layman, not a lawyer, I don't see how anyone could accept without question the proposition that water-boarding could be legal when we have a long history of prosecuting both our soldiers and enemy soldiers for carrying out such activities.
AL, I'd agree with you that the OLC's opinion should prevent criminal investigation and prosecution *if* the issue was "is it torture if we have him standing for ten hours?" or "is it torture if we feed him 3500 calories, but only one meal a day?" or "is it torture to have the prisoner in solitary for 72 hours?"
These are things that a reasonable person can legitimately think are okay.
But extended solitary confinement has been judged to be cruel and unusual punishment; keeping people standing for 40 hours is clearly and visibly torture; waterboarding is so obviously torture that I'm still a little sickened that people can argue about it.
At some point, we have to say "there were human beings there, who could see the results of their actions. They had the ability to see that they were breaking the law; they did not."
Sure, there were legal opinions saying that the things they were doing wasn't torture... but the people performing the tortures *saw* the results. They had a responsibility to say "no, this is torture," and refuse to cooperate.
I understand how you feel about the precedent. A large part of me wants to agree, and if it was minor stuff, I would agree. But it's torture, and I don't mind setting the precedent of "if you are assured that torture is legal, and you torture someone, it's *your* ass on the line, so be double-damn sure that it's not torture."
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