The OPR Report
Just to add to Hilzoy's typically insightful post on the forthcoming OPR report, I want to make two points.
First, people seem to be focusing too heavily on the report's (apparent) refusal to recommend criminal prosecution of the OLC lawyers who drafted the torture memos. But the real news here is that the report apparently recommends that at least a few of the lawyers be referred to state disciplinary authorities for reprimand or disbarment. That's a really big deal. Disbarment is major punishment for a lawyer. Not only does it constitute a major public shaming, but it also represents a loss of livelihood. As I've written here before, I take a very consequentialist outlook on this whole affair. The most important question in my mind is not what kind of punishment the various bad actors deserve, but what steps can be taken to minimize the chances of this ever happening again.
The OLC lawyers played an indispensable role in allowing these illegal torture and surveillance programs to be implemented. The White House and CIA would not have pressed forward with these initiatives (at least for a sustained period of time) without the blessing of the OLC. So the key to preventing this kind of illegality in the future is to up the stakes for future OLC attorneys, to make them understand that there are potentially significant consequences to intentionally distorting the law. Disbarment would serve that purpose fairly well. If future OLC lawyers know that they might be disgraced and lose their livelihood if they distort the law, they'll be far less likely to do so. And that's the key. As much as I think that some of these attorneys deserve to be prosecuted criminally, there's very little precedent for that kind of prosecution and such cases would be very, very hard to prove. Disbarment, however, is a realistically attainment penalty, and one that would serve as a significant deterrent to future illegality.
The second point I want to make is this: though I haven't seen the OPR report, I suspect it focuses on more than just the torture memos. As bad as those memos were, some of the OLC opinions on other issues, particularly warrantless surveillance and the applicability of FISA, were likely much worse. Based on the reports I've read, the arguments the OLC was relying on in those memos were just laughably bad; they completely disregarded well established case law and principles of constitutional and statutory construction. Of late, the debate over the culpability of OLC lawyers like Bybee and Yoo has focused almost exclusively on their roles in approving torture. But their enabling of other Bush administration programs may have been even more egregious.
First, people seem to be focusing too heavily on the report's (apparent) refusal to recommend criminal prosecution of the OLC lawyers who drafted the torture memos. But the real news here is that the report apparently recommends that at least a few of the lawyers be referred to state disciplinary authorities for reprimand or disbarment. That's a really big deal. Disbarment is major punishment for a lawyer. Not only does it constitute a major public shaming, but it also represents a loss of livelihood. As I've written here before, I take a very consequentialist outlook on this whole affair. The most important question in my mind is not what kind of punishment the various bad actors deserve, but what steps can be taken to minimize the chances of this ever happening again.
The OLC lawyers played an indispensable role in allowing these illegal torture and surveillance programs to be implemented. The White House and CIA would not have pressed forward with these initiatives (at least for a sustained period of time) without the blessing of the OLC. So the key to preventing this kind of illegality in the future is to up the stakes for future OLC attorneys, to make them understand that there are potentially significant consequences to intentionally distorting the law. Disbarment would serve that purpose fairly well. If future OLC lawyers know that they might be disgraced and lose their livelihood if they distort the law, they'll be far less likely to do so. And that's the key. As much as I think that some of these attorneys deserve to be prosecuted criminally, there's very little precedent for that kind of prosecution and such cases would be very, very hard to prove. Disbarment, however, is a realistically attainment penalty, and one that would serve as a significant deterrent to future illegality.
The second point I want to make is this: though I haven't seen the OPR report, I suspect it focuses on more than just the torture memos. As bad as those memos were, some of the OLC opinions on other issues, particularly warrantless surveillance and the applicability of FISA, were likely much worse. Based on the reports I've read, the arguments the OLC was relying on in those memos were just laughably bad; they completely disregarded well established case law and principles of constitutional and statutory construction. Of late, the debate over the culpability of OLC lawyers like Bybee and Yoo has focused almost exclusively on their roles in approving torture. But their enabling of other Bush administration programs may have been even more egregious.
posted by A.L. at 9:26 AM
15 Comments:
Michael Isikoff made a similar point last night on Maddow's show. According to the information relayed there, the OPR report would be outside its domain of responsibility by making a recommendation either way on criminal investigation.
This begs the question of whether or not it will say anything about appointing a special prosecutor for criminal investigation. If it recommends against criminal investigation then competing DOJ fiefdoms should object for the record, no?
Michael Isikoff made a similar point last night on Maddow's show. According to the information relayed there, the OPR report would be outside its domain of responsibility by making a recommendation either way on criminal investigation.Further evidence that this, like most recent articles on this subject, is straight from the mouth of Bradbury or one of his surrogates. A reason to take some of the reported material, or at least some of its emphases and interpretation, with a grain of salt.
Useful reminder, AL, on the potentially much broader ambit.
If Bybee were disbarred, how would that affect his status as a judge?
If Bybee were disbarred, how would that affect his status as a judge?Now that's a good question. I'd think that it would at least make impeachment much more likely.
But their enabling of other Bush administration programs may have been even more egregious.
You mean the programs Obama ended up voting for? You mean the programs that certain members of Congress knew about but say anything about them?
The torture part also holds true for those members of Congress who knew about it and said nothing. Will there be any calls to have them disbarred (the ones that are lawyers), especially the Democrats? I doubt any "liberal" would support a Democrat being disbarred.
Steve, as usual you display zero understanding of the relevant issues. Drafting an opinion saying that something that is clearly illegal is legal, is not even remotely comparable to a legislator voting to change the law. The former is a disbarable breach of duty. The latter is prerogative of every legislator. Yoo and Bybee authorized the violation of existing statutes. Obama and others voted to change some of those statutes. Totally different.
I agree with your assertion that any legislators who knew about these programs deserve critcism if they acquiesced to them. But they weren't being asked for their legal opinions, so it's also not the same thing. Furthermore, if you remember, these legislators were given only very limited briefings and not allowed to consult their staff or lawyers. Jay Rockefeller wrote a letter to Cheney about the NSA program stating that he was worried about its legality, but without being able to consult his lawyers or staff, he was unable to follow up on his concerns.
Steve -
I have yet to see you make a comment that is both sensible and relevant to whatever is being discussed. You trivialize every issue and attempt, with considerable success, to misdirect discussion down fruitless side paths with your naked assertions and blanket condemnation of teh libruls. In my experience, You have yet to make a solid contribution to any conversation.
Are you a professional troll? Or just AL's personal wing-nut? I understand there are right wing organizations that actually pay people to do this kind of stuff.
Back on topic. Some show I saw a few minutes of last night suggested that Bybee et al could possibly be charged with criminal conspiracy for aiding and abetting the illegal torture actions. Is there any merit to this idea?
A.L.:
Obama and others voted to change some of those statutes. Totally different.
I see. What Bush did, in your opinion, was criminal; but you still voted for Obama as a change from Bush, except that he isn't a change from Bush on these things. Great.
I agree with your assertion that any legislators who knew about these programs deserve critcism if they acquiesced to them.
I haven't seen any Democratic voters vote these Democratic politicans out of office. I'm thinking your criticism isn't really all that critical, at least when it comes to the Democrats.
But they weren't being asked for their legal opinions, so it's also not the same thing.
That has squat to do with anything.
Furthermore, if you remember, these legislators were given only very limited briefings and not allowed to consult their staff or lawyers.
You're excusing their inaction. We already know they got enough information on everything the Bush administration was doing, and did nothing to stop it.
Jay Rockefeller wrote a letter to Cheney...
That was a hand-written note that didn't come to light until after the story about the TSP came out in December, 2005. Who knows when he wrote it.
Jane Harman, on the other hand, actually did send a letter to the CIA (while Ranking Member of the House Intelligence Committee), a letter that was corroborated. That's a bit more than the "literature" sent by Sen. Rockefeller.
...he was worried about its legality, but without being able to consult his lawyers or staff, he was unable to follow up on his concerns.
How can anyone, let alone a lawyer, buy an excuse like that from a politician? Rockefeller knows if he mentions anything as part of his job as a Senator, even exposing something that is classified and/or covert, he is immune from prosecution.
Andrew McCarthy, someone who knows more about terrorists than anyone here or in the administration, finds all kinds of hypocrisy from Obama and Holder as it relates to "torture". I expect that it will be dismissed by most here, but read it anyway.
Note: I'm going to just do one comment in this thread in response to SteveAR. I don't want him to imagine that he's in any way correct, but I also don't want to get into another of the wide-ranging BS fests he loves so well.
1. Steve, when someone performs an action against the existing law, it's a crime. If the law is changed, the same action is no longer illegal.
2. Almost all this crap came to light only after the administration change and Obama turned on the lights. I think you might need to wait, oh, say, until there's an election, to see if people vote them out.
3. What Congress thinks is legal or illegal is not an issue in the executive branch. The OLC is the authority. This is everything in this context.
4. As for what they knew, and when they knew it, no, we don't know. We suspect that they knew far more than they admit, but right now we don't know. You think different? Show your evidence.
5. I wouldn't believe McCarthy if he swore on a stack of bibles that water was wet. Even if he's being truthful, his "terrorism expertise", which is based on prosecuting the "blind sheik" more than a decade ago, I think it's gone sour.
Now, back to your evidence-free delusional paranoia, already in progress.
And apologies to the rest of the readers of these comments.
exactly c2h5oh, exactly...
Someone said that Yoo could not be disbarred as his memos were more than four years old, and the PA body only considers things which were done in the past 4 years. Is that true? Does the fact that these memos were just released make a difference?
I read the McCarthy article and find it spectacularly unconvincing. The point it makes is that torture is considered a crime of "specific intent." All that means if that torture requires a deliberate and willful act. If I deliberately run my car over your legs, for instance, that is torture. If I carelessly run over your legs, it is not. And if I push you into a busy street, even though I know you will be hit by a car and seriously injured, it is still not torture (although it may be another crime).
In deportation cases, people may not be deported to countries where they face torture. As I understand the article, the standing rule is that is interpreted to mean that people may not be deported to countries where they face deliberate infliction of severe pain. If they will be sent to prisons where they will not get adequate medical care for a chronic condition and severe pain will result, that is not considered torture. The Obama Administration is sticking to that standard in the case of an elderly, infirm Nazi war criminal who says that the act of deportation alone will be severely painful.
The torture memos twist this to mean that to be torture it must not only be willful and deliberate act that will inflict pain, but it must be done deliberately for the sole purpose of causing pain. Or, put more concretely, if I deliberately run over your legs with my car, it is only torture if I do it out of sheer sadistic pleasure. If I run over your legs to make you talk, it is not torture because the pain will be purely incident.
I do not claim any expertise on immigration law, but I am guessing that if a government lawyer went in and said, "Sure, if the subject is deported he will be chained to the ceiling for days on end to prevent him from sleeping, thrown into walls, forced into small boxes and waterboarded, but the point will be to make him talk, not pure sadism, so it isn't torture at all," the judge would not treat this argument with much respect.
The most important question in my mind is not what kind of punishment the various bad actors deserve, but what steps can be taken to minimize the chances of this ever happening again.A few years in the slammer for the "bad actors" should solve the problem.
I don't see disbarment taking away their livelihood unless the conservative patronage machine is unable or refuses to take care of them. Anyone who faces any consequences as a result of their faithful service to a Republican administration instantly becomes a martyr and Republican hero (e.g. Ollie North, Scooter Libby) and there will always be a position waiting for them at a well funded right wing think tank if nothing else. There may even be an ambassadorship under the next Republican administration. What some may see as a public shaming others will see as a badge of courage and honor which will earn for them the conservative equivalent of canonization and set them up for life.
This is assuming even such a small penalty was feasible. I have to wonder if any disciplinary action couldn't be blocked simply by the malefactors claiming they can't adequately defend themselves without revealing state secrets, therefore they cannot be punished.
The most important question in my mind is not what kind of punishment the various bad actors deserve, but what steps can be taken to minimize the chances of this ever happening again.Of course, those two things aren't exactly unrelated. If you really want to up the stakes, apply the LAW, and let them defend themselves in court or do the time for doing the crime. Arguments that we don't need to enforce the law are so much bogus rationalization.
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