Obama's DOJ Clears Yoo & Bybee
This is news. Newsweek reports that the DOJ is on the verge of releasing a finalized report of its investigation into Bush administration OLC attorneys who researched and reported on legal questions ranging from enhanced interrogation to wiretapping to all sorts of mundane topics about which I have no clue because, of course, they are not the subjects of constant and viscous vicious attacks. More specifically, the report is expected to declare that Professor Yoo and Judge Bybee committed no professional misconduct, although it does question their judgment. In other words, all bark and no bite.
Perhaps the report means they did not commit any egregious wrongs. Perhaps the report means the Obama administration has embraced the notion of a powerful executive. Query to the Berkeley left: which conclusion displeases you more?
Perhaps the report means they did not commit any egregious wrongs. Perhaps the report means the Obama administration has embraced the notion of a powerful executive. Query to the Berkeley left: which conclusion displeases you more?
Labels: Yoo-Hoo
posted by Patrick Bageant at 9:49 PM
21 Comments:
Of course, those two conclusions aren't the only the possiblities.
A third possibility is that although Yoo and Bybee committed egregious harms, the administration has decided that probing any deeper wouldn't be the worth the political capital. Better to use what capital is left to push for healthcare, jobs, etc.
Of the two, Obama embracing a powerful executive displeases me, as a damned liberal agitator, more.
I agree that questioning their judgment without a finding of misconduct is all bark and no bite. Everyone already knows their judgment is questionable. The overwhelming majority of legal opinions oppose the finding of the Yoo's memos; his opinion is fringy, and anyone on the fringe is questionable.
Morally, I feel the finding was wrong, so it would have been fun to watch Yoo and co. squirm a bit, but it would have been regrettably unsatisfactory.
And a fourth possibility: the report was amended because the original recommendations couldn't be fully justified.
It's quite a departure from precedent to start sanctioning lawyers for bad advice--at least when that advice was (A) given in good faith, (B) not failing due to a lack of care or attention, and (C) not so entirely unjustifiable so as to be frivolous. Although many have accused JY and JB of knowingly giving bad legal advice as a result of client pressure, there hasn't been any evidence of this. (And I think, at least in JY's case, his advocacy of these positions both before and after his DOJ tenure undermine this claim.)
If the report recommended sanctions, then it would have to defend them. In the absence of any evidence of bad faith, that may have been very difficult to do. Furthermore, as a policy matter I think neither the DOJ or the White House want to start subjecting the President's legal counsel to punishment if public policy is changed (such as in a new administration).
When you write a memo on executive power and conveniently omit any mention of Youngstown, one of two things has happened:
1) You did so in "good faith," as you seem to believe Prof. Yoo must have, and just forgot about it. Or,
2) You're not an idiot - and Prof. Yoo is many things, but not an idiot - and intentionally omitted it in "bad faith."
It's not quite a departure to punish. Lawyers are sanctioned for much lesser conduct all the time.
It's my understanding that the defense regarding the failure to cite Youngstown will be that a series of OLC memos, across several years and various administrations, treated Youngstown as applying only to the president's conduct on US soil (and not, for example, Cuba).
Whatever one thinks of that, a critic of Yoo's, writing at the Balkin site, seemed to give the argument some credence. If the OLC had a tradition of treating the case that way, one could conclude that a lawyer relying on that usage did not act unetically.
This is just fwiw.
My sense is that once we see the OPR report, the real action will focus on the degree to which political actors (e.g., Addington) were or were not able to alter the memos.
I saw John Yoo eating at Fog City Diner last Friday, so at least we know he has pretty good taste in restaurants.
"Viscous" attacks? As in, thick and syrupy?
Thick, but not syrupy. More like dirty engine oil than Karo.
As Prof. Steele notes, OLC has consistently viewed Youngstown as only applicable in areas in which both the executive and legislative branches have shared authority. Because the President's commander-in-chief authority over the military abroad is plenary, Youngstown is inapplicable.
Or at least that is what OLC has been arguing for many years now. I don't think that there has been any change in this regard in the Obama administration.
Yoo's defense in the WSJ was that he considered it to be just a labor law case... Right.
http://online.wsj.com/article/SB124770304290648701.html
I think 2:25's comment shows why lots of JY opponents are often left unsatisfied. Because JY doesn't actually make the absurdly simplistic arguments that his opponents want to pin him down to.
For example: did JY describe Youngstown was "just a labor law case?" No, he wrote:
Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes. It does not, however, address the scope of the president's power involving military strategy or tactics in war. If anything, it supports the proposition that one branch cannot intrude on the clear constitutional turf of another.
Moreover, earlier Justice Departments -- reaching across several administrations from both parties -- had likewise concluded that Youngstown did not limit the president's legitimate conduct of foreign affairs and national security policy. This is why all administrations have refused to accept the 1973 War Powers Resolution and have regularly engaged in military conflicts without congressional approval.
Now, 2:25--which sentence in that quotation was incorrect?
Carbolic, can you point to a single case analogous to detainee torture in which a self-defense argument has succeeded? That's pretty absurd.
But it's also nitpicky. What bothers me and many others is that Yoo advocated for something that is clearly morally wrong and caused a lot of harm to many innocent people. It also troubles me that he did this in flagrant violation of the Geneva Conventions, which which the US ratified specifically to prevent these abuses. He made a totally disingenuous argument about torture that ignored international and domestic case law on the subject. Whether you attribute that to extraordinarily poor judgment or to malice should have no bearing on whether or not disciplinary action is authorized.
He may have been just careful enough to protect himself from prosecution, or just lucky enough to benefit from Obama's cowardice on the matter, but at the end of the day, he helped authorize our government to torture people, exact false confessions, and implicate others who had no relation to any terrorist organization and who would also be subjected to torture. No legal loopholes excuse that. Clearly, though, some people in this country are above the law--and some people remain beneath its protection.
5:06--I sincerely appreciate your contribution. But I think you're making very broad and inexact statements that don't stand up to scrutiny.
First, I don't understand your beginning sentence. The JY memos never argue that "torture" is permissible due to a self-defense justification. Instead, they analyze several techniques and conclude that they fall within the category of inhumane treatment, but not in the category of "torture." For many of these techniques (e.g., slapping someone in the stomach), that analysis isn't controversial.
Waterboarding has been the most controversial technique. Some have argued that the confinement policies at Guantanamo also constitute torture. But before you can say that they violated the CAT or other treaties, you have to look at the reservations. Because U.S. obligations are limited by this qualifying language (which is drafted by Congress).
I don't disagree with your observations about morality, by the way. But that's not a legal argument.
Carbolic, here is a quote from a memo issued by Bybee on 8/1/2002:
"Even if an interrogation method...might arguably cross the line drawn in Section 2340...we believe that under the current circumstances certain justification defenses might be available that would potentially eliminate criminal liability. Standard criminal law defenses of necessity and self-defense could justify interrogation methods needed to elicit information...."
Out of curiosity, are you aware of ANY self-defense or necessity case analogous to torturing prisoners who may or may not have actionable intel, and may or may not have any affiliation with a terrorist organization in order to prevent a terrorist attack that may or may not be in the works? Even if you don't give a crap about the prisoners, this advice recklessly exposes our soldiers and intelligence officers to criminal charges.
Granted, these words are credited to Bybee; I don't know whether or not Yoo was involved in this particular memo.
Also, I was not referring to CAT. I was referring to the Torture Victims Protection Act and to ATS, both domestic statutes, which have found torture in cases of acts less severe than "permanent organ failure" (where John Yoo draws the line). Even if you want to somehow disregard these cases, you have to address them, and "poor judgment" does not excuse the failure to do so. The DOJ has since repudiated these opinions and SCOTUS has held that Yoo's analysis of Geneva Convention rights was completely wrong. I'm not saying we should summarily fire him (or force him to stand in stress positions), merely that he should have his day in court, and his victims should have theirs.
Finally, regarding your point that moral arguments are not the same as legal ones; obviously, I am aware of that. I bring up the moral points because lawyers (who unfortunately are the only ones in any position to redress these harms) tend to get lost in the thicket of John Yoo's crafty lawyering and forget what this is really about: not only laws, but justice. The big lesson that we should all take from this debacle is not to lawyer to the lowest common denominator. If Yoo had had a moral compass, we wouldn't be in this situation. And in figuring out what position to take in these debates, we should also let some sense of morality guide our inquiry.
A final request...there is a TON of ignorant blabber on both sides of this issue. How we wound up torturing people is important enough that we all need to make an effort to learn about and understand what happened, rather than just repeating what others say. I am not an expert on these issues, but at least I'm taking the time to do my homework on them.
1:19--Again, thanks. A few points.
1. On necessity. What case would be analogous to the scenario here: a non-state, international terrorist organization that has killed thousands of Americans within the U.S. and which was thought to have "sleeper cells" capable of committing acts of the same or greater magnitude? I don't argue that "everything's different after 9/11," but I think it's fair to say that AQ represented a threat that was substantially different than those that were previously considered (e.g., Timothy McVeigh*). The main function of the OLC is not to describe the state of settled law, but to offer legal opinions on "grey" areas of unsettled laws.
2. On SCOTUS. Relatedly, the fact that SCOTUS subsequently rejects an argument doesn't mean that the argument was "wrong," for two reasons. First, OLC is required to make legal decisions before knowing how SCOTUS will decide an issue. Second, Citizens United demonstrates that the law is basically what SCOTUS decides it is--when SCOTUS decides it is.
3. On TVPA. You argue that the JB memo "disregards" TVPA cases. In fact, the memo has a whole section on how U.S. courts have applied TVPA. And an appendix describes 19 cases in which courts have concluded that the defendant tortured the plaintiff and two additional cases in which courts have concluded that torture did not occur. While I haven't done any independent research, th acts described do appear more severe than those contemplated by policymakers (e.g., defendant was abducted, severely beaten, forced to drink diesel oil, and then summarily executed.)
4. On moral compass. This isn't an area where we disagree very much. But I think you are conflating legal advice and policy-making. A lawyer in JY's position (that is, in OLC) is required to answer the question: "what is the law," not "how should we act" or "what should the law be."
* Or the Geneva Conventions, for that matter.
1. On necessity: this is not a "gray area"--in fact it is well-settled. In United States v. Schoon (1992), the 9th Cir rejected a necessity defense for protesters who were trying to prevent the U.S. from continuing to fund death squads responsible for killing tens of thousands of civilians in the Salvadoran civil war. It is similar to detainee torture in both the magnitude of the crime they were trying to prevent and the likelihood of actually preventing it using the chosen means. Denying the necessity defense in these circumstances is the overwhelming position of appellate courts, and the fact that the harm to be averted would have occurred on US soil should have zero bearing on the analysis. The elements, as described by the court, include that the actor reasonably anticipates a direct causal relationship between his conduct and the harm averted (not satisfied w/r/t non-AQ people picked up in sweeps); the actor had no legal alternative (not satisfied because the FBI has developed much more effective interrogation techniques than torture); and that he acted to prevent imminent harm (possibly true, but we are not talking about a "Dudley and Stephens" level of imminence).
2. TVPA: I didn't say that Yoo ignores all TVPA case law, just the case law that doesn't support his analysis. There are cases where the torture falls well below the threshold he believes is permissible; these are not in the memos.
3. SCOTUS: in settled areas of law, the OLC can be expected to anticipate how SCOTUS will rule. In fact, that's its job. Just because you call the gitmo detainees by a new name doesn't mean you can strip them of rights intended to be universal.
4. Moral compass: in this case, using your moral compass means trying to figure out what's just, and then seeking out the laws and cases that support your argument, and further trying to figure out what the appropriate course of action is now. Taking a fatalistic approach ("shoot, he really nailed us!") doesn't require any moral compass at all. If you really think he was wrong, try to figure out how he can be held legally responsible--and more importantly, how we can prevent this from ever happening again--rather than repeating second-hand views about why it can't be done.
Your argument essentially boils down to manipulating the law as a tool to harm the people you want to think deserve to be harmed. The fact that you are too ignorant to understand why a person's moral compass sees that as its own kind of wrong (and even a cursory consideration of America's history of discrimination is all it would take to recognize that) does not mean that moral compass doesn't exist.
Beetle,
What you just described is exactly what John Yoo did, is it not?
I want to use the law to protect people, not harm them. That's why I think John Yoo deserves due process--but also why his victims deserve their day in court. What's so ignorant about that?
I'm happy to engage you in debate, but let's keep it civil.
If you really do approach this at the level of "I know you are, but what am I?" I'm not really sure how to proceed. Even if you accept the idea that creating a legal basis to allow torture of terrorists, an idea you may be surprised to learn is not universal (or even close), what you suggested is that first you come to the moral conclusion that Yoo should be punished, and then look for a way under the law that it could happen. If you want to say Yoo wanted the same thing, sure, it doesn't really matter, and doesn't serve as a shield that you can hide behind when you advocate the same. "But I'm perverting the justice system for a good cause" is still going to come up hard against many people's moral views. So if you want to keep things civil, I'd suggest you not accuse those who disagree with you of being nihilists without a moral compass.
Beetle,
I get your point (I think?)--John Yoo has a moral compass, and it essentially says torture is OK, so what makes my moral compass any better. (I would say that the fact that my moral compass recognizes that torture is not ok is a sign that it's in better condition than Yoo's, but of course I know that's circular reasoning.)
The reason I bring up the moral compass is because Yoo's work (and let's be honest, a lot of lawyering) seems to show surprisingly little concern for ethics. It's more about what you can stretch the law to do for your client than upholding the spirit of the law. In that context, you have to be a little more honest about what the law is meant to do (protect prisoners of war) than what you might be able to stretch it to do (subject prisoners of war to treatment that was previously unthinkable).
And, if you are going to use legal reasoning that far out of the main stream and likely to be repudiated in the near future, potentially exposing the client and his subordinates to criminal liability, you have to be honest that that's what you're doing.
So, if "moral compass" is too fuzzy for you how about calling it "the importance of honesty in candor in your legal advice"?
1. With Schoon, you are trying to conflate a case about U.S. protesters opposing federal policy with the U.S. government's (purported) ability to act in the national defense. I'm sorry, but the two simply aren't comparable; the government is not just a private actor. And Martin Sheen isn't actually the president, although he plays one on TV.
2. Again, he cites 21 cases on TVPA, so I don't think you were justified in saying that JB "disregards caselaw." Which cases are you referencing?
3. It's as much of a stretch to say that this was an area of settled law in 2001/2002 as it is to say that a series of treaties going back to the mid-ninteenth century were "intended" to apply to the members of non-state organizations that are potentially able to cause mass casualties (i.e., tens to hundreds of thousands of civilians). The whole concept of such a threat didn't exist until ten to twenty years ago.
4. Your description here seems to demean both laws and moral compasses.
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