It seems obvious, by now, that this line of reasoning is meant to, mostly, impress the mouthbreathers on the right, and not to, somehow, interpret existing law.

One guy, probably in on the lawbreaking, thinks it's all okay? That's a justification? Gimme a break.

There's a reason why the Bushies have gone to extraordinary lengths to avoid having this posturing of theirs tested in neutral courts and took extraordinary measures to coerce weak allies into exempting the U.S. from ICC treaty obligations.

They knew they would be convicted of war crimes.
 

What is the role of an attorney in serving a client? My legal practice of just short of 54 years has been mostly in the civil area, much of it involved with corporate, tax, real estate, etc, in representing the interests of businesses, their executives and stockholders. In addressing a client's concerns or desires, the attorney may seek a bright line that may clearly determine what the client can and cannot do. But even where there appear to be bright lines, the attorney may seek loopholes that may justify a close action proposed to be taken (or already taken) by the client.

For many areas of the law, there is no bright line; rather there is quite a bit of gray area that the attorney may roam in for the purpose of coming to a resolution that will satisfy the client. This is what attorneys do. Just take a look at recent shortcomings of major corporations, their executives, directors and stockholders, whether with respect to corporate law, securities law, tax law, etc. But for the gatekeepers, incuding accountants as well as attorneys, advising clients, would these events have occurred? Were the gatekeepers aiders and abettors of their clients?

I had an ethics course back in law school. But the explosion of laws post WW II as business expanded has made the role of the attorney more complex in his efforts to serve his clients and the law effectively. The client may want the attorney to get as close to the line of legality as possible even is that line might be moving. Too many times the attorney may accommodate the client by perhaps getting too close to the line or even just beyond it. Just as with respect to the tax laws lottery game played by tax professionals in advising clients on tax matters, the attorney may consider the chances (cost/benefit) of advice being exposed by the authorities with regard to corporate, securities or, say, international laws regarding torture. Reliance upon advice of counsel motivates actions by clients.

So what are our obligations, and to whom, as we attorneys serve as gatekeepers? We have an economic obligation to ourselves and our families. But don't we have greater obligations not only to our clients but beyond? No one told us practicing law was going to be easy, especially when we get the big bucks. Now let's see if I can move that bright line or at least dim it somewhat to accommodate my client and get paid. Crude? Fellow attorneys, think about what we do. Aren't we like W. C. Fields looking through the Internal Revenue Code or the Bible, for ... "Loopholes!"?
 

As to the sudden influx of laws post-WWII, that to be fair included a growth of human rights law, where does the old malum prohibitum/malum in se rules fit in? I'd think there would be less wiggle room in the latter.

Anyone, this underlines how important it is to have credible people in power. The ability to lie to yourself (sometimes using lawyerly words, to paraphrase Orin Kerr) is a human quality that doesn't suddenly disappear when you are in the executive dept.

Even if your boss is someone who seems nice and someone you'd like to have a drink with while the opponent seems like a nerd who doesn't wear flag pins.
 

lie to yourself and justify to others ... but, honestly, I think lying to yourself to get your thru the day also factors here
 

"The ability to lie to yourself (sometimes using lawyerly words, to paraphrase Orin Kerr) is a human quality that doesn't suddenly disappear when you are in the executive dept."

Actually, just speaking as a systems analyst who spent nearly 30 years working for corporations, I'd think it tends to increase in relation to ones authority. That's why you need good accountants and auditors ---- exactly what our courrupted legal profession and battered Republic require right now.
 

The letters confirmed my surmise from the Goldsmith book that the Yoo memoranum were not rejected for content, but rather muddied up for political CYA to achieve the same ends.

Yoo was engaged in the sisyphusian task of attempting to clarify muddy statutory and treaty language which really are not subject to objective definition.

What clarity Yoo managed to produce ended up being insufficiently "sober" (read politically unseemly) for Goldsmith as he discussed in his book. Goldsmith withdrew the memorandum but still told the intelligence community that their current techniques were OK.

The disclosure of these subsequent DOJ letters confirmed my repeated surmise here that DOJ did not so much repudiate Yoo's legal reasoning as they returned the statutory and treaty interpretations to their original muddied state for political cover and approved the same exact activities.
 

On the subject of lies, either to one's self or to others, I promptly think of Jerry Seinfeld's George Costanza's comment on the subject to Jerry (who was thinking of a lie detector test he was to take): "It's not a lie if you believe it."
 

This comment has been removed by the author.
 

This fits in with the previously-known effort to redefine "torture" in terms of the Eighth Amendment and its "shock the conscience" standard.

If you're torturing a guy to save NYC, then that doesn't shock the conscience, runs the theory.

If you torture a guy to save NYC, and then it turns out that you've got the wrong guy and NYC wasn't actually in danger ... what then? Is there an episode of "24" that provides us the necessary moral and legal guidance here?
 

I do not know which I find more depressing, the New York Times report, the commentary of Professor Levinson, or the usual observations from Bart De Palma.

Obviously, it must be difficult for Professor Levinson to take a principled approach to issues of torture while teaching in Texas, a state which holds human life itself fairly cheap – as exemplified by the statistics on the incidence of judicial murder by the Lone Star State:

(1) the USA as a whole has executed 1,099 human beings since 1976 (a figure exceeded only by China, China, Iran, Saudi Arabia and Pakistan); and
(2) 405 of the US executions were in Texas.

With the USA as a whole keeping such fine company on a crucial human rights issue and with Texas being the most backward of all the states in this regard, it is unsurprising that Professor Levinson should feel compelled to write:

“…there is no universal consensus on the proposition that torture is forbidden under all circumstances, whatever the UN Convention might say.”

Self-evidently, if a majority of the people of the USA are so unconcerned about the sanctity of human life as to permit the continuance of the death penalty while knowing full well that there are a disturbing number of wrongful convictions, it would be unsurprising if a majority of the same people were unconcerned about a spot of torture – particularly if the victims are foreigners.

As Professor Levinson and even Bart will know, the English language is full of derogatory racial epithets – “wogs and wops” are but two examples. The USA has its "gooks and rag-heads".

In a 1945 parliamentary debate about Burma, the Labour MP, George Wigg, observed that the Tory benches thought the Burmese were all ‘wogs’ and went on:

"Indeed, the Right Honourable Member for Woodford [Winston Churchill] thinks that the 'wogs' begin at Calais!".

The phrase caught on, and is still in all too common use over here by those who think the British are inherently superior to other Europeans - let alone to the “fuzzie-wuzzies”. These are the same citizens who support the reinstatement of the death penalty (currently at 56% down from 80% 10 years ago), the most vocal of whom are the the blue-rinsed Tory matrons who also bay at their party conferences for the reinstatement of flogging for hooligans. I suspect they also would not be adverse to a little torture, provided it were only done to ‘wogs’.

It seems that we exported our regrettable belief in our racial superiority to the colonies with the founding fathers. That belief is plainly alive and kicking in the USA today. It must be because a belief in national superiority is a prerequisite to a belief that the foreigners are lesser beings whom it is alright to murder, enslave, torture and degrade.

What concerns me is that the whole purpose of all education, is to lead the students to that which is good and moral and it seems to me that in American academia at this time there are far too many academics willing to postulate that torture or inhuman and degrading treatment of our fellow men is morally and legally justifiable.

A flagrant example is to be found in the writing of Professor Levison’s unfortunately influential colleague Professor Bobbitt whose latest dangerous work – ’Terror and Consent' suggests that it ought to be possible for government agents to use coercive methods short of torture (sleep deprivation, truth drugs), but only with the prior approval of a jury.

US and UK academics, and lawyers in particular, should not be debating whether a particular technique qualifies as ‘torture’, or merely the 'inhuman and degrading treatment’ prohibited by the European Convention on Human Rights and the Protocol to the Torture Convention which the USA has conspicuously and disgracefully failed to sign and ratify, possibly because of its implications for the treatment of persons in US police custody.

Lawyers, and particularly those who train lawyers, should be shouting from the rooftops that such acts are intrinsically wrong and criminal when carried out by agents of the state as offending against the common law right to inviolability of the person.

And no, Bart, the Conventions are not muddied or difficult to interpret: there is a wealth of authority from jurists of high distinction around the world.

The plain fact is that lawyers within government service so forgot their duty to the law that they accepted instructions from their client to write an opinion as a purported justification of the unjustifiable.

You, Bart, also promote the thesis that torture or inhuman and degrading treatment of "fuzzie-wuzzies" is acceptable.

I submit that to propound such beliefs does no credit to the honourable legal profession to which you belong nor to another honourable profession to which you once belonged (however briefly), namely that of a member of the armed forces of your country.

The military in the UK and the USA exist to defend the civilised values of our respective constitutions and common law traditions. Have you not noticed that officers of the JAG corps have, to their great credit, have been the among the most forthright public opponents of the Bush Administration's policies in relation to the treatment of detainees?

Shame on you, Sir, for your stance on this issue.
 

Shag from Brookline , You have a few years on me... I have only practiced 25 years... but it also means that I took my ethics courses more recently than you did!
Although my practice has been in civil and human rights I also have handled many other issues over the years for small and not so small companies... when a client asks you for advice you usually know where they are going... and you usually know where they will end up if they take the course they want... I always have told them the pitfalls... you have to ... because if they disregard your warnings you can shake your head and remind them of the warnings...while you defend them and try to get them out of the mess... something they will never hire you to do if you didn't see it coming first!
But more importantly in the context of our current discussion something seems to be lost. Who is the client?
Last I looked it was you and me and my fellow countrymen and women... not bush and his thugs.
These so called attorneys took an oath to defend the constitution and our country... NOT BUSH ..
when we shrug our shoulders and say that the advice they gave was to be expected we are ignoring the fact that they have violated their oath ... and that we the people have been screwed (legal term!) by their disloyalty to the constitution.
 

I have enjoyed practicing law. I have tried to be ethical and to inspire my clients to be ethical. But the clients make the decisions. I can, and have, resigned when issues of conscience surface. But as attorneys we have certain obligations to our clients, even those who do not take our advice and even those we choose no longer to represent. It would be inappropriate of us as attorneys to reveal confidences. But that shouldn't stop us from commenting on the problems that exist that perhaps our fellow professionals contribute to. I believe in whistleblowing (subject to legal confidentiality requirements), especially for government employees. In this regard, here is access to an article titled "The Whistleblower's Unending Story" by Adam Geller of the Associated Press:

http://www.truthout.org/docs_2006/printer_042708Y.shtml

We as attorneys may have our hands tied with respect to our clients, including former clients, but that should not prevent us from speaking out about problems that our fellow attorneys may be contributing to that effect much of the public - and our profession.
 

Quote: In one letter written Sept. 27, 2007, Mr. Benczkowski [a deputy assistant Attorney General] argued that “to rise to the level of an outrage” and thus be prohibited under the Geneva Conventions, conduct “must be so deplorable that the reasonable observer would recognize it as something that should be universally condemned."
Follow-up quote: There is, of course, a certain logical paradox here: The very fact that the some US interrogator would suggest that some particular conduct is "reasonable" in some situation would, by definition, mean that there is not "universal" condemnnation of the practice.

(My turn) There is no paradox if you recognize two things. First, the original quote says "the reasonable observer would recognize it as something that should be universally condemned." It does not say that the behavior would be universally condemned; it says that a reasonable person would say that it should be condemned. Second, therefore, there is an obvious solution to the supposed paradox. All you need to do is recognize that the US interrogator is not reasonable. And the evidence of this is given by the fact that he or she is torturing someone.
 

“…there is no universal consensus on the proposition that torture is forbidden under all circumstances, whatever the UN Convention might say.”

I think you're interpretation of this clause is different than mine. I read it only as acknowledging the sad truth that, judging people by their actions, torture is widely practiced and therefore not, in that sense, universally condemned. I don't get any sense that Prof. Levinson approves of this situation; just that he's realistic about the task we face.

unfortunately influential colleague Professor Bobbitt

I suspect he's less influential than you fear. I personally find him unreadable even when he's not ridiculously wrong, and I doubt his influence extends very far.
 

"You're" should be "your", of course.
 

Professor Levinson said:

"Once one allows what might be termed 'purity of utilitarian motive' to dominate the analysis, the game is over, for there will always be those who will argue that it is worth doing practically anything to forestall any 'terrorist attack.'"

Yes, but another aspect of this problem is that factual premises like 9/11 are not being seriously questioned by lawyers, and even if that does not end the game, it sure puts the torturers on the goal line, even if only in their own minds.
 

Mark:

Thanks for your observation. As I hope my post makes clear, I accept that there is no "universal consensus" among the general public.

What concerns me is that there is near consensus in the European academic and legal world on the matters in issue but much less so in the USA.

People who teach, and especially those who teach law, are opinion formers. Those they are teaching today may one day sit in judgment marked by the teaching they receive.

As usual there is the tension between liberty and licence - but I fear that too much licence is being afforded to some. On the strengh of the Memorandum, I do not think Yoo should be allowed to teach undergraduates - at doctoral level people ought to be mature enough to make up their own minds after doing their own research.

By the way, Bobbitt is, unfortunately, more influential than you may think. One of his disciples is our former and unlamented PM "Poodle" Blair. And in matters of civil liberties, most Blairites would not know a fundamental principle, if it came up to them, stood to attention and saluted.
 

Dwightvw said:-

“Yes, but another aspect of this problem is that factual premises like 9/11 are not being seriously questioned by lawyers, and even if that does not end the game, it sure puts the torturers on the goal line, even if only in their own minds.”

The factual premises of 9/11 are that some wicked people committed mass murder. That leads a normal citizen and above all a normal lawyer to demand that the executive take steps to investigate and detain the perpetrators and their accessories, extradite them if need be, and to put them on trial while scrupulously respecting their rights so that they might receive due process with a view to condign punishment. It was also predictable that some outraged and grieving relatives and members of the public would demand from the executive more than a responsible executive can lawfully do.

But it is the job of the executive to remain within the law and not pander to the popular sentiment and the job of lawyers in government service, be they prosecutors or advisers to departments, to ensure due process and the job of the judiciary to invigilate.

I think it is now clear beyond peradventure that your President desired to dispense ‘cowboy justice’ without regard to the law bringing not just the Administration but the whole nation into disrepute and that the Department of Justice was complicit in and an accessory to acts which were unlawful, unconstitutional and criminal, if not by the laws of the United States, certainly by the laws of many other states.

Not only does that diminish the United States in the eyes of the rest of the world, but it also increases the prospect of more terrorist outrages against not only the United States, but also against its allies who, for geographical and other reasons, are inherently more vulnerable.

Thus I think your ‘goal line’ is not an apposite metaphor. In football (i.e. soccer), if you commit a particularly egregious foul, you receive a ‘red card’ which means you are sent off the field and you team has to play the rest of the game one man short and you may end up before a disciplinary board for bringing the game into disrepute.
 

mourad said...

And no, Bart, the Conventions are not muddied or difficult to interpret: there is a wealth of authority from jurists of high distinction around the world.

You mean like the wealth of widely varying opinions giving the subjective views of jurists of high distinction concerning the "meaning" of the Eighth Amendment prohibition of "cruel and unusual punishment?"

Give me a break.

No one can give us an objective definition of the subjective GC terms any more than they can of "cruel and unusual punishment."
 

No one can give us an objective definition of the subjective GC terms any more than they can of "cruel and unusual punishment.

Since the secrecy surrounding interrogations obviates "reasonable observers," GC interpretation is currently rendered irrelevant.
 

Bobbitt is, unfortunately, more influential than you may think. One of his disciples is our former and unlamented PM "Poodle" Blair.

That's disappointing, but I suspect we have many to blame for the result of Tony Blair.

What concerns me is that there is near consensus in the European academic and legal world on the matters in issue but much less so in the USA.

There was, I believe, such a consensus here until 9/11. I see much of the recent departure from historical norms to be a function of politics. As in most such instances here in the US, in the long run the right answer will be accepted again. The tragedy is that some of us are forced to live in "interesting" times.
 

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Bart Said:

What clarity Yoo managed to produce ended up being insufficiently "sober" (read politically unseemly) for Goldsmith as he discussed in his book. Goldsmith withdrew the memorandum but still told the intelligence community that their current techniques were OK.

Bart, you are either intractably self-deluded, or a liar.

No where in Goldsmiths book does he intimate that torture techniques were legal, or "OK". In fact he withdrew the "Golden Shield" of OLC approval and resigned to make it stick. He left no replacement legal justifications for torture, and notes:

During those last few weeks in government, my relations with the CIA, were, to put it mildly, strained.... I had changed the rules in the middle of the game...

Bart, what sort of lawyer is going to clearly define the law and advise their client that breaking the law is "ok"? Although the bush administration is filled with them, fortunately Jack Goldsmith was not one of them.
 

Mourad, I was deliberately being vague because it is considered beyond the pale to question the official story of 9/11, even though that story is patently absurd, and absolutely no evidence has been offered in support of that story.

I agree completely with your statement:

"The factual premises of 9/11 are that some wicked people committed mass murder. That leads a normal citizen and above all a normal lawyer to demand that the executive take steps to investigate and detain the perpetrators and their accessories, extradite them if need be, and to put them on trial while scrupulously respecting their rights so that they might receive due process with a view to condign [assign?] punishment."

There have been and probably will be no real trials. The Moussaoui trial in the U.S. and the Mottasadeq trial in Germany were disgraceful farces.

My point is that in saying that the utilitarian argument is invalid, commentators are not questioning 9/11 = Al Qaeda as the factual premise of those making those utilitarian arguments, despite that factual premise having ZERO evidentiary support.

There are unfortunately very few law professors listed here:

http://patriotsquestion911.com/
 

Mourad, you call the perpetrators of 9/11 attacks "wicked," but according to the New York Times, it is discussed as "relative" from the military point of view. Collateral damage? Utilitarian?

http://www.nytimes.com/2008/04/20/washington/20generals.html?pagewanted=9&_r=2&th&emc=th&adxnnlx=1208837332-gbsMUyY%20xb01KLaUx/2U7w

On Tuesday, April 18 [2006], some 17 analysts assembled at the Pentagon with Mr. Rumsfeld and General Pace, then the chairman of the Joint Chiefs.

A transcript of that session, never before disclosed, shows a shared determination to marginalize war critics and revive public support for the war.

. . .

"Frankly,” one participant said, “from a military point of view, the penalty, 2,400 brave Americans whom we lost, 3,000 in an hour and 15 minutes, is relative.”
 

Bart de Palma responded:-

“Give me a break. No one can give us an objective definition of the subjective GC terms any more than they can of ‘cruel and unusual punishment’."’

Give everyone else a break, Bart. As a practising lawyer, you ought to be aware that there are many legal concepts which are easier to recognise than to define: What constitutes “unconscionable delay” ? What constitutes “an abuse of the process of the Court” ? What constitutes “undue influence” ?

Definitions are for scientists, the law is an art. As you should also well know, the common law requires a process of reasoning by analogy from earlier decided cases.

Since you hold yourself out as a ‘criminal defence attorney’, I rather think you have a need to know what kind of factual situation is likely to be considered by the Courts as constituting 'cruel and unusual punishment', (apart from being forced to read your briefs).

If you wish to go into the issue of 'cruel and unusual punishment' thoroughly, you had better start with the English Reports 1220-1873. You may not happen to have all the 178 volumes readily to hand in your office, but there is a searchable on-line version at Hein On-Line and Justis. You will find that the concept was pretty well established by the time of enactment of the Bill of Rights 1689 (1 Will. & Mar. sess. 2 c. 2) restating the then common law position. Then work forward through the precedents for each common law jurisdiction. That should be a lifetime’s work.

If you want the quick tour, you could try a Lexis search over the years 1945-2008 covering the US Supreme Court, the UK House of Lords, the Privy Council and the Supreme Courts of Australia, Canada, South Africa and New Zealand.

You could then repeat the exercise for cases on “torture” and “inhuman and degrading treatment” adding in the European Court of Human Rights – also available on-line and free.

It shouldn’t take you too long to cover both issues – and in the meantime, those of us who have done some homework on the topics can get on with our discussions.
 

drational:

Go check out page 154 of Goldsmith's book.
 

mourad:

Subjective terms in constitutions which are essentially invitations to the judiciary to create a constitutional common law would as criminal law be void for vagueness in violation of the due process requirement of giving the defendant reasonable notice of what is criminally prohibited.
 

Bart, he's not talking about a law criminalizing citizen action, that could be void for vagueness. He's talking about how to interpret a constitutional limit on state action. How do you propose that be done other than by the courts?
 

Dear dwightvw:-

I have a special interest in terrorism and I fear there is ample material to make a case to answer that 9-11 was an Al-Quaida operation.

And yes, I can well see a military man using the words the NYT ascribes to him. in terms of 'damage', the number of casualties was no more than many a disaster.

But look how many perpetrators lost their lives. Remember the objective of terrorism is to shock and if possible, to force an over-reaction on the part of the target.

In terms of that misguided objective, the mission was a resounding short term success. The USA and the West was shocked. There has been a vastly improper reaction by the USA resulting in even more hatred in the Arab world.

But I think that long-term, we can win the fight against terrorists and remain within the law. The issue was discussed in the House of Lords by Lord Hoffman in the case of A & Ors -v- Secretary of State for the Home Department [2004] UKHL 56. At issue was the detention of persons against whom there was insufficient evidence to bring criminal charges.

The European Convention on Human Rights permits exceptions to the rule where there is 'an emergency threatening the life of the nation' and the government's case was that the threat of terrorism after 9/11 and Madrid was such an emergency. The noble Law Lord said:

"The question is whether the threat of terrorism from Muslim extremists similarly threatens the life of the British nation.

The Home Secretary has adduced evidence, both open and secret, to show the existence of a threat of serious terrorist outrages. The Attorney General did not invite us to examine the secret evidence, but despite the widespread scepticism which has attached to intelligence assessments since the fiasco over Iraqi weapons of mass destruction, I am willing to accept that credible evidence of such plots exist. The events of 11 September 2001 in New York and Washington and 11 March 2003 in Madrid make it entirely likely that the threat of similar atrocities in the United Kingdom is a real one.

But the question is whether such a threat is a threat to the life of the nation. The Attorney General's submissions and the judgment of the Special Immigration Appeals Commission treated a threat of serious physical damage and loss of life as necessarily involving a threat to the life of the nation.

But in my opinion this shows a misunderstanding of what is meant by "threatening the life of the nation". Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms.

There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. When Milton urged the government of his day not to censor the press even in time of civil war, he said:

"Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours"

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community. "

I think that is happily as true for the USA as it is for the UK and that therefore there is no need to resort to unlawful or unconstitutional measures to counter the terrorist threat.

I think that the Bush Administration made many mistakes, but the first was to underestimate the capacity and will of the American people to keep a firm grip on their constitutional values and freedoms.

As for Bart's latest piece of nonsense, he's only repeating an argument discussed on an earlier thread which you can refer to if you wish to waste some time.
 

Page 154 refers to the 24 techniques approved by the Rumsfeld for the defense department. Goldsmith pulled the OLC opinion for the DOD because under it the DOD could exceed the 24 approved techniques. Goldsmith immediately replaced the withdrawn DOD opinion with new justification, specifically for the 24 techniques.

The opinion for the "intelligence committee" at large was egregiously flawed, according to Goldsmith. He pulled the justification and resigned so that people like Yoo, and YOU, would not suggest torturing prisoners, law be damned. He never told the "intelligence committee" that it was OK to torture in contradiction of Geneva or other statutes.

You were misleading and you are busted....
 

Above should be "intelligence community". sorry for double typo.
 

drational said...

Page 154 refers to the 24 techniques approved by the Rumsfeld for the defense department. Goldsmith pulled the OLC opinion for the DOD because under it the DOD could exceed the 24 approved techniques. Goldsmith immediately replaced the withdrawn DOD opinion with new justification, specifically for the 24 techniques.

The opinion for the "intelligence committee" at large was egregiously flawed, according to Goldsmith. He pulled the justification and resigned so that people like Yoo, and YOU, would not suggest torturing prisoners, law be damned. He never told the "intelligence committee" that it was OK to torture in contradiction of Geneva or other statutes.

You were misleading and you are busted....

Hero, the techniques approved by Rumsfeld under the original Yoo memorandum are the SAME ONES that Goldsmith said were still OK after he withdrew the Yoo memorandum and are the SAME ONES which you claim violate the GCs.
 

Bart-
No.
There was a DOD-specific memo from Yoo to Jim Haynes that was withdrawn and replaced by Goldsmith in December 2003. The 24 techniques approved by Rumsfeld were within the framework of this Yoo (to Haynes) memo, but:
Despite OLC's legal ruling, Haynes aqcted within his discretion and, invoking the traditions of the military and other policy considerations, recommended that Rumsfeld approve only the twenty-four uncontroversial techniques. In other words, the DOD, as far as we know, did not need the Yoo memo. Goldsmith said their non-Yoo, Non-torture methods were legal.

So Bart, Yoo may have written that it was OK to pour acid on detainees and OK to gouge out eyeballs or torture to the brink of organ failure, but the DOD, largely because of the JAG resistance, said no to torture.

The memo dealing with the intelligence community allowing the CIA to torture was not withdrawn until June 2004, when Goldsmith resigned. Whatever the CIA was involved with (waterboarding and other torture) now lacked OLC coverage.

So when you say "Goldsmith withdrew the memorandum but still told the intelligence community that their current techniques were OK," you are absolutely wrong. You have the book in front of you and have no doubt scoured it to cherry pick. Considering that you will not admit to being wrong despite the facts being laid in front of you, it is clear that you are a partisan of the worst kind- one who is intellectually dishonest, deceptive and terminally unapologetic.

Although I think you often make interesting points here, when you skew the facts or deliberately lie, your credibility collapses.
 

Mourad - thank you for your thoughtful response. We can agree to disagree on 9/11, but I will just add that even if Al Qaeda hijacked planes, etc., there was an intervening criminal act that killed most of the people and has injured thousands more - destruction of the buildings that cannot be explained by planes. Absent some a rational explanation for how Al Qaeda did this, Al Qaeda is a side show.

I agree with everything else you say and thank you for your eloquent exposition of very important shared principles from a British point of view.

But please consider the question of "relative." Relative to what? What you are saying is that 9/11 was not such a disaster, threatening the life of the nation, that we have to give up all our principles. I agree completely, and see this as Professor Levinson's point as well.

The statement I quoted, however, was in the context of public support for the war, in an article about what one of the participants called "PsyOps on steroids."
 

Actually, that wasn't Professor Levinson's point. Sorry.
 

drational: The way to tell that Bart knows he's wrong is when he does not address your corrections. This can be frustrating, but it's just more bad faith debate from the fountain. He's just using you.
 

Dwightdv:

First, thank you for your kind words.

The eloquent words you refer to are, I think, not mine but those of Lord Hoffman. Contrast this article by Eric Posner and Adrian Vermeule in the Washington Post of 8th August 2005 describing Lord Hoffman’s speech as ‘notorious’:

http://www.law.uchicago.edu/news/posnervermeulecliches.html

I happen to think that the remarks of USDJ John C. Coughenour of Chicago were entirely right and apposite, as were those of Lord Hoffman. SCOTUS has still to rule on the deeply flawed GITMO tribunals and I live in hope that even the Roberts Court will consign them to the dustbin of history where they belong.

But the Posner/Vermeule article is a very good example of what I think is a dangerous trend in US academic legal thinking: namely that it is OK to allow the executive “for the greater good” to play fast and loose with civil liberties which have been developed over time .

If Posner/Vermeule are content that persons should be detained on a ‘lettre de cachet’ without effective judicial review and have the verdict of a jury replaced by a certificate of conviction based on unverified secret evidence which the Defendant has had no opportunity to see – let alone test – then they will doubtless also have no difficulty with the admission of evidence obtained by torture or “coercive interrogation” or whatever may be the current DOJ euphemism for inhumane and degrading treatment.

I think these are steps on the slippery slope to perdition. Lenny Hoffman, who grew up in apartheid South Africa, has real experience of the corruption of a legal system.

With reference to your concern:-

“I will just add that even if Al Qaeda hijacked planes, etc., there was an intervening criminal act that killed most of the people and has injured thousands more - destruction of the buildings that cannot be explained by planes. Absent some a rational explanation for how Al Qaeda did this, Al Qaeda is a side show.”

Are you sure? All I can say is that over the last 40 years I have taken quite a few cases through the English Technology and Construction Court and I never cease to be amazed by the awesome responsibility imposed on structural engineers who do the calculations for tall buildings. The catastrophic failures of the two towers serve as a reminder of how tight the tolerances are, but I have seen no evidence of any causation other than that the design probably did not make sufficient allowance for the event.

I am aware of a case involving another New York landmark where it was found that there were serious structural deficiencies which could have led to the building collapsing in certain wind conditions. To avoid panic, all the repair work was done in secret and at night. At least in that case the deficiencies were spotted before rather than after the failure and one of the Discovery channels made a film about it.
 

This comment has been removed by the author.
 

Bart is the kid who keeps running the bases, exultantly crossing home plate, after he's already been put-out, thrown out & tagged out.

'Course he's grown up now so it's more pathetic than funny.
 

Baseball variation: Lisa's bro was born on third base and thought he hit a triple. He promptly stole second base and then first base.
 

It seems to me that this most recent explanation by the government for ex ante determinations that harsher interrogation techniques are justifiable, on the grounds of necessity, ought to be critically compared to the 1995 judgment of the Supreme Court of Israel.

The court held that the principle of necessity could not provide the government with authority for such ex ante determinations that harsher treatment was justifiable. I have posted a short piece on the comparison, with a link to the judgment, on my site today.
 

Joe:

As to the sudden influx of laws post-WWII, that to be fair included a growth of human rights law, where does the old malum prohibitum/malum in se rules fit in? I'd think there would be less wiggle room in the latter.

One major development post-WWI was in Nürnberg, where they developed some malum in se jurisprudence.

After those trials, the "wiggle room" was maybe a couple of inches, even more severely reduced after an 8 foot drop.

Cheers,
 

Shag From Brookline:

On the subject of lies, either to one's self or to others, I promptly think of Jerry Seinfeld's George Costanza's comment on the subject to Jerry (who was thinking of a lie detector test he was to take): "It's not a lie if you believe it."

This is true. Strangely enough, you can be convicted of perjury (18 USC § 1621) even if what you say is true; what is necessary (along with materiality and being done under oath) is that the affiant believe it to be untrue.

Cheers,
 

Mourad:

A flagrant example is to be found in the writing of Professor Levison’s unfortunately influential colleague Professor Bobbitt whose latest dangerous work – ’Terror and Consent' suggests that it ought to be possible for government agents to use coercive methods short of torture (sleep deprivation, truth drugs), but only with the prior approval of a jury.

I deal with the illustrious Philip Bobbit (on a related bit of maladministration flacking) here.

Must be angling for a judgeship or sumptin', but time's running out on getting paid back for his sycophancy....

Cheers,
 

"Bart" DePalma:

No one can give us an objective definition of the subjective GC terms....

Quit with this "objective" bullcr*p, willya? That's a "straw man" you've invented, but it is hardly a requirement of criminal law. Matter of fact, to make the statement more strongly, it is definitely not a requirement of criminal law.

Cheers,
 

On "60 Minutes" last night Nino stated that he condemns torture, followed by: it depends of course upon how you define torture. Perhaps if Nino believes that waterboarding is not torture, then it is not torture. Who can quarrel with a Goomba who always got all "A"s?
 

"Bart" DePalma:

Go check out page 154 of Goldsmith's book.

Goldsmith signed off on only the "twenty four uncontroversial techniques", the ones that Haynes had previously, "act[ing] within his own discretion", recommended that "Rumsfeld approve only".

The letters confirmed my surmise from the Goldsmith book that the Yoo memoranum were not rejected for content, but rather muddied up for political CYA to achieve the same ends.

Here's what he said of Yoo: "We've discovered some errors in the March 2003 opinion that John wrote you on interrogation. This opinion is under review and should not be relied on for any reason."

Pretending this was some stylistic dispute (or political shenanigans) is untenable.

Note that some (or all) of the 24 "techniques" might not be legal either, despite Goldsmith's opinion, but there's no doubt that there was a stinging rebuke to the Yoo "theory".

Cheers,
 

Just to be clear, the Haynes memo that recommended Rumsfelds's approval of a certain subset of techniques for the military (see "Torture Papers", p. 237) included Category I, Category II, and one category III "technique" (the categories went from Cat. I, least severe through Cat. III, the most). The one Category III technique recommended was "Use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing".

Category I included "Yelling" and "Deception" (such as to interrogator identity), and Category II included stress positions (standing max. 4 hours), falsified documents, isolation facility of up to 30 days, interrogation in non-standard surroundings, deprivation of light and auditory stimuli, hoods during transportation and questioning (but not to restrict breathing), 20 hr. interrogations, removal of comfort items, MREs instead of hot rations, removal of clothing, forced grooming, and use of individual phobias (such as dogs) to induce stress. (See "Torture Papers", p. 227-28).

Category II techniques included use of scenarios to convince detainee that death or severely painful consequences were imminent for detainee and/or family, exposure to cold weather or water, use of a wet towel and dripping water to induce "misperception" of suffocation (what we all call "waterboarding"), and the above-mentioned "mild, noninjurious physical contact". See Id., p. 228.

Waterboarding, hypothermia, and death threats were not recommended by Haynes (or subsequently ("legally") OKed by Goldsmith).

As one can see, the "uncontroversial techniques were rather tame, although they may nonetheless be illegal (the Beaver memorandum [Id., p. 229-235] makes note that intent to inflict prolonged mental harm or severe physical damage might render these techniques illegal under such circumstances at the very least). The Beaver memorandum stresses (so to speak) the "intentional" requirements of such as the Eighth Amendment and the Torture Statute (18 USC § 2340).

She also says that even poking would violate the UCMJ prohibition on assault (Id., p. 235)

Says the Beaver memorandum WRT waterboarding: "Caution should be exercised with this method, as foreign courts have already advised about the potential mental harm that this method may cause.(Id).

But the ones at issue here (hypothermia, prolonged stress positions, death threats to the detainee or their family, not to mention any alleged serious physical battery) were not recommeded to be approved by Haynes in the Nov. 2002 memo, or by Goldsmith.

Cheers,
 

This of course is yet another "standard" that the administration wouldn't accept for Americans held prisoner.

That's not a legal analysis, of course; just a common sense "shoe's on the other foot" test; and it fails that test.

However it does go to a simple question: is it the assertion of this administration's "Justice" department that there is one standard for the United States and another standard for everyone else?

If so, why is our standard lower than everyone else's?

If not, how can torturing Americans held prisoner be unlawful, of course "in certain situations" and unless "universal condemnation" somehow results.
 

drational:

"Uncontroversial" DoD interrogation techniques?

Here is a description of the techniques which DoD and thus Goldsmith approved during this time period.

They appear to parallel everything CIA did apart from maybe waterboarding.

They are what you and others here claim to be violations of the GC and CAT.

No amount of tap dancing will change those facts.
 

Shag has some interesting questions on how far to go to serve a client.

I think answer has been given by David Luban, here:

http://balkin.blogspot.com/2007/11/why-even-olc-lawyers-ought-to-be.html

Excerpt: "lawyers who write opinions saying yes to whatever their clients want are no better than indulgence sellers."

I myself use a parallel to engineering. Suppose you hire an engineer to advise you if you can build a bridge that will span this many feet and support this amount of traffic using only this many tons of steel. He discovers the answer is no, but you really want the answer yes, so he tells you yes. Guess what happens next.

What? Law has grey areas, bridge design doesn't? Wrong. Both have grey areas, and both have areas on either side that are perfectly clear. Going outside the grey area of bridge design takes you from unwise to just plain outsafe. Going outside the law, takes the client from questionable to just plain illegal.

A competent, ethical engineer, will sometimes simply have to tell the client no; what you want to do cannot be done.

A competent, ethical lawyer will sometimes have to tell his client likewise.

At "Justice" however, that is not what they did.
 

"Bart" DePalma:

"Uncontroversial" DoD interrogation techniques?

Here is a description of the techniques which DoD and thus Goldsmith approved during this time period.

I've already given cites to the list, and given a comprehensive list of the procedures in the late-2002 memos (including the Haynes memo that Goldsmith cites). They're in the "Torture Papers" book (as well as Rumsfeld's orders, at p. 360). I'd note that Rumsfeld's April 2003 memorandum to U.S. Southern Command does not allow waterboarding, hypothermia, nor death threats.

They appear to parallel everything CIA did apart from maybe waterboarding.

Nope.

They are what you and others here claim to be violations of the GC and CAT.

Some are, some may be, and some aren't (as even the maladministration wrote). I discussed that above.

No amount of tap dancing will change those facts.

What "facts"? You've been remarkably fact-free here.

Here's from your supposedly illuminating link, "Bart":

The techniques, including "fear of dogs", closely resemble the treatment of prisoners at Iraq's Abu Ghraib prison, as revealed in photos and testimony that hit the world news headlines in late April.

Not exactly. The dogs at Abu Ghraib bit the prisoners. Although the pedigree of the treatment (if not the dogs) is obvious. But that's what happens if you dance on the edge, "Bart"....

Check this out, folks. Really. You need to, if you want to know what was going on, and what does go on when this stuff is "permitted".

Cheers,
 

Sorry, typo above, folks:

I said: Category II techniques included use of scenarios to convince detainee that death or severely painful consequences were imminent for detainee and/or family, exposure to cold weather or water, use of a wet towel and dripping water to induce "misperception" of suffocation (what we all call "waterboarding"), and the above-mentioned "mild, noninjurious physical contact". See Id., p. 228.

That should have been "Category III". My bad. Hope that is clear.

Cheers,
 

When the authors of all these memoranda came to express opinions on what interrogation techniques were impermissible, they cannot have been unaware that there had been prior judicial consideration of the treatment of detainees by
the European Court of Human Rights in the case of Ireland –v- The United Kingdom, Case No 5310/71.

In its judgment the Court considered the techniques used by UK forces at various interrogation centres in Northern Ireland describing them thus:-
“These methods, sometimes termed "disorientation" or "sensory deprivation" techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of:
(a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being "spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers";
(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;
(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;
(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;
(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.”

The conclusion of the Court was:-
“Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.
The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3 (art. 3).”

That decision would moreover be persuasive in a Court considering the application of the Geneva Conventions.

Thus the techniques at issue cannot lawfully be used by agents of the UK or any other member state of the Council of Europe and nor would it be lawful to hand a detainee over to US custody if there were a reasonable suspicion that such techniques could be used.

Confessions thus obtained would be inadmissible in legal proceedings in any CoE member state.

So now the cat is out of the bag as to the techniques which the US has approved, it is difficult to see how the UK and other CoE states can for the future engage in joint military operations with US forces so long as the US operates to different standards.

As lawyers, we all know that to be admissible, confessions must be voluntary. Any technique which puts the voluntary nature of the confession in doubt is not to be used.

Now if the UK and other EU states can capture, detain, interrogate, prosecute and jail terrorists without the use of such techniques, are US interrogators to be considered so stupid or so incompetent that they cannot achieve comparable results operating to the same standards?

It was widely reported that prior to the invasion of Iraq, there were screenings arranged of the Pontecorvo film "The Battle of Algiers".

In that film the use of torture was justified by the the paratroop colonel in charge of French anti-terrorist operations - saying "this is the only way we can win, and you politicians may not like it, but you must not tie our hands with matters of legality".

What was the purpose of showing that film to senior commanders - to encourage the use of unlawful techniques, or to impress on them that in the case of Algeria, they failed in that the insurrection succeeded and the French had to leave Algeria?
 

Jpk said:

“This of course is yet another "standard" that the administration wouldn't accept for Americans held prisoner. That's not a legal analysis, of course; just a common sense "shoe's on the other foot" test; and it fails that test.
However it does go to a simple question: is it the assertion of this administration's "Justice" department that there is one standard for the United States and another standard for everyone else?
If so, why is our standard lower than everyone else's?
If not, how can torturing Americans held prisoner be unlawful, of course "in certain situations" and unless "universal condemnation" somehow results.”

If I may say so, that is an exceedingly perceptive observation. The commonsense test of “do not do unto others what you would not have them do unto you” as often as not results in the right answer in legal terms.

There is absolutely no doubt that in the past the UK has used some of the techniques now held unlawful. A frequent poster here, Bart, makes much of his, limited, active duty experience. I suspect that many more posters have military experience too, only we are less ready to talk about our experiences.

Before 9/11 the US military had next to no experience of real counter-insurgency work - and it showed in Iraq. My experience (which included tours in Northern Ireland) convinced me that any form of abuse of detainees is absolutely counter-productive, so I rejoice in the fact that my conviction has been endorsed at the highest judicial level.

The answer to your question as to why US standards are indeed lower may lie in the increasing US judicial acceptance of what I term the “originalist heresy”.

Once upon a time, the US consensus was that the human rights guarantees set out in the Bill of Rights had to be interpreted in the light of contemporary standards of decency. As society evolved, so did the interpretation of the obligations. That was the consistent approach of the US Supreme Court until the Originalists got involved.

That is still the standard adopted by all the Supreme Courts of the common law world – except the United States. Originalism has been described by one Commonwealth Judge as “a quaint form of ancestor-worship”.

As a consequence, while the rest of the civilised world has been moving forward on human rights guarantees, the USA has been rowing back – to the point where the difference in standards is becoming a serious problem. For example: (i) capital punishment is not permissible in any state of the Council of Europe or the European Union; (ii) due process rights are to be afforded to all, irrespective of nationality and wherever our state agents are exercising authority, (iii) torture or inhuman and degrading treatment of any detainee is prohibited.

If the citizens of the USA care not that their criminal justice standards fall behind European or Commonwealth standards, that is a political matter for the US to resolve. But in a world where there are increasingly cross-border implications, this causes problems.

The continued US acceptance of judicial murder causes difficulties in extradition cases and there are moves to revoke the observer status of the USA at the Council of Europe. There are likely to be extradition problems even in non capital cases as a result of the interrogation techniques issue. We will not be extraditing any suspects to the USA if there is any risk of them appearing before the GITMO military commissions because the requisite guarantees of due process are not met.

Difficulties can also be foreseen about future participation in military operations led by the USA.

If the USA wishes to be backwards about these matters, then it cannot expect from our courts the same presumptions of due process in the USA that have up to now been afforded.
 

Mourad:

European Court of Human Rights in the case of Ireland –v- The United Kingdom, Case No 5310/71.

It is instructive to note that the ECHR did not use any objective measure to arrive at its completely subjective conclusion, which differs in some aspects from the subjective conclusions of some professors here that long time standing and the like constitute "torture."

Simply offering a subjective conclusion without supporting reasoning and authority is not tolerated from 1Ls in law school. Why should the United States find the ECHR decision to be any more persuasive than the professor would find the argument of the 1L?
 

"Bart" DePalma:

It is instructive to note that the ECHR did not use any objective measure to arrive at its completely subjective conclusion....

Even if true (and you have hardly shown that), SFW?!?!? There is no requirement for an "objective" measure in criminal law. This is just some sh*te you're making up. It's a "straw man". If you disagree, cite some law/jurisprudence that supports your contention that such a standard applies.

Cheers,
 

Arne -

Please allow me to help you out with regard to the difference between "objective" and "subjective."

Objectively, "Bart" is just a series of zeros and ones (or, more accurately, 3V pulses in my computer's CPU).

Subjectively, he's an intellectually dishonest jerk that you should not permit to bother you at all. (Or, maybe I should say: not bother you one bit.)
 

If the " ... reasonable observer ... " is anything like the "reasonable man" standard that I learned back in 1951 in 1L, can you imagine the arguments the Bush Administration would make on a case by case basis? But the Bush Administration wants to avoid going to court because it might be embarrassed by its instructions to military and other personnel following what might be questionable or not very clear instructions. How might this look in the international community?
 

Bart De Palma, all too predictably, said:-

“It is instructive to note that the ECHR did not use any objective measure to arrive at its completely subjective conclusion, which differs in some aspects from the subjective conclusions of some professors here that long time standing and the like constitute "torture."
Simply offering a subjective conclusion without supporting reasoning and authority is not tolerated from 1Ls in law school. Why should the United States find the ECHR decision to be any more persuasive than the professor would find the argument of the 1L?”

The reason why the Courts of the United States should find the decisions of the ECHR persuasive in any case are:-

1. The ECHR is the final arbiter on Human Rights issues between its 47 Member States and the 803 million citizens of those states; and
2. Each of the Judges is a highly distinguished lawyer. Their CV’s are to be found on the Court web site.

Therefore an ECHR decision on what state conduct is or is not an infringement of the European Convention reflects the common values of many more people than inhabit the United States of America.

Judges are not supposed to leave their common sense and experience at the door of the Court and when you have the judicial experience of Judges at this level, it does not take long reasoning or extensive citation of authority to reach the conclusion that while pulling out fingernails with a pair of pliers does constitute torture, hooding a suspect does not – although it does constitute degrading treatment .

These is nothing at all wrong with a court reaching a subjective conclusion on what constitutes inhuman and degrading treatment. There is no jury so the Court has to find facts as well as law. In this area a juror would probably ask himself, “Would I like this to be done to me ? If it were, would I consider it proper, or inhuman and degrading ?“

As you will observe, the judgment effectively puts out of bounds all forms of “enhanced interrogation” designed to elicit a confession. Given the TV footage I have seen of the treatment some people receive at the hands of law enforcement within the USA I wish I could be surprised that as a criminal defence attorney you are not pressing for equivalent human rights standards to those we enjoy in Europe to be adopted in your country.

But regrettably, your previous posts could be read as indicating that you consider proper interrogation standards not to be necessary when questioning “wogs and rag-heads”, essentially discrimination based on nationality, or ethnicity. I am sure that if you have such prejudices, you somehow manage to put them to one side when representing clients of such races or ethnicities so as to comply with Colorado Professional Conduct Rule 8.4(g). That seems to me to involve a degree of intellectual dexterity which, unfortunately, has not thus far been manifest in your posts.