Balkinization  

Monday, April 14, 2008

Thank Yoo and Judge (Mostly Getting a Free Pass) Bybee

Brian Tamanaha

Thank them for what? For effectively bringing home three essential lessons about the rule of law:

Lesson One: There is a large and critical difference between purely instrumental legal analysis designed to produce a desired result versus an even-handed effort to discern what the law requires. The former seeks to achieve an objective (shaping the legal analysis accordingly), whereas the latter attempts to figure out what the law is. The former is an exercise in advocacy and strategic reasoning, the latter in knowing or understanding.

The difference between these two orientations can be illustrated in a familiar scenario: A partner asks an associate to write a memo that summarizes the state of the law on a particular issue as it bears on the client's situation; after receiving the memo, which concludes that the law is probably not favorable to the client’s position, the partner then asks the associate to produce the best set of legal arguments or strategies to advance the client’s interests. An associate who cannot tell the difference between these two assignments will not be long on the job. As this example suggests, instrumental legal argumentation is usually parasitic upon a prior determination of what the law is (however uncertain that might be on a given question): A lawyer must have a sense of the latter to engage in effective strategic argumentation.

After news about the torture memo first broke, a few commentators blurred this distinction. Harvard Professor Charles Fried did so when defending the memo by asserting that “there’s is nothing wrong with exploring any topic to find out what the legal requirements are.” Fried’s error was not in his statement, which is correct, but in his suggestion that Bybee’s and Yoo’s memo involved such an exploration, when it was instead an obvious example of instrumental legal analysis.

Even when a legal opinion is presented in the guise of an even-handed exploration of the law, the fact that it is the product of purely instrumental legal analysis is not erased. It is sometimes difficult to tell the difference, to be sure. In this case, however, its patently weak legal argument and the circumstances surrounding its production make plain the instrumental orientation that gave rise to it. The purpose of the memo was to reassure and immunize (give legal cover to) interrogators engaging in extreme conduct, a purpose that was largely achieved by the very writing of the memo irrespective of its legal soundness.

We have Bybee and Yoo to thank for reminding us of the importance of the distinction between instrumental legal analysis and an even-handed exploration of the law, a crucial distinction that is easily obscured in the instrumentalism that permeates lawyering.

Lesson Two: While a consummately instrumental approach to legal analysis is appropriate for lawyers in many contexts, in certain positions it is wrong. Lawyers holding government positions that entail a special duty to uphold and apply the law—like lawyers in the OLC, and lawyers in the Justice Department generally—breach their obligations when they engage in purely instrumental analysis. This is no small wrong. Power is accorded to the people that occupy these positions precisely on the condition that their legal decisions—which carry weighty official legal consequences—are not purely instrumental.

We have Bybee and Yoo to thank for prompting a collective reaffirmation of the special responsibilities that attach to lawyers in such positions. For at least a generation, no future lawyer in the OLC (and perhaps the Department of Justice as a whole) will be unaware of the broad condemnation of Yoo (and Bybee when his free pass is revoked) for his breach of duty to his office. That’s a good thing.

Lesson Three: The fact that legal questions are often contested—subject to legitimate differences of opinion—does not mean that any legal argument one can come up with has some claim to validity: some legal arguments are obviously wrong even when no judge has ruled it so. What “torture” means is not a simple question, but any legal argument to the effect that water boarding is not torture deserves the same treatment as a legal argument that a 25-year-old can run for President. And we don’t need to wait for a judicial determination to be certain of this.

We have Bybee and Yoo to thank for showing us—unintentionally, of course—that legal interpretations are stabilized through shared understandings and judgments about plausible legal arguments. We can collectively recognize the difference between a weak but arguable legal position and an absurd legal argument to be rejected out of hand. As Jack Goldsmith’s retraction of the memo demonstrated, this is not just a matter of the politics of the eye of the legal interpreter. What they produced was blatantly implausible legal analysis. The rule of law depends upon our capacity to make such determinations despite the presence of legal indeterminacy. Although it is largely invisible, this happens every day in the work of lawyers. Only a small fraction of legal issues and questions are ever resolved by judges, so law truly operates through this shared understanding. It is useful to be handed a dramatic reminder of how this functions.


These are valuable lessons which Bybee and Yoo appear to have forgotten at the time. Apparently they lost sight of (or willfully ignored) the difference between instrumental legal analysis and an even-handed exploration of the law, apparently they lost sight of the special duty attached to their office, and apparently they felt that it was enough to come up with a legal argument delivered in the proper form (with citations and the like), however lacking in merit. They were under a lot of pressure and subject to group-think. They perceived the stakes to be large. Although what they did is understandable under the circumstances, they dealt the law a wound.

But a more enduring good might come of it--if we learn these lessons well.

Comments:

As Jack Goldsmith’s retraction of the memo demonstrated, this is not just a matter of the politics of the eye of the legal interpreter. What they produced was blatantly implausible legal analysis. The rule of law depends upon our capacity to make such determinations despite the presence of legal indeterminacy.

Actually, Goldsmith admitted on page 148 of his book Terror Presidency that he thought the Yoo memo lacked sobriety and careful analysis specifically because Yoo interpreted the torture statute like a regulation and did not consider the balance between national security and the United States' "moral reputation."

It therefore appears that Goldsmith's disagreement with Yoo's interpretation of the torture statute was based entirely on political policy considerations (not to mention political CYA) and not the law.

The only Yoo legal opinion which Goldsmith took to task on legal grounds was Yoo's claim that the President's CiC power trumps Congress' Article I power to set rules for Captures. Frankly, this is also the only Yoo opinion which I could find that was clearly in error as a matter of law.

I eagerly await Yoo's multitude of critics offering a legal rather than a policy critique of Yoo's legal opinions and demonstrate with actual legal authority why they are "obviously wrong" as a matter of law.
 

"The difference between these two orientations can be illustrated in a familiar scenario: A partner asks an associate to write a memo that summarizes the state of the law on a particular issue as it bears on the client's situation; after receiving the memo, which concludes that the law is probably not favorable to the client’s position, the partner then asks the associate to produce the best set of legal arguments or strategies to advance the client’s interests. An associate who cannot tell the difference between these two assignments will not be long on the job. As this example illustrates, instrumental legal argumentation is usually parasitic upon a prior determination of what the law is (however uncertain that might be on a given question): A lawyer must have a sense of the latter to effectively carry off the task at hand."

As you suggest in your last statement, the improper use of instrumental legal analysis permeates the legal profession. I don't know how much it permeates other areas of law, but it is frequent in that called "scholarship" as concerns the Second Amendment. Often I recognize that the layperson doing the "analysis" hasn't a clue as to the first distinction: that between -legal and non-legal materials. (Historians -- Saul Cornell only one example -- make the same error.)

In other instances I have to wonder if the lawyer -- or in the instance which comes to mind, law professor -- knows the difference between a non-instrumental internal memorandum, which is ostensibly objective, on one hand, and on the other, a legal brief, which presents only one side of the case, thus omitting all "inconvenient" facts: one's own view.

I recall a "debate" on NPR of the fake "controversy" over whether the Second Amendment "protects" an individual right, one participant in which was that law professor, who is well known as supporting the false view that it does. (In a op-ed to the NY Times sometime last year he referenced some ancient/colonial law -- with no language from it quoted, and absolutely no citation.)

Having read American colonial law to and through "revolution," and to and through ratifications of Constitution and Bill of Rights, I could "hear" the holes where he'd left out the materials counter to his view. Which materials also refute/d his premise, and every "proof" of it he gave.

Alas, the layman isn't usually sufficiently knowledgeable to know that there is a difference between an objective presentation of all the facts, and legal authority and non-law, on one hand, and on the other a completely one-sided presentation of only those "facts" one wants urged and known.

My only question about the law professor (his academic bailliwick is not Constitutional law) is whether he knowingly lies, or simply doesn't know the difference. And what sort of legal "education" is he imparting by referring to a law which may not actually exist?
 

Bart,

Rather than debate the legal merits of the repudiated memo, I'm more interested in hearing whether you recognize that there is an essential difference between a purely strategic legal analysis and an even-handed exploration of the law; and if so, what significance you place on this distinction (if any).

jnagarya,

I don't know which professor you are referring to or the circumstances of the statement, so it's hard to react to your comment.

You are certainly right if your assertion that academics engage in a lot of instrumental legal argument. There is a big difference in this respect between John Yoo as a law professor instrumentally making a set of extremely narrow arguments about what "torture" means an John Yoo, OLC, making such arguments. In the first case his argument can be laughed at or ignored, with little immediate consequences, but in the second case real consequences immediately follow. The crucial difference is the official legal position Yoo held in the latter situation.

If your point is that professors should not make things up just to be persuasive, I agree with you.

Brian
 

Professor Tamanaha:

I am having a hard time determining whether the memorandum is completely persuasive or objective because of the lack of precedent in the areas which Yoo explores.

In a contested area of the law, it is easy to distinguish an objective from a persuasive memorandum of law because the former presents all sides' precedent and the latter omits or downplays adverse precedent.

However, when the area of law is nearly devoid of precedent, even an objective memorandum of law will be reduced to essentially one opinion, that of the attorney examining an issue de novo.

The Yoo memorandum probably leans to the persuasive because Yoo argues his opinion very forcefully as if this were a law review article staking out a position. However, I also have not seen much evidence that Yoo is ignoring contrary law because there is little to no law in these areas.

You raise an interesting question as to whether the OLC has some sort of a duty to offer an objective memorandum of law to the President. I believe Jack Goldsmith wrote that he viewed his duty at OLC as instructing the President on how to navigate the requirements of the law in order to accomplish his policy goals. This would appear to require a persuasive rather than an objective memorandum of law which takes a firm point of view. The only requirement under this viewpoint is that the President should be made aware of possible legal shoals his policies may be facing. I tend to agree with Goldsmith.
 

Bart emits another brain-fart:

". . . (not to mention political CYA) . . . ."

But you do -- and it's about time. Substituting politics for law, even when disguised in the cloak of law, is a no-no. Either ignorant or intellectually dishonest.

Is Yoo ignorant, or intellectually dishonest? If the former, how then would he be exempt from the legal consequences? In the latter, why should he retain tenure, or even be allowed to work in any context with humans who do not share his fundamentally criminal worldview?
 

"jnagarya,

"I don't know which professor you are referring to or the circumstances of the statement, so it's hard to react to your comment."

In essence I agreed and agree with you, though I provided as evidence an unsourced anecdote, as would Bushit and his fellow criminals, in support of my statement of experience in the area of law identified.

"You are certainly right if your assertion that academics engage in a lot of instrumental legal argument."

It seems mostly that, in all fields, and some is reasonably proper, so long as speculation is clearly indicated as being that. And so long as standards -- such as those between primary and secondary sources -- are consistently maintained.

The law professor (just remembered I have an article by him) is Don B. Kates, and in the article ("Analyzing the Second Amendment," Shooting Times magazine, July, 2004, at 60) he writes, as example:

"Antigun writers cite my article (83 Michigan Law Review, pp. 204-273) as the definitive standard model treatment." (Id. Problem being, the "individual rights" falsehood is not the "standard model" as.

And:

"Written by James Madison, the Bill of Rights was adopted as a single document. Whenever it says 'right of the people,' it does so to describe individual rights."

It would pages to expose all the falsehoods in and implied by that statement. Foremost, though, it leaves out the Congressional debates which occurred between Madison's submission of his proposed "Bill of Rights" (which he intended would be interlineated into the Constitution, not adopted as separate amendments), thus that he did not simply "write the bill of rights" and the Congress then adopt it unchanged.

In addition, Kates avoids making his claims that the plural "people" actually means "individual" based upon the first three words of the Constitution, "We the people," and following that consistency through to the Second Amendment (the posited "individual right" concerning which had been voted down) where it was plural before, and all through the debates, and remains so.

"There is a big difference in this respect between John Yoo as a law professor instrumentally making a set of extremely narrow arguments about what "torture" means an John Yoo, OLC, making such arguments. In the first case his argument can be laughed at or ignored, with little immediate consequences, but in the second case real consequences immediately follow. The crucial difference is the official legal position Yoo held in the latter situation."

Agreed 100 per cent.

"If your point is that professors should not make things up just to be persuasive, I agree with you.

"Brian"

Neither, as you make explicit, lawyers working in their official capacity, whether in the private sector or in gov't.
 

Perhaps Bart can explain why it was appropriate, in an even-handed exploration of the law on executive authority to disregard statutes in wartime, not even to cite or distinguish Youngstown?
 

Bart's ambling amnesia --

"I am having a hard time determining whether the memorandum is completely persuasive or objective because of the lack of precedent in the areas which Yoo explores."

"[L]ack of precednet"? First, according to Goldsmith, who himself is a right-wing extremist in many respects, Yoo apparently treated statutes -- which are precedent, Bart -- as instead being "regulations," which tends to avoid Congress -- which enacts statutes -- and bring the matter into the sole purview of the Executive -- which makes administrative regulations.

Was that stupidity -- ignorance of the difference -- or intellectual dishonesty?

And, of course, Constitution, treaties, Geneva, Federal statute prohibiting torture -- those two are precedent, Bart.

As is the long history of the evolution of Laws of War, and international law, in this area.

And as is the US's history as concerns torure, including the execution of Japanese for using the torture method "waterboarding" on US POWs, and the US and its allies at Nuremberg executing Nazis for having used torture, including the method "water treatment" aka "waterboarding".

What was unprecedented -- and remains so, as Bushit clearly continues committing the war crime of torture, as evidenced by his veto of statutes which "ties his hands" to obeying the laws -- was Yoo's conscious -- based upon existing precdents -- narrowing of the definition of torture -- authority to do which neither he nor the DOJ had or has -- to "anything goes".
 

Bart's serial brain-fartering --

"However, I also have not seen much evidence that Yoo is ignoring contrary law because there is little to no law in these areas."

Right: there is no history concerning the use of torture, and no law defining and prohibiting it and its various forms, and no anti-torture treaties, no Geneva Conventions -- exactly as Yoo lied.
 

Bart,
For what it is worth I took Yoo to task for his unsupported (even under the standards he set) view of the definition of "severe pain" over at Juris. You are welcome to look at that. It is at http://jurist.law.pitt.edu/forumy/2008/04/yoo-torture-memo-break-silence-of-lambs.php
Best,
Ben
 

The notorious omission of Youngstown, btw, is something I would like to see some reflection upon. It's very strange.

There was no need at all for Yoo not to cite it -- surely, in his own mind at least, it was distinguishable, bad law, etc.

Nor could Yoo have been unaware of the case, obviously.

Cf. Sunstein's review of The Powers of War and Peace:

Counterarguments are rarely given in their strongest form. Sometimes they are not given at all.

Perhaps the memo betrays Yoo's habit of mind -- contrary authority, to him, is simply nonexistent, so invalid as to be beneath mention. That is of course a completely unacceptable attitude for a lawyer, but I'm trying just to understand him here.

Or maybe he just figured it wasn't worth spending the time on Youngstown, given that the memo was secret (and expected to remain secret). Had he anticipated its being read by lawyers and law professors around the world, he might have found a footnote for Youngstown.

Quite strange, whatever the explanation.
 

"However, I also have not seen much evidence that Yoo is ignoring contrary law because there is little to no law in these areas."

How do you explain that Yoo ignores the Youngstown case, which pretty squarely sets forth limits on Executive power in wartime?
 

anderson said...

Perhaps Bart can explain why it was appropriate, in an even-handed exploration of the law on executive authority to disregard statutes in wartime, not even to cite or distinguish Youngstown?

Depends on the statute being disregarded.

Youngstown applies to areas where the President and Congress' powers overlap. Even in a persuasive memorandum, Yoo should have provided the President with notice of the precedent in situations of overlapping powers.

However, if Congress was exceeding its Article I powers in enacting the disregarded statute, there is no need to address Youngstown because there are no overlapping powers to balance.

I do not think much of Jackson's balancing test in Youngstown. As I have posted before, I interpret the enumerated and specific Article I powers of Congress to trump the general CiC powers of the President. There is nothing to balance.

To the extent that Yoo argues that the President possesses plenary CiC power over areas which are covered by enumerated Article I powers, I think he is in error. However, I hardly see this error as dishonest, unethical or criminal. Yoo simply has a more expansive view of Executive power than I do.
 

Jnagarya, are you familiar with the Potowmack Institute? You remind me a bit of it's proprietor; Not just convinced that the 2nd amendment doesn't guarantee an individual right, but that it's blatantly obvious that it doesn't.

Come to think of it, have you both ever been seen in the same place at the same time? ;)
 

Ben:

Thank you for the link to your interesting article.

It appears that Yoo was asked to provide a useable definition of severe pain to guide the policy makers and I would suggest he did the best he could with what little Congress provided him.

In reality, the term "severe pain" does not have an objective medical definition because we have no way of measuring pain. Pain measurements are completely subjective to each person asked. For example, some here have posted that making someone stand for a long period of time inflicts severe pain while Don Rumsfeld, who stood for log periods of time) and this ex Army grunt who marched for hours with over a hundred pounds of gear until his feet bled simply did not see standing in a room as torture.

IMHO, the Torture Statute violates the Due Process Clause because it is too vague to provide a person with notice as to what is prohibited. However, I doubt that Yoo's bosses wanted to hear that the Torture Statute does not provide a workable definition and that they had to guess which interrogation techniques were and were not war crimes. There was a war to fight, so Yoo tried to provide the war fighters with a definition based upon a largely inapposite health care statute.
 

Yoo the law Prof can theorize about the territory.

Yoo of OLC is offering guidance with consequences.

Only the constitution, the legislature and the courts can define the map.
 

Thanks for the response, Brett --

"Jnagarya, are you familiar with the Potowmack Institute?"

Yes, though I've not read a great deal there, as I find its organization confusing.

"You remind me a bit of it's proprietor; Not just convinced that the 2nd amendment doesn't guarantee an individual right, but that it's blatantly obvious that it doesn't."

Where he agrees with me, he is blinding in his brilliance (it is blatantly obvious). Where he disagrees, he is incorrect. :)

The Founders/Framers' Second Amendment was ratified in December, 1791. The Founders/Framers "Militia Act" regulating the militia that is within the scope of the Second was enacted in May, 1792.

Both were after, through debate, the Founders/Framers voted down the only posited individual right concerning the Second. (Among a slew of writings I'm now and then working up a bried chronology of those relevant points.)

"Come to think of it, have you both ever been seen in the same place at the same time? ;)"

Not to my knowledge. What happened for me is that my legal education curriculum didn't include a Constitutional law course, which I most wanted, so I had to develop my own. As consequence, lacking guidance, I ended up reading American "English" colony law -- seeking constitutional law meterials -- from its beginnings on this continent. By coincidence, that was at about the same time the invadings by gun-nuts of every sort of online fora -- even those not concerned with law, or that issue -- began. So, here I was reading the law, in which the regulation of alcohol, tobacco, and firearms ("shot and powder") was routine, while the gun-nuts were asserting that the Founders/Framers were absolutely opposed to "gun control" and "gun grabbing," etc., and jabbering about the "volunteer militia" and the "unorganized militia," etc.

As I continued that reading, parallel, I found, as example, a MA-Bay 1/1776 "Militia Act" which slightly amended, and expressly repealed (actually the standard form in each instance) all prior laws on the subject (which laws I'd already read in the 17th century materials). That was enacted by the Sam Adams legislature, not King Georgie's.

As were other statutes I found of the same period, and source, including those which ordered the disarming (based upon the Continental Congress' "The Tory Act") of the Tories, and of those "disaffected with the revolution," and which, as example, "impressed" the weapons of those not being used to fight the "revolution" and gave them to those who would use them for that purpose. The gun-nut term for which being: "gun-grabbing".

In essence I stayed with the primary sources (and know anyway The Federalist, and edited on-disk copies of that to conform them to how they were when originally published, prior to being edited when compiled, and anti-Federalist papers, etc.), and followed the uninterrupted themes from beginnings to and through "revolution" and to and through ratifications of Constitution and Bill of Rights.

Gun control/regulation, which has always existed, is mostly about "public safety" -- and not incidentally stability of laws and gov't. Not only were Indians (as were the Tories) disarmed and prohibited having weapons during war with Indians, but those colonists who sold and repaired guns were prohibited doing so to and for Indians during wars with Indians.

That apparently makes too much obvious sense for gun-nuts to grasp.

That also included reading all state constitutions -- first to latest when there was more than one -- in which the realities were the same. In fact, the only first state constitution (all but one adopted during 1776-77) that included an individual right to "fish and fowl" was that of VT, and that is a clause entirely separate from the "right of the people to keep and bear arms" militia clause, and it includes constraints against "fish"ing and "fowl"ing on private property. Um -- that being a constitutional gun control regulation written and adopted by the Founders/Framers and limiting the individual right.

It really isn't complicated: No sane, non-suicidal society leaves dangerous substances and objects lying around unregulated -- and never has. Sure, there's a private, individual right to own guns -- always has been. But in times of serious stress that right has yielded to the interests of the community, based upon the premise that one person can be sacrificed for the survival of the community, but it would be stoopid to sacrifice the survival of the community on the premise that some individual right is absolute and inviolate.

(Those "volunteer militia," such as the "Minutemen," consisted of indiviuals who voluntarily signed on the dotted line -- from which moment they were, involuntarily subject to the express penalties of violating the terms of the "contract". And when there weren't sufficient volunteers, legislatures enacted drafts. See as example "Shays" -- MA-Bay legislature -- and "Whiskey" -- US Congress.)

The bottom line is that the Second Amendment is irrelevant to the individual right, and thus irrelevant to whether regulation of the individual right is constitutional (it most certainly is constitutional, even if only to prtect the constitution itself from destruction). And in any event doesn't "protect" anything within its scope from regulation, the NRA's dead-end "argument" for dead-enders notwithstanding.

In short: I arrived at my views not by reading present day histories or "arguments" on the issue but instead by stumbling upon colony (actually colony, province, then state) law and reading the actual laws governing militia, and ownership and use of alcohol, tobacco, and firearms, as enacted by the colonies, and by such as the MA-Bay "rump" legislature during the "revolution". There is a body of law -- a long and unbroken legal history -- governing the public institution which is the militia, and a separate and equally long body of law governing the individual, private ownership of those substances and materials.

In sum: leaving out the religionut laws concerning witches, and those who made the mistake of believing a "wrong" "religion," and a few other wirdnesses (gad! the physical punishments imposed on at least one of three males in a case of child sexual molestation!) there really is nothing new under the sun as concerns the regulation of human conduct, and the areas of that regulation.
 

You raise an interesting question as to whether the OLC has some sort of a duty to offer an objective memorandum of law to the President. I believe Jack Goldsmith wrote that he viewed his duty at OLC as instructing the President on how to navigate the requirements of the law in order to accomplish his policy goals. This would appear to require a persuasive rather than an objective memorandum of law which takes a firm point of view. The only requirement under this viewpoint is that the President should be made aware of possible legal shoals his policies may be facing. I tend to agree with Goldsmith.

This is WAY oversimplifying things. Even what you call "persuasive" memoranda should discuss contrary authority AND arguments. In fact, in the absence of authority, it is all the more important to note if there are plausible arguments on both sides of a question.

A client doesn't want a cheerleader, and even if he or she does, it is a lawyer's responsibility not to be one. A "persuasive" memo, properly written, may indicate what the client can do to increase the likelihood of staying within the law, but it also cannot purport to be definitive on open questions.

And Yoo's memo simply fails this. Here's an example. As everyone now knows, Yoo believed that the Torture Statute should be read to apply only to harms on the level of organ failure. He gets that interpretation from an unrelated statute on health insurance that defines severe pain. However, there are international law precedents interpreting the Convention Against Torture that are inconsistent with the definition he adopts, and plenty of commentary by international law professors on this issue. All those authorities might be accepted as persuasive by a court.

Now, Yoo may believe, ultimately, that they aren't persuasive. That's his call. BUT HE HAS TO CITE THEM. He has to tell his client what they mean. Why they might be held to apply. What they could mean for the President's legal position. He has to advise his client about the RISK of certain conduct. There's NO risk analysis in that memo, no advice as to what authorities could be used by courts to reject the President's position and the one Yoo prefers.

Bart is clouding the issue by talking about lack of authority and the distinction between persuasive and objective memos. The point is, lawyers have a duty to tell their clients what the potential counter arguments are, the things that could trip them up and get them in trouble, WHETHER OR NOT those counterarguments arise from caselaw or from other authority. Yoo clearly breached that ethical duty. Indeed, this is not a close question.
 

Dilan:

A "persuasive" memo, properly written, may indicate what the client can do to increase the likelihood of staying within the law, but it also cannot purport to be definitive on open questions.

And Yoo's memo simply fails this. Here's an example. As everyone now knows, Yoo believed that the Torture Statute should be read to apply only to harms on the level of organ failure. He gets that interpretation from an unrelated statute on health insurance that defines severe pain. However, there are international law precedents interpreting the Convention Against Torture that are inconsistent with the definition he adopts, and plenty of commentary by international law professors on this issue. All those authorities might be accepted as persuasive by a court.


Actually, Yoo would commit a grave error, as would any court, in citing foreign court decisions to impose foreign criminal law upon our citizens. Such an imposition undermines our democracy and the US rule of law.

I know you would like to impose EU war interpretations of torture on our country because you agree with them. However, one can also use this misbegotten practice of citing foreign law to impose Saudi standards on the United States and effectively gut the Torture Statute.

Let's keep this analysis to whether Yoo is correct as a matter of US law.
 

Brian, thanks for your thoughtful addition to the debate. I followed you until you wrote "Although what they did is understandable under the circumstances, they dealt the law a wound."

How is it understandable? This isn't directed just at you, but from reading the essays on Balkinization, I get the distinct feeling everyone is slightly hedging at the thought "that could have been me" and not wanting to argue something that might come back and bite them in their respective tucus in the future.

"I was following orders" is never an excuse. They were under pressure and subject to group think? So were the Nazis!

As you know, there were plenty of career lawyers and even appointees who were "under pressure" and fought mightily to stop the many changes this administration put into effect.

Understandable? It isn't understandable and I strongly suspect you don't think it is either...
 

"Actually, Yoo would commit a grave error, as would any court, in citing foreign court decisions to impose foreign criminal law upon our citizens. Such an imposition undermines our democracy and the US rule of law."

Hogwash. But it is good to see you finding an ability to discredit Yoo.

In a given US state, Brad, the precedents of the other 49 states are termed "foreign law". Does the adoption and "imposition" of such "undermine democracy and the US rule of law"?

"I know you would like to impose EU war interpretations of torture on our country because you agree with them. However, one can also use this misbegotten practice of citing foreign law to impose Saudi standards on the United States and effectively gut the Torture Statute."

Except that we all -- including you -- know that isn't what is happening. INTERNATIONAL LAW concerning torture was formulated with the US as one of the prominent players. The US defined the meanings of torture, and the prohibitions against torture, as concerns such as Geneva. It is Yoo who narrowed the definition of torture to "anything goes," and thus gutted not only the US's anti-torture statute, but also all other law on the matter which binds upon the US as one member in an unavoidable community of nations.

"Let's keep this analysis to whether Yoo is correct as a matter of US law."

All treaties to which the US is signatory are US law, Brad. That includes Geneva.

'Course, when it comes to the extreme-right-wing's pet anti-Americanisms, such as the NRA's lie against the Second Amendment, and by extension against the US Constitution itself, it is perfectly acceptable to cite such irrelevant foreign law as Magna Carta, as example -- which unlike Geneva is not law in the US. Perfectly acceptable to cite irrelevant 17th century foreign British precendents concerning "gun rights" while
wholly ignoring precedents established within the colonies on this continent which became the United States.

Perfectly acceptable to quote any apparently supportive shred of paper which appears to support those claims, regardless where from, and without regard for whether they are even law to begin with.

Intellectual honesty is a requirement of ethics, Brad. Intellectual dishonesty is unethical. Just so we're clear on where you stand in relation to ethics.

I think we already know where you stand on the war crime of torture: torture is wrong, therefore it's okay for us to torture alleged torturers in order to reduce the incidence of torture.
 

Bart as Dictator of Topicality and Censorship

"Let's keep this analysis to whether Yoo is correct as a matter of US law.

"# posted by Bart DePalma"

Let's instead keep this analysis to whether Yoo is correct as a matter of law, including international law and treaties which apply to the US, voluntarily or because the US is unavoidably a member of a community of nations, and purportedly about the furthering of civilization.
 

Actually, Yoo would commit a grave error, as would any court, in citing foreign court decisions to impose foreign criminal law upon our citizens. Such an imposition undermines our democracy and the US rule of law.

Bart, if you applied this standard in your own work, you could be disbarred. If you tried to apply this standard in working for a major law firm, you would be fired.

Seriously, it isn't what "Bart DePalma thinks the law is". Clients pay us to predict what courts will do when they hear cases. Courts consider the views of scholars and international law precedents when interpreting legislation that interprets treaties. Under The Charming Betsy case, they are REQUIRED, in fact, to consider the accepted interpretations of international law in interpreting acts of Congress.

The lawyer's job in advising a client is never to substitute the lawyer's own personal predilection for the authorities that a tribunal is likely to use in determining a legal issue. Many times, I advise clients with respect to legal doctrines I do not agree with or tell them about cases that I think are wrongly decided. I have no business telling them my personal views unless I think that I would have a chance of getting the cases distinguished, limited, or overturned, and then I must still give a risk analysis that indicates what the chances are of that happening.

Bart, I am starting to seriously doubt that you have a law license or that, if you do, that you practice in an area that requires you to give serious advice on complex legal questions to clients with serious civil or criminal exposure. Because, frankly, no lawyer-- not even a graduate of the lowliest law school-- would claim that a lawyer has the right to arbitrarily decide not to include authorities that courts have historically relied on, and that a court could likely rely on, in deciding a question because the lawyer does not believe that the law should permit their citations. You have gotten something so wrong that it makes me suspicious that you could have ever passed the Multistate Professional Responsibility Exam.

I can't figure out if this indicates that you are not coming clean about your employment as a lawyer, or whether you are simply saying things you know are not true in order to get the Administration off the hook. But really, this is simply not arguable. You are wrong, dead wrong, and you don't have any credibility here.
 

"Bart" DePalma, Dean of the School of of Circular Reasoning School, soldiers on tirelessly:

[Anderson]: Perhaps Bart can explain why it was appropriate, in an even-handed exploration of the law on executive authority to disregard statutes in wartime, not even to cite or distinguish Youngstown?

Depends on the statute being disregarded.

Youngstown applies to areas where the President and Congress' powers overlap. Even in a persuasive memorandum, Yoo should have provided the President with notice of the precedent in situations of overlapping powers.

However, if Congress was exceeding its Article I powers in enacting the disregarded statute, there is no need to address Youngstown because there are no overlapping powers to balance.


"If Youngstown didn't apply, there's no reason to explain why it didn't apply." You know, like "distinguish it"....

If Congress had exceeded its powers in ratifying treaties and passing statutes prohibiting torture, then this would have been a most notable and singular event, I'm sure. I'd think some lawyers might have remarked on this. But, strangely, none have.

Cheers,
 

Bart may or may not be a lawyer, but after the Medellin decision, he enjoys better backing for his over-broad assertion than in earlier times.
 

"Actually, Yoo would commit a grave error, as would any court, in citing foreign court decisions to impose foreign criminal law upon our citizens. Such an imposition undermines our democracy and the US rule of law...."

... in "Bart"'s opinion.

Of course, if you take "Bart"'s word for it, you have a fool for a lawyer. Just ask Wilhelm Frick. Oh ... he's dead. Nevermind....

Cheers,
 

This comment has been removed by the author.
 

I know you would like to impose EU war interpretations of torture on our country because you agree with them.
[...]
Let's keep this analysis to whether Yoo is correct as a matter of US law.


"Bart" dismisses foreign law because it's foreign law. He dismisses international law because he wants to ignore it. He dismisses >U.S. law, well, just because. And comes to the unremarkable conclusion that when you ignore all law, torture is not illegal....

Cheers,
 

dilan said...

BD: Actually, Yoo would commit a grave error, as would any court, in citing foreign court decisions to impose foreign criminal law upon our citizens. Such an imposition undermines our democracy and the US rule of law.

Bart, if you applied this standard in your own work, you could be disbarred. If you tried to apply this standard in working for a major law firm, you would be fired.

Seriously, it isn't what "Bart DePalma thinks the law is". Clients pay us to predict what courts will do when they hear cases. Courts consider the views of scholars and international law precedents when interpreting legislation that interprets treaties. Under The Charming Betsy case, they are REQUIRED, in fact, to consider the accepted interpretations of international law in interpreting acts of Congress.


Stuff and nonsense. My position has nothing to do with my personal preference for what the law should be. Rather, there is no precedent of which I am aware which has used the Charming Betty Canon or any like it to use customary international law to increase criminal liability on our citizens.

Charming Betsy dealt with a federal law with extraterritorial effect. Most cases applying the Charming Betsy canon deal with with federal laws with extraterritorial effect. Furthermore, the Charming Betsy canon is generally used to curb the reach of federal law, not to enhance it.

In pages 73-74 of his memorandum, Yoo argues that DOJ's position has long been that customary international law is not incorporated into the domestic law.

In the realm of domestic criminal law, the courts have generally rejected defense arguments citing to customary international law to weaken our domestic criminal laws. See e.g. United States v. Alvarez-Machain, 504 U.S. 655 (1992) (involving claim that U.S. government's forcible abduction of Mexican citizen for trial in United States violated both extradition treaty between United States and Mexico and customary international law); United Mexican States v. Woods, 126 F.3d 1220 (9th Cir. 1997) (involving claim that conviction and sentence of Mexican national violated treaties and customary international law); Garcia-Mir v. Meese, 788 F.2d 1446 (llth Cir. 1986) (involving claim that indefinite detention of Cuban citizens by Immigration and Naturalization Service violated customary international law); State v. Steffen, 1994 Ohio App. LEXIS 1973 (Ohio App. 1994) (involving claim that Ohio death penalty provision violated treaties and customary international law).

Can you offer a single United States court decision which has cited Charming Betsy or any other like authority for the proposition that customary international law can be used to increase liability under our domestic criminal law?

If not, why should Yoo assume that a court in the future would?

If not, your cheap shots concerning my legal competence look pretty silly given that you have no legal authority for your rebuttal of my position.
 

Bart as a High Liar Acrobat Simultaneously Backpedals and Twists in the Wind:

First he sez --

"Actually, Yoo would commit a grave error, as would any court, in citing foreign court decisions to impose foreign criminal law upon our citizens. Such an imposition undermines our democracy and the US rule of law."

Then he sez -- yes, he does --

". . . . [T]here is no precedent of which I am aware which has used the Charming Betty [sic] Canon or any like it to use customary international law to increase criminal liability on our citizens.

Dodge and twist and move the goal posts and change one's original assertion in order to continue a specious, false, intellectually dishonest spiel in defense not of criminal defendants but of criminality itself.

Tell the truth,, Bart: 'fess up: your actual name is Bozo, and your real profession is clown.
 

Stuff and nonsense. My position has nothing to do with my personal preference for what the law should be.

Such an imposition undermines our democracy and the US rule of law.

Dude, there is no difference between what you think your personal preference is and what you think the law is. They are one in the same. That's what you have so much difficulty understanding what Yoo did and the difference between an instrumental legal analysis and a non-instrumental analysis.

I believe you're incapable of writing a non-instrumental analysis because you believe there is right (Bart) and wrong (not Bart). You don't comprehend that there can be multiple viable and simultaneous interpretations of the law. Bart no likey that.

Courts no likey Bart.
 

Oh wow, he did move the goalposts there didn't he.

Dilan that's the most cogent response I've read on here in many days so I hope Bart doesn't drive you away.
 

Maybe Yoo and Bybee (and their superiors) have an angle by which they think they can beat an Altstoetter rap.
 

Bart:

The issue isn't whether you can make an argument that the Charming Betsey principle doesn't apply to criminal laws. The issue is whether you can refuse to treat the issue in a memo that you are writing to a client who wants your advice on how to stay within the nation's torture laws.

Your claim was that because you don't believe that international decisions and the views of international legal scholars should have any impact on domestic law, a memorandum written to advise a client on these issues need not discuss those laws.

However, whether or not YOU believe international decisions and the views of international scholars should be given any weight in the law, it is enough that SOME COURTS will give them weight. Indeed, the US Supreme Court has, fairly recently, given international decisions weight with respect to an issue that didn't even involve a statute that implemented a treaty, but instead involved the cruel and unusual punishment clause. Now can you tell us that there would be no realistic chance that a district court would look to foreign decisions to interpret a statute that implements an international human rights treaty? Of course you can't say that.

And if you can't say that, then, no matter what Bart DePalma thinks about that, Bart DePalma is committing malpractice if he doesn't discuss it. Does Bart want to become the lawyer who gets sued by his client because he failed to discuss, in his memo, lines of authority that a court ultimately relies on in rejecting his client's position? If so, I would recommend you tell this to your malpractice insurer; you might be due for a premium increase.

That said, MANY cases have in fact declared the Charming Betsy principle to apply to the interpretation of criminal statutes. See, e.g., US v. Lachman (1st Cir. 2004); US v. Yousef (2d Cir. 2003) (involving prosecution for first world trade center bombing); US v. Suerte (5th Cir. 2002); US v. Vasquez-Velasco (9th Cir. 1994); US v. Yunis (DC Cir. 1991).

Now, you cite a line of cases that hold that customary international law (which is international law that has NOT been codified in the form of treaties) generally does not restrict the power of Congress to criminalize conduct. That is quite true. (Indeed, a word about your main case, Alvarez-Machain, in a second.) But that only reflects two things-- that customary international law can be overriden by a controlling legislative act, such as a criminal statute, The Paquete Habana (USSC), and that where a statute is unambiguous, the Charming Betsy rule has no application.

That, however, doesn't get you off the hook. You see, your argument was not that Yoo didn't have to cite any CUSTOMARY INTERNATIONAL LAW that contradicted the provisions of criminal statutes (which would also be wrong as a matter of legal ethics, because a court might find the statutory provision ambiguous); rather, you took the bold position that Yoo did not have to cite any international decisions or commentary about the meaning of the CONVENTION AGAINST TORTURE, a signed, ratified treaty which Congress had implemented through the statute that Yoo was purporting to interpret.

And, of course, the convention against torture is NOT customary international law. Further, you are the one who is always claiming that the torture statute is ambiguous, so the rule that Charming Betsy doesn't apply to unambiguous statutes isn't an argument you can rely on.

I might add as well that the only two published cases to decide the issue have held the Charming Betsy principle is fully applicable to the torture convention. Cornejo-Barreto v. Seifert (9th Cir. 2000); Ali v. Ashcroft (W.D. Wash. 2003).

So, of course, a person advising his client about the meaning of the torture statute certainly does have to accept Charming Betsy as law-- as it is-- and would act at his peril in deciding not to cite international sources on the ground that non-US law should never be consulted.

Again, if you really are a practicing lawyer, you must know that you can't do this. You can't inject your personal view of the law if it results in a memo that causes your client to run the risk that a judge might not see the law the way you do or might feel bound by precedents and doctrines you might not agree with.

Now, let me close by saying something about Dr. Humberto Alvarez-Machain. If you do a westlaw or nexis search of my name and Dr. Alvarez's, you will see that I represented the man when he brought his claims against the US government. It is, shall we say, rather educational to see a case I gave 7 years of my life to being cited back at me by someone who, as far as I know, has never practiced in the area of international human rights law.

Bart, I know what the Alvarez-Machain case stands for. And it doesn't stand for any sort of proposition limiting the use of international law to interpret criminal statutes. The Supreme Court opinion you cited was from the criminal appeal. The issue was whether the US-Mexico extradition treaty was the exclusive means for bringing a suspect to the US for trial. The Court held that under Ker v. Illinois and Frisbie v. Collins, it was not, and rejected the argument that a violation of customary international law in the rendition of a suspect was sufficient to divest a US court of jurisdiction over the defendant. The Alvarez-Machain opinion followed a number of cases that held that no matter how illegal the actions of the government in kidnapping a suspect, only in rare circumstances or never could the government be required to dismiss an indictment.

As you can see, it is rather off point. In contrast, there is on point authority suggesting that (1) criminal laws are subject to the Charming Betsy principle and (2) the torture convention specifically is subject to the Charming Betsy principle.

But I don't even need those authorities to make my point. The basic ethical obligation of a lawyer advising a client is to tell the client what a court might hold if the client's conduct is subjected to adjudication. No lawyer in that position can afford to not tell the client about doctrines that are out there but that the lawyer is ideologically opposed to.

As I said, if you are a lawyer, you must know this. I would suggest that you might want to back down from your perch, Bart. I have, as you might now realize, some experience in this area. I have, in fact, helped persuade at least one court to adopt the Charming Betsy principle in interpreting US torture statutes.

Of course, I don't expect you to know as much about this as I do. However, if you were a lawyer advising a client, you would need to learn it. And if you decided not to, and your client ended up in the dock because of it, that could be a costly decision indeed.
 

Dilon --

I've long appreciated your balance, and your conspicuous love of law and reason. And you've again affirmed my appreciation. Thank you.

I don't want to pull this off topic too far, but could you give a thumbnail of the "Charming Betsey principle" for us not in the know?

Thanks.
 

Doesn't matter, Dilan. "Bart" says the law is different. He also says that Brown II upheld school busing. And he's quite right; how can anyone dispute such an assertion? It's truly embarrassing how anyone can disagree and even more, persist in their groundless assertions.

Cheers,
 

Bart, my dear Netherandal:

Surely, the duty of counsel differs according to the tenor of the instructions received. In fact, one of the weaknesses of the Yoo Memorandum is that it does not begin by sufficiently specifying the tenor of those instructions.

A government lawyer may be asked:-
(i) to recommend changes to statute or subordinate legislation to achieve a desired policy objective;
(ii) to give guidance to officials on how to apply the existing law in given factual circumstances;
(iii) where litigation is pending or anticipated, anticipate possible defences of the government’s position and evaluate the prospects of success.

But in all cases the starting point is the objective appraisal of the existing state of the law as applied to the premised facts. And where a proposed course of action is considered likely to be held unlawful, and particularly where individuals are at risk, then the duty of Counsel is to warn – in clear terms. And in an important matter, if that advice is not heeded, then there may be a duty to resign – as a number of lawyers in UK government service did over the decision to participate in the invasion of Iraq.

In another of your posts you say: “Actually, Yoo would commit a grave error, as would any court, in citing foreign court decisions to impose foreign criminal law upon our citizens. Such an imposition undermines our democracy and the US rule of law.”

Stuff and nonsense. Any lawyer advising a multinational corporation has to have clearly in mind the laws of the jurisdictions where the corporation does business or where its business practices may produce effects.

If one advises a corporation in Denver doing business in Europe and fails to take into account the potential civil and criminal consequences overseas of decisions taken in Denver – one will be failing in the duty to the client, just as I have to consider the possible impact of, say, the Sherman and Clayton Acts when they are relevant to a client in Europe.

Likewise, so long as the US government sends officials overseas, then government lawyers have a duty to consider what perils government mandated actions may expose them to in foreign jurisdictions.

Whether you like it or not, torture is considered a ius cogens crime, which any country may prosecute, with no statute of limitations and insofar as accessories may also be prosecuted, then the irresponsibility of not considering the applicable jurisprudence and warning about it in clear terms is self-evident.

Further, all courts, particularly courts of final appeal, routinely consider the jurisprudence of other jurisdictions as an aid to arriving at a just result. This is particularly the case in common law jurisdictions which have the same Anglo-Norman origin, particularly because older English decisions may actually still decide what domestic law is. For example, I was involved in a case in Texas where a Texas Court held that the law of Texas on conspiracy was that of the Statue of Elizabeth (I), although I am sure that the Virgin Queen never knew that she was legislating for that jurisdiction.

It you were a Commander in, say Guantanamo Bay, would you not think the military had a right to some assurance based on proper consideration that they would not be at risk of prosecution were they to travel to Europe ?

If you think that the US government should be free to torture whom it likes were it likes, so be it. But at least recognise that torture has been abhorrent to the common law since before the USA attained its independence. Given the common law inheritance, I would like you to cite to me any Act of Congress abrogating that common law principle.
 

It is, shall we say, rather educational to see a case I gave 7 years of my life to being cited back at me by someone who, as far as I know, has never practiced in the area of international human rights law.

Oh, squish. It's like the Marshall McLuhan scene in Annie Hall.

This is a good place to say how much I've appreciated Dilan's comments on the Yoo memo & related issues. The comments on this blog are often as valuable as the posts.

And this thread illustrates one reason why I dislike so much how Prof. Lederman will delete an entire thread when Bart-refutation takes over. There's a lot of garbage deleted, perhaps, but in the present thread, we get added value from the refutations -- stuff that, in all honesty, wouldn't have been posted, were Bart not carrying out his assigned duties.
 

In case Dilan is off doing real-world things:

Here's the Charming Betsy decision; Wikipedia tells us only that the "Charming Betsy" canon of statutory interpretation is that a "national statute must be construed so as not to conflict with international law."
 

Speaking as a non-lawyer I confess to a (morbid?) fascination with Bart and his sclerotic style. Seems to me that his perspective can reasonably be characterized as fascistic and is dangerous enough to the rule of law to justify thorough examination and rebuke.

From Bart's first post in this thread:

Actually, Goldsmith admitted on page 148 of his book Terror Presidency that he thought the Yoo memo lacked sobriety and careful analysis specifically because Yoo interpreted the torture statute like a regulation and did not consider the balance between national security and the United States' "moral reputation."

It therefore appears that Goldsmith's disagreement with Yoo's interpretation of the torture statute was based entirely on political policy considerations (not to mention political CYA) and not the law.

The only Yoo legal opinion which Goldsmith took to task on legal grounds was Yoo's claim that the President's CiC power trumps Congress' Article I power to set rules for Captures. Frankly, this is also the only Yoo opinion which I could find that was clearly in error as a matter of law.


Incredibly, Bart finds that Goldsmiths objections to Yoo are "entirely political" and not based on "the law."

In his next sentence, Bart contradicts himself. He now allows there's just this one teeny-weeny Yoo legal error which Goldsmith found. And this error was simply that Yoo didn't understand or appreciate the simple language of the Constitution which says that "all legislative powers" are vested in the Congress and that the executive shall be careful that the laws be "faithfully executed."

Sure, that's a mere trifle of an oversight. Except that it stands the Constitution on its head. And as far as I am aware, Youngstown and Hamdan affirm this essential understanding of what the Constitution means.
 

Mourad said:

It you were a Commander in, say Guantanamo Bay, would you not think the military had a right to some assurance based on proper consideration that they would not be at risk of prosecution were they to travel to Europe?

One of the stated (or admitted) goals of the U.S., in destroying tapes and in invoking "state secrets" privilege for cases involving "enhanced interrogation" has been the protection of CIA assets from danger. Maybe we weren't listening carefully enough; one of the dangers may not have been retaliation by the Terra-ists, but rather, incarceration and imprisonment by other governments....

Cheers,
 

It's now apparent that the process of commenting upon Brian Tamanaha's original posting and addressing Bart DePalma's fallacious arguments has evoked the basic outline of an effective disciplinary complaint against John Yoo with the Pennsylvania Bar. A nice scenario would have a respected member of the Pennsylvania Bar filing a detailed grievance indicating which canons of ethics John Yoo violated, while providing factual support for the claim. Certainly, the supporting documents would include copies of Yoo's August 1, 2002 and March 14, 2003 memoranda.

This type of complaint is much too important to allow an inarticulate non-lawyer to handle because a poorly drafted grievance is at risk of summary dismissal and may give disciplinary officials with the Pennsylvania Bar an excuse for ducking a very distasteful and controversial duty.

There is a general understanding that bar disciplinary procedures exist for the protection of the public. It really is not dispositive to the bar disciplinary process whether John Yoo eventually is granted immunity from prosecution, issued a Presidential pardon, or acquitted of criminal charges. A strong case has been made that Yoo wrote legal opinions, having an outward semblance of legal advice, which enabled U.S. government officials to violate major federal criminal statutes with little fear of prosecution. The public certainly needs to be protected from that type of "legal advice."
 

dilan said...

The issue isn't whether you can make an argument that the Charming Betsey principle doesn't apply to criminal laws. The issue is whether you can refuse to treat the issue in a memo that you are writing to a client who wants your advice on how to stay within the nation's torture laws.

You are doing an Obama tap dance now.

I argued that neither Yoo or any US court should impose foreign law to impose criminal liability on our citizens.

You offered the Charming Betsy canon to claim that Yoo and US courts must do so. However, now that it appears that you cannot offer any precedent for that radical opinion, you claim Charming Betty is irrelevant.

Well, at least you made the concession, which is better than Mr. Gittings and his conspiracy claims.

However, whether or not YOU believe international decisions and the views of international scholars should be given any weight in the law, it is enough that SOME COURTS will give them weight. Indeed, the US Supreme Court has, fairly recently, given international decisions weight with respect to an issue that didn't even involve a statute that implemented a treaty, but instead involved the cruel and unusual punishment clause.

That said, MANY cases have in fact declared the Charming Betsy principle to apply to the interpretation of criminal statutes. See, e.g., US v. Lachman (1st Cir. 2004); US v. Yousef (2d Cir. 2003) (involving prosecution for first world trade center bombing); US v. Suerte (5th Cir. 2002); US v. Vasquez-Velasco (9th Cir. 1994); US v. Yunis (DC Cir. 1991).

None of the courts in these cases cited Charming Betsy to use international law to impose additional domestic criminal liability on our citizens.

As I noted above, Charming Betsy is generally applied to limit the extraterritorial reach of federal statutes, which is not at issue in the Yoo memo. These cases fall within that ambit.

Lachman is an international trade case where the defendants attempted to use an international trade case to define an international trade term.

Yousef, Suerte, Yunis and Vasquez-Velasco involved the challenges to the court's extraterritorial jurisdiction.

I might add as well that the only two published cases to decide the issue have held the Charming Betsy principle is fully applicable to the torture convention. Cornejo-Barreto v. Seifert (9th Cir. 2000); Ali v. Ashcroft (W.D. Wash. 2003).

Once again, none of the courts in these cases cited Charming Betsy to use international law to impose additional domestic criminal liability on our citizens.

Cornejo-Barreto and Ali involved whether the United States could extradite prisoners to a country which practices torture, the inverse of the challenges to US extraterritorial jurisdiction.

I think it is time to wrap up our discussion.

I completely agree with you that an attorney owes his client a duty to provide all relevant law. My point is that foreign court decisions do not impose additional criminal liability under our domestic statutes and are thus irrelevant to Yoo's analysis. Despite your hard work, none of the supra cases rebut that proposition.

Under the limited circumstances where I know a case is going before a judge who likes creating new law and I know the judge's predilections in this area, I would and have in the past offered my client my best guess on how that particular judge will come down on my client's particular case.

As a advocate for my clients, I have also exploited judge's predilections for writing her own law to have charges against my clients lessened or dismissed. However, as a DA, I considered it unethical to exploit a judge to increase criminal liability for a defendant beyond that which I thought was provided for under the law. (Perhaps this is why I find the very idea of using foreign law to increase the criminal liability of our citizens to be so offensive.)

In any case, in a memorandum of law drafted for general use without a particular set of facts or a particular judge, the attorney is not obligated and indeed should avoid snipe hunts guessing which inapplicable law some unidentified judge might decide to apply in the future.

As a brief illustration, you are asking Yoo to draft a memorandum offering the various interpretation of the 200 some signatories to the CAT and then guess which ones the hundreds of federal judges might decide to apply in the future. As a point of comparison, there have been thousands of densely written pages written covering differing aspects of whether the CIA's coercive interrogation program violates foreign interpretations of the CAT. Such an exposition would obviously confuse more than it would enlighten, which is the opposite of the purpose for which Yoo drafted his memorandum.

Anyway, I'll allow you the last word. I have a trial to prepare for.
 

"Bart" DePalma lets a little something slip:

You are doing an Obama tap dance now.

A little "Mr. Bojangles", eh?

Now go change your underwear; thank kind of "slip" is not welcomed in polite company.

Cheers,
 

Slightly O/T:

"Taxi to the Dark Side" (which I previously recommended) is available on the web.

Only slightly O/T. The 'star' of "Taxi" has Bybee and Yoo (and the rest of the maladministration) to thank for his present circumstances.

Cheers,
 

I think it is time to wrap up our discussion.

I love how Bart, who posts here multiple times a day, every day, not so subtly tries to get away from this discussion in which he is way over his head.

I love how when Bart is 99.99999999 percent wrong, he invents something new and says you didn't mention this thing I win have to run bye.


I completely agree with you that an attorney owes his client a duty to provide all relevant law.


I love the frequent "rowbacks". Previous posts completely wrong? Just say you always agreed with the premise you have been arguing with!
 

"Bart" never appeals a case:

Under the limited circumstances where I know a case is going before a judge who likes creating new law and I know the judge's predilections in this area, I would and have in the past offered my client my best guess on how that particular judge will come down on my client's particular case.

Prolly a good thing.

Cheers,
 

I think it is time to wrap up our discussion.

Translation: I'm going to run away.
 

The Obama reference was offensive and weird.
 

Reno:

The Obama reference was offensive and weird.

Have you been sleeping over the past month as Obama has furiously tried to finesse his relationship with his "spiritual mentor" and Farakan clone Rev Jeremiah Wright and now his San Francisco gaffe about those homophobic and xenophobic hicks in fly over country who "cling" to God and Guns because Uncle Sugar will not provide them with enough jobs and health care?

That has been tap dancing indeed!

Give 'em the old Razzle Dazzle
Razzle dazzle 'em
Show 'em the first rate sorceror you are
Long as you keep 'em way off balance
How can they spot you've got no talent
Razzle Dazzle 'em


Razzle Dazzle from Chicago
 

those homophobic and xenophobic hicks in fly over country who "cling" to God and Guns

That sounds like you.
 

Seriously, Baghdad, it's got to be frustrating for someone who sees himself as a hotshot lawyer to be defending drunken hicks in flyover country. Obama was talking about you.
 

Instead of giving us "that old soft shoe" Lisa's brother gives us his "old soft head" in an effort to dance around the issue with his razzle that fails to dazzle while blogging under the influence. May he, for his client's sake, have better luck with the jury than he has had here.
 

And this thread illustrates one reason why I dislike so much how Prof. Lederman will delete an entire thread when Bart-refutation takes over. There's a lot of garbage deleted, perhaps, but in the present thread, we get added value from the refutations -- stuff that, in all honesty, wouldn't have been posted, were Bart not carrying out his assigned duties.

But how much valuable stuff is not posted because people are sick and tired of reading Bart and his refuters? I suspect that if everyone ignored Bart, the comments, overall, would be much more valuable, because we could assume that torture is wrong and move on from there. If Bart wishes to support torture, then there is nothing we can do about it. I wish that you would all stop taking his bait!
 

I don't want to pull this off topic too far, but could you give a thumbnail of the "Charming Betsey principle" for us not in the know?

The Charming Betsy was a case decided by the John Marshall Supreme Court in the early 19th Century. The principle that it expressed is that US domestic statutes will be interpreted to be harmonious with international law wherever possible. The reason it is important here is because the US torture statute interpreted by Yoo implements a treaty, the Convention Against Torture, and Bart was arguing that international decisions and scholarship interpreting the treaty are irrelevant and did not have to be cited by Yoo. The Charming Betsy case, which is binding law in US courts, as applied to this situation means that the US torture statute must be interpreted in a way that harmonizes with US obligations under the Torture Convention, unless Congress is unambiguous in derogating from those obligations.
 

None of the courts in these cases cited Charming Betsy to use international law to impose additional domestic criminal liability on our citizens.

Bart, you will notice that I didn't say that you couldn't distinguish the cases. Of course you can. And a good lawyer does that too-- indicating to his client why a case may or may not apply.

But you were defending a different practice altogether, which is NOT CITING the caselaw that a judge might apply. You may believe that in the end, the courts will limit the Charming Betsy principle with respect to "expanding" criminal liability. Heck, you could write a good law review article on that subject. But IT HASN'T HAPPENED YET. As of now, we have a bunch of cases APPLYING the Charming Betsy principle, and an ARGUMENT, unsupported by caselaw, that the Charming Betsy principle doesn't apply to "expand" criminal liability. Perhaps that argument will be accepted-- but a lawyer can't speak definitively that it will be. It's safe to say that a number of contentions that you've made about what the law should be in the war on terror have been rejected in court, including in the US Supreme Court.

Further, you are way to narrow in your statement about your legal duties to your clients. It isn't just about "predicting" whether you get a bad judge. The issue is "if my client does this, what is his exposure?". That includes the possibility that the courts may reject your arguments. It also includes potential international criminal liability, as some other posters have noted.

If you write legal memos the way you claim to, you are violating your professional obligations to your clients and potentially committing malpractice. You are required to discuss doctrines that you might not wish to apply, as long as there is some probability that a court may apply them. And you must couch your analysis in terms of risk, telling the client what the possible outcomes are.

Yoo's memorandum contains no risk analysis whatsoever, and doesn't cite to authorities and reference arguments contrary to the position he desires to be the law. It is a clear breach of his obligations to his clients.
 

If I wanted to be charitable, I would say that the difference in perspective between Bart and Dilan is the difference between an international human rights lawyer and a criminal lawyer.

Dilan, as an international human rights lawyer, looks at the various precedents in international law on torture and concludes that what has been condemned as torture in some other context should be forbidden to our own agents. Bart looks at it from a criminal perspective -- if you can escape prosecution for it under the relevant criminal statutes, then it is acceptable. Not being any kind of lawyer myself, I am out of my depth here, but this basic philosophical difference has to be brought out into the open and addressed.

In reponse to Henry, I disagree. It is fine to simply assume that torture is wrong if no one is defending it. But many people these days, some of them quite powerful are defending it. So long as there is any significant presence defending torture, it needs to be refuted, either in the comments section of this blog, or anywhere else it is being defended.
 

Enlightened, there may be something to that, but Bart could get in real trouble even as a criminal lawyer if he advised a client that the client was likely in the clear based on Bart's assumption (not supported by controlling authority) that a particular legal doctrine would not be applied in a criminal law context. Even in the criminal defense context, the memo you have to write is one that indicates what the counterarguments are and warns the client of the risk.
 

If I wanted to be charitable, I would say that the difference in perspective between Bart and Dilan is the difference between an international human rights lawyer and a criminal lawyer.

That's well beyond charity. That would be trying to out-Pilate Pilate.
 

It's all in what you mean by "criminal lawyer."

But perhaps Bart meets his clients for the first time after they've been arrested -- as many lawyers do -- so that the issue of what advice to give about prospective acts is a bit moot by then.

--Henry, you have a good point & I have argued that before, but empirically speaking, we seem to be unable to ignore Bart, and he at least incites those smarter than me to articulate their arguments so that I can occasionally catch their meaning.

I would prefer a better dialectical foil for our commmenter gems, but dems is de conditions dat prevail.
 

Dilan:

The Charming Betsy case, which is binding law in US courts, as applied to this situation means that the US torture statute must be interpreted in a way that harmonizes with US obligations under the Torture Convention, unless Congress is unambiguous in derogating from those obligations.

The definition of torture under our amendment to the CAT and our Torture statute are identical, so there is nothing to harmonize between the CAT and our our Torture statute.

What you are really arguing is that the Charming Betsy canon requires US courts to implement foreign interpretations of the CAT as US domestic criminal law. As we discussed above, no court has held or even hinted that Charming Betsy requires this.

Bart, you will notice that I didn't say that you couldn't distinguish the cases. Of course you can. And a good lawyer does that too-- indicating to his client why a case may or may not apply.

But you were defending a different practice altogether, which is NOT CITING the caselaw that a judge might apply. You may believe that in the end, the courts will limit the Charming Betsy principle with respect to "expanding" criminal liability. Heck, you could write a good law review article on that subject. But IT HASN'T HAPPENED YET. As of now, we have a bunch of cases APPLYING the Charming Betsy principle, and an ARGUMENT, unsupported by caselaw, that the Charming Betsy principle doesn't apply to "expand" criminal liability


In a nutshell, you are arguing that hypothetical rulings of hypothetical future courts to change current law are actually the law until a real court holds that the current law may not be changed.

Pretty mind bending stuff, even for a attorney.

Here is the bottom line: Our domestic criminal law concerning torture is established by the text of the federal statute and US court decisions interpreting the text of the statute. Given that no case has come before the courts under that statute, we are left with the text. Yoo spent a great deal of time analyzing the text of the statute. You may disagree with his conclusions, but Yoo did his job analyzing the pertinent law.

If you had offered even a single case which held that the Charming Betsy canon required US courts use foreign law to expand criminal liability in the United States, I would agree with you that Yoo had a responsibility to address that case. However, there is no precedent for what you propose. Rather, you are making an argument for a change in the current law.
 

I suspect that if everyone ignored Bart, the comments, overall, would be much more valuable, because we could assume that torture is wrong and move on from there.

I have to disagree with this also. As a non-lawyer I would be left in a state of high confusion without the extremely able and informative responses to Bart. One thing Bart excels at is creating an impression of authority. To the layman he sounds like he knows what he's talking about.

Bless you all for exposing his BS. Please keep it up.
 

Here is the bottom line: Our domestic criminal law concerning torture is established by the text of the federal statute and US court decisions interpreting the text of the statute. Given that no case has come before the courts under that statute, we are left with the text. Yoo spent a great deal of time analyzing the text of the statute. You may disagree with his conclusions, but Yoo did his job analyzing the pertinent law.

No, Bart. You are letting "pertinent" do more work that it can in that sentence.

You see, to courts, the decisions of foreign courts matter in construing statutes that implement our obligations under international law. The opinions of scholars in the area also matter. So they are "pertinent" in the only sense that matters-- that a court might rely on them.

Again, what you are saying is that if a client comes to you and asks you about the meaning of the torture act, and you don't cite these authorities, and the client is then prosecuted and the court DOES rely on these authorities in affirming a conviction of your client, that you would face no malpractice liability for not telling your client about international law that a court could find relevant.

That position is simply wrong-- and I sincerely hope your clients get a more professional standard of representation of you than the one you are advocating here.
 

enlightened layperson said...

If I wanted to be charitable, I would say that the difference in perspective between Bart and Dilan is the difference between an international human rights lawyer and a criminal lawyer.

Dilan, as an international human rights lawyer, looks at the various precedents in international law on torture and concludes that what has been condemned as torture in some other context should be forbidden to our own agents. Bart looks at it from a criminal perspective -- if you can escape prosecution for it under the relevant criminal statutes, then it is acceptable. Not being any kind of lawyer myself, I am out of my depth here, but this basic philosophical difference has to be brought out into the open and addressed.


You are too hard on yourself. As usual, you have cut to the quick of the origin of yet another attorney dispute.

I fully admit that I am taking the position of a criminal defense attorney. I would only quibble with one aspect of your take. I am not arguing that a client should do anything which is not prohibited by law, but rather that the state should not punish the client for doing things which are not prohibited by law.

There is a great deal a moral individual should not do even though it allowed under the law. However, that is an issue of morals and not law.

My argument here is NOT that the government should do anything which is allowed under the torture statute. Given that I believe that the torture statute is void for vagueness under the Due Process Clause, to hold such a position is morally hazardous and would mean that the government should adopt the al Qaeda torture manual.

Rather, I am defending Yoo against what I believe to be largely unfounded accusations that he either willfully misapplied the law or committed criminal acts himself.

What I am searching for is a worthy prosecutor who will offer a genuine supported indictment.
 

Another non-lawyer,long time supporter of Center for Constitutional Rights.
I appreciate these threads and have learned alot from them.
Over time,I have found it useful to simply skip over Bart's obfuscations and wait for the subsequent clarification by one of his more erudite peers(sorry) with non-defective moral compasses.
 

[Dilan]: But you were defending a different practice altogether, which is NOT CITING the caselaw that a judge might apply. You may believe that in the end, the courts will limit the Charming Betsy principle with respect to "expanding" criminal liability. Heck, you could write a good law review article on that subject. But IT HASN'T HAPPENED YET. As of now, we have a bunch of cases APPLYING the Charming Betsy principle, and an ARGUMENT, unsupported by caselaw, that the Charming Betsy principle doesn't apply to "expand" criminal liability.

["Bart"]: In a nutshell, you are arguing that hypothetical rulings of hypothetical future courts to change current law are actually the law until a real court holds that the current law may not be changed.


I think I covered that above:

"Doesn't matter, Dilan. "Bart" says the law is different. He also says that Brown II upheld school busing. And he's quite right; how can anyone dispute such an assertion? It's truly embarrassing how anyone can disagree and even more, persist in their groundless assertions."

It's a shame that I have to repeat this obvious for the brain-dead around here.

Cheers,
 

dilan said...

Again, what you are saying is that if a client comes to you and asks you about the meaning of the torture act, and you don't cite these authorities, and the client is then prosecuted and the court DOES rely on these authorities in affirming a conviction of your client, that you would face no malpractice liability for not telling your client about international law that a court could find relevant.

I am struggling to envision how this scenario could come about.

I would not be called to give this advice as a private attorney because the torture statute applies to acts under color of law.

Let me step in Yoo's shoes...

I have written a legal opinion which is accepted as controlling for DOJ, the only entity who could prosecute under the torture statute and ask the court to use foreign law to increase the criminal liability under the statute. I am unsure how you get DOJ to ask the court to expand criminal liability under those circumstances.

OK, let us pretend that Yoo is CIA counsel and DOJ knows nothing about the memo or the CIA program. DOJ discovers the program and indicts the CIA agents for violations of the torture statute. CIA moves to dismiss and DOJ asks the Court to apply foreign law to expand the criminal liability of the CIA agents under the torture statute for the first time in its history. I as CIA's counsel would address this novel argument in a responsive brief. However, let us say that the courts grant DOJ's motion all the way up through the Supreme Court and my clients are convicted.

Thus the question becomes whether the CIA agents could sue my Yoo character for malpractice because his original memo did not inform them that a future DOJ could offer a novel argument and a future court could accept the argument.

I am not a malpractice attorney, but I do not believe that attorneys have a duty to become fortune tellers. Otherwise, every attorney which apprised his client of current law only to have the opposing counsel prevail after the fact on a novel argument had better make sure he or she is insured.
 

my take on this is Yoo just never thought this memo would see the light of day and it was like an academic exercise anyway, he's making $150k with a cushy gov't job, and he did a shitty shitty job on it. He failed to cite controlling authority. I did that one time in a memo on expert witness evidence and did not cite Daubert (but I did get at the right rule by cases under Daubert). It was a savage burn on my review for years! It was a shitty job that I hated saw the light of day later. That's what this is for Yoo. Now he's a professor and he cringes at the crappy job he did on that memo.
 

It's horribly, painfully clear Bart does not understand the difference between persuasive and objective memos. He doesn't even understand the concept of an open question. Dilan keeps trying to explain this to him and Bart keeps saying but this is what the law is. Or should be. Or this is what "I" believe. Or he has trouble seeing "that" happen.

He keeps illustrating he doesn't get it, but doesn't realize he doesn't get it.
 

This comment has been removed by the author.
 

I don't why I should wade into this, as Dilan is doing a fine job, but let's take the analogy of state law that I face consistently.

I am an attorney in Arizona. Our case law is negligible, having been a state for less than 100 years. In addition, rather than re-invent the wheel, the Arizona legislature borrows heavily from California, which, in turn, means our courts borrow heavily from California, as well as other larger districts.

In the area of construction law, where I practice, we have a great number of statutes patterned after California laws, but for which we in Arizona have no applicable decisions interpreting said statutes.

What you are advocating then, is that if I am litigating a case regarding these statutes and there is no case law, that I simply end the inquiry at the text of the statute and make no reference to relevant, persuasive authority, from other jurisdictions.

So now I've prepared a brief that makes no reference to perfectly relevant, persuasive authority from other jurisdictions. The other side does and I proceed to get my ass handed to me in court. The client, rightfully and righteously pissed that I just blew a 6 figure lien or contract claim, files a bar complaint based on my inept presentation of his claims. You think the bar would look kindly on my conduct? You think my boss would?

Christmas, one of the first things they teach in legal research is that when you can't find controlling legal authority, you look to other jurisdictions. In this instance, foreign laws would be "other jurisdictions".

I'd like to say that we both recognize the absurdity of this position, but it's obvious that you don't.
 

Anyway, I'll allow you the last word. I have a trial to prepare for.

You don't say.
 

This comment has been removed by the author.
 

I have written a legal opinion which is accepted as controlling for DOJ, the only entity who could prosecute under the torture statute and ask the court to use foreign law to increase the criminal liability under the statute. I am unsure how you get DOJ to ask the court to expand criminal liability under those circumstances.

Bart, this is a total non-answer. What you are basically saying is that because the DOJ would decline to prosecute for war crimes, it didn't matter what Yoo put in his memo.

But that misses the issue, which is whether or not the DOJ would decline to prosecute (and remember, as well, that a different DOJ or a foreign jurisdiction MIGHT prosecute), Yoo had a responsibility to tell his client what the law was, not simply what he would like the law to be. That is the obligation that every one of us in this profession undertakes when we agree to be bound by our state bar's professional rules.

If relevant at all, the fact that in practice the courts might not ever have to adjudicate the issues that Yoo is memorandizing only heighten his duty to consider everything a court might consider, because, if that is the case, he is essentially setting the "law" in this area.

Look, at bottom, you, Bart DiPalma, have a hostility-- shared by many conservatives-- to the importation of international law concepts into our domestic law. The problem is, courts take a different view. The general rule is that these sources can be looked at, especially with respect to issues that touch on international affairs.

Until you convince the courts to adopt that position, which has not yet been adopted, the John Yoos of the world are responsible for telling their clients about the state of international law in situations where it is foreseeable that it might be consulted.
 

In the ordinary thread, mattski would win the thread with his comment. Dilan, however, has pitched a perfect game.
 

Here's a problem, "Bart":

I have written a legal opinion which is accepted as controlling for DOJ, the only entity who could prosecute under the torture statute and ask the court to use foreign law to increase the criminal liability under the statute. I am unsure how you get DOJ to ask the court to expand criminal liability under those circumstances.

You're assuming your conclusion. You do this to set up your desired "straw man" of claiming that foreign (or international) interpretations of law "increase" the "criminal liability" from something else (apparently playing on some notion of "due process" or "fairness" that an act should not be made illegal without proper notice or some such bull; this applies to some crimes that are malum prohibitum, but generally not those considered malum in se ... you know, like torturing people?). What is that "something else"? Why, it's what our laws prohibit. But that is in fact what the gravamen of the disagreement is here: do U.S. laws, correctly interpreted, prohibit the acts in question as torture? That works if you want to state your conclusion as an assertion (or premise or hypothesis). But as a means of deriving your conclusion, it's simply faulty logic. But that's your specialty, isn't it, "Bart"?

Cheers,
 

I am not a malpractice attorney, but I do not believe that attorneys have a duty to become fortune tellers.

"Bart"'s hero said: "Who could have predicted....."

Cheers,
 

Excellent and lovely explication, Mourad.

As to torture:

". . . . torture has been abhorrent to the common law since before the USA attained its independence. . . ."

At minimum, in the Massachusetts-Bay colony, it was was regulated by statute; from the "Body of Liberties" of 1641,

45. "No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and sufficient evidence to be guilty, After which if the cause be of that nature, That it is very apparent there be other conspirators, or confederates with him, Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane."

That remained the law, virtually unchanged, in codifications of 1648, 1660, and 1672. Even though not wholly prohibited, and even though this is the colony in which later occurred the Salem witch hysteria/trials, and even though the usual physical punishments imposed were severe, even extreme, and even in some instances barbaric, they did get one thing right that the Bushit criminal enterprise couldn't care less about -- and from their actions prior to 9/11 never cared about, as from 1648 codification -- and have deliberately done everything they can to avoid doing:

. . . . [N]o man shall be forced by torture to confesse any crime against himselfe or any other, unles it be in some Capital case, where he is first fully convicted by clear and sufficient evidence to be guilty. After which, if the Case be of that nature that it is very apparent there be other Conspirators or Confederates with him; then he may be tortured, yet not with such tortures that be barbarous and inhumane. . . .
 

I think it is time to wrap up our discussion.

Translation: I'm going to run away.

# posted by Bartbuster

Correction: "I'm going to run way yet again."
 

Dilon to Bart Bafflegabbler:

"If you write legal memos the way you claim to, you are violating your professional obligations to your clients and potentially committing malpractice. You are required to discuss doctrines that you might not wish to apply, as long as there is some probability that a court may apply them. And you must couch your analysis in terms of risk, telling the client what the possible outcomes are."

Emphasis mine.

In an adversarial setting, one is required by at minimum ETHICS to not merely acknowledge the precedents upon which the opponent relies, but also to distinguish them from the case in effort to show why they don't or shouldn't apply.

That is basic.
 

One of the odd things about people like Bart is that the means don't justify the ends.

In other words, he keeps fighting for a strategy that will not work and does not want to hear strategies that WILL work to get him what he wants.

There are many people on here not only responding to Bart, but really helping him and anyone who would want attempt to defend or prosecute Mr. Yoo. All the tools and debates are being discussed and given.

But instead, Bart keeps saying: it should be the way I want it, it should be the way I want, it should be the...

THIS is why Bart actually identifies with people like Yoo. People like Yoo cannot get what they want and feel they MUST resort to deceptive means to get what they feel is right (wrong) because everyone ELSE is wrong (right).

Secretly, Bart knows Yoo knew exactly what he was doing and very much intended to short-circuit the system. As I said, people like this feel they MUST do this because they're right and everyone else is wrong. But they know if they say that, they are finished. So they try to use the tools of accepted law and society, but not for scholarship, but as a means to an end. And when that's your goal and methodology, you don't perceive the needs of history, society and law in your writing.

And that's why Yoo's memo only worked for the administration for a very short time. And that's why, again, the means never justify the ends with this kind of viewpoint.
 

Bart agrees to concede that he isn't a straight talker --

"My point is that foreign court decisions do not impose additional criminal liability under our domestic statutes and are thus irrelevant to Yoo's analysis."

Actually, of course, your "point" was that the use of "foreign law" was wrong in and of itself, because it destroys our democracy and laws.

Or because it imposes criminal liability on US citizens.

Or because it inposes additional liability on US citizens.

Or -- now -- that foreign laws don't do any/either of that/those.

Let us know when you've made a decision as to which of those assertions you insist is true, and to which will consistently stick, instead of pretending that backpeddling is instead forward progress to victory.
 

I am not arguing that a client should do anything which is not prohibited by law, but rather that the state should not punish the client for doing things which are not prohibited by law.

There is a great deal a moral individual should not do even though it allowed under the law. However, that is an issue of morals and not law.


Yes, and that is a completely proper approach for a criminal lawyer to take, when prosecuting or defending after the fact. But John Yoo was giving prospective advice on what federal agents could do under color of law. Under these circumstances, I do not think the proper answer is "anything you can avoid prosecution for," which is the implied answer in your criminal lawyer approach. I would prefer some moral considerations taken into account here.

My argument here is NOT that the government should do anything which is allowed under the torture statute. Given that I believe that the torture statute is void for vagueness under the Due Process Clause, to hold such a position is morally hazardous and would mean that the government should adopt the al Qaeda torture manual.

Rather, I am defending Yoo against what I believe to be largely unfounded accusations that he either willfully misapplied the law or committed criminal acts himself.


Um, given that you think the torture statute is void for vagueness and could not even forbid use of the al Qaeda torture manual, clearly you would consider it virtually impossible to wilfully misapply that particular statute. Reasonable minds can differ on this point.

Dilan, for instance, is pointing out that although there is no precedent on what can be criminally prosecuted under the torture statute, there is a great deal of precedent on what is torture in other contexts. If, let us say, there is precedent establishing that we cannot deport someone to a country where they would face a certain act because that act is torture, it does not require a fortune teller to guess that the same act might be torture if we do it.

Then there is the matter of Yoo's opinion that the President's Article II powers trump the torture statute. You have said that you believe that interpretation is wrong, but apparently not in bad faith. Whether Yoo is merely wrong here or in bad faith would depend on the state of precedent on this issue. What cases are there addressing the extent of Congress's powers to make rules for captures versus the President's authority as C-in-C. Perhaps Dilan or someone else could enlighten a layperson on this issue.
 

Henry writes --

" . . . how much valuable stuff is not posted because people are sick and tired of reading Bart and his refuters?"

It's impossible to determine whether there is valuable stuff not posted, let alone "how much," because it isn't posted; and no one is saying, "But for X I'd have psoted Y."

"I suspect that if everyone ignored Bart, the comments, overall, would be much more valuable, because we could assume that torture is wrong and move on from there."

That tired saw has long been said, and repeated -- and long been proven to be BS. The reality is that Bart is engaging -- know it or not -- in a serious disinformation campaign, and it is either directly rebutted and refuted, or it is as a matter of at least reason assented to and agreed with.

Your assertion is best made by those who don't want their comments, no matter how egregiously false and corrupt, to be challenged and refuted. And why should anyone obey such a gambit?

"If Bart wishes to support torture, then there is nothing we can do about it. I wish that you would all stop taking his bait!"

Torture is a war crime, the penalties for which include execution. And it is a war crime that cannot be made legal. And it is being committed by YOUR country. Those facts cannot be repeated often enough under present circumstances.

We arrived at this place in our history because people such as you DIDN'T SPEAK UP for fear of making waves, because "not interested," of because simply lazy.

And then we who've been speaking out all along get these instructions to be silent about matters concerning which silence is moral complicity in the crime.

It appears you want everything to be cut and dry -- perfunctory. That is not realistic as concerns law.

I don't want to pull this off topic too far, but could you give a thumbnail of the "Charming Betsey principle" for us not in the know?

The Charming Betsy was a case decided by the John Marshall Supreme Court in the early 19th Century. The principle that it expressed is that US domestic statutes will be interpreted to be harmonious with international law wherever possible. The reason it is important here is because the US torture statute interpreted by Yoo implements a treaty, the Convention Against Torture, and Bart was arguing that international decisions and scholarship interpreting the treaty are irrelevant and did not have to be cited by Yoo. The Charming Betsy case, which is binding law in US courts, as applied to this situation means that the US torture statute must be interpreted in a way that harmonizes with US obligations under the Torture Convention, unless Congress is unambiguous in derogating from those obligations.

# posted by Dilan : 2:14 PM

Thanks, Dilon. It seems I'd heard of the case before, but I don't recall where or when. It is a valid principle, and hardly a radical notion (Betsy was decided in 1804, when many of the Founders/Framers were alive), that US domestic laws which have counterparts (or from which derived) in treaties and international law should be interpreted in keeping with such laws. And under the US Constitution, must be interpreted consistent with treaties, which automatically requires knowledge of other interpretations of the same treaty, regardless source of those interpretations.

It's a really simple and reasonable, and even obvious, principle, which is apparently why it is beyond Bart's ken.

Otherwise, I agree that the refutations are both interesting and informative, especially in this thread yours on international law and how it applies domestically.
 

Here we go again/still --

"My argument here is NOT that the government should do anything which is allowed under the torture statute."

And what is allowed under that statute, Bart? NOT doing torture.

So you aren't arguing that the US shouldn't torture.

But we already knew that.

"Given that I believe that the torture statute is void for vagueness under the Due Process Clause, to hold such a position is morally hazardous and would mean that the government should adopt the al Qaeda torture manual."

1. Regardless whether "vague," Bart, there is no vagueness or doubt in the fact that torture is defined in law -- including those additional to that statute -- as a war crime, and prohibited under all circumstances, and that those laws apply to the US. There is therefore no legitimate "wiggle room" for efforts to redefine torture in ways contrary to or rejecting of that law, or for defending those who do so as if doing so is acceptable.

3. Does "al Qaeda" have an actual printed "torture manual," Bart? If so, who is the publisher?

4. The US doesn't only have the options of either (a) torturing because you claim the statute is unconstitutionally vague, or (b) there isn't any other US law prohibiting torture, or (c) torturing because our depraved enemies allegedly torture, which is a terrible thing [for our enemies] to do, or (d) because there is no third alternative to torture, even though (e) the third alternative is stated in that statute, and all those other applicable laws:

DON'T TORTURE.
 

OK, I guess I'm outvoted. I found the most persuasive response to my suggestion that we ignore Bart to be Mattski's at 3:46 p.m.: "As a non-lawyer I would be left in a state of high confusion without the extremely able and informative responses to Bart. One thing Bart excels at is creating an impression of authority. To the layman he sounds like he knows what he's talking about. Bless you all for exposing his BS. Please keep it up."

I found the least persuasive response to my suggestion to be jnagarya's at 7:41 p.m.: "[Torture] is being committed by YOUR country ... because people such as you DIDN'T SPEAK UP for fear of making waves, because 'not interested,' or because simply lazy." I'm sorry, but I am not going to feel responsible for Bush's war crimes because I didn't join the refuters of Bart on Balkinization.

Look, I concede, for the reason that Mattski gave, that, if Bart is allowed to post on Balkinization or elsewhere, he should be refuted. But should the law professors who run Balkinization allow him to post? Should they allow him to continue to hijack the comments by posting his own and thereby making others feel obliged to refute him? Hasn't he used up his share of space already? I'm just asking.
 

My argument here is NOT that the government should do anything which is allowed under the torture statute. Given that I believe that the torture statute is void for vagueness under the Due Process Clause,...

And the "assault with intent to commit murder" statutes are similarly void for vagueness. After all, how can one 'objectively' characterise "assault", "intent", "murder", and such? Isn't it in the eyes of the beholder? Who could know in advance that they're subject to criminal liability (without at least talking to their consigli... -- umm, sorry, wrong course -- lawyer....)?

There is a great deal a moral individual should not do even though it allowed under the law.

There is a great deal that is illegal both morally and under the law, and that corpus of laws is essentially those crimes that are malum in se ... or, for the brain-dead like "Bart", the freakin' obvious ones.

You know, like torturing someone. Well, says "Bart", it was done for a 'good reason', and why can't we torture someone to prevent a much bigger catastrophe? Isn't it OK to half-drown a person, slap them around, chain them up, and leave them shivering to death? Or even kill a couple of them? Well, that's what the mugger said too: He was just thinking of where he was going to get some money to buy some food ... or drugs ... or sump'tin. Just loking out for himself and his own well-being....

Cheers,
 

Just to clarify:

If someone wants to make a serious claim that statutory limits on assault, maiming, torture, etc., are not comprehensive and that there's some "lower level" of such behaviour that is not legally sanctionable, then it is their burder to show positive law that exempts such behaviour from the categorical proscriptions of the criminal laws.

An interesting example of such would be an examination of sexual assault (at various levels, such as some statutes for sexual "contact" or "touching"). There are those that have claimed an innocent, de minimus, or even "beneficial" motive in such assaults. How do they fare?

Cheers,
 

It's only people on Bart's side that limit debate, censor, torture and so on. No one on Balkinization is going to be limiting any debate and I don't think they should. However, there should be of course be some "community" standard - and this appears to be why some threads get deleted when they become particularly contentious and ill-mannered. Although it does appear that Bart is disruptive, and obtuse, he hasn't done anything that I can see that violates any kind of internet community standard. I think that both suggestions are correct. Ignoring him is excellent if you find his posts disruptive. And responding to him if you are concerned he is misleading other readers.
 

I also wish to concede that some of you must enjoy refuting Bart, and others must enjoy reading the exchanges between Bart and his refuters. Those who fall in one or both of these categories can rightfully tell me that, if I am sick and tired of these exchanges, then I should go elsewhere. It's just that it seems as if no progress is being made, nor will be made, and that the exchanges foreclose other more valuable conversations.
 

Another point:

The claim of "void for vagueness" is not the same as the claim that one can do what one needs to do to a prisoner to get information.

The "void for vagueness" would apply the same, regardless of the nature of the detainee. If you can get off on a "void for vagueness" defence for doing something to an (alleged) al Qaeda detainee, you can do the same for doing it to your own grandmother. And if you can say that waterboarding your grandmother is not a crime, then you really have some issues....

Cheers,
 

I love that "what if we have to torture someone to find out where there is a nuclear bomb" scenario that the right uses. I'm sure Bart loves that too but he also loves to dismiss anything that hasn't occurred yet or he thinks is not likely to occur if it disagrees with him. How many times have we found terrorists that have a nuclear bomb set to go off? Anyone think the terrorist is going put a timer on the thing so we have time to capture him before it goes off?
 

Henry, I hope you don't leave. Maybe you could try suggesting or encouraging people not to get too off track with Bart in the next long thread.
 

Henry: Also, you should complain to Balkanization. They might have other good ideas to facilitate and moderate the conversations.

It's Jack's blog, so I'm sure he'd at least appreciate hearing your concern that good conversation is getting stifled.

And believe it or not, maybe you could just tell Bart that you think his comments are ________ (fill in the blank).
 

I have long thought that Bart is either Addington, his acolyte, or some other mole-with-an-interest. Notice that he does not argue about factual assertions, only matters of interpretation. He is also completely reactionary, going so far as to post something along the lines of "hey, somebody post something so I can make a comment" a week or two ago. Curiously, he also did not post at all for the initial Yoo release.
 

Enlightened Layperson:

But John Yoo was giving prospective advice on what federal agents could do under color of law. Under these circumstances, I do not think the proper answer is "anything you can avoid prosecution for," which is the implied answer in your criminal lawyer approach.

I agree. When reviewing compliance issues for companies I have worked for, I sought to see what the constraints of the regulations are, and try to craft policy for my company so that we can clearly stay within those bounds. This was basically to avoid reputation risk and to avoid legal fights at the boundary of covered behaviour. What I did not seek is to find the areas that are not covered by regulation, and try to exploit them to comply with the letter of the law, while going beyond the spirit of it. That enjoined risk from being seen as exploiting consumers, as well as being seen as acting in bad faith by various AGs and consumer protection agencies.
 

Reno:

And believe it or not, maybe you could just tell Bart that you think his comments are ________ (fill in the blank).

Won't make a difference. He's impervious to embarrassment. Or shame. Or even reason or pleading. He's on a "mission"....

[Eric]: I have long thought that Bart is either Addington, his acolyte, or some other mole-with-an-interest. Notice that he does not argue about factual assertions, only matters of interpretation. He is also completely reactionary, going so far as to post something along the lines of "hey, somebody post something so I can make a comment" a week or two ago. Curiously, he also did not post at all for the initial Yoo release.

No. He's been doing this sh*te a long time. He started on Glenn Greenwald's "Unclaimed Territory" blog until he got banned there. That's not to say that he's not 110% behind Addington, et al.. But he makes claims that even the maladministration is too embarrassed to make in public nowadays (if that's possible). I'd note, for instance, that the DoJ (at least as far as they claim) have withdrawn the Yoo memo, and aren't arguing that any more. They let Yoo swing ... but that's hardly the worst treatment they've given people, so Yoo ought to count his blessings....

Cheers,
 

Dilan,

I hale from the OpinioJuris site where I hang out and it is nice to see some interest in international law here.

Question for you. Is the CAT a self-executing treaty in the sense of Medellin, in your opinion? Was Medellin an attempt to retroactively make it more difficult to use Article III processes to prosecute war criminals such as the half dozen or so main culprits in or retired from the present administration?
 

"Torture is a war crime, the penalties for which include execution. And it is a war crime that cannot be made legal. And it is being committed by YOUR country. Those facts cannot be repeated often enough under present circumstances."

This is the saddest truth of the Bush years and the what I can't forgive. I have such a hard time wrapping my brain around the fact we're talking about Americans here. This should be a very simple rule to follow: We do not torture. We don't do anything that might be torture.

Bart's arguments must be refuted at every turn, every time they appear. Too much is at stake. Indeed, most of us haven't been vocal enough.
 

"Torture is a war crime, the penalties for which include execution. And it is a war crime that cannot be made legal. And it is being committed by YOUR country. Those facts cannot be repeated often enough under present circumstances."

This is the saddest truth of the Bush years and the what I can't forgive. I have such a hard time wrapping my brain around the fact we're talking about Americans here. This should be a very simple rule to follow: We do not torture. We don't do anything that might be torture.

Bart's arguments must be refuted at every turn, every time they appear. Too much is at stake. Indeed, most of us haven't been vocal enough.

# posted by Seth Owen :

Thank you. The Bushit criminal enterprise has disgraced the office, the gov't, the country. The US polity it purportedly represents. What infuriates -- and scares -- me more, though, is that "we the people" have actually been "debating" the "merits" of torture -- totally ignoring that the experts on it are virtually unanimous that (1) it doesn't produce anything of value, (2) it makes enemies, and (3) it makes the torture of our troops (etc.) when captured by the "enemy" all the more likely.

And totally ignoring that it cannot be made legal.

And totally ignoring that it puts us on the same level as such torturing tyrants as Stalin and Mao, Pol Pot and Hitler, and Saddam Hussein himself. "We" even used, though doubtless with greater skill and "finesse," the very same facilities he used to torture innocent IRaqi civilians.

If I -- I -- remain or fall silent about it, I -- I -- become morally complicit in that depravity. Regardless whether I voted for the Bushit gang -- I did not because I saw what he was out of the gate -- or approve of torture, I am represented to the world by the Bushit gang, and by their use of torture. I am a citizen with freedom -- yes. But I am also a citizen with the responsibilities of a citizen: every freedom is inextricably entwined with a responsibility: I am not free to pretend I don't share responsibility for the actions of my intendedly-representative gov't.

I am not free to say, "I am not responsible" for at least attempting to stop it by speaking out as often as opportunity presents, as often as one must. To do otherwise -- to not give a damn about one's neighbor, regardless where situated in the world -- is to adopt the exact same ethos acted upon by the Bushit criminal enterprise: lawless anarchy.
 

Bart de Palma describes himself in a post above as a “criminal defense attorney”.

That is a somewhat ambiguous phrase. It could signify (i) an attorney who is a criminal, (ii) an attorney whose defences are criminal (perhaps in the sense of criminally negligent); (iii) an attorney who only acts for criminals; or, (iii) perhaps, but only by giving the phrase a purposive construction, “an attorney who accepts instructions to defend persons facing criminal charges”.

Taking the correct interpretation of the phrase to be the extended one at (iii) above, one begins to understand some of Mr De Palma’s posts. For example, he makes references to shaping his argument and advice to the client based on his knowledge of the composition of the trial bench.

Although it is a long time since I prepared criminal cases for trial (late 60’s), I absolutely agree that, once one knows who is going to try the case, one takes into account known foibles of the bench. The 1960’s were well before the present day UK dullness of published sentencing guidelines and review of unduly lenient sentences on prosecution appeal and I well recollect that there was one very right-wing Judge, a very heavy sentencer, but who would give absolutely massive discounts for a change of plea to guilty on the opening day of a trial because an aborted trial meant he could go off to a long boozy lunch at his club and on from there to the races. Obviously counsel who were familiar with this foible advised their clients accordingly.

Of more concern is where Mr De Palma states:-

“My argument here is NOT that the government should do anything which is allowed under the torture statute. Given that I believe that the torture statute is void for vagueness under the Due Process Clause, to hold such a position is morally hazardous and would mean that the government should adopt the al Qaeda torture manual.”

The treatment of detainees is regulated under a whole raft of treaties which have the force of law in (hopefully) both the USA and the UK as well as under domestic legislation.

Mr De Palma is entitled to his belief that the US torture statute is void for vagueness, just as I am entitled to believe that the much of the UK’s anti-terrorism legislation is contrary to the UK’s human rights obligations (and thankfully is gradually being circumscribed by successive judicial decisions).

I leave it to US lawyers to consider whether Mr De Palma’s argument on the validity of the US Torture Statute would be Mr De Palma’s best point were he to be entrusted with the defence of a person charged under it in an American Court. The taking of bad points often undermines the credibility of counsel on good ones.

It is just possible, that Mr De Palma may have his day (or months) in Court, if the American people in their wisdom elect Senator Obama come November since he is reported as committing himself to a review of the legality of the present Administration’s actions.

However, the possibility depends on a prospective defendant being willing to entrust the conduct of his defence to Mr De Palma. We have a split legal profession in the UK and solicitors rather than the lay clients choose and instruct counsel. In the office where I trained in the 60’s we kept a card index with notes on how advocates performed in court and one such card sticks in my mind: it said of a particular member of the bar: “good for careless driving but not for dangerous”.

At one of his posts above, Mr De Palma said he had to stop because he had a defence to prepare. I hope it is for something trivial.
 

For example, he makes references to shaping his argument and advice to the client based on his knowledge of the composition of the trial bench.

A kindred spirit of Bart's, Roy Cohn, famously remarked, "I don't want to know what the law is, I want to know who the judge is."

It is an unfortunate truism that it is easier to destroy things than to build them, easier to sow chaos and confusion than understanding and insight. People like Bart use that to their full advantage.

I am confident that with enough time and patience Bart's written record on this blog could be mined to produce a cogent and probably hilarious indictment of his incoherence and buffoonery. Sadly, he survives as a nuisance because it is just too time consuming to clean up after him in a comprehensive way.

He also survives as a nuisance because the nature of the format allows him to pick and choose which points to respond to. I'm by no means a regular at this blog but I have seen numerous instances of Bart being soundly spanked by counter argument. Typically, Bart simply makes no response and either disappears or bites someone else's pant leg.
 

Michael:

Question for you. Is the CAT a self-executing treaty in the sense of Medellin, in your opinion?...

It's arguable. From the CAT:

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

As the treaty mandates action, and says that in the absence of legislative action, administrative action (or other effective action) "shall" be taken, obviously any executive action that instead furthers, authorises, or promotes torture is forbidden on the terms of the treaty itself.

Note also that it specifically denies the authorisation of torture by a "superior officer" or "public authority".

A separate article, Article 4, mandates that parties make torture a crime as well. But the impetus of Article 2 is to prevent the act of torture from occuring, not to criminalise it.

Cheers,
 

When reviewing compliance issues for companies I have worked for, I sought to see what the constraints of the regulations are, and try to craft policy for my company so that we can clearly stay within those bounds. This was basically to avoid reputation risk and to avoid legal fights at the boundary of covered behaviour.

My wife works in insurance, and the more I learn of the field, the more I think politicians should be recruited from the ranks of insurance people. The emphasis on reducing the exposure of clients alone would port well into the political sphere, I think.
 

However, there should be of course be some "community" standard - and this appears to be why some threads get deleted when they become particularly contentious and ill-mannered.

For instance, repeated suggestions that Bart submit to waterboarding, which contribute absolutely nothing to any thread. The joke is a hoary one by now; I find 594 hits for "'waterboard Cheney.'"

--As for the CAT as self-executing, I am still picking up this area of law. But wasn't the Torture Act enacted specifically to comply with our obligations under the CAT? And to the extent that the Act fails to criminalize or prohibit acts forbidden under the CAT, wouldn't the Court hold that, to that extent, the U.S. did not enter into the treaty?

FBOW, it seems that the original intent re: treaties as having the force of law, is about as dead as the original intent of the Privileges & Immunities Clause, or of the 11th Amendment.

One problem of the "living Constitution" is that parts of it become the "dying Constitution."
 

The joke is a hoary one by now

I'm not joking.
 

Michael:

The CAT is probably not self-executing. Indeed, the majority inserted a footnote in Medellin citing some lower court cases to that effect with approval.

However, two things to bear in mind about this:

1. The CAT, even if not self-executing, has nonetheless been implemented. A treaty that has been implemented by Congress is not any different, legally, from a self-executing treaty. It is binding as the Supreme Law of the Land to the extent implemented by Congress.

2. The CAT itself reflects jus cogens norms of customary international law, i.e., norms that are considered so important that there can be no derogation from them by any nation. (Most customary international law allows for a "persistent objector", i.e., a country that claims that its longstanding cultural practices require something that international law would ordinarily forbid. Torture, like genocide, does not permit a persistent objector doctrine.) Thus, the US is clearly bound by the principle prohibiting torture whether or not the CAT is self-executing.

To answer your question, I actually read Medellin as pretty much a straightforward case. The President can't implement a treaty unilaterally. Congress can pass a law, or a treaty can be self-executing, or the state of Texas could have complied with the treaty themselves. But it is outside the executive power to simply unilaterally declare the US' compliance with a treaty (except with respect to executive branch agencies that the President controls).

Thus, Medellin is a pretty simple application of Youngstown.

If you want to seriously explore the question of immunity for war crimes, look at the Military Commissions Act, not Youngstown.
 

Thank you Dilan,

Pretty much we agree. And I consider the MCA one of the three most offensive acts of Congress passed in the last 80 years. The first order of business if the votes be there, should be to repeal, en toto, the whole thing.

The tide has been running against the adoption in our country of international standards. But I hope to see that reversed ere long.
 

"Bartbuster --

"The joke is a hoary one by now

"I'm not joking."

I'm not either as concerns doing what is necessary within and with the rule of law to retrieve our country from its current, active depravity.
 

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