Balkinization  

Thursday, July 17, 2008

This Tells You Basically Everything You Need to Know . . .

Marty Lederman

. . . about legal interpretation in the Bush Administration:

When Jay Bybee was confirmed to the federal bench in early 2003, Attorney General John Ashcroft sent no fewer than five names to the White House as possible replacements to be Assistant AG for the Office of Legal Counsel:

Adam Ciongoli, Paul Clement, Brett Kavanaugh, Dan Levin and Ed Whelan.

From the White House's perspective, none of these five very accomplished lawyers -- each of whom, I think, it is fair to describe as very conservative and committed to the Bush Administration -- was acceptable, because none was sufficiently reliable. (That is to say: Each might have been expected to think for themselves and interpret the law in ways that diverged from the John Yoo opinions.)

The impasse led to the hiring of Jack Goldsmith, who the White House assumed would be a "safer" choice. Oops.

Jack lasted eight months, during which time he repudiated a series of earlier OLC opinions concerning the war on terror. He was succeeded by Dan Levin, and when Dan began to question the legality of the TSP and the CIA's interrogation techniques, he was jettisoned.

Before he left, Levin issued his replacement torture opinion, on December 30, 2004. Much has been made (including by John Ashcroft this morning in House testimony) about footnote 8 of that memo, which is said to have reconfirmed the legality of the CIA interrogation techniques that OLC had previously approved. But as Levin recently testified, the footnote in question merely indicated that the writers of the 2002 memos -- i.e., John Yoo -- would not have changed their conclusions, even if they had employed Levin's analysis. Levin himself, however, was uncertain about the legality of some of the CIA techniques, and was in the process of reviewing them when he was effectively removed from OLC.

Jane Mayer's new book provides further telling details:

"The footnote [8 of the Levin memo -- the one suggesting that he was approving all the CIA techniques] had a contorted, forced quality. Although few knew it,
there was a reason why." Levin had already antagonized David Addington by adopting the Goldsmith view on the NSA program, and by initiating a reconsideration of whether the CIA interrogation techniques were lawful. At this point, according to Mayer, Alberto Gonzales (then awaiting confirmation as Attorney General) "made clear to Levin that unless he included language in his new legal memo declaring that nothing in the Bush Administration had done in earlier interrogations was illegal, the Justice Department would not accept his opinion." Levin "was worried that unless he gave Gonzales what he wanted, the Bush Administration would scrap his memo, abandoning the whole effort to reform interrogation practices. Under these extraordinary circumstances, Levin agreed to put in the cryptic footnote whitewashing previous practices. He reasoned that if he wrote it carefully enough, it would accurately reflect his thinking."

This is fairly amazing: The White House insisted that OLC include a footnote that would (inaccurately) suggest that the CIA techniques were legal, on the threat that the opinion would not be accepted. (Mayer also notes that the footnote referred only to written OLC advice, not oral -- because Dan Levin had heard rumors that John Yoo had orally approved the use of mind-altering drugs and mock burials, which Levin thought were plainly unlawful.)

Under such pressure, Levin included the footnote, even though he did not believe that the CIA techniques were necessarily lawful, writing the note carefully so that it also could bear his own intended meaning.

To his great credit, Levin then began preparing the follow-up OLC opinion in which he would reconsider the CIA techniques -- at which point he was effectively fired. Mayer reports that Levin warned Gonzales not to choose Stephen Bradbury as head of OLC, because "he won't give you independent advice."

Which they viewed as the best possible recommendation of Steve Bradbury for the job. Nonetheless, they wanted to make sure Bradbury wouldn't be another Goldsmith (or Ciongoli, or Clement, or Kavanaugh, or Levin, or Whelan), so they put Bradbury "on probation," waiting to see if his work product was acceptable before nominating him. Of course, he gave them what they were looking for . . . advice that the CIA could engage many of the previously approved techniques in combination . . . and here we are.

Comments:

i've always wondered what those rumored detention camps being built by KBR out in the desert southwest were for .. and now i know .. this administration knew we were going to need a lot of space to lock up all their various and sundry miscreants ..and here we are ...
 

A hearing of the full House Judiciary committte with former AG John Ashcroft on the subject of Guantanamo Bay and interrogations is just starting. C-Span has it live on C-Span3.

http://www.c-span.org/watch/cs_cspan3_wm.asp?Cat=TV&Code=CS3
 

This comment has been removed by the author.
 

Prof. Ledermsn:

This is fairly amazing: The White House insisted that OLC include a footnote that would (inaccurately) suggest that the CIA techniques were legal,...

So the White House tells OLC what's legal, rather than OLC telling the White House what's legal. And up is down, black is white, and we're back in 1984 again....

Cheers,
 

Just to verify how far over the edge a lawyer really needed to be for this position, I would submit that Jack Goldsmith created a brief arguing ways that the 4th Geneva Convention Article 49 prohibition on individual and mass forcible transfers and deportations could be circumvented. He argued that the foreigners could be removed by declaring them illegal aliens and deporting them -- but not repatriating them, rather transferring them to U.S. custody for interrogation -- and that citizens (of Iraq in this case) could be detained, and then taken out of Iraq for interrogation during the time between when they were arrested and when they were accused of a crime, as long as they were brought back afterwards.

That Geneva fails to specifically deal with people who are detained for no reason is seen as a loophole big enough to drive a CIA black site interrogation truck through.

That first solution was developed by the CIA in concert with the Pakistani ISI and used at Kohat and Haripur early in the game, to facilitate torturous interrogations there. The second solution plays directly into notions of holding civilians perpetually without charge or trial.

It is pretty amazing that he wasn't perverse enough to satisfy the Bush administration, but it's also amazing that people continue to regard him as a hero who had a conscience.
 

Prof. Lederman omits to mention that when Ashcroft's 5 nominees were rejected, Andy Card and Al Gonzales came back with the name of the man they absolutely wanted for OLC's top chair:

John Yoo.

That was too much for Ashcroft, who "resented Yoo's close relationship with Addington and their consultations on sensitive legal advice."
 

This is actually an opportunity for a legitimate application of the Unified Executive Theory.

Article II created one sole executive - the President.

The President or his designees set Executive policy according to the desires of the President.

The idea of an independent OLC setting Executive policy has no constitutional basis and is at best a PR fiction.

To the extent that the OLC is setting Executive policy on unsettled areas of the law through these memos, the President should properly be appointing OLC attorneys who will carry out his policies.

If these memorandums are only meant to provide independent advice to the President so he can decide what policy to adopt, then they should not have any force of Executive policy.
 

The idea of their BEING an OLC has no constitutional basis, does it? OLC is created by Congressional Act, and modified by subsequent acts (I would imagine). This implies to me that its activities are always subject to Congressional oversight and that, if the office is acting in a manner that constitutes unintended consequences in the eyes of the legislature, it is subject to revision, abolition, or suspension of funds.
 

To the extent that the OLC is setting Executive policy on unsettled areas of the law through these memos, the President should properly be appointing OLC attorneys who will carry out his policies.

Might be a valid point if they weren't pretending settled law is unsettled.
 

steven said...

The idea of their BEING an OLC has no constitutional basis, does it?

No. I stated that the idea that the OLC can set Executive policy independent of the President through these memos has no constitutional basis.

Congress, of course, has the power to create the OLC to enable the President to carry out his or her Article II powers and duties.

eric said...

BD: To the extent that the OLC is setting Executive policy on unsettled areas of the law through these memos, the President should properly be appointing OLC attorneys who will carry out his policies.

Might be a valid point if they weren't pretending settled law is unsettled.


The torture law is both vague on its face and had never been ruled upon by a US court in a criminal prosecution at the time OLC was asked to review it.

Settled law it was not, regardless of what your personal subjective views may be on the subject.
 

This is actually an opportunity for a legitimate application of the Unified Executive Theory.

How do you "appl[y]" a bankrupt, moth-eaten "theory"? I'd posit that the present circumstances are a very good prudential argument against the "Unified Executive Theory". When there's lots of power and no accountability, people go seriously astray....

Cheers,
 

The idea of an independent OLC setting Executive policy has no constitutional basis and is at best a PR fiction..

In "BartWorld", instead, an eedjit preznit, a law school reject (albeit "Bart" being a good counterexample to the proposition that a law degree ensues any working knowledge of the law), should be telling career lawyers "what the law is" ... and frustrating prosecution for any illegality by having his consiglie... -- umm, sorry, "Attorney General" -- refuse to investigate amd prosecute any illegalities that occur.

Cheers,
 

Article II created one sole executive - the President.

A small nit ... oh, OK, maybe a bin one: Congress can create inferior executive officers whose appointment may be done by the preznit, by the courts, or by the department heads, as Congress sees fit. Kind of shoots the "unitary executive" schlock to pieces.....

Cheers,
 

"Bart" pretends Dilan never said anything useful:

The torture law is both vague on its face and had never been ruled upon by a US court in a criminal prosecution at the time OLC was asked to review it.

His a$$ slapped by Dilan a while back, he's going to pretend it never happened, and start all over again....

Cheers,
 

Enough with the usual to-and-fro here (tempting though it may be to hoist Mr. DePalma onto his own petard). Let's take the gloves off.

The real "PR fiction" hoo-haa here is the Cheney/Addingtion "rebel yell," first asserted in the 1987 Iran-Contra Report, that, "the Chief Executive will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the laws."

These men, and their apologists, are domestic enemies of the US Constitution, willfully (though, as yet, bloodlessly) engaged in the overthrow of our democratic republic.

The assertion and repetition of the Article II/Unitary Executive "Big Lie" is an act of rebellion among coup plotters who are bent upon sundering this oh-so-hard-won "City on a Hill" -- government "of, for, and by the People."

There is no epithet vicious-enough to scorn the treachery of these wicked ______-______s!

But here's a try: Worse than Osama bin-frickin' Laden -- and deserving of similar treatment.
 

Please note also that, in Bartbushland, the President is free to staff OMB with accountants who share the President's views as to "plus" and "minus."

We can't shackle the Executive, after all!
 

"Under such pressure, Levin included the footnote, even though he did not believe that the CIA techniques were necessarily lawful, writing the note carefully so that it also could bear his own intended meaning."

That is the point when Levin blew it. He should have resigned and Gonzales would not have been appointed Attorney General. Levin ends up being an enabler notwithstanding all his principles. He blinked - that's what Addington et al push people to do each time - blink and we will give you all this!

Best,
Ben
 

This is actually an opportunity for a legitimate application of the Unified Executive Theory.

Let's go in a different direction from debating torture or the unitary executive theory.

Let's assume Bart is right for a second. Now, we have a congressional statute that grants immunity to Administration officials for war crimes if they relied on advice of counsel. Now, if the Administration in fact dictated the content of the advice (pursuant to their claimed powers under the Unitary Executive theory), do they get the immunity?

I would say the answer is no.
 

Dilan:

Depends.

It was plain that the OLC was hired to implement the Executive policy set by the President. Therefore, the President himself cannot hide behind the advice of counsel. No one is prosecuting the President for any "war crimes," though. While in office, the remedy is impeachment and the Congress tacitly approved the CIA interrogation program. After office, the new President is not about to prosecute Mr. Bush for imaginary "war crimes" any more than Mr. Bush prosecuted Mr. Clinton for very real and easily proven felony perjuries.

However, after signing off on the legal opinions, even at the guidance of the President, DOJ is then not in a position to prosecute the war fighters who followed their advice. They did not direct OLC to do anything and almost certainly had no notice of the machinations of drafting the opinions.
 

Too easy Bart - the war fighter's reliance can not be just blind faith in whatever trash comes out of the OLC. Maybe people below wish that - but the Abu Ghraib convictions if they stand for anything is that doing things that violate the UCMJ will get your butt in trouble - even if someone above you told you to do it in some way shaper or subtle wink wink way.
Best,
Ben
 

Congress tacitly approved the CIA interrogation program.

"Bart", "Bart", "Bart".... At the risk of flogging a deceased equine so mush as to release the accumulated gases from the rotting viscera: Where's the 269 votes?!?!?

Absent that, care to explain WTF your repeated assertion has to do with the price of tea in Sri Lanka, much less anything we ought to be talking About here?

I'm serious. It's time for you to come clean about your repeated assertion: On what law is this claim based?

If you can't do that, could you at least STFU?!?!?

Cheers,
 

... any more than Mr. Bush prosecuted Mr. Clinton for very real and easily proven felony perjuries.

"Bart" makes his partisanship obvious: "If a Democratic preznit does it, that means it is illegal", to paraphrase Tricky Dick.

But the reason for no per=joury prosecutions is that the crime of perjury (18 USC § 1621) requires three elements, including materiality. The Rethuglicans ignored this last one in their impeachment articles (because it wasn't there), and even the claim that Clinton believed his statements to be false when he made them would have been hard to prove.

Cheers,
 

The idea of an independent OLC setting Executive policy has no constitutional basis and is at best a PR fiction.

This is a great example of Bart's 'argument by chaos' which is a subsidiary of If You Can't Dazzle Them With Brilliance, Baffle Them With Bullshit.

The role of OLC is not to "set policy" and no one I know of made the assertion. Their role is to counsel the executive as to what the law permits. As we have seen time and again, Bart doesn't accept that the law can constrain the executive. IOW, Bart rejects the Constitution of the United States.
 

Whoops! I should qualify the statement above-

Bart doesn't accept that the law can constrain a Republican executive.
 

Now, we have a congressional statute that grants immunity to Administration officials for war crimes if they relied on advice of counsel. Now, if the Administration in fact dictated the content of the advice (pursuant to their claimed powers under the Unitary Executive theory), do they get the immunity?

I would say the answer is no.


Agreed. I've made this argument before. The reason courts give immunity to those who rely on government advice is, essentially, estoppel (for non-lawyers, simplifying, an estoppel is what happens when A relies on B's advice and then B sues A for acting that way. B is "estopped" to make that argument.)

The Unitary Executive theory creates real problems for any immunity based on estoppel. The OLC is, under UE theory, actually just the President himself. Obviously, the President can't claim an estoppel if he gives advice to himself.

What about the actual torturers? Well, they're members of the Executive Branch also. Under the UE theory, their actions are just as much those of the President as were the actions of OLC. In essence, UE theory tells us that the President is giving himself advice that it's ok to torture, acting on that advice by torturing, and then claiming immunity based on the advice he gave to himself to act that way.

I hope the absurdity of this is apparent. The criminals are going to have to drop one position or the other.
 

benjamin davis said...

Too easy Bart - the war fighter's reliance can not be just blind faith in whatever trash comes out of the OLC. Maybe people below wish that - but the Abu Ghraib convictions if they stand for anything is that doing things that violate the UCMJ will get your butt in trouble - even if someone above you told you to do it in some way shaper or subtle wink wink way.

The Goldsmith book is revealing in this regard. No one could figure out the contours of this law including the author Goldsmith, who still wrung his hands in uncertainty as he wrote his book. Indeed, it is notable that Goldsmith did not offer an alternative legal analysis to Yoo, but rather considered the Yoo analysis to be insufficiently "sober" or, to be blunt, insufficiently opaque in granting leeway without appearing to do so.

After all the blogging on this issue here and elsewhere, I am becoming more convinced that many commentators are certain that their own differing personal views on the subject are all plainly required by the law because the law itself does not provide any real guidance to disabuse them of this notion. We all cannot be right, you know.
 

The idea of an independent OLC setting Executive policy has no constitutional basis

Bart, the President can only set policy withing the limitations of the Law. Anything else violates the Rule of law.

The purpose of the OLC is to advise whether or not Presidential policy conforms to law. Your idea that the President can establish policy outside or against the law is simply arbitrary rule by a tyrant and is a violation of the Constitution.

The actions and advice of the OLC is going to be especially critical when the President establishes classified policy which the separation of powers does not deal with effectively.
 

No one is prosecuting the President for any "war crimes," though.

Yet. There is no statute of limitation for war crimes. The sneer quotes attempt to pretend the reality doesn't exist. In the real world, the man committed war crimes; I look forward to prosecution of same.
 

I've posted my first PEGC blog post on an old topic with some relevance to the House Judiciary hearing earlier this week with former Asst. Secretary of Defense Douglas J. Feith. Comments encouraged / appreciated, either on the blog or privately.

See:


PEGC Blog --

July 17, 2008
THE GENEVA ORDER
by Charles Gittings

Regards,

Charly
 

richard said...

BD:The idea of an independent OLC setting Executive policy has no constitutional basis

The purpose of the OLC is to advise whether or not Presidential policy conforms to law.


When it issues memorandum for the President to consider in developing his policy, then OLC is providing advice. It would be preferable if OLC stayed in this role and the President or an appointee issues policy.

However, as Goldsmith and others have observed, the United States has devolved and bound military operations into a form of lawfare, where literal swarms of lawyers are setting policy for commanders from the CiC on down because the commanders fear being subject to legal sanction under the myriad of post Vietnam laws.

Thus, OLC and other government lawyers units like it have come to adopt what I argue are unconstitutional roles as setters of Executive policy. Under those circumstances, I am unsurprised that the President would seek to man OLC with those who would adopt his policies. However, I am disappointed that this President, who would seek to reestablish Executive authority under Article II, would not have the guts to limit OLC to advising him and then issue an executive order setting policy.
 

"Bart" DePalma:

After all the blogging on this issue here and elsewhere, I am becoming more convinced that many commentators are certain that their own differing personal views on the subject are all plainly required by the law because the law itself does not provide any real guidance to disabuse them of this notion. We all cannot be right, you know.

"Bart"'s of the opinion that now law is constitutionally firm until such time as a court rules on it (and, of course, no court can rule on it because all prosecutions under the law are invalid for infirmity). At least, this is true of laws that "Bart" desperately wants to ignore, because enforcing them would mean his Fuhre... -- umm, sorry, "Deciderator-In-Chief" -- is a wanton thug and a criminal and ought to be haled to the Hague.

But we all know that torture is illegal, and we know that the U.S. not only tortured, but actually beat some detainees to death. "Bart" is simply the master of the art of politically motivated obtuseness.

Cheers,
 

"[L]iteral swarms of lawyers are setting policy for commanders from the CiC on down because the commanders fear being subject to legal sanction under the myriad of post Vietnam laws."

Oh, the humanity....

It is telling that "Bart" thinks that lawyers telling people what's legal (or illegal) is a bad thing. See, e.g., RW Authoritarianism, or read Joe Conason's book, "It Can Happen Here" (which I just finished and recommend highly; it even cites Prof. Balkin and one Balkin post here).

Cheers,
 

I said:

"Bart"'s of the opinion that now law is constitutionally firm until such time as a court rules on it....

I meant: "Bart"'s of the opinion that new law is constitutionally infirm until such time as a court rules on it.

Cheers,
 

Bart,

Your argument is that since the legal environment of war is so complicated that commanders require legal advice when preparing and implementing their plans and operations, then the solution is to throw out the Rule of Law and replace it with the arbitrary and unlawful pronouncements of a sovereign tyrannical monarch.

Sure commanders require legal advisers since the law is frequently so complicated that it often require experts to give advice. Guess what? That's why the so-called profession of law exists. The same commanders also require logistics advisers, personnel advisers, Intelligence advisers, liaison advice with close air support, Artillery, Engineers, accountants, etc.

And by the way, those experts on staff usually give directives to subordinate commanders and sign those directives "For the Commander." It's part of the system and has been since military staffs were formally established.

Your argument is analogous to saying that since computers are too complicated to operate without the advice of computer experts, then the commander should be directed by his chain of command to use only simple math and runners carrying paper messages.

Military commanders do not need "simple" directives. They need directives that work in the real world. They already have efficient ways of using expert advice. That's why the military adopted staffs to advise commanders as the military became industrialized. The commander gets a lot of forms of specialized advice, and the military system has been designed to deal with the fact that a commander needs a lot of advice from experts who know things he doesn't.

Presumably you have never been a commissioned officer in the military. You clearly don't understand the system.

The idea that the lawyers are determining general military policy is simply ludicrous and ignorant, although the experts of all kinds have strong influence within their own fields of expertise. If they do not fit with the needs of the commander, he replaces them because he is directly responsible for their decisions (although the Bush administration has failed to apply this level of command accountability to the commanders from SecDef down regarding abu Ghraib.)

Your argument does not justify abandoning the Rule of Law in favor of the arbitrary commands of a monarch-wannabee.
 

Richard:

One of the advantages the United States military has had over its over bureaucratized foes like the Axis and then the Soviet Empire was the flexibility of the force.

Apart from the general principles of not targeting civilians and reciprocal treatment of POWs set forth in the Hague and then Geneva Conventions, the commander in the field was free to wage total war against the enemy as dictated by the needs on the field.

As a result, the world has never seen a more effective military which has suffered fewer casualties within the general ethical bounds of modern western warfare.

I would posit that it is exceedingly unwise to exchange the successful WWII military model for a lawfare model where commanders literally need to consult lawyers to get permission to conduct military operations and the enemy is permitted to harass the military in our civilian courts.

I strongly urge that you read Jack Goldsmith's book. While he tries to remain politic, Goldsmith offers a devastating critique of this new lawfare system.
 

[Responding to some comments above, and the general topic of conversation.]

I don't know of anyone who has suggested that the OLC should, or actually ever has, set executive policy. It's unclear why anyone would ever think that.

The president is still bound by law, and the Constitution. Hence, while setting policy he seeks the advice of competent independent attorneys. I take it that this is analogous to any citizen who chooses to retain an attorney for advice. You or I are not bound to follow the advice of our chosen attorney, but presumably we want good quality, honest, legal advice so that we can assess the risks and consequences of our actions.

It's a little hard to describe how absurd it would be for me to go through a set of attorneys because I don't like the advice they are giving me on paying my taxes, because of course, if they give me advice that I want to hear, but nonetheless ends up leading me to illegal action, then I will pay the price (taking into account a bad faith argument from malpractice).

But of course, no one claims that an attorney sets the policy for her or his client. That is up to the client after hearing advice.

The problem here is that the proper authority is not willing to step up and hold the president accountable to the constitution. I suppose one of the things Lederman's post highlights is the lack of will to hold any president accountable. Evidently, unlike you and I, who would face sanctions under the law, the president is appointing lawyers "who will carry out his policies," as one commentator points out above. This is a symptom of a serious defect in the current implementation of the U.S> constitutional system. If you, a regular guy, employed an attorney who carried out your policy of hiding your money in off-shore bank accounts . . . well things would be different (and it wouldn't matter how much you or your attorney argued that there were loopholes or vagueness that allowed you to get that money out, you'd still be accountable to the law in the end).

One of my favorite parts of the U.S. Constitution is the use of the word "when" in the impeachment clause. It doesn't say, "if the . . ." it says "when . . ."

-p
 

One of the advantages the United States military has had over its over bureaucratized foes like the Axis and then the Soviet Empire was the flexibility of the force.

Yeah, those wacky Nazis were always checking in with the lawyers...
 

actually those nazi's really did have lawyers .. lawyers who wrote or interpreted the law in a way to legalize the illegal .. and give official cover to illigitimate and criminal activities ...

ummm .. come to think of it ....
 

In point of fact, those "wacky Nazis" approached the laws of war the same way the Bush administration does -- and offered exactly the same fraudulent arguments as justification. Truth is that the only real "lawfare" going on here is the Bush administration's unrelenting effort to subvert the Constitution and laws of the United States for criminal purposes. They are war criminals, and that is ALL that they are.
 

I'm aware that the Nazis used "lawyers" like Baghdad Bart to justify their crimes, I was just mocking his claim that "lawfare" is why they lost World War 2.
 

A couple of points:

1. Bart complains about "lawfare" interfering with military tactics in the field, which I don't know enough about to comment intelligently. However, the issue of INTERROGATION policy has nothing to do with that issue. It's certainly plausible in my mind that Bart could be right that it would be better if we had fewer such restrictions and requirements with respect to such issues as targeting (though I can also see the counterargument as well).

But with respect to interrogation policies: (1) general limits are often set before any captures are made; and (2) once captures are made, there is usually more time to obtain specific legal advice if it is needed. So I don't see what the big deal is about "lawfare" in this context.

2. We should remember why the OLC opinions were sought. Bush and Cheney weren't thinking "this is a really interesting question, let's run it by the lawyers". Rather, they wanted to blur responsibility for their acts, by saying that the lawyers signed off on them. Not only legal responsibility, though this is part of it (this is why they insisted on the advice of counsel provision in the Military Commissions Act). POLITICAL responsibility as well.

In fact, Bart knows this, because he makes the same argument substituting Democrats. He says that policy X or Y of the Administration was not the sole responsibility of Bush, because Congressional Democrats knew about the policy and did nothing to stop it. He has made that argument on both FISA and torture.

Well, the legal advice is an internal version of the same thing. Having the lawyers sign off on it allows the President to pass the buck and say that he wasn't acting as a rogue.
 

Dilan:

You are correct that we are getting a little afield of the subject of the thread. I would like to make a last note, though, concerning the WWII model compared to today.

Scott Johnson over at Powerline has an excellent post comparing the procedural rights granted Nuremberg defendants in the London Agreement of August 8, 1945 compared to the far more extensive rights granted al Qaeda today.
 

Scott Johnson over at Powerline has an excellent post comparing the procedural rights granted Nuremberg defendants in the London Agreement of August 8, 1945 compared to the far more extensive rights granted al Qaeda today.

# posted by Bart DePalma : 2:11 PM


What does this have to do with your idiotic post about Nazis being hindered by "lawfare"?
 

Bart:

It seems to me you are conflating two points:

1. Are there too many procedures that are getting in the way with effective warfighting (what I originally understood you to be complaining about as "lawfare")?

2. Are we granting too many substantive rights to detainees and alleged war criminals?

As I said, it seems to me that there may be some support for contention 1, if what we are talking about is having to run targeting decisions through lawyers and the like. When you said that lawyers get in the way of waging total war, this is what I assumed you were talking about. As I said, I also see the counter-argument, but I am not a military expert and don't pretend to have the answer to this question.

But when you talk about the rights granted the Nuremburg defendants vs. enemy prisoners in the current conflicts, you are no longer talking about the issue of how many lawyers we have to run decisions by and are instead talking about what rights should be granted to detainees. We've discussed this issue ad nauseum, but I would simply note that I don't think it is the same issue as whether or not there are too many legal checks against the ability of the nation to wage total war. You can grant a lot of rights to detainees while still requiring few legal approvals before decisions can be made in the field; in contrast, you can impose Balkan-war style layers of legal approvals and also decide to grant detainees less rights. The two decisions seem to me to be independent of each other and are guided by very different considerations.
 

Dilan:

I did not intend to coflate lawfare (over regulation of war and allowing the enemy to harass commanders in civilian court) and military trials of war criminals. I just thought you and others might be interested in the Johnson post for it's own merits.
 

Baghdad Bart is following SOP for when he gets his ass kicked. He pretends he was talking about something else.
 

I just thought you and others might be interested in the Johnson post for it's own merits.

So in response to his own observation that the thread is drifting, Bart's instinct is to cast it even further afield. More bad faith.
 

"Bart" DeDicta:

One of the advantages the United States military has had over its over bureaucratized foes like the Axis and then the Soviet Empire was the flexibility of the force.

Apart from the general principles of not targeting civilians ...


Typo there. Should be "... not torturing detainees."

Oh. Wait. That was last century.....

Cheers,
 

"Bart" DeDicta:

Scott Johnson over at Powerline has an excellent post comparing the procedural rights granted Nuremberg defendants in the London Agreement of August 8, 1945 compared to the far more extensive rights granted al Qaeda today.

Oh, I posted on that too. Here and here

Cheers,
 

From "Bart" DeDicta's Powerline link:

This is a remarkably ignorant account of the American experience with jihadism. In point of fact, while the government managed to prosecute many people responsible for the 1993 WTC bombing, many also escaped prosecution because of the limits on civilian criminal prosecution. Some who contributed to the attack, like Khalid Sheikh Mohammed, continued to operate freely because they were beyond the system’s capacity to apprehend.

That's not a legal problem, "Bart"....

Cheers,
 

More from the Pwerline link:

The Nazi war criminals were given no access to American courts. Their rights were governed by the charter annexed to the London Agreement. Here is the fair trial provision of the charter:

In order to ensure fair trial for the Defendants, the following procedure shall be followed:

(a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial.

(b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him.

(c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.

(d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.

(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.


So, he gets full description of the charges. Check. Guantánamo? No check.

He gets to see all documents lodged against him. Check. Guantánamo? No check.

He gets a lawyer (who's not appointed by the prosecution). Check. Guantánamo? No check.

He gets to present evidence in his defence and to cross-examine all witnesses against him. Check. Guantánamo? No check.

Then there's the matter of coerced confessions, hearsay, etc....

Yes, "Bart", the Guantánamo military commissions are nothing like the Nürnberg trials. NO comparison. More at the links I posted above.

Cheers,
 

So in response to his own observation that the thread is drifting, Bart's instinct is to cast it even further afield.

I demand credit for pegging Bart's "argument by chaos."

*IYCDTWBBTWB
 

"One of the advantages the United States military has had over its over bureaucratized foes like the Axis and then the Soviet Empire was the flexibility of the force. [Snip]

I strongly urge that you read Jack Goldsmith's book. While he tries to remain politic, Goldsmith offers a devastating critique of this new lawfare system.
"

It was my opinion that Bart was talking about the system in which lawyers sometimes are given the power to veto aerial attacks on certain targets for legal reasons. That's the primary kind of control given to attorneys in tactical situations. What happens in prisoner situations is different. That is a point in which legal requirements become paramount.

As for the flexibility of forces, the Germans in WW II were quite a bit more flexible than were the American forces. That's because they were better trained and led, and allowed low-level commanders a great deal of flexibility in how they dealt with the missions they were given. The Americans defeated the Germans in Italy and on the Western front because they had much better equipment and supplies, particularly fuel. But that's mainly because WW II in Europe was fought primarily in the Soviet Union. The U.S. was a side-show.

The comparison between the American and the Soviets is different. There the Americans were a great deal more flexible because they learned from the Germans how to lead and allow subordinate leaders flexibility to fight within the limits of the mission they were given. The Soviets were given a directive from on high and expected to carry it out no matter what. The big difference there was that Soviet troops had very few trained high commanders (Stalin's purges in the late 30's) and depended on ideological training to motivate the troops instead of good leadership.That was also the model used by the Soviet's allies until the fall of the USSR.

That's one major reason why the Iraqi troops today have difficulty handling large operations on their own. The Iraqi military was trained on the soviet system. Dictators don't like independent subordinates much for some odd reason. It takes years to train good top leaders so that they can train and trust their subordinates to operate independently.

In short, the legal requirements do not especially hamstring American commanders overall. Sometimes the subordinates don't recognize what is going on and think it does, but those are not subordinates who are gong to be promoted to high command positions.

I think it is safe to assume that Bart DePalma has never held a line commission in the military, and neither has Goldsmith. If so, they wouldn't be spouting such silly book-learned theory. But one thing that became quite clear to me in my time on military staffs above Battalion. When planning an operation, you never let a lawyer into the room until the only issues involved are legal ones. They get hung up on getting exactly the right word, forgetting that the key is to direct action. Then you listen to him, get rid of him, and make the final decision without him. Lawyers are, in general, incompetent as managers. Gonzales as AG is a great example. The power to apply an operational veto is given to a lawyer only when the critical issue is legal, and only in that capacity. Then the commander has to trust his expert, but he is going to be trained and vetted through the chain of command.

The skill sets of lawyers and managers, especially combat commanders, are very, very different from each other, and each takes a long time to learn. Learning one of those skill sets also seems to me to create instincts that don't work in the other field. So, Bart, if Goldsmith hasn't completed Command and General Staff College and then worked on a staff or held a higher command (not as a lawyer), his book is basically meaningless. It's just a lawyer's stock in trade - words.

That said, when you need a good lawyer, there is no substitute.
 

richard said...

As for the flexibility of forces, the Germans in WW II were quite a bit more flexible than were the American forces.

German operational innovations employing operational flexibility pretty much began and ended with pre and early war applications of Blitzkrieg (concentration of armor, combined arms and close air support). As the war dragged on, the Germans lost most their experienced troops and the officer and NCO corps necessary to make their mission based tactics succeed were seriously degraded. To make things worse, Hitler started to substantially interfere with military decision making.

The US Army learned all the German lessons by 1943 and far surpassed them by 1944 and 45 with advantages in the employment of command and control, combined arms, communications, air and artillery support and logistics which the United States has maintained to the current day.

The Ardennes Offensive was a perfect case in point as to the relative capabilities of the opposing armies.

The German troops and weapons were quantitatively and qualitatively superior to the American troops resting and refitting in the area.

The Germans had complete surprise.

The Allies lost their air superiority.

Yet, the Germans failed to make any substantial territorial gains and only managed to reduce one US division to combat ineffectiveness.

How can this be?

The Germans remained bound to their initial plans and routes of advance, while the outnumbered US troops were able to rapidly shift their troops and even more rapidly shift their artillery firepower around the battlefield.

Just as impressively, Third Army disengaged from a battle, drove rapidly north and then slammed into the flank of the German bulge in a matter of days instead of the weeks or months the Germans (not to mention the Brits and Eisenhower) thought was possible. With all due respect to Patton, this flexibility was made possible by substantial innovations in the operational ability of the US Army.

I think it is safe to assume that Bart DePalma has never held a line commission in the military...

While this does not make more valid the historical facts about the flexibility of US forces, but seems to be a prerequisite for you, I served as an NCO in the 82d Airborne then as an infantry platoon leader with the Phantom Brigade of 3d ID cross attached to 1st Armored during the Persian Gulf War . If you want to further discuss military command and control or simply swap war stories, we can do so over at my blog if you please.
 

Keep in mind that Baghdad Bart censors his blog before you post there. He won't hesitate to block posts that debunk his view of the world.

Baghdad, US forces were more flexible late in the war because they had a HUGE advantage in logistics over the Germans.
 

Perhaps we should be looking at the extent of the crime fraud exception to attorney-client privilege. Where the attorney is a co-conspirator and his role is to prepare legal opinions that further the conspiracy, the other conspirators cannot rely on them for an advice-of-counsel defense. This theory, completely accurate in the Addington-Yoo context, has an unfortunate history of being used against criminal defense lawyers who incur the wrath of the local US Attorney, DEA, etc. Is there some limiting priciple that can be used to remove the figleaf of legality from the Administration's actions without making all lawyers subservient to the good will of the Justice Department?
 

A hook-up for Harold Arlan DePalma:

Conquering the Drawbacks of Democracy, by
Philip Atkinson

Sedition needs company.
 

Barfarama is still shouting around in that dark for someone who'll believe his bullshit:

"The President or his designees set Executive policy according to the desires of the President."

Ummm . . . I won't ask if you have reason, let alone if you have reason for leaving out such minor technicalities as Constitution and laws.

That Bushit allegedly acts according to his "gut," because actually thinking is a foreign object to him, does not legitimate that stupid-assed anti-intellectualism and rejection of thought and truth, Barfer.

"The idea of an independent OLC setting Executive policy has no constitutional basis and is at best a PR fiction."

The OLC doesn't set Executive policy; the Executive does, based upon the INDEPENDENT view of the OLC.

Can't have that in Barferama's unfree Republicn monarchy.

"To the extent that the OLC is setting Executive policy on unsettled areas of the law through these memos, the President should properly be appointing OLC attorneys who will carry out his policies."

The OLC is not the Executive's lawyer -- any more than is the US AG.

Nor is torture law unsettled: it is prohibited, always and everywhere. It cannot be made legal. The effort to make it legal is illegal.

Barfer: when are you going to get an ACTUAL education in ACTUAl law?

"If these memorandums are only meant to provide independent advice to the President so he can decide what policy to adopt, then they should not have any force of Executive policy."

If the Exectuive decides to adopt the OLC's view as policy, he shouldn't be able to make it official policy because the OLC provided the view?

I'd ask that you make sense, but we all know it's far too late for any of us to even begin to fantasize that you are able to do so.

Keep shouting around in that dark, Barfarama; howevermuch a long shot, it's possible you'll run into a dark mass that will agree with you that your flatulence is the voice of truth.
 

Barfarama blows on history --

". . . . literal swarms of lawyers are setting policy for commanders from the CiC on down because the commanders fear being subject to legal sanction under the myriad of post Vietnam laws."

1. The Nuremberg Precedent applies.

2. The Nuremberg Precedent was not established "post Vietnam".
 

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