Balkinization  

Thursday, January 29, 2009

Yoo Unrepentant (and Deflecting Responsibility)

Brian Tamanaha

In the Wall Street Journal today, John Yoo chastises President Obama for his orders to close Gitmo and halt illegal interrogation techniques. Yoo calls Obama "naïve" for insisting in his inaugural address that we must not and need not sacrifice our ideals for security.

The prominent conservative Charles Fried, it bears noting, articulated the same “naïve” position a week before the inauguration:

Some argue that torture is justified if our survival is threatened, but even apart from the elasticity of this justification, it is flawed because it depends on an equivocation. Our physical survival is not what is of overriding moral importance (people give up their lives all the time for some higher value) but our survival as decent human beings acting for a decent society. And we cannot authorize indecency without jeopardizing our survival as a decent society.

Fried condemned high level Bush Administration officials “who allowed Americans to engage in torture and cruel, inhumane and degrading treatment of those in our custody.” He made these comments, by the way, in the course of defending these officials against calls for their prosecution.

Undeterred, Yoo still defiantly insists that torture in the service of national security is fine:

What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)

Rather than detail the flaws in Yoo’s position, exposed many times on this blog, I will instead focus on the words italicized above, for they subtly but clearly point responsibility away from Yoo.

As he no doubt knows, the Senate Committee Report that investigated our illegal treatment of prisoners places responsibility for events squarely on legal advice prepared by Yoo (and Bybee) that “distorted the meaning and intent of anti-torture laws.”

Indeed, stalwart defenders of the Bush Administration, including the Wall Street Journal’s editorial board, repeatedly point to the legal opinions: “Bush Administration lawyers approved the legality of certain interrogation techniques after studying U.S. law and its applicability to the Geneva Conventions.”

“In any event,” the editors continue, “the legal standard for any possible prosecution into torture allegations would include mens rea -- whether, say, a CIA interrogator understood, i.e., possessed the "guilty mind," that his actions constituted a crime.” As these arguments suggest, the Journal’s position is that CIA interrogators cannot be prosecuted because they relied in good faith upon the legal opinions (assuming that one can rely in “good faith” on legal opinions which say that waterboarding is not “toture”).

Even Alberto Gonzales (self-servingly) distances himself from the pivotal torture memos, as the WSJ reported: “Mr. Gonzales said his role as White House counsel at the time was one among several administration lawyers who debated the opinions, but that in the end it was the Justice Department's call. John Yoo, the then-Justice official who had been assigned to draft the memos, had strong feelings and no one could have pressured him to write the memos a certain way, Mr. Gonzales said.”

Thus critics as well as defenders of the Bush Administration agree that Yoo’s (and Bybee’s) legal opinions played the pivotal role in providing legal authority for the “coercive” interrogations.

In the above paragraph Yoo appears to make a crucially different claim: “On the advice of his intelligence advisors, the president could have authorized coercive interrogation methods…” [Note: Yoo's "president could have" phrasing ambiguously shifts between Bush and Obama, but the specific reference to the authorization of waterboarding clearly refers to Bush, suggesting that this is Yoo's characterization of what transpired.]

Every other account of events indicates that intelligence advisors sought approval to apply coercive techniques, and Yoo’s (and Bybee’s) legal memos provided the legal cover they desired.



Comments:

The CYA moves here are distasteful as are those who don't want to have the courage of their convictions generally.

For instance, arguing that torture is essential for our well being, but trying to hide behind weasel words and immunity protections. If everyone is sure about the former, the Jack Bauers would not be convicted in the end anyway. Right?

A final distasteful quality for many here is the "why is everyone so upset" air they often air. IOW, they don't just want to put forth radical positions, but want to pretend they are not radical.

In their universe, it is all much ado about nothing. Even apart from the substance of thier claims, this fantasy universe they live in not suprisingly ****es people off.

In response, they have smug expressions that suggest the response shows the other side is the irrational one.
 

This comment has been removed by the author.
 

Yoo wrote legal memos.

Intelligence advisors made policy.

Those advisors may have relied on Yoo's memos, but their
recommendations were their own recommendations, and the President had the final call. The focus on Yoo is therefore unfair.

If you want to accuse George W. Bush of being a war criminal who should be prosecuted at the Hague under Nuremberg principles, then say so explicitly. But don't hide behind criticism of Yoo, who was just a lawyer drafting a memo for his client.
 

mr yoo is a professor of law .. his expressed opinions and written conclusions should in fact reflect what "the law" actually is ..

imo .. the criticism of mr. yoo is justified basd on the poor quality of his delivered product ..

as to mr. bush and company and war crimes .. Q.E.D. .. and mr. yoo's delivered work product was indeed a facilitating factor in the policies which were formed based upon them..

the cause and effect are .. imo .. fundamentally inseparable ..
 

Obama will NEVER prosecute Bush.
 

(Thanks also to Brian Tamanaha for not censoring this thread)
 

John Yoo, the then-Justice official who had been assigned to draft the memos, had strong feelings and no one could have pressured him to write the memos a certain way, Mr. Gonzales said.

One might even go so far as to think that this is the reason why Yoo was hired for that position. In that way, it makes perfect sense that Yoo would not think his actions were any big deal and were completely legal anyway.

How wrong could he be? He is, after all, a highly respected (in the sense of implied deference) and youthfully-tenured law professor at a prestigious university. This means at least two things: he is confident of his abilities and he knows how to play the game.
 

But don't hide behind criticism of Yoo, who was just a lawyer drafting a memo for his client.

This overlooks some important factors. One is that Yoo's memos were incompetent. That is, he failed to meet general legal standards in writing them. Another is that lawyers are obligated to give their clients accurate assessments of the law, NOT to write a memo justifying whatever it is the client wants to do. Third, there is evidence that Yoo deliberately wrote his memos to serve as a get out of jail free card, which suggests less the actions of an attorney than of a co-conspirator.
 

The legal definition for torture is found at 18 USC 2340(1): "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." What seems amazing to me is that the pro-torture apologists keep pointing to George W. Bush's status as a wartime President and the Commander-in-Chief. Or that he had authoritative legal opinions that said the interrogation techniques (torture) were legal.

Will they persist in making that argument in a courtroom trying a torture conspiracy case against the former Bush leadership? If they do it seems to me that they will be proving the "acting under color of law" element of the prosecutor's case.
 

One is that Yoo's memos were incompetent. That is, he failed to meet general legal standards in writing them.

You cannot prove that. That is just your opinion.
 

Mortimer:

That's why they wants all the memos made public (even if such declassification kills Americans)
 

Mr. Brezny,

The assertion that Yoo's legal analysis was fatally defective cannot be deflected by merely saying "that's your opinion."

Yoo's legal arguments on "torture" have been widely condemned as patently unsound. They were quickly repudiated by OLC Goldsmith for that reason.

Fairness (a legitimate concern you raise) requires that responsibility for the illegal treatment of prisoners be placed upon the people who played a crucial role. As the Senate report makes clear, Yoo's (and Bybee's) legal memos were essential in this process.

My post does not suggest that Bush or Yoo should be prosecuted, which will not happen (in the United States).

Brian
 

You cannot prove that. That is just your opinion.

Opinion testimony (by experts) is how legal incompetence gets proven. As Prof. Tamanaha points out, there are plenty of politically conservative lawyers who've criticized the quality of Yoo's memos.
 

Where's Bart DePalma when you need him?!
 

Where's Bart DePalma when you need him?!

Have we not learned anything from two JB posts about the change in comment policy?

Sigh.
 

Have we not learned anything from two JB posts about the change in comment policy?

Sigh.

# posted by Eric : 2:07 PM


Actually, he probably learned from the Tamanaha post that he can continue to troll and some bloggers here will continue to allow it. That trumps what JB posted.
 

To quote Jack Balkin: "Often problems are blamed on individual persons who are called 'trolls,' but in fact there is more than one way to create troll-like behavior; generally such behavior results from the interaction of different parties. If A is perfectly civil and polite, but says outrageous things in the eyes of other commenters, they may start attacking A, and piling on, leading to flaming and uncivil behavior. By himself, perhaps, A is not a troll, but the conjunction of A with B, C, and D produces predictable incivility."
 

Bartbuster,

I enabled the comments section--against the tenor of Jack's recent decision--because I believe in the value of discourse (as Jack does).

My hope is that those who comment on this post will do so with civility. So far so good.

I completely understand Jack's unhappiness. We need to collectively develop a better culture that aims at substantive exchanges rather than cheap shots or insults.

If that does not work out, I will follow Jack's lead.

Thanks,

Brian
 

That being said, I completely agree (obviously) with Brian Tamanaha that Bush or Yoo will never be prosecuted in the United States. The rest of this, while collectively developing a better culture that aims at substantive exchanges, is academic.
 

We need to collectively develop a better culture that aims at substantive exchanges rather than cheap shots or insults.

If you don't do anything to stop Bart from using this site to spew rightwingnut propaganda, that simply is not going to happen. Period.
 

The closing of comments here is under lively discussion at the Volokh Conspiracy.

Which might be a better place to take meta-comments, if I can say that without incurring some kind of self-reflexive karma.
 

Professor Tamanaha:

In the above paragraph Yoo appears to make a crucially different claim: “On the advice of his intelligence advisors, the president could have authorized coercive interrogation methods…” [Note: Yoo's "president could have" phrasing ambiguously shifts between Bush and Obama, but the specific reference to the authorization of waterboarding clearly refers to Bush, suggesting that this is Yoo's characterization of what transpired.]

Every other account of events indicates that intelligence advisors sought approval to apply coercive techniques, and Yoo’s (and Bybee’s) legal memos provided the legal cover they desired.


This is strange language.

Either the President does or does not have the power to perform an act. He cannot gain new powers on advice of his subordinate "intelligence advisors."

Given Yoo's rather expansive strong President theories, I would assume that this language is simply surplusage and not meant to argue that a President may gain powers by advice of intelligence bureaucrats.
 

Bart misstates the point. The assertion is not that the intel advisers granted Bush new powers.

It could be read one of two ways:

(1) Based on the request of his intel advisers, Bush sought Yoo's advice as to whether the conduct would be legal. This seems to be how Prof. Tamanaha reads it.

But Yoo being Yoo, he could well mean instead

(2) Based on the request of his intel advisers, Bush concluded that torture was necessary for him to execute his commander-in-chief functions, upon which torture became legal in those instances.
 

Prof. Tamanaha:

We need to collectively develop a better culture that aims at substantive exchanges rather than cheap shots.

Sometimes the one-line zinger suffices for rebuttal.

Cheers,
 

"Opinion testimony (by experts) is how legal incompetence gets proven. As Prof. Tamanaha points out, there are plenty of politically conservative lawyers who've criticized the quality of Yoo's memos."

I don't follow this. I'm sorry to keep reverting to my favorite example, but, as far as I know, no one has been as caustic about Yoo's memos as John Ely was about Roe v. Wade. (Something to the effect that it was not just bad Constitutional law, it wasn't even trying to be Constitutional law.) And Ely was the dean of freaking Stanford Law School. So it would seem that we can get legal experts to say almost anything. Perhaps in forty years, young lawyers who are now working for NARAL will be put on trial for the human rights violation of facilitating abortion, and Ely's words will be quoted to show their bad faith.
 

Mortimer: John Yoo was with OLC, and was not writing for Bush as his client.
 

My post does not suggest that Bush or Yoo should be prosecuted, which will not happen (in the United States).

This is an uncharacteristically declarative statement. Is this a reiteration of your legal interpretation based on the merits, or is it based on a political analysis, possibly influenced by more . . . immediate . . . information?

If such information can be disclosed, naturally.
 

sean:

Perhaps in forty years, young lawyers who are now working for NARAL will be put on trial for the human rights violation of facilitating abortion, and Ely's words will be quoted to show their bad faith.

How could they? The (alleged) legal deficiencies are with the U.S. Supreme Court justices that decided Roe v. Wade. It is hardly malpractise (much less conspiracy to deny civil rights) to cite to a U.S Supreme Court case -- mandatory authority -- that has yet not been overturned.

Cheers,
 

it seems to me as if we have entered a sort of limbo similar to the one that existed upon nixon's resignation and ford's pardon.

however, bush did not resign and no pertinent pardons have been issued.

as things stand, he has essentially admitted to several criminal acts. the question is will he be prosecuted.

if he is investigated, and if a convincing case for guilt is built, i don't see how obama can refuse to prosecute.

how this is handled is very important but the longer it goes on the harder it will be to stop from reaching it's ultimate conclusion. criminal prosecution or a pardon.
 

Anderson,

I would amend your #1 as follows: High level administration officials wanted the torture to happen, and Yoo was tasked (or volunteered) to provide the legal cover for it. This is not seeking "advice" about whether it was legal, as you charitably put it, but rather an order to Yoo to "do what you can to provide a legal justification" for the torture.

Up to this point Yoo was acting as a lawyer. Where he crossed the line (and became responsible) was when he completely distorted the law to provide the justification.

The proper course would have been for Yoo to return and say "torture if you find it necessary, but no reading of the law will make it legal." (the course Goldsmith took).

S.G.E.W.--I have no inside information for asserting that they will not be prosecuted in the U.S., nor do I have any expertise in the applicable law. It's just (reality-based) speculation on my part.

Brian
 

Prof. Tamanaha, I agree with your sense of what actually happened, but what I meant was to interpret what Yoo meant to say in the op-ed -- which surely was not the confession you suggest.

Sorry not to have been clear.
 

i think yoo is concerned that as the investigation unfolds the train is headed right at him.

if i were him, i'd be worried about prosecution.
 

You don't get it. Yoo is set up as the fallguy like in the Maltese Falcon. He will flip when he finally understands that.
Best,
Ben
 

Garth Sullivan:

How did Bush "essentially admit" to several criminal acts?
 

if he [Bush] is investigated, and if a convincing case for guilt is built, i don't see how obama can refuse to prosecute.

Considering he has announced (admitted doesn’t seem to convey the right tone) that he committed more than one felony, how can Obama [actually, the Justice Department] refuse to prosecute? But then, given what they knew, how could the House of Representatives refuse to do their sworn duty and impeach?

Something I’ve been wondering about: if Bush were prosecuted, convicted, and sent to prison, would he still qualify for Secret Service protection? Talk about your bad assignments.
 

Motimer,

You are confused. Have you actually bothered to read any of the memos in question?

Let me refer you to the first in the series...

John Yoo, THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM, DOJ Office of Legal Counsel (2001.09.25); available at:

http://www.usdoj.gov/olc/warpowers925.htm


In particular, let me call your attention to the concluding paragraph:

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."


Are you seriously willing to claim that statement is a plausible legal argument?

It is in fact the basic premise of ALL the Bush administration's pretexts for their crimes, and it's patenetly absurd in the same way claiming that "1 + 1 = 0" would be.

The kindest thing I can say for Mr. Bush here is that of all the principals -- Bush, Cheney, Rumsfeld, Addington, Yoo, and Haynes -- Mr. Bush was the one who had the least actual understanding of the law. Unfortunately for him, he signed all the orders, and ignorance of the law is no defense -- especially not willful or negligent ignorance, nor charges of war crimes or crimes against humanity.
 

if Bush were prosecuted, convicted, and sent to prison, would he still qualify for Secret Service protection?

Wouldn't happen. He'd pull a Ken Lay, fake his own death and hie to Paraguay.
 

Hank (maybe you can answer the question:

How did Bush "announce" that he committed more than one felony?

Mr. Gittings:

Of course that's a plausible legal argument (along with Nixon's: "If the President does it, it's not illegal").

Eric:

You really think that Ken Lay is alive? What about Elvis Presley?
 

In the spirit of Prof. Balkin's thoughts ... and Prof. Tamanaha's request ... please try to ignore the distractions. I promise I will make a good faith effort to do so.

Cheers,
 

Garth Sullivan or Hank Gillette:

Part of the topic the good Professor has addressed in this thread relates to his "speculation" that Bush will never be prosecuted in the U.S. Each of you claimed, however, that Bush made admissions to multiple felonies. If you have anything other than Kucinich's 35 Articles of Impeachment or also think it is a "distraction" to reply to my simple question, no skin off my nose.
 

Anderson,

You may well be right. I'm not sure why Yoo wrote this.

At this point in time, it seems like a gratuitous act of defiance to explicitly take ownership (on behalf of Bush) of waterboarding.

Discretion would counsel silence on the issue. Trumpeting waterboarding--even if he genuinely believed it was necessary at the time--is not wise. Everyone else involved seems to realize that.

Brian
 

P.S. As the sole COMMANDER-IN-CHIEF, it seems evident to me that the President alone makes determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. The Constitution only gives Congress the power to declare war (we are not fighting another nation); purse strings (they could have cut off funding for Iraq anytime they wanted); define and punish Piracies and Felonies committed on the high Seas, grant Letters of Marque and Reprisal (not applicable); make Rules concerning Captures on Land and Water (which they did); make Rules for the Government and Regulation of the land and naval Forces (which they did); and provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions (thankfully not needed, yet.
 

Professor Tamanaha:

Waterboarding is not necessarily "torture".
 

Charles,

Waterboarding is a classic torture technique. It has been understood as such since the middle ages, at least. People who have been subjected to it (voluntarily or otherwise) have confirmed that it is unbearable. Before this inglorious event, no one would have suggested that it is not torture.

It is not a matter of debate.

Your qualifier "necessarily" suggests that even you equivocate in your denial.

Another way to approach this issue is to admit that it is torture, insist that the situation was so dire that torture was necessary, and then be prepared to suffer the consequences that follow.

That shows conviction in the cause. I can understand and respect that much more than the effort to redefine torture in an absurd way.

Brian
 

Even if waterboarding is "torture" the President can do it.
 

It might be a worthwhile study to develop a list of various countries' political parties who have espoused various forms of the kinds of rough treatment documented in the IG FBI report. I wonder if the new OLC members are prepared to write some of that history as part of the documentation supporting some refutation of the authorizations which the prior administration sought and obtained. Farther abroad, I would expect congress itself to order a CRS examination of historical background of preGeneva treatment of prisoners in the US. While OLC well may issue a classified document rather than some public treatise for open discussion, CRS' reports sometimes have appeared in the public realm. Some of the people who wrote policies developing ways to treat prisoners roughly as described in the incremental memos enumerated and summarized in the senate armed services committee executive summary to which the post author linked, may have encouraged the theorist Yoo to step to the fore, in anticipation of more US middle class hand wringing over this new turn in the US' attitude toward human rights.

Weimar and its consequences were more than a brief phase; the worst occurred in fits and starts as institutions were undermined and failed. What new US political party might appear to embrace rough treatment of other humans who are held captive. Would that new US political party include many US voters who guide their lives by religion principles.
 

Prof. Tamanaha, I don't know why Yoo shoots his mouth off either, but it occurs to me that Bush's people may have been incredibly lucky to find an intelligent, conservative lawyer who could not only write the OLC memos, but actually believe them.

I mean, what were the odds?

His genuine belief may be what stands between him and criminal culpability.

OTOH, if I were trying to fake "genuine belief," I would get as many absurd op-eds on the records as I possibly could.
 

Charles,

So if the President decides to...

1) Nuke Washington
DC, Rome, Jerusalem, and Mecca.

2) Rape a two year old girl, roast her alive on a barbecue spit, and then eat her for dinner; or

3) Construct a prison camp equipped with gas-chambers and crematoria in order to exterminate the entire Jewish and Muslim population of the United States ---

--- ALL of that is perfectly lawful, because the President doesn't actually have to obey ANY of the laws he is sworn to faithfully execute?

And you seriously want me to believe that Yoo not only has a credible legal argument, but you actually think he's correct?

Seriously??

How about you Bart? Brett? Mortimer?
 

Seriously, that's my genuine belief.
 

“Up to this point Yoo was acting as a lawyer. Where he crossed the line (and became responsible) was when he completely distorted the law to provide the justification.”

What is the standard of “completely distorting the law?” As weak and unpersuasive as some of Yoo’s arguments were, I don’t think they would have gotten him sanctioned had he made them in federal court. It has been suggested that Yoo’s memos were sanctionable under the code of professional responsibility, but so far the bar has not taken any action against him. I guess we are still waiting to hear from OPR.

Who is going to decide that Yoo completely distorted the law? Is that a jury question? I don’t see the Supreme Court reaching that conclusion. I suspect at least four of the justices may agree with Yoo on the merits.

If we are going to start locking up lawyers who completely distort the law, we are going to need a lot more prisons.
 

mls:

LOL!!!
 

Charles said:

How did Bush "announce" that he committed more than one felony?

He admitted to violating the law when he authorized illegal domestic spying and bypassed the special court that is legally empowered to oversee such spying.

He authorized waterboarding of captives in violation of the United Nations Convention Against Torture, which the United States signed while Reagan was President.
 


Seriously, that's my genuine belief.


I believe that it is. The arguments in the comment section around here are really the result of most commenters refusing to accept the idea that there are semi-intelligent Americans around (like Yoo, Charles, et al.) who genuinely believe in fascism. They also believe that they are patriots defending "democracy." If Saddam were an American president, they would be writing editorials in the WSJ defending his rape rooms.

Every country has these people. Luckily, they are no longer in power in the US.
 

MLS and Charles,

People get indicted, tried, and convicted for committing criminal offenses pursuant to particular statutes.

For example, 18 USC § 371:

"Conspiracy to commit offense or to defraud United States

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."
 

None of those "people" are President of the United States.
 

Seriously, that's my genuine belief.

# posted by Charles : 10:18 PM


If there is any justice, Obama will ship you off to Gitmo.
 

too bad he shut Gitmo down (in a year) maybe.
 

too bad he shut Gitmo down (in a year) maybe.

# posted by Charles : 11:51 PM


I'm sure they could do a lot of damage to you in that year.
 

"too bad he shut Gitmo down (in a year) maybe."

Maybe sooner than that.

But what doeshe need Gitmo for?

According to you, he can just order the FBI to dig hole in the ground and bury you alive.
 

Who said that Obama is legally President?
 

Who said that Obama is legally President?

Justice John Glover Roberts, Jr.
 

I am glad the comments are civil. Charles, a question: are you a lawyer, or are you someone who just has strong beliefs about what a President can do? My guess is you are not a lawyer, or at least have never worked as a lawyer.
 

I'm waiting to see a written opinion on the merits.
 

First, there is a subtle shell game being played by those who seek to defend both Bush and Yoo. Yoo is blameless because he was just writing memos; Bush is blameless because he just relied on those memos. If what Bush did was, but for the memos, illegal, then there should be consequences for SOMEBODY. It makes a mockery of the advice of counsel defense to allow it to be used this way.

Second, I think those defending Yoo ignore the fact that the role of an attorney is dependent on context. At one extreme, a criminal defense attorney can and should be aggressive in offering any colorable claim on behalf of the accused -- about an event that is obviously in the past. An attorney in private practice advising a client about a possible future action is and should be somewhat more constrained, and should fairly represent the current state of the law. The opposite extreme is a lawyer representing The People and asked by the executive about future actions. In that circumstance, the highest duty is to see that justice is done. The first is an advocate; the third is supposed to be neutral; the second is somewhere in between.

Yoo and Bybee should have been neutral. Instead they were advocates.

If there are no consequences for bad advocacy, I fear for the future of the legal profession, and for our legal system.
 

OLC is an advocate, certainly not neutral.
 

Care to back your assertion up, Charles?

Because I can back up mine:

"OLC’s core function is to help the President fulfill his constitutional duty to uphold the
Constitution and “take care that the laws be faithfully executed” in all of the varied work of the executive branch. OLC provides the legal expertise necessary to ensure the lawfulness of presidential and executive branch action, including contemplated action that raises close and difficult questions of law. To fulfill this function appropriately, OLC must provide advice based on its best understanding of what the law requires. OLC should not simply provide an advocate’s best defense of contemplated action that OLC actually believes is best viewed as
unlawful. To do so would deprive the President and other executive branch decisionmakers of
critical information and, worse, mislead them regarding the legality of contemplated action.

OLC’s tradition of principled legal analysis and adherence to the rule of law thus is constitutionally grounded and also best serves the interests of both the public and the presidency, even though OLC at times will determine that the law precludes an action that a President
strongly desires to take."

Says who?

Says them:

Walter E. Dellinger, Assistant Attorney General 1993-96
Dawn Johnsen, Acting Assistant Attorney General 1997-98; Deputy AAG 1993-97
Randolph Moss, Assistant Attorney General 2000-01, Acting 1998-2000; Deputy AAG 1996-98
Christopher Schroeder, Acting Assistant Attorney General 1997; Deputy AAG 1994-96
Joseph R. Guerra, Deputy Assistant Attorney General 1999-2001
Beth Nolan, Deputy Assistant Attorney General 1996-99; Attorney Advisor 1981-85
Todd Peterson, Deputy Assistant Attorney General 1997-99; Attorney Advisor 1982-85
Cornelia T.L. Pillard, Deputy Assistant Attorney General 1998-2000
H. Jefferson Powell, Deputy Assistant Attorney General and Consultant 1993-2000
Teresa Wynn Roseborough, Deputy Assistant Attorney General 1994-1996
Richard Shiffrin, Deputy Assistant Attorney General, 1993-97
William Michael Treanor, Deputy Assistant Attorney General 1998-2001
David Barron, Attorney Advisor 1996-99
Stuart Benjamin, Attorney Advisor 1992-1995
Lisa Brown, Attorney Advisor 1996-97
Pamela Harris, Attorney Advisor 1993-96
Neil Kinkopf, Attorney Advisor 1993-97
Martin Lederman, Attorney Advisor 1994-2002
Michael Small, Attorney Advisor 1993-96

http://www.acslaw.org/files/2004%20programs_OLC%20principles_white%20paper.pdf
 

"by the executive about future actions"

The argument, backed up by some who studied the matter, is that there was an ex post facto quality here in various cases. That is, certain behavior was occuring or wished to be done, and certain gov't lawyers were tooled with the job of supplying the fig leaf.

This adds doubt to the claim that Yoo's brief was in effect bad but debatable. Various lawyers here (including a past and present OLC member) who I trust with the matter suggest his stance (and others) were not reasonable. This is akin to the "risible"* fig leaf used by Blair to justify the war in 2003.

But, as you say, context matters too. And, in this context, the already dubious lawyering is especially suspicious.

[Some who want to say Yoo's stance is debatable are hard pressed to admit waterboarding is torture. Their opinion is not mainstream on this matter, so is suspect overall.]

---

* I use the word via Philippe Sand's book "Lawless World," which also ridicules Bybee and Yoo's "advice" and suggests 1L students could do a better job.
 

Sure, just ask the GOP-appointed OLC heads if they were "neutral". I am not saying they would justify lawlessness (as I pointed out, only Congress can "declare war"), but OLC is part of the Executive branch and is tasked with giving the Attorney General their best advise on Constitutional questions. We will simply have to agree to disagree whether Yoo did so in this case or whether he will be prosecuted for it.

BTW: if it was so illegal, why didn't Congress impeach anyone?
 

My last post was to bluememe (and PLR).
 

Joe:

Have you read Doug Kmiec's book "The Attorney General's Lawyer"? Maybe we should ask for Justice Scalia's opinion too?
 

Brian Tamanaha said...

Anderson, I would amend your #1 as follows: High level administration officials wanted the torture to happen, and Yoo was tasked (or volunteered) to provide the legal cover for it. This is not seeking "advice" about whether it was legal, as you charitably put it, but rather an order to Yoo to "do what you can to provide a legal justification" for the torture.

Do you have any evidence apart from speculation that the President or his agents entered into a criminal conspiracy with Yoo or Bybee to "provide legal cover" rather than seeking legal advice?

Yoo is a strong president theorist and held many of the opinions to which Goldsmith disagreed prior to entering service with the OLC and still holds them today.

Indeed, relying upon the fact that Goldsmith disagreed with elements of Yoo's opinions concerning Presidential power and torture as evidence that Yoo entered into a conspiracy puts you in unreliable ground.

Goldsmith also authored the 2004 OLC opinion opining that al Qaeda in Iraq are not protected persons under GC4. I advanced many of these same Goldsmith arguments that the GCs are necessarily based upon the principle of reciprocity here in past years to nearly universal opposition. Does that make the sainted torture truthteller Goldsmith another part of the OLC "conspiracy" or does he simply have a difference of opinion with the folks here on the GCs as he did with Yoo on Presidential power?

Punishing differences of opinion as crimes subverts the entire profession of law.
 

A much more relevant and timely debate would be whether Obama will assert Executive Privilege for Yoo, Miers, Rove, etc. Can you imagine the looney-left reaction if he does?! No wonder Professor Balkin refuses to allow comments on those threads.
 

Chucklehead, as someone who still refuses to accept that Obama is president, you're really not in a position to be calling anyone "loony".
 

Bartbuster:

Of course, good advice. I will leave the name-calling to you.
 

At least disabling comments has cut down on the number of F-bombs. "Progress" I dare say.
 

Bart,

A claim that 1 + 1 = 0 or 3 does not represent a "difference of opinion".
Equally, opinions are beside the point except to the extent that they might have some bearing on the elements of a particular crime, "malice" for example.

And as I've pointed out to you more than once, Yoo's memos are primary evidence of the crimes. Which brings me to the question I asked Charles -- what is your answer?
 

Bart said:

Punishing differences of opinion as crimes subverts the entire profession of law.

Characterizing criminal activities as “differences of opinion” subverts the law and justice itself.
 

Talking about John Yoo, there is a suit out there by Jose Padilla that the Obama White House has to deal with. This might be a useful blog post, when the time comes.

I have not read "The Attorney General's Lawyer," though as to Scalia, given some of his opinions, if he was in John Yoo's place, well, I don't know how much better he would do.

BTW, I like blogs as a whole that allow comments. So, I appreciate posts here that supply them. FWIW, except in "special circumstances," I might stick to reading those here that have them.
 

The Politico has an interesting piece on the intent of the Obama DoJ to "ask a San Francisco federal judge to throw out a lawsuit brought against Yoo by Jose Padilla, a New York man held without charges on suspicion of being an Al Qaeda operative plotting to set off a “dirty bomb.”

Given the past positions of many of the new Obama DoJ attorneys railing against Yoo, this should be fascinating.

Perhaps, now that they are in positions of responsibility at DoJ, it may be dawning on these Yoo critics (or their bosses) that this kind of lawfare can be used against them as well.
 

Charles Gittings:

Your postings have brought fond remembrances of college for me. Actually, one can prove 1+1=0.

Start with the "false" statement we are trying to prove:

1 + 1 = 0

Make a true statement:

0 = 0

Another:

0 = (1 + -1)

Now, let's expand that:

0 = (1 + -1) + (1 + -1) + (1 + -1) + (1 + -1)...

Do a little associative law of addition:

0 = 1 + (-1 + 1) + (-1 + 1) + (-1 + 1) + (-1 + 1)...

Recognize that (-1 + 1) = 0

0 = 1 + 0 + 0 + 0 + 0...

Thus,

0 = 1 and 1 = 0

Therefore,

1 + 1 = 0 + 0 = 0.

QED.

The lesson of course, is you can make anything true if you are a little clever, a little dishonest, and know how to move goalposts and/or parentheses.
 

Yoo: "..the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns." (my italics).

The British government used brutal methods of interrogation against IRA suspects in Northern Ireland in the early 1970s. These were condemned in 1978 by the European Court of Human Rights, but had already been stopped in 1972 following the Parker Report - by a very conservative Chief Justice - which found them clearly illegal under British law.

I've seen no allegations that policy has changed since. Some British troops were convicted in 2005 of prisoner abuse in Iraq, but there's nothing to suggest this was systematic or approved from London.

Yoo's insinuation is as sloppy and sleazy as his other torture apologetics.
 

Yoo's insinuation is as sloppy and sleazy as his other torture apologetics.

Reading that quote over, he says two things: "we could have done worse," and, "those guys already did it." More hiding, but what other choice does he have?
 

This comment has been removed by the author.
 

Nerp,

"The lesson of course, is you can make anything true if you are a little clever, a little dishonest, and know how to move goalposts and/or parentheses."

Exactly -- emphasis on "a little dishonest".

Which brings up a further point, the notion that a good faith belief an illegal act was lawful is a defense; or as the WSJ editorial Brian quoted in his post puts it:

“In any event,” the editors continue, “the legal standard for any possible prosecution into torture allegations would include mens rea -- whether, say, a CIA interrogator understood, i.e., possessed the "guilty mind," that his actions constituted a crime.”

That simply is not accurate, and I get VERY tired of well-educated people like WSJ editors and law professors such as John Yoo spouting such disingenuous nonsense.

Mens rea consists of the intent to commit some illegal act, not the belief an act is illegal. "Ignorance of the law" is no excuse, and neither is a sincere belief the law is inapplicable or invalid.
 

Yoo still defiantly insists that torture in the service of national security is fine

Prof. Tamanha,

Yet one more post where it is asserted that it is unnecessary to provide support for the notion that Yoo wants to torture people -- everyone knows because it has been conclusively proven here.

Most of the threads I read here back in April when the memos came out (only other time I've visited because of link at Volokh to Marty Lederman's posts) I saw a bunch of posts that were similarly conclusory in tone without really taking on the substance of the memos.

They simply appeared to assume or take for granted that the operative aspect of the memo was the assertion of unchecked commander and chief power. The Bush is above the law.

To the extent that they acknowledged any content other than this my recollection is they tended to dismiss the arguments out of hand. I found most of them at least plausible arguments.

Certainly, reading Yoos editorial in the context of the memo which I just reread, he appears to favor the availability of aggressive interrogation which the memo finds falls outside the definition of torture as contemplated in 18 USC 2340 and the Convention Against Torture and other Cruel Inhuman or Degrading Treatment or Punishment (read with US Reservations).

Yoo defends this as a matter of statutory interpretation of the definition of "severe pain" and in the context of the specific intent to cause "prolonged" mental harm. He makes a strong sine hoc quod case that the language of 18 USC 2340 "acting under the color of law" is too imprecise to reach the military in the conduct of war, citing other explicit statutory language applying particular laws, e.g. war crimes, to the military while engaged in hositilities on foreign soil.

He makes caveats regarding the preemptive commander in chief powers and, in my mind does not devote enough thought to whether certain precedents and understanding regarding the presidents commander in chief power logically instend to the kind of long term detention that characterizes GITMO vs. battlefield circumstances. I haven't formed a solid opinion in this area, but I think his memo should potentially have recognized the distinction and undertaken to argue why this still constituted the same exigency as afford the President what are seen to be exotically sovereign jurisdiction as commander in chief.

But the memo simply does not rest on these grounds, it really suggests that this boundary is untested by the current statutory framework.

If Congress had any cahones whatsoever, they could add the specific language to 18 USC 2340 bringing military personel acting in the conduct of war at the order of the commander in chief specifically under its ambit. They could also insert more specific prohibitions on conduct that would be considered torture if they are concerned that Yoo's statutory analysis is at all persuasive.

Me thinks they won't, but I think it wrong as an objective matter to suggest Yoo is advocating torture, except, perhaps, as you wish it to be defined.

____________

As to comments, I think it is pretty comical that the anti-Bart takes this apparently rare opportunity to opine as to how you have to ban Bart to save comments.

What? Is everybody here not checked out to swim in the deep end of the pool yet? It doesn't take two to troll as I the namesake of Balkinzation is reported to have said elsewhere on the blog, it takes people to read them.

Just skip it.

Look, it's your blog, if you want to ban Bart, ban him. But it sure looks like heckler's veto to me.

Brian



If congress had any balls what
 

While I agree that "Ignorance of the law" is no excuse, a sincere and GOOD FAITH belief that the law is inapplicable or invalid is a different matter. You should read Kmiec's book as well, particularly the chapter on Iran-Contra and the Boland Amendment(s).
 

My last post was for Charles Gittings (who still has not answered my pending question: "Who said that Obama is legally President?").
 

attorneys are not allowed to get war crimes questions wrong.

good faith, sincere belief don't negate the crime.

german attorneys learned that nuremberg.

war is so awful, attorneys are to be held to a strict liability for advice in the area of war crimes and human rights violations.

yoo was picked as a patsy, i agree. but, his enthusiasm for executive power in this area, no matter how genuine, has led him astray.
 

Garth Sullivan:

This is not Nuremberg -- not that I expect you to respond to that -- you also never answered: "How did Bush 'essentially admit' to several criminal acts?"
 

and as for admissions, yoo, has specifically stated that the president authorized war crimes in several instances.

furthermore, there is a wealth of literature out there describing high level meetings in which torture was discussed and approved. the entire top level of this administration, practically, is complicit in war crimes. rice, addington, cheney, gonzales, bush, libby, rumsfeld and god knows who else.

we have the donald rumsfeld memos and we are now starting to see the olc memos, which while possessing a lawyerly veneer, are simply wrong.

if you don't prosecute the lawyers, it sends the message that this type of advice is acceptable. it is not.
 

of course this isn't nuremberg, but can you explain why we shouldn't apply those standards to our own conduct?
 

Perhaps you, or someone, can address Sean's point: in forty years, will young lawyers who are now working for NARAL be "strictly liable" for war crimes / human rights violations in facilitating genocide?
 

This comment has been removed by the author.
 

We won. Germany lost.
 

(Our blog posts are like ships passing in the Net)

Yoo has stated that the President authorized WATERBOARDING. There are a couple leaps of logic to make before that translates to WAR CRIMES (see my previous comments on that above).
 

Yoo defends this as a matter of statutory interpretation of the definition of "severe pain" and in the context of the specific intent to cause "prolonged" mental harm. He makes a strong sine hoc quod case that the language of 18 USC 2340 "acting under the color of law" is too imprecise to reach the military in the conduct of war, citing other explicit statutory language applying particular laws, e.g. war crimes, to the military while engaged in hositilities on foreign soil.

I don't understand this part of your argument. AFAIK, the military under Bush operated under the same standards which Obama has now approved and which generally do NOT constitute torture (subject to abusive uses as noted by Susan Crawford). It is the CIA, however, which was the agency committing the crimes. Thus, discussion of the military seems irrelevant to the whole debate. Perhaps you could clarify.

If Congress had any cahones whatsoever, they could add the specific language to 18 USC 2340 bringing military personel acting in the conduct of war at the order of the commander in chief specifically under its ambit.

I assume you mean "cojones".

The torture statute already does what you say Congress should do. 18 USC Sec. 2340 is universal in its application. There's no need to specify that it applies to the military also; they're included in "whoever".

In any case, this argument strikes me as implausible. Is it your position, for example, that the rape statutes have to have a special provision applying them to military personnel? How about child molestation? If you don't think those statutes need such a provision, I fail to see why the torture statute needs one.
 

Charles stated, in response to bluememe: "OLC is an advocate, certainly not neutral." Charles, the Office of Legal Counsel (OLC) does not function as a president's advocate. It functions as an advisor.

Shortly after the US Constitution went into effect, Congress passed the Judiciary Act of 1789 during its first session. Section 35 of this Act provided for establishment of the Office of Attorney General, to be filled with "a meet person, learned in the law" and charged with giving "advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments."

This is how the "gap" was to be filled between the time a president or the executive departments wanted to conduct proposed activities and when the courts might rule on the legality of such activities. Bearing in mind that a president is also charged under Article II, Section 3 to take care that the laws are faithfully executed, this gap was not intended to serve as a free pass for presidents to undertake questionable activities until stopped by adverse court rulings.

Over the centuries since 1789, the office of the president and the executive departments grew to massive proportions with countless federal programs and seemingly unfathomable budgets. Yet, the Attorney General always retained a charge to give legal advice to presidents and the executive departments.

Currently, the Attorney General is authorized to give "advice and opinion on questions of law when required by the President" by 28 USC, section 511 and to give legal advice to heads of executive departments under 28 USC, section 512. Because the legal advisement needs of federal bureaucracy are too large for the Attorney General to single-handedly address, the day-by-day task of issuing formal and informal legal opinions is delegated to the Department of Justice's OLC under the regulatory authority stated at 28 CFR, section 0.25.

For example, the OLC serves as outside counsel for the other agencies of the executive branch and also functions as general counsel for the Justice Department. All executive orders and proclamations proposed to be issued by the president are reviewed by the OLC for form and legality, as are various other matters that require the president's formal approval. Additionally, the OLC reviews all proposed orders of the Attorney General and all regulations requiring the Attorney General's approval. Most importantly, the OLC normally is delegated responsibility for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.

It has been said that the OLC operates as a "mini-Supreme Court" to provide a high level of legal scholarship and legal advice that can pass constitutional muster, should a presidential decision or executive branch policy be challenged in the federal courts. Traditionally, the predictive value of OLC rulings has been so high as to fall under a presumptive aura of legality and constitutionality.

It is not surprising that the attorneys who draft formal OLC memoranda of law or otherwise issue informal legal advice to the executive departments hold highly regarded credentials. These attorneys typically will have graduated from the "best" law schools, may have served a clerkship at the US Supreme Court, or may have taught constitutional law as a professor at one of the nation's law schools.

There is a mechanism for attempting to maintain the ethical purity and independence of OLC legal advice. The three prongs of this mechanism are: (1) the confirmation process of political appointees before the US Senate; (2) the oaths of office the OLC attorneys previously took as licensed attorneys and take as federal appointees, and (3) the rules of professional responsibility for the various jurisdictions where these attorneys are licensed to practice law. Theoretically, political appointees at the Department of Justice will behave ethically and with the independent legal judgment necessary to the position.

Thus, in a normally functioning US Department of Justice, lawyers for the OLC typically are competent to give the same quality of legal advice to executive branch clients that lawyers serving clerkships at the US Supreme Court can give to Supreme Court Justices.

During John Yoo's time at OLC, the Department of Justice was not functioning normally. Yoo crossed the line to advocacy, gave so-called "legal advice" that knowingly facilitated prospective criminal acts and became a torture conspirator within the meaning of the federal torture statutes.
 

Nick Jackson:

I know all that (I never said Yoo was the President's attorney). Have YOU read Kmiec's book?
 

It's called: "The Attorney General's Lawyer".
 

BlueMeme:

First, there is a subtle shell game being played by those who seek to defend both Bush and Yoo. Yoo is blameless because he was just writing memos; Bush is blameless because he just relied on those memos. If what Bush did was, but for the memos, illegal, then there should be consequences for SOMEBODY. It makes a mockery of the advice of counsel defense to allow it to be used this way.

Indeed. I commented on this a while back. Such a result is rather perverse. The reliance defence (in the Barker sense) is intended to allow subordinates to do their jobs without having to look over their shoulders or question their superiors (or duly constituted gummint "authority"). It is based on the notion (perhaps now in question) that the superiors -- being "superior" (or the gummint) -- can 'do no wrong' (or at the very least, are not likely to do so because of additional competence and accountability). Of course, if you stop holding the superiors accountable. that last bit kind of falls apart. And when you elect incompetents....

There is no "advice of counsel" defence.

Yoo may be off the hook, unless he was activiely complicit in enabling the behaviour, and he knew that his activities and work product would be used to further an illegal act.

Dubya is not "off the hook" though. He can hardly say that Yoo was his "superior" so that "reliance" is justified. And he can't use the "advice of counsel: defence for such malum in se crimes.

Cheers,
 

I think everyone has expressed their views on waterboarding and related interrogation methods pretty clearly.

Why don’t we try this? Suppose that tomorrow President Obama orders a major strike inside of Pakistan. An objection is raised that such a strike would violate domestic and/or international law because (a) lack of congressional authorization for military operations Pakistan, (b) lack of justification under international law for an attack on Pakistan, and (c) high likelihood of significant/disproportionate civilian casualties.

Obama goes to OLC and asks Marty Lederman for his opinion.

If ML advises that the strike is legal, is he legally responsible if a tribunal should later conclude that he was wrong? How about if the tribunal concludes that he “distorted the law”? How would the tribunal make that determination?

If military personnel rely on ML’s advice, are they legally responsible if the advice turns out to be wrong?

If the answer is yes, are the military personnel entitled to refuse to obey the President’s order on the grounds that they think the order is illegal? How about if they aren’t sure, but are worried that it might be illegal?
 

Mark Field:

Since the primary task of a wartime President is protecting U.S. citizens, any hindrance to that capacity, whether domestic and international law or even Congress, can be considered unconstitutional. Short of pulling all funding for the war -- which Congress did not do -- the Commander-in-Chief executes the war.

During war, the President -- and not the Congress or even the courts -- has sole authority to interpret international treaties such as the Geneva Convention "because treaty interpretation is a key feature of the conduct of foreign affairs" especially when the President's powers are at their zenith. I'm pretty sure that's what Yoo would say.

"We are used to a peacetime system in which Congress enacts the laws, the President enforces them, and the Courts interpret them. In wartime, the gravity shifts to the Executive branch"
 

mls:

That assumes that Obama is legally the President of the United States. If we assume that, the same exact Yoo Doctrine applies.
 

Charles, if you claim to "know all that" but cannot tell the difference between a giving legal advice and legal advocacy, then you don't "know all that." I have not read Kmiec's book. Is it one of those torture apologist tomes making the rounds in hopes of keeping Bush, et al, from being indicted?

It's interesting, George W. Bush gave some farewell television interviews indicating he got the legal authorities that said his proposed interrogation policies were legal. While John Yoo probably did not personally hand his infamous torture memos to President Bush, I'll bet those memos are the legal authorities Bush claimed as legal blessings upon "enhanced interrogation."
 

Somebody is 'chuckling' in his basement, saying to himself, "see how easy it is?"

Even Prof. Tamanaha got sucked in -- even after asking that we try to keep the thread clean, germane, professional, and polite.

The previous behaviour of this somebody was brought to my attention (in the comments here). The various emanations are designed to provoke and disrupt. They are worse that even "Bart"'s worst posts on a bad-hair day. And they are so inconsequential, so evanescent, so vacuous, that they deserve no reply, serious or otherwise; they can well stand on their own two feet for what they actually are. No one really cares what he thinks, and he is not looking for enlightenment (nor is he perhaps even capable of it). If he has the opinions he has, that's just him, and he won't be disabused of them ... that is if he even holds such.

I may not be the best person to scold (my comments to the far more substantial "Bart" in evidence), but for this one troll (who I personally have refused to engage), I say: Ignore him fastidiously and he may find greener fields in which to attempt his disruptions. Respond to him, and he's succeeded in one simple post in doing precisely what Profs. Balkin and Tamanaha hoped we could avoid.

Cheers,
 

Nick:

The distinction that I am making is between being the President's advocate (which OLC is not) and the Attorney General's advocate (which OLC is). Kmiec's book already made the rounds in hope of keeping Reagan, et al., from being indicted. Next question?
 

"Bart":

Do you have any evidence apart from speculation that the President or his agents entered into a criminal conspiracy with Yoo or Bybee to "provide legal cover" rather than seeking legal advice?

Yoo is a strong president theorist and held many of the opinions to which Goldsmith disagreed prior to entering service with the OLC and still holds them today.


The two are not mutually exclusive.

Cheers,
 

Charles Gittings:

That simply is not accurate, and I get VERY tired of well-educated people like WSJ editors and law professors such as John Yoo spouting such disingenuous nonsense.

Mens rea consists of the intent to commit some illegal act, not the belief an act is illegal. "Ignorance of the law" is no excuse....


... but will the WSJ and Yoo use it when you charge them with the above 'offence'? ;-)

Cheers,
 

Arne:

I certainly hope you are not referring to my simple questions -- if you are, please feel free to point to the offending post -- Professor Tamanaha responded to Mortimer, Anderson, and Bartbuster as well.
 

MLS:

If ML advises that the strike is legal, is he legally responsible if a tribunal should later conclude that he was wrong? How about if the tribunal concludes that he “distorted the law”? How would the tribunal make that determination?

By looking at the crime involved (or alleged). If there was a criminal conspiracy to engage in illegal acts, and the drafting and issuance of the OLC memo was an act in furtherance of that conspiracy, yes, I'd think.

That's not to say that, lacking these elements, that administrative or disciplinary measures would be unavailable to address professional incompetence/malpractise.

If military personnel rely on ML’s advice, are they legally responsible if the advice turns out to be wrong?

Perhaps not, under Barker. But the reliance and advice are insufficent, per se, to confer immunity.

Cheers,
 

MLS:

[A]re the military personnel entitled to refuse to obey the President’s order on the grounds that they think the order is illegal?

They are entitled (and even required) to disobey illegal orders. What they think is pretty much irrelevant (soldiers aren't generally required to "think", anyway). They may be off the hook for "reasonable" reliance on orders (see Barker discussion link above) if they do obey, but this is not assured by any means. And if they choose to disobey based on a belief in the order's illegality, they are at risk of being found wrong.

Before you complain about the unfairness of such, much of the same pertains to anyone who contemplates violating a law they think is illegal.

Cheers,
 

MLS:

[A]re the military personnel entitled to refuse to obey the President’s order on the grounds that they think the order is illegal?

They are entitled (and even required) to disobey illegal orders. What they think is pretty much irrelevant (soldiers aren't generally required to "think", anyway). They may be off the hook for "reasonable" reliance on orders (see Barker discussion link above) if they do obey, but this is not assured by any means. And if they choose to disobey based on a belief in the order's illegality, they are at risk of being found wrong.

Before you complain about the unfairness of such, much of the same pertains to anyone who contemplates violating a law they think is illegal.

Cheers,
 

Charles:

You've asserted in this thread that OLC is intended to act as an advocate.

Do you also assert that governmental officials are entitled to a defense based upon reliance on an OLC opinion?

If so, do you see a contradiction between those assertions?

(I certainly do see them as contradictory. I believe that the argument for a defense based on reliance on OLC opinions is premised on the assumption that OLC is providing impartial advice, not engaging in advocacy.)
 

Arne Langsetmo said...
BD: Do you have any evidence apart from speculation that the President or his agents entered into a criminal conspiracy with Yoo or Bybee to "provide legal cover" rather than seeking legal advice?

Yoo is a strong president theorist and held many of the opinions to which Goldsmith disagreed prior to entering service with the OLC and still holds them today.

arne: The two are not mutually exclusive.


That is true, but given the complete absence of evidence for the former, the latter tends to discount the speculation in the former.

What almost certainly happened is that the Bush Administration hired OLC attorneys who shared its world view just as the Obama Administration chose polar opposites that supported their world view. Consequently, both Administrations will likely get the opinions they want without engaging in a conspiracy.

Opinions that deviated from the attorney's established positions would be circumstantial evidence of a conspiracy to give the President legal cover. There is no such deviation on the part of Yoo. It remains to be seen whether the current OLC attorneys will deviate from their well establish weak President views when Mr. Obama requires "legal cover" for a military or intelligence gathering operation.
 

BD:That is true, but given the complete absence of evidence for the former, the latter tends to discount the speculation in the former.
I agree that evidence about what happened is lacking. Given the significance of these memorandums, the wide-spread opinion that the memorandums were legally incompetent and DOJ's decision to rescind the memorandums, would you agree that an investigation into what happened is warranted?
 

Why don’t we try this? Suppose that tomorrow President Obama orders a major strike inside of Pakistan. An objection is raised that such a strike would violate domestic and/or international law because (a) lack of congressional authorization for military operations Pakistan, (b) lack of justification under international law for an attack on Pakistan, and (c) high likelihood of significant/disproportionate civilian casualties.

The problem with hypotheticals is that they tend to leave out important facts. Suppose, for example, the operation was designed to capture bin Laden and did so. I can't see any objection under international or domestic law. The Sept 01 AUMF clearly permits the operation and international law, under such circumstances, seems likely to as well (though it's not my area of expertise and I could be wrong).

If ML advises that the strike is legal, is he legally responsible if a tribunal should later conclude that he was wrong? How about if the tribunal concludes that he “distorted the law”? How would the tribunal make that determination?

Again, you're leaving out too many facts. If Prof. Lederman made arguments as absurd as those of John Yoo, and in a cause as reprehensible, I'd expect him to be held accountable.

I'll add that I'm not much impressed with the implied argument I see on the right that every case of bad advice by OLC must be treated as a criminal offense just because one particular such case is. That doesn't follow at all; the law makes all kinds of distinctions of degree. To quote Holmes,

"I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized… and between the variations according to distance that I suppose to exist and the simple universality of the rules of the Twelve Tables or the Leges Barbarorum, there lies the culture of two thousand years."

There's a big middle ground in there and no reason to exclude it.
 

QuiteAlarmed:

No.
 

Yoo speaks, and we all get to hear what passes for scholarship at Cal these days. I must remember that next time the system wants more money from me as a taxpayer. I have no problem funding legal scholarship. I see no reason I should fund this.
 

QuiteAlarmed said...

I agree that evidence about what happened is lacking. Given the significance of these memorandums, the wide-spread opinion that the memorandums were legally incompetent and DOJ's decision to rescind the memorandums, would you agree that an investigation into what happened is warranted?

What would be the purpose of such a criminal investigation?

Precisely, what crime do you contend that Professor Yoo committed?

Offering opinions on the meaning of statutes is not a crime simply because you disagree with them.

Yoo expressly noted in his memorandum that he was not counseling anyone to engage in any course of conduct.

If you are going ask a court to compel an attorney or the client to disclose privileged communications or work product, you better have solid evidence they were in a conspiracy to commit a crime.
 

DB: What would be the purpose of such a criminal investigation?
For clarity, I wrote "investigation." You added the adjective "criminal."

Given the significance of these memorandums, the wide-spread belief that they were incompetent, and DOJ's subsequent revocation, I suggest that we have sound reason to suspect that something went badly wrong here. We can't know exactly what went wrong, and whether it should be characterized as criminal, until we know what happened. At a minimum, a thorough investigation would serve to strengthen DOJ's procedures so that future government officials are less likely to face the dilemma of having DOJ revoke opinions that they relied upon in good faith.

I don't see the attorney-client privilege or work product doctrine as a concern. Any such privilege could be waived by the Obama Administration.
 

Charles:

Interesting. That view strikes me as leaving a significant void in the Executive Branch.
 

If one is to grant Bart's perspective as to the state of the law as it stands, a question sticks out for me that I don't think I've seen addressed:

If the President has plenary authority during "wartime," why did he need Yoo's memos, or any memos at all? That is, doesn't the existence of Yoo's work in itself signal that it is possible for the President's actions to have been illegal? Something doesn't line up here.
 

[re: OLC memos] If you are going ask a court to compel an attorney or the client to disclose privileged communications or work product, you better have solid evidence they were in a conspiracy to commit a crime.

I'm not so sure this is a "reasonable" interpretation of the law in this fact situation, thanks to Starr and company's efforts in the 1990's.

Cheers,
 

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At last, a truly substantive comment! That's change we can all believe in.
 

Bart's perspective?

I don't hear him answering the question I asked Charles, who actually gave me a straight answer.
I don't hear Mortimer, MLS, or Brett answering either.

And since Charles did answer it, I'm going to humor him and answer his 'question' in return...


"Who said that Obama is legally President?"

Oh, AS IF there was any doubt -- the answer is completely obvious:

The 69.5 million voters who voted for him think so.

The US Congress, the US Supreme Court, and every branch of the US government thinks so.

The governments of all 50 states, the District of Columbia, and every other US territory thinks so.

The governments of every other nation think so.

Indeed, the vast majority of the competent adults on the planet think so.

There is NOT in fact ANY reasonable doubt that Obama is the President of the United States -- either legally or factually. The simple truth of the matter is that you're beating a dead horse.

And you know what?

I wouldn't much care if he had been born in Kenya, no more than I did about John McCain being born in Panama. As far as I'm concerned, ANY biological child of a parent who is a US citizen is a NATIVE US citizen at birth, regardless of where they were when born. The only exception I'd see would be an anonymous sperm donor. I have no idea what the statutes say about that in 1962 or even now, but that's the way it should be IMO.

And beyond that, I can only add: we can talk about it some more any time you think you have the votes to impeach him, but I wouldn't hold my breath if I was you.
 

Mark- I am happy to fill in more facts. Lets say that the purpose of the strike is to kill Bin Laden. Whether or not the strike will actually succeed is unknown, since it hasn’t happened yet, and therefore cannot be relevant to the hypothetical. Because there will be a lot of civilians around, some collateral damage is likely.

How many civilians are expected to be killed? 50, 100, 1000. As many as the Israelis killed in Gaza. You fill in the number. How many dead Pakistanis would it take to equal the horror of waterboarding KLM?

Is it really true that this operation is “clearly” permissible under the AUMF? Arguably permissible, perhaps. Something that most Americans have accepted, indeed. But clearly permissible? Does that mean it would be clearly permissible for the President to use military force in any sovereign country where he thinks Bin Laden or other AQ forces might be located? Can he use any amount of military force he wants? Sounds like the kind of argument that would warm Charles’s heart.

As for international law, I am no expert either, but I am pretty sure that this operation would not be clearly permissible. If Israel’s operations in Gaza weren’t clearly permissible, it is a little hard to see how this would be. Anyway, the Pakistanis don’t see it that way.

Finally, with regard to your statement that “If Prof. Lederman made arguments as absurd as those of John Yoo, and in a cause as reprehensible, I'd expect him to be held accountable.”

What do you mean by a “cause as reprehensible”? If you say that Yoo’s cause was to justify torture, then you have to say that Lederman’s (hypothetical) cause is to justify the slaughter of civilians. If, on the other hand, you say (rather more fairly) that Lederman’s cause is to protect America against an enemy seeking to destroy it, you have to say the same for Yoo. No fair mixing and matching.

That leaves the question of whether Lederman’s legal reasoning is as absurd as Yoo’s. This is a pretty subjective standard. I hear a lot of lawyers make arguments that I consider to be absurd (don’t get me started on those who claim it is constitutional to give DC a vote in Congress). Like I said before, if we start locking up lawyers who make absurd arguments . . .
 

mls:

LLike I said before, if we start locking up lawyers who make absurd arguments . . .

Most lawyers who make absurd arguments do so in open court, with an adversary to point out how absurd the argument is and a neutral judge with limited tolerance for BS. John Yoo gave his advice in secret to a client who acted on it in secret and has done everything in his power keep what happened from coming to light.

Suppose a Wall Street lawyer gave equally absurd advice on the legality of accounting principles to a client who then secretly took it and did his best to avoid being found out. Oh, wait a minute . . .
 

I think everyone has expressed their views on waterboarding and related interrogation methods pretty clearly.

Why don’t we try this?


The reason why waterboarding and related interrogation methods were discussed in detail as compared to invasion in Pakistan etc. is that one has been given a bigger black mark, one deemed a greater "crime against humanity" than the other.

One has been given special attention domestically and in international law. One an easier call, though yes, preventing wars of aggression etc. is a very important issue. Let us keep this in mind. This includes treaty obligations that specifically erase the "just following orders" defense.

The decision to torture and mistreat is imho of different caliber than issues of illegal wars. For the person on the ground, wrongdoing in war is an easier call than the decision to go to war in the first place.

So "How many dead Pakistanis would it take to equal the horror of waterboarding" is misleading.

The implication seems to be that the two should be fairly comparable. They aren't. The bomber that drops that bomb is not really akin in various ways with a person of the same rank that leads a party to rape (instead of kill via the bomb) the villagers.

War is hell. Torture is evil. Such is the general idea. But, mls tries to cloud the issue, since in various contexts, the lines are hard to draw. He provides a hazy use of the word "clear" to show this. Hard to believe ANYONE could be targeted given how vague it all is. OTOH, such a possibility clearly is part of the rules in the right case. So, things aren't quite as vague as mls implied.

[In the famous case from Nuremburg cited in the context of illegal counseling and the like, I reckon some of the convicted people noted "Hey, there is some doubt. It isn't 'clear.' There was a necessity. How unfair!" We put people in jail or take their homes away via things with various degrees of clarity. But when John Yoo is involved, suddenly we are upset about it. The ends are said to be more important here. But, the means are much more lethal too. So, that's a wash. At least, under human rights law etc.]

Also, the specter of prison. In fact, some (see Marty Lederman et. al.) don't even want him to lose a job. Lesser punishments such as fines and loss of a law license also are at bay here.

Mark Field also reminds us of the context of this specific situation. This includes evidence of a conspiracy which erases taking the opinions simply on face value. Yes, in context, I can imagine breach of the law during a mission to get Bin Ladin. There are rules of war after all.

BTW, he cites giving DC residents a voting representative. Apparently, waterboarding or the like is as disputed as that issue. No it isn't. On the merits, the case is different too, for various reasons.
 

EL puts forth another issue of the "context" here, one elided past with general hypos and the like.
 

David Stras (from new thread):

I would expect someone like Kmiec gets a nomination if a conservative seat becomes available.

Charles Gittings:

I indeed gave you a straight answer, but you did not give me a straight answer in return -- I asked "Who said" (requiring citation to actual proof) not "Who thinks" (requiring no more than speculation), so you didn't even answer the question -- no one has ruled on the merits. Of course, you make it evident that you "don't care" if Obama even is a natural-born citizen. Curious why you are so insistent on complying with the rest of the United States Constitution then?
 

Joe- I think the distinction you are searching for is something like “I know it when I see it.” Or perhaps “I know it when I feel it.” However, with apologies to Justice Stewart, this is not really a very firm basis for establishing a theory of criminal liability.

You suggest that illegal wars or military operations that inflict disproportionate damage on civilians are considered less important than torture. As I have mentioned before, that doesn’t seem to be a very widely shared view. Most of the world seems far more upset about the Israeli actions in Gaza than about what we have done to AQ detainees. The same is true, albeit on a lesser scale, of our missile strikes on Pakistan.

It mostly seems to be western liberals that find questions about waterboarding to be so important. Frankly, even the detainees themselves don’t seem to be as fussed about it.

That doesn’t prove that your moral hierarchy is wrong. But it means that you can’t justify it by reference to universal opinion.
 

EL- sometimes lawyers make absurd arguments in open court, sometimes they make them elsewhere. Are you familiar with the arguments that our esteemed soon-to-be Attorney General made (secretly) to President Clinton regarding the pardon of Marc Rich?

Anyway, if lawyers are willing to make absurd arguments in front of a judge with the (theoretical) possibility of sanctions, why would you expect that they would be less willing to do so in private?

Just to be clear, I think Yoo's arguments were weak and unpersuasive. I agree with Jack Goldsmith regarding the quality of his work. I am glad that OPR is looking into the question of whether his memos failed to meet the standards of professional responsibility. It is the leap to criminal responsibilty that I have a problem with.
 

Charles,

That's nonsense, and you're quibbling with the wrong person.

You just go right ahead and substitute "says" for "thinks" throughout my reply.

I don't have to assume that anyone agrees with you absent positive proof that they do, just as don't have to assume that people think water flows uphill or the sun rises in the west. Occam's Razor says the burden of proof is on YOU, and all you've got is wishful hot-air that doesn't even rise to the level of sophistry.

It's absolutely clear that the Supreme Court, the Congress and the US Government, ETC, accept the fact that Obama is president, and it's damned obvious the people who VOTED for him said he's president.

Now just just get over it, because it's not worth discussing further.
 

I'm not going to simply "get over" Constitutional violations -- whether you think it's worth discussing further or not -- once the Supreme Court actually rules on the merits, then "thinks" = "says".
 

Perhaps Arne Langsetmo will agree to "get over" any alleged Constitutional violations she has re: Bush's Presidency too?
 

Lets say that the purpose of the strike is to kill Bin Laden. Whether or not the strike will actually succeed is unknown, since it hasn’t happened yet, and therefore cannot be relevant to the hypothetical. Because there will be a lot of civilians around, some collateral damage is likely.
***
Is it really true that this operation is “clearly” permissible under the AUMF?


Yes, this appears to be the core purpose of the AUMF. It's hard to imagine a clearer case. I can't imagine any Republican making a serious argument that taking out bin Laden constituted a violation of the AUMF. Aside from the hypocrisy, given the overbroad claims made for that resolution over the last 7+ years, no one concerned about re-election would dare make the argument.

Does that mean it would be clearly permissible for the President to use military force in any sovereign country where he thinks Bin Laden or other AQ forces might be located?

As a matter strictly of the AUMF, I think the answer is yes. As a matter of international law, I think he'd first have to ask the other country to turn bin Laden over. Whether the delay in the operation amounted to nanoseconds or days would, I guess, depend on the identity of the other country.

Can he use any amount of military force he wants?

He can use the amount of force which is reasonable under the circumstances.

If you say that Yoo’s cause was to justify torture, then you have to say that Lederman’s (hypothetical) cause is to justify the slaughter of civilians. If, on the other hand, you say (rather more fairly) that Lederman’s cause is to protect America against an enemy seeking to destroy it, you have to say the same for Yoo. No fair mixing and matching.

I have to say, mls, that I think you're taking skepticism to the point of nihilism. To paraphrase Edmund Burke, the fact that we can't define precisely the moment of dawn doesn't mean that it's all that hard to distinguish night and day.

That leaves the question of whether Lederman’s legal reasoning is as absurd as Yoo’s. This is a pretty subjective standard.

Yes, it certainly is subjective. It's the same subjective standard that allows the jury to send one man to the gallows because his "self-defense" wasn't reasonable and acquit another because it was.
 

Charles,

The "constitutional violation" is a figment -- all you're proving is your own dishonesty.
 

Didn't you think "it's not worth discussing further"?
 

Mark- you seem to be arguing that something is or is not legal depending on what politicians say about it, which seems inconsistent with your general views about the law, but I think is actually instructive here.

The AUMF says that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

This certainly authorizes the use of force against bin Laden, but the question is whether it also authorizes the use of force against Pakistan (which has not been determined to be a nation responsible for 9-11 or harboring AQ, though perhaps it should be). One could make the argument that it does not. I suggest that the main reason we accept that it allows military attacks into Pakistan is not the literal language of the resolution, nor congressional intent at the time of enactment, but the fact that the President has asserted the power to attack Pakistan and Congress has gone along. If the President were to assert the same legal theory in connection with another country, the result might be quite different.

If John Yoo had been doing his job, he would have told the administration that it was foolish to treat the question of enhanced interrogation as a criminal law issue. Instead, the President could have issued an executive order asserting the power to authorize enhanced interrogation of persons covered by the AUMF, notwithstanding the restrictions of the torture statute. Then, if there was an issue, it would have been one of public and constitutional law, rather than of criminal responsibility.
 

Charles,

It not -- but your dishonesty is: that's the only substance in evidence.

AS IF there's any reason to suppose that anything in the Constitution actually matters to someone who's willing to claim the President of the United States can lawfully commit all of the crimes committed by Adolf Hitler. It's just utterly absurd, and the most absurd thing about it is how obstinately clueless you people are.
 

Us "people"? You do realize, then, I'm not the only one raising the issue of whether Obama is President?
 

mls ... I don't understand where you can show me that my standard falls down to "I know it when I see it." My opinion is based on the educated knowledge of experts. I'm not Stewart watching "Vixen" here.

You speak about what the "rest of the world" considers more important. At immediate issue here is U.S. law and practice. But, int'l law as a whole -- law the bottom line here not your assumptions on overseas peoples* -- also treats torture etc. special.

As I said elsewhere, that should be our first concern. Here torture is of more immediate concern and verboten, more clear, than determining the nature of bombing nations. This is a reflection of law and policy. Of history. Not "how I see it." It's how "we" see it.

I find it annoying that you keep on bringing up things like "Western liberals." Like torture is not really a concern for non-liberals. Only "Western liberals" -- even (this is absurd) when discussing the detainees in Gitmo -- are "fussed" about such things. Except for the ones who died etc. I assume.

Torture and mistreatment happens all over the world. Locals are very concerned about it. Individual mistreatment is often a primary influence for those who choose terrorism.

Interrogators and other experts have noted the fact. I guess when some American dies because of a roadside bomb set by one of such people, only "Western liberals" make a fuss.

BTW, I myself don't see how MF is saying that "something is or is not legal depending on what politicians say about it" except as an appeal to intent, and not even solely relying on that.

More talking past each other, I fear, and on a slim basis.

---

* Such as a primary concern of them being Danish cartoons, putting that first on a list of their concerns.
 

Oh, AS IF anyone could be confused about the number of right-wing nut-jobs in this country when 33% still say George Bush did a good job

Clue for you... I used to be a conservative Republican myself -- and people like YOU are the reason I'm not anymore -- you see, I just don't like liars, racists, and Nazis.
 

We are left with rankings. As an immediate matter, bombings in various cases are deemed worse.

But, take Gaza. Yes, the continual mistreatment of occupation, the inhumanity of it all, including the mistreatment of those seized by the authorities, is probably the bigger problem over time.

Mistreatment in jails in Egypt, comparablely was as liable to build terrorists as our prisons are to build more crime.

Lots o'fuss there.
 

Charles:

I don't like liars, racists, or Nazis either.
 

Us "people"? You do realize, then, I'm not the only one raising the issue of whether Obama is President?

# posted by Charles : 12:32 AM


Don't listen to them, Chucklehead. You should spend the next 8 years here claiming that Obama isn't really our president.
 

Personally I would be almost satisfied with Yoo and other OLC lawyers being tried and convicted for not upholding their duty.

Although bad actions can result from poor application of good law, bad law is a cancer destined to produce many bad offspring.

Those who intentionally produce bad law represent a genetic defect in our legal system, and should be excised from the correctly functioning structure. Such cancers are hard to eliminate with compassion, and a little good flesh might need to be removed as a precaution.

In other words, it wouldn't be an over reaction to actively repudiate anything Yoo worked on.

This was probably one of the aims of Obama's Executive Order which nullified any activity based upon any Bush era legal analysis.
 

Ed Lazarus’ current column at FindLaw, available here:

http://writ.news.findlaw.com/lazarus/20090129.html

titled “How President Obama’a Agenda Parallels That of Chief Justice Roberts: Both Seek to Change the Nature and Tone of Decisionmaking, But Will Each Succeed?” reminded me of the “comments controversy” here at Balkinization. In my semi-retirement , I am not so much concerned with billable hours; rather, at age 78 with the fewer hours I have left, I choose not to engage in “he said/she said” back and forth that takes place in the comments that at times seems like a Tower of Babble (sic). Rodney King asked “Can’t we all get along?” Based upon comments at recent threads, I guess we can’t. I thank our host for his patience. But I'll be watching.
 

Mark Field,

The torture statute already does what you say Congress should do. 18 USC Sec. 2340 is universal in its application. There's no need to specify that it applies to the military also; they're included in "whoever".

Right, but the interaction of civil law and its applicability to the military is an arena controlled by various other laws and rules of statutory construction.

Indeed, "whoever" is highly qualified by the statute itself. If you read the definitions "torture" is defined as "an act committed by a person acting under the color of law"

Now that basically leaves the vast majority of folks right out of the statute that you like to imagine is universal because you read the phrase in 2340A "Whoever outside the United States commits or attempts to commit torture"

Now Yoo suggests that in a literalist sense this would include military personnel, but OLC says:

("In
the absence of a clear statement of
[the] intent [to apply the statute to militarY personnel acting under the President as Commander
in Chief], we do·not believe that a statutory provision of this generality should be interpreted so
to restrict the President's constitutional powers.")

Just Yoo off the reservation with expansionist view of the commander in chief power? No Walter Dellinger writing for OLC during 1993 in regards to 42 USC 502 that begins:

" Any person who willfully and knowingly violates any rule, regulation, restriction, or condition..."

Interestingly then, the Clinton administration would clearly not have heald a statue that said "whoever" to apply to the military.

And the qualifying language "under color of law" might actually tip the argument towards the sense of reaching government actors and the military are government actors.

But Yoo points out in the memo that the Congress knows how to specifically reach the military and has used such language and did not use it in this case and thus in accordance with the Clinton administration rule, it is inapplicable to the military.

Now you could disagree with a direct analogy to Dellinger's opinion for OLC,suggesting that the ambit of the substantive ambit of 18 USC 2340 contemplates the type of activity the military would undertake and thus the meaning of "acting under color of law" should include the military or those acting at the direction of the commander in chief in war, whereas 42 USC 502 considers violating various broadcast standards and might have been conceived of as focused on the broader range of civilian activities.

But, there are non military/ non-war contexts in which torture could arise, as there are non-military contexts in which violation of broadcast standards could arise. So you can't say conclusively that the 189 USC 2340 was aimed at the military and Yoo does look to the legislaitve history of 2340 finding no sign that it was explicitly meant to apply to the military.

The legislative history is not documented or quoted, and is a second tier reference in any event. The point is that you could consider these materials and perhaps form a different conclusion, e.g. Goldsmith, but Yoo's take is not wild and irresponsible speculation and the faact that Goldsmith withdrew the opinion is meaningless as to its merits.

In any event, Yoo goes on to the nuts and bolts of the statute should it be construed to apply to the military and basically says that what Professor Tamanaha calls torture is not torture as defined by the statute.

Brian
 

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Charles,

Oh, that's precious. "Hate the sinner, love the sins" huh?

You couldn't make this stuff up.
 

Shag,

Short answer: NO we can't all get along -- as Lazarus notes, we're engaged in a civil war.

How does one reason with someone like Bart or Charles?

Or with lawyers like Yoo or ex-AG Mukasey when they claim reasonable people can disagree about things as outrageously fraudulent as the Addington/Yoo OLC-memos?

It isn't possible. Such people are not our friends, our colleagues, nor good citizens -- they are traitors to human reason and enemies of the United States. They can't be accommodated nor tolerated, they must be defeated.
 

Charles:

I simply agreed with your point. Are you trying to get comments permanently turned off?
 

Bartbuster:

I doubt it will take even one year to resolve the natural-born citizenship issue.
 

Mark- you seem to be arguing that something is or is not legal depending on what politicians say about it

I don't understand this comment.

This certainly authorizes the use of force against bin Laden, but the question is whether it also authorizes the use of force against Pakistan (which has not been determined to be a nation responsible for 9-11 or harboring AQ, though perhaps it should be).

The only reasonable way to read the AUMF is that it makes no distinction about where bin Laden might be. It does NOT say that force is the only option, it just says that force is authorized. As I said above, the decision to use force will be affected by other factors.

If John Yoo had been doing his job, he would have told the administration that it was foolish to treat the question of enhanced interrogation as a criminal law issue. Instead, the President could have issued an executive order asserting the power to authorize enhanced interrogation of persons covered by the AUMF, notwithstanding the restrictions of the torture statute.

The Supreme Court specifically rejected the AUMF argument with respect to Guantanamo.
 

At least I am "perfectly civil and polite" about it.
 

Mark:

As I already pointed out to you, the primary task of a wartime President is protecting U.S. citizens. He doesn't need the AUMF (or even the Supreme Court) for that.
 

the interaction of civil law and its applicability to the military is an arena controlled by various other laws and rules of statutory construction.

The torture statute is a criminal provision, not a civil one.

Now, it is true that soldiers aren't necessarily bound by some provisions of criminal law. For example, they aren't bound by the laws against murder as long as their killing occurs during authorized combat. However, the burden is on anyone claiming such an exemption to show that it applies.

Now that basically leaves the vast majority of folks right out of the statute that you like to imagine is universal because you read the phrase in 2340A "Whoever outside the United States commits or attempts to commit torture"

I wasn't imagining anything. The statute is universal in applying to everyone who commits torture. It makes no exceptions for torturers in the CIA.

But Yoo points out in the memo that the Congress knows how to specifically reach the military and has used such language and did not use it in this case

You continue to bring up the military, but it's not relevant here. AFAIK, the torture was done by the CIA. They aren't part of the military.

Even if the CIA were part of the military, Yoo failed to make a serious argument for excepting them from the statute's reach. Murder might be an ordinary part of a soldier's duties, but child molestation is not. Nobody thinks we have to make a special provision just to prevent soldiers from sexually molesting children.

By the same token, torture is not part of a soldier's duty. Interrogations are, but those are covered by the Army Field Manual, which has always considered its personnel bound by the laws against torture.

The analogizing of criminal provisions to the Social Security Act (42 USC Sec. 502) is just the sort of frivolous argument which has given Yoo's memos their deserved reputation.

Yoo's take is not wild and irresponsible speculation and the faact that Goldsmith withdrew the opinion is meaningless as to its merits.

Since Goldsmith withdrew the memos because of their merits (or lack thereof), that fact is directly relevant to their merits.

Yoo goes on to the nuts and bolts of the statute should it be construed to apply to the military and basically says that what Professor Tamanaha calls torture is not torture as defined by the statute.

Yes, that is what Yoo did. Again, though, his analysis was so poor that there is no reason to believe he made it in good faith.
 

2340A does not apply to the President.
 

Such people are not our friends, our colleagues, nor good citizens -- they are traitors to human reason and enemies of the United States. They can't be accommodated nor tolerated, they must be defeated.

Charles Gittings, I consider you an ally and a person of good faith, but here you're over the top. The nature of democracy is tolerance, especially for the odious (speech, that is.)
 

QuiteAlarmed said...

DB: What would be the purpose of such a criminal investigation?

For clarity, I wrote "investigation." You added the adjective "criminal.


I added the adjective criminal because no court is going to allow you to violate privilege on a fishing expedition.
 

Eric said...

If one is to grant Bart's perspective as to the state of the law as it stands, a question sticks out for me that I don't think I've seen addressed:

If the President has plenary authority during "wartime," why did he need Yoo's memos, or any memos at all? That is, doesn't the existence of Yoo's work in itself signal that it is possible for the President's actions to have been illegal? Something doesn't line up here.


I disagree with Yoo that the President has plenary authority to set rules for captures.

Article I expressly grants the power to set rules for Captures to the Congress.

Article II grants the President only a general authority as CiC to set rules for captures in the absence of congressional action.

The torture statute is an exercise of Congress' power to set rules for captures and the President is compelled to follow it.

The reason why the President sought an opinion as to the scope of that statute is because it uses completely subjective standards which cannot be objectively defined like "severe pain."

I thought Yoo's attempt to define "severe pain" was valiant, but fruitless, because the term simply does not have an objective definition. DoJ cannot admit this because they want the option of using this statute against folks like Liberia's Chuckie Taylor.
 

Charles asserts (without citation, to be sure) that "the primary task of a wartime President is protecting U.S. citizens."

But the Presidential oath of office (the very one he perhaps feels was improperly administered?) provides:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Seems the founders thought our common good would perforce follow if our highest laws are but upheld. And they strictly circumscribed the ability of any president to "protect the people" in a way that violates the law. I am unaware of any alternative oath for times of war, declared or otherwise.

Charles assumes the conclusion -- Circulus in Probando.
 

Mattski,

I don't have any problem with speech per se, but it's a little bit difficult to separate the crimes from the lies and delusions of the criminals and their apologists.
 

Charles,

"I simply agreed with your point. Are you trying to get comments permanently turned off?"

No, I'm trying to defend the United States from the most dangerous terrorist organization in the world: the Republican Party.
 

CG, you are likely correct that it is difficult to separate the speech from the deeds...the Yoo controversy is a perfect example.

But that is the name of the game. It is not against the law to be an abject fool, and it shouldn't be. And even abject fools deserve a decent respect. (That's something I need to remind myself of quite often.)
 

bluememe:

The Constitution is not a suicide pact.
 

Charles:

Perhaps you should go after bluememe.
 

mattski:

Thanks.
 

This comment has been removed by the author.
 

Somehow a line of argument has appeared in this thread that strikes me as irrelevant to the question of Yoo's legal opinions: that is, an argument as to what kinds of possibly unjust or illegal activities are 'worse' than others.
I cannot see how this is relevant to the legality/illegality of torture or to the quality of Yoo's work. Suppose we grant that it simply is worse - morally and legally - to bomb civilians in a war than to torture individual prisoners. So what? Torture is still illegal and immoral.
It seems to me this appeal to moral/legal hierarchies is frequently used to suggest that we should not worry about anything on the lower end of the hierarchy until we eliminate all the evils at the top. But what is the argument for this suggestion? None, I suspect. After all, what kind of argument could be offered to make persuasive the claim that we should not concern ourselves with rape and theft until we have eliminated murder?

By the way, I found mls's comment, It mostly seems to be western liberals that find questions about waterboarding to be so important. Frankly, even the detainees themselves don’t seem to be as fussed about it appallingly facetious. Most of the 'prisoners' at our military camps are suffering deep depression, several have died - often from suicide - many have attempted suicide, and many are diagnosed as suffering from profound, possibly permanent, trauma. Now, one might believe all these people 'deserve whatever they get' or some such. That ungrounded overgeneralization and disregard for standards of decency is one thing. Making facile jokes about the extent to which the detainees who are suffering as I described are making a 'fuss' over their treatment is another. (It is worse, in my view, because I believe that indifference to suffering is worse, generally, than vengefulness. At least we can understand the irrationality of vengefulness; the cruelty of ridiculing suffering is not forgivable.)

Sorry, got on my ethicist's soapbox there.

P.S. There seems to another 'Chris' floating around, here - unless it's one of my alternate personalities using my google account - so I am 'signing' as Chris S
 

Bart: My question was, "In the context of Yoo's logic and legal philosophy (let alone Bybee, Rumsfeld, Cheney, et al), why was Yoo's work even necessary?"

I was not asking about you, I was asking about Yoo. Please don't change the subject, I'm asking a serious question.
 

Chris S. cited an issue of ranking wrongdoing that I myself used to some degree so it seems right for me to say a word about it.

The point is not that torture is worse so the other things really don't matter. Or, vice versa. At least, that is not what I'm saying.

It's that in a given case, there might be a clearer case that torture (or vice versa) is illegitimate and actionable. And, they are treated somewhat differently in various ways. In the real world situation, things clearly over the line -- even among many wrongs -- often are dealt with the most.

So, the fact that certain hazy lines can be cited (as some here do) to in effect toss the baby out with the bathwater (or suggest things might be 'troubling' but not as illegitimate as others firmly believe, with cause) is a dubious enterprise.

IOW, let's assume Bushies committed many crimes. The minor ones are still bad. But, we often cite the worse ones and the most blatant. Why? Easier to prove and they hit closer to the core of our biggest concerns.

The other crimes deserve their due, of course, and I understand the dangers of ranking even somewhat. But, it ignores reality to pretend it doesn't happen and/or doesn't happen for cause.
 

Chris S.,

No need to apologize, the ethics are important.

I actually think the torture is a distraction -- it's just he most obviously vile thing they've done, the one that's hardest for the news media to submerge under "objective" reporting about the "experts" regarding their views on the question of "tastes great" v. "less filing".

In reality, by far their worstcrime was the overt attempt to subvert ALL the laws wholesale in order to give Bush the absolute powers of Stalin, Hitler, or Caligula. That they never quite got that far is beside the point: they tried, and for that alone they should be condemned and punished to the full extent of the law. They literally tried to abolish the law wholesale and to uncouple the government of the United States from any possibility of democratic control or restraint.

All of this on the theory that they are defending the United States, when the nation was founded on the idea that the greatest threat to any nation is the possibility of abuse by its own government, and that the surest method of national suicide was to allow the government to wield absolute powers unrestrained by law or reason. The truth oif the matter is that while the Bush gang was in pwoer the US was virtually defenseless becasue our government was literally incapble of intelligent action -- all we had was a pack of deluded fanatics without the faintest idea of what they were doing or why beyond the fact they really got off on abusing and murdering people just like Mafia protection racket a lot.

Words are inadequate to express my contempt for these malicous criminals and their demented political supporters. Facts are facts, and ignoring them isn't exactly a recipe for safety or success, so I have to disagree with Mattski about foolishness: there is such a thing as criminal negligence. How many German fools did it take to put Adolf Hitler in power?

Here's a quote that sums it up pretty well...

"Corruption is the worst crime -- worse than robbery, arson, mayhem, worse than rape and murder. By starving law enforcement, it feeds these other crimes; it is the progenitor of lawlessness. More: through its example, it debilitates the conscience. It poisons our society; it poisons our souls. * * * The litigant who uses influence to affect the outcome of a case, and the judge who bends to that influence, are our most heinous criminals. How can we respect the law when we find calculated injustice in our halls of justice? And without regard for justice, without respect for law (brother though not twin), our civilization cannot function. Anyone who tries to fix a traffic ticket is damaging all of us."

-- CHARLES REMBAR, The Law of the Land (NY 1980), page 299.
 

It mostly seems to be western liberals that find questions about waterboarding to be so important. Frankly, even the detainees themselves don’t seem to be as fussed about it.

After just two rounds of waterboarding, they were heard to agree with their jailors that it was indeed no big thing.... ;-)

Can we please refrain from making claims for propositions that we haven't the slightest clue about? Thanks.

Cheers,
 

"Attempted subversion of all laws"?! LOL.

Thank God that Charles Gittings wasn't around during the Civil War.
 

I doubt it will take even one year to resolve the natural-born citizenship issue.

# posted by Charles : 10:40 AM


Chucklehead, it has already been resolved.
 

Bartbuster:

I must have missed the Supreme Court case ruling on those merits. Everything I've seen dealt with procedural standing issues. Thanks for setting me straight. Wouldn't it be better for you to ignore the "troll" however?
 

Charles,

GET LOST.
 

No thanks.
 

I must have missed the Supreme Court case ruling on those merits. Everything I've seen dealt with procedural standing issues. Thanks for setting me straight. Wouldn't it be better for you to ignore the "troll" however?

# posted by Charles : 5:42 PM


Yes, you must have. The Supreme Court refused to hear the case. That means the Court decided the case had no merit. If that isn't enough to stop your stupidity, I don't see anything stopping you. It would be silly for me not to take advantage of your stupidity.

It might be better for you if I ignored you, but not for me.
 

Either way works for my purpose.
 

I don't really give shit about your purpose.
 

At least I am "perfectly civil and polite" about it.
 

Charles: Are you a tax protestor as well?
 

No. Are you?
 

I don't normally waste my time with trolls, but I don't mind offering feedback to the author of the trollbot program posting responses under the name "Charles."

Your bot responded to my comment pointing out that the previous trollbot comment was factually wrong by commenting:

The Constitution is not a suicide pact.

The phrase comes from a dissent in Terminiello v. Chicago, a case in which the Supreme Court overturned the disorderly conduct conviction of a priest whose anti-Semitic, pro-Nazi rantings at a rally had incited a riot. The Court held that Chicago's breach of the peace ordinance violated the First Amendment.

It was also used, in slightly different form, in the majority opinion in Kennedy v. Mendoza-Martinez, a case in which the Supremes determined that laws permitting stripping draft evaders of their citizenship are unconstitutional. And the full quote refers repeatedly to the powers of Congress to enact laws, rather than the right of the executive to ignore them.

There is no support in any of these opinions for the proposition that the Constitution is merely aspirational.

While a random number generator paired to a list of incoherent talking points may fairly simulate the conversation of the average conservative, the Turing test remains beyond your grasp, alas.
 

I am not a program.
 

i find it rather disappointing that the only place to discuss prof. balkins' new posting policy is over at volokh ..

odd isn't it ?? [actually "shameful" is the word which comes to mind]the blog with liberal masters is closed to comment by default ..and the blog with conservative masters is left open .. even as a place of last resport to discuss policies instituted here on this blog .. is open ..

pardon me prof .. but that's got to sting a bit .. no ??
 

jkat,

Maybe not so open -- David Bernstein banned me from Volokh for simp0le observing (on Opino Juris) that his drooling comments about how the Palestinians were just getting what thet deserved etc sounded just like a fascist.

And the prick pissed me off so much that I paid VC a rare visit to skewer the jerk with a couple of well aimed (and perfectly civil) questions. For which I was promptly banned and my questions and comments were deleted.

But I didn't mind -- I consider VC a waste of time anyway, and it's hardly a surprise when a cowardly fascist hypocrite like David Bernstein behaves like one.
 

So, I am in good company with someone like Berstein. I guess he is just a computer "program" too?
 

Mr. Gittings:

Your attempts to seriously engage with the other Charles were heroic but, as you can see, futile. (I know, I've tried it myself).

Bartbuster:

It would be silly for me not to take advantage of your stupidity. It might be better for you if I ignored you, but not for me.

Unfortunately, your refusal to ignore Charles has not been good for the rest of us. It has contributed to getting the comments section turned off. I will not try to reason with Charles, having learned the hard way that is a hopeless endeavor. But I am making one last attempt to reason with you. Please ignore Charles and I think he will go away. Then, with luck, we might get a comments section back.
 

I dare you to ignore me, Bartbuster.
 

EL, I really don't care about Chucklehead. I'm more interested in shutting Bart up. Chucklehead is just a useful fool.
 

Yes, please, let's all ignore 'Charles.' PLEASE. There are so many intelligent and informed contributors to this blog. Why waste time and energy on this other stuff?
And, 'Bartbuster,' I think you are wrong that it is good for you to continue in this way. I'm sure it is not good for your psyche, and I worry that it is not good for your health.
No need to respond
Chris S.
 

EL,

Actually, I thought my exchange with Charles was fairly productive.
I do agree that he deserves to be ignored going forward though.

As for Bart, I only thing I want to hear from him is a straight answer to the question I asked Charles about Yoo's 2001.09.25 memo... and his silence is very telling.

I've said it before and I'll say it again: these people are a total waste of time and oxygen.
 

Bart DePalma: I added the adjective criminal because no court is going to allow you to violate privilege on a fishing expedition.
Do you dispute that the Obama Administration could simply waive any privilege claims? Remember, we are talking about an attorney for the United States, not an attorney for George W. Bush or his administration.
 

Mark Field,

The torture statute is a criminal provision, not a civil one.

Point well taken although I really meant to contrast military and civilian executive duties as opposed to civil and criminal law although the terms of art are such that my reference was indeed imprecise. But, see references parroting that languag in the Civil War era Attorney General's opinion on these matters:

"Soldiers regularly in the service have the license of the government to deprive men, the active enemies of the government, of their liberty and lives; their commission so to act is as perfect and legal as that of a judge to adjudicate. . . . Wars never have been and never can be conducted upon the principle that an army is but a posse comitatis of a civil magistrate. Military Commissions, 11 Op. Att'y Gen. 297, 301-02 (1865)(italics added in yoo's memo, emphasis added by me.)


I wasn't imagining anything. The statute is universal in applying to everyone who commits torture. It makes no exceptions for torturers in the CIA.

First, as to universality, you completely ignored my citation to the definition of torture in 18 USC 2340.

This simply is not a universal statute because it defines torture as an act conducted under the color of law. So one drug dealer torturing another, or for that matter mercenaries not in the pay of any government would not be covered.

Whether that is good policy or not, or whether there are other statutes equally applicable to those private actors is a broader discussion, but if we cannot agree that the statute is not universal, then we are not speaking the same language.

Second, as to whether it applies to the military or others carrying out military operations at the order of the commander in chief is of course not resolved by the qualification I have cited. Such persons are, after a fashion, acting under the color of law.

I'm sorry I failed to notice the extent of distinction you were drawing between the CIA and regular military in your initial response. I think this could be relevant, but I don't think you concede that perhaps the statute doesn't apply to the military but rather you hold the view that the CIA can't be regarded as the military so this argument is irrelevant.

But I also think that with regard to battlefield actions in Afghanistan and detentions flowing from that engagement it is a semantic that doesn't hunt. It is clear that any non-military government personnel such as the CIA were participating directly with the military cooperatively and at the direction of the President as the Commander in Chief and there is little question that the situation amounted to an ongoing circumstance of combat.

so I think the question of whether the canons of construction apply these laws to military conduct , e.g. interrogating captured enemy combatants, during hostilities is quite relevant.

You are dismissive of Dellinger's Opinon for OLC as relevant:

The analogizing of criminal provisions to the Social Security Act (42 USC Sec. 502) is just the sort of frivolous argument which has given Yoo's memos their deserved reputation.

You were taken in by my misprint although I thought I cited the context, it was not social security, it was 47 USC 502, it is a misdemeanor criminalization of violation of radio communication rules. A problem that could theoretically arise with strategic communications.

This is a criminal statute of general applicability that Clinton argued did not apply to "military personnel acting under the President as Commander in Chief". That the gravity of the offense differs is not in an of itself a reason why this rule of construction would not apply in other contexts, more or less 'serious'.

And the Clinton adminstration had other opinions that effectively required a precise statement of applicability, e.g. requiring "careful examination of each individual [criminal] statute"before concluding that generally applicable statute applied to the conduct of U.S; government officials. Shoot Down Opinion,18 Op. OLC 148, 149 (July 14, 1994)


Now, if I were arguing against Yoo's position, I would argue that the statute at issue here is not of such "generality".

I do think the torture statute more precise in its focus on government actors, but you have failed to concede that just yet, insisting that it is a generally applicable statute, in which case, on its face, the Clinton Administration would have been cautious about the notion that it applied to the military.

But I don't think the precision saves the statute with regard to the sense it applies to the military, given the evidence that Congress has applied criminal rules to the military specifically with far more careful language and that the statute was passed at a time when there were not ongoing armed hostilities with organized stateless terrorists or pirates, but rather when international cooperation on terrorism was distinctly seen as an extra-territorial effort at law enforcement.

It is easy to see many situations that Congress sought to reach outside the military context, e.g., actions of our advisors (caveat for their military character although recognizing that they have essentially drafted to civilian purpose in these undertakings, a bit like calling out the national guard in America when there is natural disaster) and agents in various drug control efforts around the world, and anti-terrorist activites that were conceived as addressing the ad hoc perpetration of terror by disparate and unconnected cells that we had not opened more specific hostilities with approximating combat and war.

Now I would be the first say that it is a convenience to which skepticism ought to be applied that if terrorists are successful on the scale of 9/11 then they are automatically a military rather than law enforcement problem.

But, given the quasi-state circumstance that intertwined al Qaeda and their Taliban hosts in Afghanistan and the geographically focused effort there (that gave rise to the vast majority of individuals transferred to GITMO) it seems reasonably fair to characterize their capture on the battlefield as a military undertaking. (Although just sending military advisors around to try to ferret out al Qaeda in numerous locations where there is not the governmental connection or harboring as in Afghanistan, it could be argued, does represent the deputation of the miliary in posse comitatus role.)

If you think categorically that assertions of commander-in-chief privilege by whatever administration are overstated if they claim to govern statutory construction, that would be consistent. And certainly, during the Clinton administration, Yoo has been cited as arguing the powers of the executive were overstated. So it is certainly fair to decry the extent to which a belief in executive power flows to partisans by virtue of the resident of the office rather than solely of the nature of the office.

But the Bush administration OLC is by no means the first to carve out a strong Commander in Chief. This has been going on at least since Lincoln - the Republican that all the dems like these days -- you know the one who suspended the extraordinary writ.

It is probable, as I suggested above, that Yoo's opinion ought to have examined the outer contours of such canons of construction. I think specifically of analyzing why the detention and interrogations at GITMO could be conceived to be a continuation of the far removed hostilities in Afghanistan.

Can strategic pursuit of and defeat or frustation of al Qaeda, wherever they might be, extend the sense of exigency of battle and exercise of defense against imminent threat that give rise to the use of the commander in chief role. That I admit is a question, although I don't think the answer so obvious that it makes Yoo wrong,but I think it a shortcoming of the opinion given that this context of more remote in place and time from the battlefield and battle respectively was known to be at issue.

Since Goldsmith withdrew the memos because of their merits (or lack thereof), that fact is directly relevant to their merits.

You aren't citing to any substance for this proposition. If there is a Goldsmith memo refuting the points made, fine lets have it. But if Goldsmith withdrew it explictly for lack of merit without substantive discussion of where the opinion was wrong, that offers no evidence whatsoever for the proposition that Goldsmith is right and Yoo is wrong.

DA: Yoo goes on to the nuts and bolts of the statute should it be construed to apply to the military and basically says that what Professor Tamanaha calls torture is not torture as defined by the statute.

MF: Yes, that is what Yoo did. Again, though, his analysis was so poor that there is no reason to believe he made it in good faith.


There is no substance to this argument. I read Yoo's argument and I can't say I understand it to be encompassing, but on it's own it has a degree of persuasive quality.

As with the entire opinion, I think it might have benefited from a greater degree of devil's advocacy (conflict of interest confessed). If I were responding to Yoo's piece and not the criticisms of it, I would certainly devise some questions in this area.

But what I don't see is the refutation of his discussion of the definitions of "severe pain" and "prolonged mental harm". Maybe there is an argument that waterboarding qualifies as a "mock execution" which is explicitly forbidden, but then make that argument. In any event waterboarding is one of a range of techniques being discussed here and was not specifically addressed. Even when says in the article that the president could authorize waterboarding, it is as much a contention of the president's power rather than a return to the statutory debate.

But various other tactics objected to including sensory deprevation or depredations of an arguably lesser character than waterboard that are considered aggresive interrogation by Yoo and you seem to think obvious fall under the definition of torture. I have not seen any argument to suggest that Yoo's take on the definition of torture is completely implausible. Perhaps you could present argument that made me think it was incomplete or even not supported by a preponderance of the evidence. But I have not seen that argument made. I await your wisdom, or pointers to where this has taken place in substance.

Thanks,

Brian
 

I didn't know that Journey got a new lead singer.
 

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