Balkinization  

Tuesday, May 05, 2009

Recommendation against Criminal Prosecution of Authors of Torture Memos

Brian Tamanaha

The New York Times reports that an internal DoJ investigation recommends against criminal prosecution of the authors of the torture memos.

An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.


We won't know the grounds for this recommendation (assuming the NYT is correct) until the report is made public. Perhaps there was insufficient evidence of criminal conduct by the lawyers, or maybe it would be too hard to prove in court. The communications between the CIA and OLC lawyers surrounding the writing of the memos are crucial to this determination--and should be made public.

These events may well have revealed a template for how high government officials can successfully engage in a conspiracy to violate U.S. law: Run a proposed illegal course of action through the OLC, have the Office lawyers produce a "legal opinion" (no matter how tortured) finding that the actions do not violate the law, and you are all set. The key is to get the OLC lawyers to go along.

After the dirty deeds are done, if the illegal conduct is exposed and serious heat comes, the policy makers (the "deciders") can say they cleared it with the OLC lawyers; those who engaged in the illegal conduct can say they relied upon the authorization of the OLC lawyers; the OLC lawyers can claim they wrote the memos in good faith under pressure, and complain that it is unfair to second guess them after the fact.

Done.




Comments:

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Also, the Washington Post reports: Former Bush Officials Work to Soften Ethics Report on InterrogationsSee http://www.washingtonpost.com/wp-dyn/content/article/2009/05/05/AR2009050502219_pf.html
 

Prosecution in this case would be looking forward, not backward, as its primary purpose would be deterrence. Cheney and Gonzales are saying that torture is legal and that it works, and that Obama is making the nation less safe. They are saying, in other words, that they would torture again if they were in power. And it is possible that the Republicans could regain power -- suppose that there was a 9/11-type attack under Obama and the public was persuaded that it was caused by Obama's unwillingness to torture, for, after all, there were no such attacks under Bush after he started to torture. If we don't prosecute, then they'll do it again.
 

Brian:

We won't know the grounds for this recommendation (assuming the NYT is correct) until the report is made public. Perhaps there was insufficient evidence of criminal conduct by the lawyers, or maybe it would be too hard to prove in court. The communications between the CIA and OLC lawyers surrounding the writing of the memos are crucial to this determination--and should be made public.

I posed this question to Scott Horton during a recent Federalist Society debate on this issue. Scott dodged the question. Perhaps you or anyone else arguing for a criminal prosecution of the OLC attorneys would like to give it a go:

What crime(s) set forth in the U.S. Code do you suggest the authors of the OLC memoranda committed? Your citation to United States of America vs. Josef Altstoetter, et al. suggests you believe that the OLC attorneys engaged in an 18 USC 371 / 2340A(c) conspiracy to commit torture in violation of 18 USC 2340 & 2340A ("the Torture Statute") simply by drafting a memorandum opining that certain CIA interrogation techniques did not violate the Torture Statute.

Please describe how you would hope to prove each of the four elements of conspiracy to commit torture against the memo authors:

1) The memo author and one or more other persons agreed to commit torture;

2) The memo author was a party to or a member of that agreement;

3) The memo author joined the agreement or conspiracy knowing its objective was to commit torture and intending to join with at least one alleged conspirator to commit torture;

4) At some time during the existence of the agreement or conspiracy, the memo author or another conspirator performed an overt act to commit torture.
 

The OPR report hasn’t even been released and already Professor Tamanaha sounds bitter that it may not recommend prosecution. Perhaps we should wait and see what the report actually says. After all, isn’t the “rule of law” that we hear so much about supposed to ensure, so far as it is humanly possible, the dispassionate application of the law to all persons, even those who are the object of public contempt and raw emotion?

Under the rule of law as Tamanaha understands it, KSM, having successfully masterminded the murder of thousands of Americans, could boast of new plots to kill thousands more, but his CIA interrogators were forbidden from using methods to force him to reveal information about the attacks if they might cause him severe physical or mental pain. This apparently does not bother Tamanaha, but he is very disturbed by the possibility that the rule of law might forbid prosecution of OLC lawyers for the “crime” of taking an unreasonable legal position.

Perhaps the self-appointed guardians of the “rule of law” can set a good example, and show how manfully they can accept legal opinions which conflict with their deepest emotional desires.
 

LOL!
 

Bart:

Aside from the torture statute, how about 18 U.S.C. 2441?
 

Bart,

You are indeed correct that I believe there is sufficient grounds to investigate (through an independent prosecutor) the lawyers for participating in a conspiracy to violate section 2340. Whether there is grounds to prosecute depends upon the evidence uncovered in the investigation. (This is also my response to mis's comments.)

As for making the criminal case, it will be difficult, as you know. In an act of contrition, Judge Bybee might confess, but let's not count on that.

More seriously, the evidence, if any exists, will be in the communications between the CIA, the OLC, and higher ups.

We already know that the CIA interrogators were reluctant to utilize the harsh interrogation methods without a legal opinion to provide them with cover. No doubt the OLC lawyers knew this at the time, which is clear knowledge that a violation of the torture statute would not likely occur without their assistance.

If OLC lawyers balked at writing the opinions, saying it could not be done plausibly, but they were persuaded to do so by higher ups, that would be strong evidence that the memos were knowingly written to advance a violation of the law.

If the CIA lawyers helped write parts of the memos, insisting on certain aspects as necessary to provide the required "golden shield," that would also be strong evidence in favor of the conspiracy.

You seem to suggest that there is something magic about legal opinions that keeps them immune from piercing, Bart, but as you know tax lawyers have been criminally prosecuted for writing bad faith legal opinions. It's not easy, but it can be done. In this case we already know the opinions have patently weak legal analysis because they have been withdrawn for this reason by the OLC.

As for the consequent act of torture, let us agree to disagree about this. It's not worth arguing. Waterboarding is torture. Higher ups ordered waterboarding; the OLC said it was not illegal; it was carried out.

You might have seen the Frontline special on torture that ran tonight. In it a number of military folks, including a former director of SERE training, explicitly said that waterboarding is "torture"--end of discussion (as well as other techniques we used in combination).

I know you have many times denied this (and I read your Federalist post attempting to distinguish waterboarding that is torture from waterboarding that is not torture). The "money" line for me in the Frontline show was uttered by the SERE trainer who observed that our use of these techniques on prisoners will endanger our own troops, who if captured in combat will be subjected to these same harsh interrogation practices.

If that happens, I would not be surprised if those who inflict the waterboarding on U.S. soldiers deny that it is "torture", and cite in their defense OLC legal memos (and blog posts and commentaries by smart American lawyers).

At that point what will we say? This was certainly a major concern of all the top military lawyers who stood up and opposed the use of these techniques at the time.

Brian
 

MLS:

Under the rule of law as Tamanaha understands it, KSM, having successfully masterminded the murder of thousands of Americans, could boast of new plots to kill thousands more, but his CIA interrogators were forbidden from using methods to force him to reveal information about the attacks if they might cause him severe physical or mental pain. This apparently does not bother Tamanaha, ...

You don't know that. Prof. Tamanaha's point is that torture, which is illegal, is going unpunished by legal sleight-of-hand. The tu quoque argument has never been a valid argument in courts of law.

... but he is very disturbed by the possibility that the rule of law might forbid prosecution of OLC lawyers for the “crime” of taking an unreasonable legal position.

Does the "rule of law" forbid such? Make your argument.

Perhaps the self-appointed guardians of the “rule of law” can set a good example, and show how manfully they can accept legal opinions which conflict with their deepest emotional desires.

The whole point of the uproar is that OLC opinions (and other DoJ "opinions") are not Stone Tablets Received By Moses On The Mount.

Cheers,
 

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As I understood the NYT and Wa-Po Reports, the Office of Professional Responsibility's Report is still in draft and must (i) be submitted to the Attorney-General for his review and (ii) go for CIA review to ascertain what parts of it must remain classified before it can be made public. Thus it may be a couple of months or more before there is public knowledge of the actual text and
conclusions.

I don't know about US procedure, but in the UK, investigations of this kind are required to be procedurally fair to the persons whose conduct has been considered and it seems right and proper that the persons whose professional conduct is under consideration should have an opportunity to comment on any allegations to their discredit and to put forward anything which might properly be said on their behalf before any conclusions are reached, still less acted upon or made public. Given the very wide publicity and scrutiny this report will receive when it is put into the public domain and the potentially serious consequences for the persons concerned, it is perhaps unfortunate that there has been any comment from within the DOJ to the press on the draft (if, indeed, there has been any such comment).

What sources have told the journalists is (i) that an organised campaign has been mounted on behalf of the persons whose professional conduct has been examined to have the conclusions of the report made as "soft" as possible and (ii) that the report is expected to recommend disciplinary action for at least two individuals but stop short of recommending criminal proceedings.

What has also been disclosed is that the former Attorney-General, Judge Mukasey, and his Deputy, did write a paper for the OPR speaking of the extraordinary circumstances and pressure under which the lawyers concerned were operating in the immediate aftermath of 9-11.

If the press reports are to be believed, the pressure was intense - and very much coming from the office of the Vice-President in the person of His Arrogance, David Addington.

I think there is a distinction to be made between (i) the professional conduct of the individual lawyers whose conduct has been examined and (ii) the systems and procedures within OLC to ensure that the executive (of whichever political persuasion) always gets the best possible advice.

The Individuals
It just so happens that yesterday there in our Court of Appeal there was a case on putative professional negligence:
Pritchard Joyce & Hinds (A Firm) v Batcup & Anor [2009] EWCA Civ 369 (05 May 2009)
. In it, Lord Justice Sedley said:-

"Secondly, in a system which populates its senior bench from the practising profession, an outside observer might discern equal and opposite risks of excessively sympathetic and excessively critical appraisals of the conduct of legal practitioners. In holding, as this court does, that Underhill J. has erred in the latter of these directions, we ought also to recognise his desire to maintain a high standard of professional trustworthiness. The law does not, however, demand either omniscience or infallibility in lawyers any more than it does in doctors or architects. The law's standard of reasonable competence means not only that there will be errors which are not compensable but that legal advisers are not expected to divine every claim that a client may theoretically have."Getting the law wrong may or may not be negligence - and I for one have certainly in my time written advice which, with hindsight, ought to have been marked with a big red disclaimer "Prepared in a hurry and insufficiently researched"This is perhaps not so much about getting the law right but about legal ethics and what a lawyer has to do when the client seeks advice on a course of conduct which may be unlawful.

The OLC System
I expect that as regards OLC itself (the issue which primarily interests Professor Tamanaha and others with an interest in the OLC concept and process) the question is more that of how it came about that individuals were put in a position where they issued advice which in the view of many did objectively fall below the standard to be expected on matters of this importance to the Nation (and not just the Administration).

I go back to the 2007 Wa-Po account to which I referred on the previous thread: Pushing the Envelope on Presidential Power which paints a picture of VP Cheney and David Addington operating to get from OLC the legal cover they wanted which suggests that there was no "Chinese Wall" between the lawyers in the Executive and those in OLC and that what was ostensibly the work product of Bybee, Yoo et al was in fact a collaborative effort of Addington and Flanigan in the White House and the much more junior OLC people. What was described in the Findlaw Dean-Bruff colloquy thus:-

Dean: "...the post-9/11 "War Council," which was made up of White House Counsel Alberto Gonzales and his deputy Tim Flanigan, Dick Cheney's counsel David Addington, Defense Department General Counsel Jim Haynes, and John Yoo from OLC. Tell me about the War Council. Was it really giving legal advice, or was it, more often, advocating? If the latter, what happened to OLC that it would join in advocacy, rather than following its long tradition of offering the most solid legal advice that might be found within the Executive Branch government? Did fear cause this, meaning did the terrorists manage to terrorize these key government lawyers, causing them to overreact? Or was it OLC pleasing the White House, giving them whatever they wanted? What do you mean by saying it gave "bad" advice? It strikes me that you could mean inadequate, if not wicked or evil – or all of them. Would you explain what you mean by bad advice?

Bruff: "The War Council's role is revealed by its name. It never showed any detachment from the policy goals of its clients. It became an advocate for any theory of law, no matter how implausible, that would allow what the administration wanted to do, for example harsh interrogation. It is clear that this attitude resulted from fear of another terrorist attack and the resulting pressure that was felt throughout the administration to do anything that might prevent one. The bad advice did not result from bad or evil intentions. Instead, these were patriotic lawyers striving in good faith to help win the terror war. But they lost sight of the essential nature of the lawyer's role. Another reason the War Council became so extreme was that it short-circuited normal bureaucratic checks that subject proposed legal advice to review by senior officials, such as the Attorney General, who can be expected to display good judgment. Instead, a group of junior lawyers, headed by a White House Counsel who was new to these issues, formed advice in a hothouse environment that excluded external influences."

I would invite Professor Tamanaha and others to consider whether in this day and age the OLC can function effectively as "the Attorney-General's lawyers" when it is staffed under the "spoils" system. Is there not a case for restricting the political appointments to OLC and having that office staffed by very senior permanent civil service career lawyers who would be more independent and better able to tell the politicians want they may not wish to hear?

Prosecutions and Conspiracy
I do not expect the coming OPR Report to provide any definitive answer on what I do suggest many well have been a conspiracy to violate the human rights of detainees by torture and/or other inhuman and degrading treatment. It may assist in the development of the factual matrix. What written communications passed and what meetings took place and who attended for example.

My criminal law is rusty, but my understanding is that there can be a conspiracy to commit any felony. Thus could not a conspiracy extend to encompass any felonious assault on a detainee in the custody of the United States where the actor was a person subject to US law? Thus if the purpose of the exercise was, as it seems it was "how far can we go with assaults before they cross the line to become torture?", those planning the commission of such assaults, or counselling, or procuring them, might well be on very dodgy ground indeed.

If, as I suspect, any investigation which may yet begin will be directed at the organ-grinders rather than the monkeys (or knuckle-draggers), it seems to me that some of the OLC lawyers might even end up as witnesses rather than indicted co-conspirators

Voltaire famously remarked that the British shot Admiral Byng on his quarter deck "to encourage the others". A very large part of this exercise ought to be just that - future deterrence.

Whatever its consequences, the OPR inspector's report will, I hope, be part of the deterrent.
 

I recall that a conspiracy consists of two or more persons agreeing to do (1) something illegal or (2) something legal in an illegal manner. When an attorney is involved in the course of providing legal advice, including the attorney as a co-conspirator is problematical because of the special attorney-client overlay. There may not be a bright line test, however. This would suggest the need for an investigation in extraordinary circumstances to determine whether the lawyer crossed any ethical lines or perhaps ventured too deeply into the grey area. Keep in mind that the Mafia had been aggressively defended over the years by attorneys, often successfully, and prosecutors have had difficulty sweeping the lawyers into the Mafia's criminal conspiracy no matter how strong the stench of complicity. But the public benefits from airing out the details. Let's find out how strong were the convictions of Bybee, Yoo and Bradbury before efforts are made to convict them.

(For some reason the Army-McCarthy hearings pop in my mind and there's attorney Roy Cohn's lips at McCarthy's ear presumably offering legal advice, or whatever.)
 

The LATimes today features an opinion piece by Philippe Sands titled "Spain considers prosecuting U.S. officials for torture - How and why a Spanish judge might put Bush administration lawyers on trial for actions at Guantanamo Bay." If the U.S. fails to thoroughly investigate, perhaps the reign in Spain will rain on Bush/Cheney's parade especially if AG Holder reins in the draft ethics report with too much of a soft touch.

There is a link at the end of the article to a forum in which Sands and Bruce Fein are to discuss relevant issues that might be of interest.
 

Here is what I perceive from the foregoing, ongoing, continuing discussion:

1. Somebody tortured somebody.

2. Torture is prohibited by law.

3. No law was violated.

Cruel, inhuman and degrading.-----
Hell, ain't nothing inhuman.
 

I for one have certainly in my time written advice which, with hindsight, ought to have been marked with a big red disclaimer "Prepared in a hurry and insufficiently researched"
======
The trick here, perhaps, is to have to distinguish between what would look like a 'normal' set of policy meetings and what would have been a real conspiracy to subvert the law.

I can think of a few ways to judge that. Among them, what was the attention paid to dissenting views? How were the people with them treated or given access? How much was 'urgency' pressed, even when 'accuracy' was what was demanded?

Suppose you thought you were acting independently, but someone like Addington, who knew the legal stepping-off points to get to the policy conclusions he wanted, put a bird in your ear, framed the issue for you.

Would passing out 'legal tips and insights' that color a rushed-analysis be undue influence? A sign of a possible conspiracy?

Yeah.
 

Shag:

While the Spanish Courts, in common with those of many other jurisdictions, have universal jurisdiction over CAT crimes and there is an on-going judicial enquiry in Spain, the natural and proper forum for any prosecution is US Federal Court.

Unless the putative defendants come into one of the 27 states where the European Arrest Warrant has replaced extradition, how is the proposed Defendant to be brought before the Court? Even were one of the prospective defendants to be arrested at, say Heathrow Airport, how could the Court compel the attendance of witnesses from beyond the jurisdiction or even the discovery of relevant documents? Somehow, I do not see the USA being too keen to surrender, say, former Vice-President Cheney or His Arrogance David Addington to a foreign jurisdiction.

At best the real utility of preliminary proceedings (and that is all that is ongoing) is that they put pressure on the US government to get on with washing its own dirty laundry rather than send it out to a Madrid laundromat (no disrespect to the Spanish Audiencia Nacional is to be inferred from that figure of speech). Civil claims may have the same effect. For example, there are proceedings in the UK for the disclosure of relevant documents held by UK intelligence Miliband's lawyers try to block CIA report on torture claims - The Guardian and a separate case against British Intelligence Officials alleging misconduct by at Guantanamo Bay said to amount to complicity in torture.

As I recollect (and my criminal law is rusty), your definition of a conspiracy as an agreement between two or more persons to do that which is felonious is correct. Since criminals rarely draw up agreements and have them executed before notaries, the existence of the agreement may be inferred from circumstantial evidence, but for each conspirator (who need not remain in the
conspiracy for its whole duration) one or more "overt acts" in furtherance of the conspiracy must be proved.

Now suppose that the primary conspirators are the head of the CIA and his principal minions, the Vice-President and his Counsel, and perhaps other Principals of the NSC and their staffs and the subject of the conspiracy is how to obtain information from persons in US custody by technique everyone knows are forbidden by Common Article 3 of the Geneva Conventions, the customary law of war and which amount to assaults occasioning actual or grievous bodily harm and the question is posed to the legal eagles (or in this case lame ducks): "we have agreed that we need to do to these people things which would be punishable assaults - but we do not wish to cross the line and do anything which amounts to torture, so tell us how far we can go and
still maintain to the world that the USA does not torture detainees"?
and the Lame Duck Lawyer responds: "OK - you can assault him - but don't leave any marks - use a rubber hose - that may be criminal but it won't be torture" has the Lame Duck lawyer become a conspirator - one who advises, counsels and procures?

Suppose the lawyer, without intending to, has drawn the wrong "bright line" and what he thought was merely felonious assault, in practice does in practice cross the line - is his position any different?

Isn't that rather similar to the position of two burglars who agree to go out and beat up an old lady and steal the cash she has under the bed. A takes along a firearm. B knows A has the firearm but intends only to use it to intimidate the old lady. A shoots and kills the old lady. Of what crime is B guilty? Now add C who participates in the planning and who tells A & B, "Take the firearm along, but only wave it about, don't use it". He does not go on the burglary which ends up as murder. What is C's liability?

I'll leave the answers to the legal eagles in US criminal law, but my gut feeling is that any lawyer who participated in the planning of any infringement of the rights of the detainees is now in a very unenviable position and might be well advised to seek some accommodation with prosecutors.
 

If we lay Bart's 9:45 pm alongside Brian's 12:56 am we get, I think, a pretty damn good argument for keeping the comments ON.Bart, as is his wont, plays a good game of dumb and asks, "evidence? what evidence?"

Brian offers a simple, courteous and cogent response which, for my money, shows that reason outshines willful ignorance every time.

Thank you Professor Tamanaha.
 

per mls ...

(1) I too think it best to wait until the report comes out, but this is a blog, not a legal journal, so the regular rules of discretion might not apply

(2) You appear to focus on some rule of necessity as to KSM. Even if torturing him and his family members would be 'necessary,' it still would not suddenly make it "legal." But, some seem to want to have their cake and eat it too.

[I also don't know why the bragging part is totally relevant. Is torture allowed when the tortured taunts? KSM apparently is a bragger who probably brags about some things he didn't do. Torture can only uh encourage that sort of thing.]

(3) Focusing on KSM is really petty, since many others were covered by the memoranda, some who died, some who later turned out to be innocent, some who supplied info w/o torture, some who had little info to give

(4) The fact that the rule of law results in some immediate harms, such as letting go someone likely guilty given high standard of proof, does not mean people don't "care" about the harms. You have no evidence of your allegation that BT doesn't care.

(5) The "rule of law" does not require, particularly on blog posts, for legal analysts to be totally "dispassionate" about what they deem wrong application of the law. Also, given the situation, he probably met the "humanely possible" rule set forth.
 

per matt .. Brian might just be more skilled at this sort of thing. Sandy Levinson lets his emotions rule more often and Jack Balkin appears to think there is better uses of his time.

Still, it does suggests the value.
 

Milan said...

Bart: Aside from the torture statute, how about 18 U.S.C. 2441?

What I am asking for is the theory of a conspiracy charge against the OLC attorneys. For this exercise, you may assume that the CIA interrogation reviewed by OLC is torture and/or a war crime in violation of the US Code. How do you get from drafting a legal memo arguing that the CIA interrogation is not torture to a criminal conspiracy to commit torture under the elements I quoted in the first post?
 

Brian:

Scott agreed that a criminal investigation of a target should proceed on the basis of a suspected crime and to go on a fishing expedition against the OLC attorneys without a suspected crime was abusive.

Scott repeatedly offered torture as his suspected crime, but there is no evidence or even allegation that OLC attorneys committed torture. The only potential charge is conspiracy to commit torture with the elements I noted above.

As I discussed with Milan, what I am asking you to do is come up with a theory of a conspiracy charge to investigate. You may assume any reasonable set of hypothetical facts that might be discovered in an investigation. How do you get from drafting a legal memo to conspiracy to commit torture?

For example, we know that the al Qaeda terrorists were flown to the sites at which they were "tortured." If we also learned that CIA was chartering an aircraft to and from the site at that time, one could reasonably assume that the charter company had entered into a conspiracy to torture with CIA and its part in that conspiracy was to provide the transportation of the terrorist to the "torture" site. On that basis, you could reasonably launch a criminal investigation of the charter company.

I am simply asking for a similar theory of an actual crime by the OLC attorneys before we unleash the dogs of a special prosecutor to destroy their reputations and bankrupt them.
 

Mourad said...

Voltaire famously remarked that the British shot Admiral Byng on his quarter deck "to encourage the others". A very large part of this exercise ought to be just that - future deterrence.

This is what I fear is the primary motive behind calls for a criminal investigation of the OLC memos. There is no real expectation of being able to prove an actual crime in violation of the US Code, but rather the intent is to personally destroy these men for thought crimes to deter others in the future from providing similar legal opinions.

Double un-good.
 

Go get 'em, Bart!
 

Professor Tamanaha:

Assuming that the leaks about the report are accurate, I wonder why would you expect anything different?

The Bush Administration was never big on accountability, at least for their friends. No one in the administration paid a price for the fact that Iraq did not have WMD, even though that was the purported reason for invading. Indeed, no one in the administration even seemed to suffer any professional embarrassment about it.

Time and time again, we received reports of unethical, illegal, or even criminal activity by members of the Bush Administration, with the caveat that no legal action was warranted (why hasn’t Monica Goodling been disbarred?). Members of the Bush Administration routinely defied Congressional subpoenas. It was considered unseemly that Bush officials would be asked to testify under oath and on the record. Officials who did appear and testify displayed memory loss that would have embarrassed Henry Molaison.

It was only when an outside prosecutor (Patrick Fitzgerald) was brought in that someone (Libby) was held accountable for criminal acts, and the wailing and gnashing of teeth by both Bush officials and the Washington media pundits was heard throughout the land.

If this report actually recommends possible disciplinary action, that is pretty amazing. Of course, then AG Mukasey properly expressed the usual horror of accountability.

I am curious about one thing, though. In the unlikely (in my opinion) scenario that the relevant bar associations do take disciplinary action, is there any precedent for a disbarred lawyer serving as either a Federal Judge or law professor?
 

bybee might surrender and confess eh ?? lol .. prof.. you have a keen sense of humor.. and a grasp of the surreal ..

speaking of the surreal .. how 'bout the LSR contingents' "legal thoughts" ...

i'm a layman and the absurdity shines through .. i can't imagine how the actual attorneys out there reading this blog can stop laughing long enough to post a cogent note ..
 

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Bart DePalma said:

As I discussed with Milan, what I am asking you to do is come up with a theory of a conspiracy charge to investigate. You may assume any reasonable set of hypothetical facts that might be discovered in an investigation. How do you get from drafting a legal memo to conspiracy to commit torture?

How about: “The CIA has been using these procedures on suspects, but say that they are going to discontinue their use unless they have legal cover. Write a justification for these procedures, and write it as though they haven’t been used yet.”
 

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Hank Gillette said...

Bart DePalma said: As I discussed with Milan, what I am asking you to do is come up with a theory of a conspiracy charge to investigate. You may assume any reasonable set of hypothetical facts that might be discovered in an investigation. How do you get from drafting a legal memo to conspiracy to commit torture?

How about: “The CIA has been using these procedures on suspects, but say that they are going to discontinue their use unless they have legal cover. Write a justification for these procedures, and write it as though they haven’t been used yet.”

Would you mind developing your case a bit more? How does this idea fit within the four elements of conspiracy which you as a prosecutor would have to prove?

My initial thought is that three of these four memos were completed long after the interrogations of the 14 al Qaeda were completed and the CIA did not start up interrogations after the last memos were finalized. Your theory might have an application to the first Bybee memo.
 

aHA! So you DO agree there is a basis to procede with an investigation!
 

but for each conspirator (who need not remain in the
conspiracy for its whole duration) one or more "overt acts" in furtherance of the conspiracy must be proved.


Just to clarify a possible ambiguity for any non-lawyers reading, it is not necessary for each conspirator to commit on "overt act" in furtherance of a conspiracy, only that one of them do so.
 

re: Tamanaha's latest "logic" thread (no comments allowed, for some reason) # 1 depends on the circumstances. For instance, if Bart"buster" waterboarded me with the requisite intent and effect, that would be torture (unlike the CIA and doctors taking every reasonable precaution to NOT inflict torture). Therefore # 3 can be correct.
 

Bart DePalma said:

How about: “The CIA has been using these procedures on suspects, but say that they are going to discontinue their use unless they have legal cover. Write a justification for these procedures, and write it as though they haven’t been used yet.”

Would you mind developing your case a bit more? How does this idea fit within the four elements of conspiracy which you as a prosecutor would have to prove?


IANAL, so I fear I will not be able to present something matching the high standards set forth by John Yoo.

1. If you accept that waterboarding is torture, then this is a given.

2. The fact that Yoo left out any mention that waterboarding has been considered torture for hundreds of years, or that the United States has prosecuted former enemy combatants, members of the U.S. military, and U.S. civilians for waterboarding shows that he knew what he was being asked to do and was a willing participant.

3. Self evident. Why would he be asked to write a memo legally justifying torture unless the objective was to commit torture? Why would he write the memo, unless he was willing to join the conspiracy?

4. Someone waterboarded suspects. If it was before the memos were written, then Yoo entered a conspiracy to cover up the crime of torture. If it was after, those who actually committed the acts of torture relied on Yoo’s memo to give them legal cover, despite the fact that waterboarding has been considered torture for hundreds of years.
 

The good Professor also forgot to add # 4: "Even if it is 'torture' it is not illegal when authorized by the (Vice) President of the United States." (statements by Rice, Cheney, Addington, etc.)
 

Bart, you are bad faith made real. You wrote of Scott Horton,

Scott repeatedly offered torture as his suspected crime, but there is no evidence or even allegation that OLC attorneys committed torture. The only potential charge is conspiracy to commit torture with the elements I noted above.

If there is no allegation that the OLC lawyers themselves committed torture--and I know of no one who has suggested so--then why do you mention it? The only utility your words have here is misdirection. No other purpose is served. You continue,

As I discussed with Milan, what I am asking you to do is come up with a theory of a conspiracy charge to investigate. You may assume any reasonable set of hypothetical facts that might be discovered in an investigation. How do you get from drafting a legal memo to conspiracy to commit torture?

Again, your energy is devoted to creating confusion. That is your goal. Professor Tamanaha provided you with exactly what you pretend not to see in his response to you above. Here is a hint: two consecutive paragraphs beginning with the word "if."

By pretending not to see what has been offered to you in an earnest attempt at an exchange of ideas (a good faith discussion) you are simply derailing the advancement of that discussion.

Here's another tidbit for you: You're never shy about tooting your own horn here, and even when you described yourself as "this humble lawyer" here not long ago your vanity and self-regard shone through. But isn't your boast about letting myriad insults "roll off your back" kind of odd in light of your candid admission of "irascibility" at the Fed-Soc site?

Frankly, I don't think you write a single word here at Balkanization that isn't resting on a foundation of anger and a desire to bring ruin to good faith debate here.
 

Hank Gillette:

Obviously, we do not blindly accept that waterboarding is torture. In addition, Yoo could have left out any mention that waterboarding has been considered torture for hundreds of years, or that the United States has prosecuted former enemy combatants, members of the U.S. military, and U.S. civilians for waterboarding, because what the CIA and doctors were doing was very different, authorized by the (Vice) President of the United States, and not torture. He could also have simply not your encyclopedia-like knowledge about the vast history of waterboarding and been more concentrated on preventing another 9/11 attack (or worse). Good thing that Obama will never prosecute him, huh?
 

mattski:

Far be it from me to allege "bad faith" on your part, but perhaps one of the reasons Bart is ruling out OLC lawyers actually performing "torture" themselves is because those like Hank Gillette criticize Yoo for NOT ruling out each and every possibility in their memos?
 

P.S. since you are such experts, could either of you point out the BAD FAITH argument from this memo:

"It is a well settled principle of law, applied frequently by both the Supreme Court and the executive branch, that statutes that do not expressly apply to the President must be construed as not applying to him if such application would involve a possible conflict with his constitutional prerogatives ....

Thus, where a statute does not by its express terms apply to the President, it may not be applied to him if doing so would raise a serious separation of powers concern ...."
 

The president swears an oath to preserve protect and defend the Constitution. The Constitution says the president shall take care that the laws are faithfully executed. But the Constitution does NOT say that the laws don't apply to the president unless they include a specific reference to the president.

But that's just the Constitution and why would Charles care about that?
 

mattski:

Not just me, buddy.
http://www.usdoj.gov/olc/fcra_dk.htm

Thanks (yet another reason to keep Dawn Johnsen from returing to OLC ; )
 

Maybe you can do better with this one: Should the White House release the photos taken during the Air Force One flight that panicked New Yorkers?
 

I wish I were as serene as Prof. Tamanaha appears to be in comment threads.

Any spiritual or pharmacological tips would be appreciated.
 

Anderson:

You too can move to Fantasyland where it's reasonable to think that terrorists who, heretofore, have beheaded and dragged the bodies of captives will suddenly read (Arabic translations?) OLC memos and, out of the kindness of their hearts, decide to employ physicians to monitor the health and well-being of any future captives and therefore tone down their "torture".

What say you about releasing the Air Force One pictures?
 

yet another reason to keep Dawn Johnsen from returing to OLC

So, presumably, you oppose Dawn Johnsen because you agree with her.

You were pretty hot about the letter of the Constitution when the subject was Obama's birth certificate. What happened?
 

First of all, the Constitution is not a suicide pact. Second, if there's anything where Dawn and I agree that the GOP can use to convince Dems to keep her away from the OLC, I'm all for it. Third, it is precisely because I give the Office of (Vice) President so much deference that I want to make sure a loyal "natural-born" citizen holds said office. You (and even Yoo) cannot make the argument that someone who is Constitutionally DIS-qualified from being President still deserves such deference.

Assuming, for the sake of argument, that Obama is President: should he release those Air Force One photos?
 

FWIW, Quick Vote at www.cnn.com

Should the White House release the photos taken during the flight that panicked many New Yorkers?

No 30% 33605
(Democrats who know how damaging that would be)

Yes 70% 79228
(the rest of us)

Total Votes: 112833
 

Democrats who know how damaging that would beHow would it be damaging?
 

I'm glad you asked, Bart"buster". First, there's a theory floating around the Internet that NO PHOTOS were even taken. That would be interesting indeed. Second, assuming there are photos, releasing them will put this all back into the news cycle and will probably get someone fired. Of course, if the photos aren't released, that itself could prolong the news cycle(s). Third (my hope) maybe, just maybe, Obama wasting $400K on this stunt (and flying Air Force One himself an awful lot lately) during our economic "crisis" will finally get some traction.
 

If you don't think they would be damaging, what possible reason would you have for NOT releasing said photos?
 

So much for "Transparent Government".
 

I'm glad you asked, Bart"buster". First, there's a theory floating around the Internet that NO PHOTOS were even taken. That would be interesting indeed. Second, assuming there are photos, releasing them will put this all back into the news cycle and will probably get someone fired. Of course, if the photos aren't released, that itself could prolong the news cycle(s). Third (my hope) maybe, just maybe, Obama wasting $400K on this stunt (and flying Air Force One himself an awful lot lately) during our economic "crisis" will finally get some traction.

# posted by Charles : 1:32 PM

If you clowns couldn't get any traction trying to smear him with Ayers and Wright, you're not going to get any traction out of this.
 

So, if you don't think they would be damaging, what possible reason would Obama have for NOT releasing said photos (last time I will ask)?
 

Charles said:

Obviously, we do not blindly accept that waterboarding is torture. In addition, Yoo could have left out any mention that waterboarding has been considered torture for hundreds of years, or that the United States has prosecuted former enemy combatants, members of the U.S. military, and U.S. civilians for waterboarding, because what the CIA and doctors were doing was very different, authorized by the (Vice) President of the United States, and not torture.

How do you know that what the CIA was doing was very different? If it was so innocuous, why were tapes of the interrogations illegally destroyed?

What relevance does authorization by the President or Vice President have? Would the mere authorization by them convert torture to non-torture in your mind?

He could also have simply not your encyclopedia-like knowledge about the vast history of waterboarding and been more concentrated on preventing another 9/11 attack (or worse).

My knowledge is not encyclopedic. But it’s easy to find the information if you’re looking for it. Yoo is supposed to be a pretty bright guy. Are you saying that it’s plausible that he thought it unnecessary to research past legal treatment of waterboarding when his job was to provide the best possible legal opinion on the legality of it?

The Convention Against Torture, signed by the left-wing President Ronald Reagan and ratified by the U.S. Senate (and thus Constitutionally part of U.S. law), states that “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture”. So, whatever You may have been concentrating on, it has no legal justification.

Good thing that Obama will never prosecute him, huh?

That is not Obama’s job. It is up to Holder and the Justice Department. While I am not optimistic, the law is very clear that an investigation is legally required. This issue is not going to go away.
 

So, if you don't think they would be damaging, what possible reason would Obama have for NOT releasing said photos (last time I will ask)?

# posted by Charles : 2:00 PM
He probably just enjoys yanking the chains of ignorant assholes like you.
 

what a lawyer has to do when the client seeks advice on a course of conduct which may be unlawfulyes. And what a consiglioro does. And at what point that becomes complicit. Or became.

There's no question that war crimes were committed. The only question is whether we have the decency to enforce the law. Every day we don't, the world correctly concludes that torture was no temporary aberration, it was the policy of the United States.

It was nice being part of the civilized world. Maybe some day we can rejoin it.
 

All I know is that the CIA was authorized to "torture" per the methods outlined in the OLC memos. If they exceeded that authorization, and that's why the tapes were destroyed, there's no protection for that. The relevance of authorization is the entire CRUX of that determination. You did catch the part (above) about the Constitution not being a suicide pact?

As for whether "prosecution" or even a "criminal investigation" is Obama’s job, or not, I have two words for you even if Holder decides to go against the President's wishes: PRESIDENTIAL PARDONS.
 

P.S. to Bartbuster - need I remind you of our gracious host's admonition against "personal insults and name-calling"?
 

P.S. to Bartbuster - need I remind you of our gracious host's admonition against "personal insults and name-calling"?

# posted by Charles : 2:11 PM

Go fuck yourself.
 

I guess not.
 

Professor Tamanaha:

Is there any way to ban the IP address for Bartbuster?
 

Chucklehead, I thought you said you didn't ban people from your blog?
 

This in not my blog.
 

Don't worry, Bartbuster, you will never be banned from my blog (even if they tell me how to do so). You have, however, repeatedly and quite blatantly disregarded our gracious host's admonition. It is, of course, completely up to them what the consequences should be (if any). My humble suggestion would certainly be that I'd much rather see you banned here than the last remaining comments turned off for good.
 

Chuckehead, I'm not worried about being banned from your blog.

And if you don't want the comments shut off here, stop posting. If you and Baghdad Bart stop spewing rightwingnut propaganda here, I will also stop posting here. It's up to you.
 

(1) I'm glad Bart provided the 4 elements. Brett came the closest to answering his question of what scenario could represent a crime, ruling out the possibility that the lawyers actually wielded torture instruments. The clearest case might be a memo like this:

"I hear you're thinking of waterboarding John Doe tomorrow. Great! I agree that's a good idea. I'll go ahead and write a memo saying waterboarding is legal to help you out if the cops come after you, because I want to help you torture him, even tho I think it really is illegal."

Could the lawyer then be convicted of conspiracy? I ask because the lawyer has not actually ordered the torture and doesn't have the ability to prevent it (except by notifying the police). And he is not offering to do anything illegal-- just to help argue on behalf of the criminal, which lawyers do all the time.

(2) If as a private citizen I heard that Joe was going to torture someone, and I said,

"Great. I agree. And I'll write an op-ed for you afterwards to get sympathy for you when you're prosecuted."

Am I a conspirator?

(3) It seems to me the case is much easier for prosecuting the Attorney-General, President, and Nancy Pelosi for conspiracy. Didn't they all know about the waterboarding in advance, agree to it, implicitly put their political backing behind it, and have the ability to stop it? And isn't all that easily provable? So why pursue the OLC lawyers?
 

Bart-

If we take it as given that waterboarding is torture, the elements of conspiracy are easily proven. Internal evidence in the memos reveals that they were written with knowledge that the techniques identified as permissible in the memos would be used on specific, identified prisoners.

At that point, the text of the memos alone provides circumstantial evidence that they were written in response to a request for assistance in carrying out interrogations; in essence, a request from policy-makers in the following terms: "We want to interrogate these prisoners, but will do only what you tell us is permitted. Do you agree to assist us in using enhanced interrogation techniques on prisoners by telling us what is permissible?" The writing of the memos both establishes agreement to join in the goal of interrogating the prisoners, and establishes the specifics of what that goal encompassed -- viz. torture by waterboarding among other methods.

We've got the crime: torture by waterboarding; agreement to carry out the crime established by the writing of the memos with the knowledge (established by the content of the memos) that they would cause prisoners to be waterboarded; and an overt act -- the writing of the memos.

That's conspiracy. Do you see an element missing?
 

Apart from the difficulty in identifying an actual crime committed by the OLC attorneys, perhaps another reason why Justice is declining to recommend a criminal prosecution is because Justice and Third Circuit are relying in current litigation upon the same theories as those advanced by Yoo and Bybee.
 

Bart"buster":

Isn't that tantamount to blaming the rape victim for dressing provocatively?
 

Which is worse for America?

-Torture occurred 'by accident'?
-Torture occurred by conspiracy.
 

Amicus:

Choice #3: "Torture" which is not even illegal that prevented another 9/11 attack (or worse).
 

Apart from the difficulty in identifying an actual crime committed by the OLC attorneys, ..
====
Maybe you can answer some questions, too.

What, in your view, is the line at which "policy" ends and "legal analysis" begins?

Do you admit that a line exists, even?
 

Dan Froomkin's WaPo White House Watch today features "What Were The Torture Lawyers Thinking?" on the draft ethics report yet to be released. One thought of and became a judge. Another thought of but did not become a judge. Leaving Yoo know who: "I think, therefore I torture."
 

P.S. to Bart: Obama himself explained said hypocrisy at his last "prime time" press conference. Something to the effect that there was a court deadline and we just got the file.
 

Isn't that tantamount to blaming the rape victim for dressing provocatively?

# posted by Charles : 2:47 PM

No, it isn't.
 

But, didn't you just say that if I (and Bart) stop posting provocatively, you will stop berating us?
 

Choice #3: "Torture" which is not even illegal that prevented another 9/11 attack (or worse).
===
And, for the record, the cases that you have that such 'ticking bomb' information has ever been collected in the torture room is found in what tomb / set of records?

Isn't the truth about this "option" that it exists mostly for a knee-jerk defense of torture?

Seriously, real-time information about plots, especially those in the works, is garnered by apt surveillance (or infiltration) in the field, not via the torture room.

We can surmise, ex ante, that, by the time you find the fabled "one person who has all the information you need", you probably have also found out the rest and are just moving in for the arrest, not to gather intelligence.
 

Never mind, Bart. That was about the "state secrets" privilege, where U.S. Attorneys have indeed continued to argue the Bush position in three cases:

OBAMA: I actually think that the state secret doctrine should be modified. I think right now it's overbroad.

But keep in mind what happens, is we come in to office. We're in for a week, and suddenly we've got a court filing that's coming up. And so we don't have the time to effectively think through, what exactly should an overarching reform of that doctrine take? We've got to respond to the immediate case in front of us.

There -- I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake and that you can't litigate without revealing covert activities or classified information that would genuinely compromise our safety.

But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it's not such a blunt instrument.

And we're interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that as we speak.
 

This comment has been removed by the author.
 

Amicus:

I don't have access to classified information like that (and, even if I did, I wouldn't tell you). Until then, I will just have to trust Cheney and CIA on what terrorist attacks were prevented. As for whether "torture" is illegal, that's an entirely different question that comes down to INTENT and EFFECT (as I've outlined above re: Bart"buster"'s repeated requests to torture me).
 

I don't have access to classified information like that ..
----
The odds-on bet is that there are as many ticking bombs in the Cheney database as there are WMD found by his Administration in Iraq.

On the other, we already know the effect of torture - on the torturers. They got secret and quasi-paranoid and angry and destroyed evidence.
 

But, didn't you just say that if I (and Bart) stop posting provocatively, you will stop berating us?

# posted by Charles : 3:01 PM

No, I said that you should stop trying to hijack the site.
 

This is what I fear is the primary motive behind calls for a criminal investigation of the OLC memos. There is no real expectation of being able to prove an actual crime in violation of the US Code, but rather the intent is to personally destroy these men for thought crimes to deter others in the future from providing similar legal opinions.

Double un-good.

====
Would you mind if we said in advance that we would limit their sentence to the maximum amount that we detained someone before releasing them, without ever charging them with anything?

I mean, if they are really Socrates worthy Patriots, they would do some 'innocent time', by this reckoning, you know, take one for the team, just to show that sometimes innocent people have to be detained, tortured, and then released, so that the greater good can be served.

/end snark
 

This comment has been removed by the author.
 

Bart"buster":

I (and certainly Bart) am not hijacking this site, but that was not your offer in the first place. YOU said: "If you and Baghdad Bart stop spewing rightwingnut propaganda here, I will also stop posting here." We could just as easily "hijack" this site with socialist dribble, but you would have to stop posting here.

Amicus:

Knowing everything we know now, if I were Yoo, I wouldn't have done anything differently. If he's convicted for anything, I hope some future (or past) President pardons him.
 

Mourad:

What happened to your post?
 

Charles, it's too hard for me to say about Yoo. You'd have to know the inner workings of the OLC, maybe. Did he just let his career ambitions get ahead of him? Did he follow the lead? At some point, did he consider that he was being "used" and just went with it? I can't say.

As for appropriate punishment for this crowd, political dissociation is my cup of tea. They don't belong with "us". End their citizenship. It's elegant, in the sense that those vapid "constitutionalists" who imagine that humanity or Justice end at the border, suddenly find themselves face-to-face with the parts of the civilized world they so recently dismissed as irrelevant to their considerations.
 

Amicus-

Very elegant, very athenian. I like it!
 

I think that a Presidential pardon would take care of any "punishment" like stripping their citizenship.
 

Bart wrote:

"For example, we know that the al Qaeda terrorists were flown to the sites at which they were "tortured." If we also learned that CIA was chartering an aircraft to and from the site at that time, one could reasonably assume that the charter company had entered into a conspiracy to torture with CIA and its part in that conspiracy was to provide the transportation of the terrorist to the "torture" site. On that basis, you could reasonably launch a criminal investigation of the charter company."Funny that Bart should bring that hypothetical up.

See the Opinion of the 9th Circuit Court of Appeal in
Binyan Mohamed and Others -v- Jeppesen Dataplan Inc, United States of America Intervenor where the basis of the claim is set out by the Court of Appeal in these words:

"Plaintiffs brought suit under the Alien Tort Statute, 28 U.S.C. § 1350, claiming that Jeppesen is directly liable in damages for (1) actively participating in their forcible and arbitrary abduction, and (2) conspiring in their torture and other cruel, inhuman, or degrading treatment, in violation of customary international law cognizable under the Alien Tort Statute.

In the alternative, plaintiffs assert that Jeppesen is liable for aiding and abetting agents of the United States, Morocco, Egypt, and Jordan in subjecting them to torture and other cruel, inhuman, or degrading treatment because Jeppesen knew or should have known that the passengers of each flight for which it provided logistical support services were being subjected to such treatment by agents of those countries. They further allege in the alternative that Jeppesen demonstrated reckless disregard as to whether the passengers of each flight for which it provided logistical support services were being subjected to torture and other cruel, inhuman, or degrading treatment."
It's a perfectly pleadable case as a civil tort conspiracy.

Had the government been minded to prosecute rather than intervene seeking to suppress the civil claim at birth - with a bad state secrets claim, I dare say an appropriate indictment could have been drawn too.

The lawyers in the conspiracy need do no more than sign and issue an opinion knowing it would be used to gull the people into a course of conduct which was in fact unlawful in the mistaken belief that their conduct was lawful.

What interests me is this: suppose that the lawyers well knew that the conduct proposed to be carried out was unlawful (eg criminal assaults) but wrongly believed that these did not amount to torture...what then? Would they be off the hook for the part they played in establishing the "treatment regime" for the detainees.

In other words, could a hypothetical criminal conspiracy indictment be framed so as to encompass both torture and other lesser offences?

I don't see why not - but maybe the US position is different.
 

If anyone is trying to "hijack" this site, it's Mourad with his/her 500-1000 word screeds.
 

Good news, at least, re: Air Force One photos:

http://www.cnn.com/2009/POLITICS/05/06/air.force.one.flyover/index.html
 

Charles: you asked what happened to my post - now you know. I would hope that my posts have some useful content on the subject under debate - which is more than I can say for yours.

Shag from Brookline: Update on Spain's investigation.

See this report in El Pais.Velasco pregunta a EE UU si investiga al equipo que diseñó GuantánamoJudge Velasco has today issued Letters of Request under the US-Spanish Mutual Co-operation Treaty in Criminal Cases asking for information as to whether the US authorities are investigating Addington, Yoo, Bybee, etc with a view to their prosecution, intimating that if they are, he will stay the Spanish proceedings because the the US is the more appropriate venue - but that he will retain jurisdiction pending the US decision on prosecution.
 

I asked because less than a 500-word screed from you is a novelty in itself. Your first one on this thread was 1,483 words long. You do realize this is the internet, right?
 

Some of us still pay by the byte.
 

Mourad,

I'd appreciate a bunch more of your long, on topic comments.

Speaking of on-topic, I have a question: on what other occasions, if any, has the DoJ, especially the OLC, ever recommended criminal prosecutions of other elements of the DoJ, especially the OLC?
 

Oh yeah, because Judge Velasco's decision in SPAIN is so "on topic"! LOL!
 

People: If you ignore Charles, he will go away. Really. Try it.

... Eric R. wrote:

Didn't they all know about the waterboarding in advance, agree to it, implicitly put their political backing behind it, and have the ability to stop it?I don't think that's true of the Senate Intel folks (D or R), at least re: "in advance." They also weren't allowed to discuss the matter with anyone who could advise them about legality. Still, if we have a general investigation, I would like to see their role investigated as well.

Re: conspiracy, what Lizard Breath & others have said. The allegation is that CIA wanted an OLC "get out of jail free" card and that OLC provided one on request.

The Bybee/Yoo memos utterly fail to do any of the "but on the other hand" analysis that is *essential* to any good-faith client memo. That, with their numerous other failings ("pain or suffering" = "pain"? "severe pain" = "major organ failure"? hellooo, Youngstown?), appears to suggest that the memos were indeed written in bad faith.
 

Nope, Anderson. I'm staying right here. Even if you'd rather not answer uncomfortable questions. As for any of the "but on the other hand" analysis or citation to Youngstown, Dawn Johnsen didn't bring that up in her memo either:

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

Checkmate!
 

Thanks for the great update on the Spanish case, Mourad! Keep 'em coming!
 

Did there not use to be some way to link to individual comments?

Or is it just IE sucking as usual?
 

Charles wrote: "some of us still pay by the byte"My goodness, Charles, I'm so sorry to hear that. You poor thing!

Is it that your IT system is as antiquated as your political views, or is it that you live in the backwoods somewhere and don't have easy access to unlimited high speed broadband?

Is there no help coming from the infrastructure renewal bits of the stimulus package?

Pending upgrade, you could try saving a byte or two by uploading a tad fewer of your 1-2 line interjections.
 

The Johnsen memo cited by you-know-who does seem to be a remarkably poor piece of work.

We are told, the constitutional principle of separation of powers assures a division of power among the federal government's three coordinate branches. The clear statement rule "exists in order to protect 'th[is] usual constitutional balance' of power." Id. (citing Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991)).If you look at the Gregory cite, however, you get a discussion of the separation b/t federal and state powers, not a discussion of the separation of the federal powers themselves.

Not much better is this part: It is a well settled principle of law, applied frequently by both the Supreme Court and the executive branch, that statutes that do not expressly apply to the President must be construed as not applying to him if such application would involve a possible conflict with his constitutional prerogatives. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992).Going to Franklin, we do find this:

We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion.However, the Court's next-but-one sentence is this:

Although the President's actions may still be reviewed for constitutionality, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), we hold that they are not reviewable for abuse of discretion under the APA, see Armstrong v. Bush, 288 U.S.App.D.C. 38, 45, 924 F.2d 282, 289 (1991).That is a pretty big "although" to completely omit mentioning.

Of course, the fact that Ms. Johnsen wrote a lousy memo does not exculpate anyone else, though it is something I would ask her about, were I a member of the appropriate Senate committee.

I wonder if Yoo and Bybee could plead as a defense that OLC *routinely* rubber-stamped whatever the White House wanted done?
 

LOL! Either way is fine by me, Anderson. 1) Dawn Johnson wrote her memos in "bad faith" and shouldn't be rewarded with the head position at OLC or 2) John Yoo followed standard OLC protocol and shouldn't be prosecuted for it.

LOL!
 

Man, this thread is exhausting, but who cannot see the Air Force One in NYC thing as shouting "FIRE!" in a crowded theater?
 

Hank Gillette said...

BD: Please describe how you would hope to prove each of the four elements of conspiracy to commit torture against the memo authors:

1) The memo author and one or more other persons agreed to commit torture...

HG: 1. If you accept that waterboarding is torture, then this is a given.

How did the OLC attorneys agree with CIA to commit torture by merely writing a legal opinion?

2) The memo author was a party to or a member of that agreement...

2. The fact that Yoo left out any mention that waterboarding has been considered torture for hundreds of years, or that the United States has prosecuted former enemy combatants, members of the U.S. military, and U.S. civilians for waterboarding shows that he knew what he was being asked to do and was a willing participant.

In what was Yoo a willing participant? How does writing a legal opinion advance a conspiracy to commit torture?

3) The memo author joined the agreement or conspiracy knowing its objective was to commit torture and intending to join with at least one alleged conspirator to commit torture...

HG: 3. Self evident. Why would he be asked to write a memo legally justifying torture unless the objective was to commit torture? Why would he write the memo, unless he was willing to join the conspiracy?

Asking an attorney whether a course of action is legal is done all the time. It is generally taken as evidence that the client was trying to avoid acting illegally and did not possess a guilty intent.

4) At some time during the existence of the agreement or conspiracy, the memo author or another conspirator performed an overt act to commit torture.

BD: 4. Someone waterboarded suspects. If it was before the memos were written, then Yoo entered a conspiracy to cover up the crime of torture.

How does drafting a memo opining on the legality of an act after the fact "cover up the crime?"

HG: If it was after, those who actually committed the acts of torture relied on Yoo’s memo to give them legal cover, despite the fact that waterboarding has been considered torture for hundreds of years.

Now we are getting somewhere. How do the Yoo and Bybee memos give CIA "legal cover?" No one here thinks that these memos would be a bar to criminal prosecution of CIA.

Thanks for at least making the effort to justify a criminal prosecution of the OLC attorneys.
 

Eric:

If there's an actual fire in said theater . . .
 

How does writing a legal opinion advance a conspiracy to commit torture?God knows, Bart surely does not try this question-begging in open court. He'd get his ass handed to him.

The entire point is that OLC was *not* just "writing a legal opinion." To assume that's all they were doing is to assume the conclusion.

I will illustrate.

Obama tells CIA to kill Rush Limbaugh. He tells CIA, "I want to kill Rush. No trial, no jury, Just shoot him down like a dog."

CIA decides it had better comply, but worries its assassin will be prosecuted. So CIA goes to OLC and says, "Can you write me an opinion saying that it's legal for the President to order Rush Limbaugh assassinated?" CIA will not carry out the deed if OLC tells it that it's illegal, but CIA strongly hints to OLC that Obama thinks there's a right answer here.

OLC complaisantly writes an opinion holding that killing Rush "promotes the national welfare" under the Preamble to the Constitution and thus is a legitimate exercise of the President's powers, and btw that had the Fifth Amendment meant to limit the President's powers, it would have said so. The various authorities to the contrary are omitted or explained away. No discussion of the possibility that the courts might disagree. The memo expressly notes that Rush is the target and opines that killing him in cold blood is perfectly legal, though it does not actually recommend doing so.

Is that "just writing a legal opinion," or is that conspiracy?
 

Mourad:

My concern was for those like Eric who are simply exhausted by the length of this thread. By all means, though, go on. Maybe next you can regale us with the tales of Don Quixote and his trusted squire, Judge Garzón, who not only wants to prosecute Professor Yoo but has also repeatedly expressed a desire to investigate former U.S. Secretary of State Henry Kissinger in connection with his involvement OVER THIRTY YEARS AGO with a plot known as Operation Condor. I guess the Spanish Inquisition into Area 51 was already taken. My mentioning of your "screed" was only in the context of the unmitigated allegation that I (and Bart) am trying to hijack this site. Any objective comparison would prove otherwise.

Seriously, though, is there NO CRIME left to prosecute in Spain?
 

Everyone,

Thanks for the thoughtful comments (and no thanks, a couple of you, for the uncivil zingers--bartbuster please respect our desire to have a conversation; Charles's comments are regularly not substantive, but there is no need to insult him in vulgar terms).

My main difference with Bart and Charles and others is that they want to preempt a criminal investigation and I would like to see what it uncovers.

I genuinely do not know whether they have engaged in criminal conduct (I suspect that some of you will consider this insincere, but I was a public defender so I have a healthy respect for the presumption of innocence). But there is certainly enough information about possible criminal criminal, with an essential role played by the OLC lawyers, to begin such an investigation. If the investigation finds insufficient evidence of criminal conduct, then it should stop. That is the normal way we do things.

Charles' repeated refrain about the necessity for and benefits of torture (saving us from another attack) might well come up in the context of a defense, either as justification or in mitigation at the punishment stage, but these are not reasons to not prosecute if there is clear evidence that a crime has been committed.

My main concern, in this post and others on this topic, is that if nothing is done we will have effectively ratified a way in which government officials can successfully construct a conspiracy to violate the law: get the OLC to sign off and you can do anything.

Bush supporters who are resisting an investigation in this instance should contemplate how they would feel if the tactic is used in the future by a government they did not support (by Obama, for example).

As for the consequences of bar sanctions, I don't know whether Bybee could retain his position with a bar sanction imposed against him, whether this is a disbarment or reprimand. There is no rule that I know of dealing with this. It would certainly be a personal and professional disgrace to have a sitting judge who was sanctioned by the bar for his conduct as a lawyers.

Yoo, on the other hand, will undoubtedly be secure in his tenured position for anything short of a criminal conviction. Bar sanctions don't mean much (many law professors aren't members of the bar). "Tenure" in America spells "job protection." But that's a topic for a different day.

Brian
 

Woo hoo, Yoo!
 

Jan Crawford Greenburg is reporting that OPR has completely missed the Pennsylvania bar's four-year deadline for disciplinary complaints. Yoo is admitted there.

But Nevada and D.C., where Bybee is admitted, have no such time limit.

See Tortured Timing
 

JaO:

"Missing the deadline" means there is certainly enough information about possible "criminal criminal" [SIC] to begin an investigation of OPR lawyers, right?
 

Charles,

Have a nice day.
 

You too.
 

bartbuster please respect our desire to have a conversationNot a chance. If you want to provide a forum for rightwingnut propaganda, you get what you deserve.
 

Charles wrote:-
Maybe next you can regale us with the tales of Don Quixote and his trusted squire, Judge Garzón, who not only wants to prosecute Professor Yoo but has also repeatedly expressed a desire to investigate former U.S. Secretary of State Henry Kissinger in connection with his involvement OVER THIRTY YEARS AGO with a plot known as Operation Condor.
Obviously you do not like the idea that another jurisdiction should presume to investigate the conduct of members of the Bush or Reagan Administrations. You are certainly not alone. You make care to regale yourself with this op-ed in the same vein by John Bolten in the Wa-Po Obama's Prosecutions by Proxy
Spain, like the United Kingdom and many other countries, claims to exercise universal jurisdiction over a very restricted category of crimes against humanity and torture is one of them. Spain has a special interest in its nationals overseas many of whom are (or were) in Latin America - and in what happened to them under the various Fascist dictatorships which Reagan supported. And of course, Spain knows better than most what that means because of its own suffering under the Fascist regime of Generalissimo Franco. The bodies are still being exhumed and identified.

Spain has also had its terrorism attacks (the Madrid bombings and the ETA problem).

As one of the very small number of Audienca Nacional examining magistrates, Judge Garzon has been very good at investigating those cases.

Judge Garzon is only an examining magistrate and as such only concerned with the preliminary enquiry into a case. He enters upon his functions either at the request of a prosecutor, or on the complaint of an interested party. Once a matter is before him, he must proceed to investigate. He can decide that the court has no jurisdiction (impossible in a torture case), or that no crime has been committed, or that there is is the possibility that there is a case to answer in which case he begins an investigation. The prosecutors, the complainants and any party under investigation may appear by counsel or in person before him and all his decisions may be appealed. If he decides to send a case for trial, his functions come to an end and the public prosecutor has the conduct of the case before the trial court.

The case which is most familiar to me is that of General Pinochet, the former dictator of Chile (who was strongly supported of course by the late President Reagan under the odious Kirkpatrick doctrine and many of whose senior military torturer officers had trained in the USA). Our courts were very heavily involved because of course Pinochet was arrested in England on an arrest warrant issued by Judge Garzon. Quite a number of the thousands of victims of the Pinochet regime had Spanish nationality - including, if I remember rightly, some priests and nuns. At the time Pinochet was immune from prosecution in Chile. In the end he was returned to Chile, his immunity was lifted and he was prosecuted. A good thing too.

No justice system wants to add to its burdens by taking on complex and expensive cases where there is another more appropriate forum able and willing to do so. But I think you will find that UK prosecutors and Courts are also very alive to both their jurisdiction and their duty and should the United States fail to investigate and if appropriate prosecute, then our system will, however reluctantly, do its duty irrespective of political pressure. But the English Court has already forced disclosure of documents for use in the US detainee Habeas proceedings despite a very ill-advised threat from a State Department lawyer that the USA would reconsider its intelligence sharing arrangements with the UK were the Court to order disclosure. Her Majesty's Judges do not take kindly to that kind of move. The Attorney-General is superintending an investigation into the possible criminal complicity of our intelligence services in the ill-treatment of detainees while in US custody.

At the moment it is "wait and see". Wait and see whether the US lives up to its international law obligation to investigate and, if appropriate, prosecute. But there are former officials who might be well advised not to vacation in Europe for the time being.

And by the way, the level of crime as a ratio of the population in Spain is quite low compared to the USA. I can think of no city in Spain where the commonest complication of pregnancy is gunshot wounds.
 

This comment has been removed by the author.
 

Very fine comment, Mourad. I'm glad to see that other countries, at least, take their treaty obligations seriously.
 

My main concern, in this post and others on this topic, is that if nothing is done we will have effectively ratified a way in which government officials can successfully construct a conspiracy to violate the law: get the OLC to sign off and you can do anything. .


That is pretty close to the heart of my main concern, too.

If existing remedies, such as bar discipline, are not up to the task, there may need to be systemic reforms. If the OLC principles articulated by Dawn Johnsen and here colleagues can be institutionalized, that would be a big help. I'd like to think that would be sufficient, but I am not at all sure of that.

The missing piece is still acountability. The newly reported foulup of the timing of the OPR report is not a good sign. I wonder if OPR should be combined with the Inspector General with more independence. Similarly, we recently learned the downside of a standing special-prosecutor statute; more recently we are learning the downside of not having it.

Sadly, it seems that lawyers, like financial markets, are not very good at regulating themselves.
 

Anderson said...

BD: How does writing a legal opinion advance a conspiracy to commit torture?

God knows, Bart surely does not try this question-begging in open court. He'd get his ass handed to him.

There is no need to perform this teeth pulling with actual prosecutors in court. The DA generally must present his indictment or information at the arraignment or my client is released. If the indictment or information is crap, I will request a preliminary hearing to compel the DA to present prima facie evidence of an actual crime. If the DA fails to do so, the court will dismiss the charges.

In this thread, I am simply asking all the DA wannabes calling for criminal prosecutions of lawyers for rendering opinions to simply offer the mere skeleton of a viable criminal charge.

A: The entire point is that OLC was *not* just "writing a legal opinion." To assume that's all they were doing is to assume the conclusion.

I will illustrate.

Obama tells CIA to kill Rush Limbaugh. He tells CIA, "I want to kill Rush. No trial, no jury, Just shoot him down like a dog."

CIA decides it had better comply, but worries its assassin will be prosecuted. So CIA goes to OLC and says, "Can you write me an opinion saying that it's legal for the President to order Rush Limbaugh assassinated?" CIA will not carry out the deed if OLC tells it that it's illegal, but CIA strongly hints to OLC that Obama thinks there's a right answer here.

OLC complaisantly writes an opinion holding that killing Rush "promotes the national welfare" under the Preamble to the Constitution and thus is a legitimate exercise of the President's powers, and btw that had the Fifth Amendment meant to limit the President's powers, it would have said so. The various authorities to the contrary are omitted or explained away. No discussion of the possibility that the courts might disagree. The memo expressly notes that Rush is the target and opines that killing him in cold blood is perfectly legal, though it does not actually recommend doing so.

Is that "just writing a legal opinion," or is that conspiracy?

So far, just writing a memo. I do not see how the attorneys are advancing a conspiracy to murder Rush by writing the memo.

I would adjust your hypo in one way to make it comport with the actual OLC memos. The memos simply opine that Obama's order to whack Rush is legal. The attorneys do not recommend that Obama take that or any other course of action. This is a critical point, as I will show.

With that factual change in mind, are you contending that the memo itself advances the conspiracy by acting as a get out of jail free card for Obama or his assassins? No one here seems to think that the Yoo and Bybee memos are get out of jail free cards for the Bushies and CIA. If not, the memo is simply an opinion that does not advance the assassination of Rush one iota.

Are you instead contending that the memo unlawfully incites Obama to order the hit on Rush? I do not see how. The memo simply states that the act would be lawful, but does not recommend any course of action at all. Yoo and Bybee were very careful not to fall into that trap. Without even a recommendation, nevertheless speech rising to the level of incitement, good luck on getting your prosecution past the First Amendment.

The reason why Justice is not recommending a criminal prosecution of the OLC attorneys is not some nefarious conspiracy, but rather the lack of a credible criminal change.

The fact is that lawyers give legal advice all the time opining that a proposed course of action is legal only to have some court decide otherwise after the fact. Are those hundreds if not thousands of attorneys all guilty of criminal conspiracies with their clients?

Speaking as a lawyer, we are treading on very dangerous ground here. A client wants and needs candid advice from his or her attorney. If an attorney has to fear prosecution for criminal conspiracy if he or she gives a bad opinion concerning the legality of a course of action, no one will give candid or useful advice.

Andy McCarthy's recent letter declining AG Holder's invitation to attend a round table to give legal advice to Obama on the war made this point in spades. McCarthy pointed out that Holder had already called McCarthy's opinions on the detention and treatment of al Qaeda prisoners to be unlawful and was pointedly leaving open the possibility of prosecuting OLC attorneys for the opinions they had given the last President. Thus, McCarthy told Holder he was hardly going to expose himself to a Justice criminal prosecution for giving Obama a legal opinion with which the President disagreed. Zing!
 

Mattski:

The president swears an oath to preserve protect and defend the Constitution. The Constitution says the president shall take care that the laws are faithfully executed. But the Constitution does NOT say that the laws don't apply to the president unless they include a specific reference to the president.

That would be the "Simon Says" School of Law. This particular school picks up the obvious adherents.

Cheers,
 

This action by McCarthy and its trumpeting by the usual suspects seems to me indicative of something a little different than some people think.

A similar quandary is and always has been presented to many people who object, on moral or ethical grounds, or even grounds of self-protection, to actions by the federal government.

I've always thought it a more moral and ethically mature action to make one's abilities and knowledge available, for the good of the country, but go on record as objecting to the actions one objects to.

Seems to me a refusal to participate in an action that can aid the country can hardly be pointed to as courageous. I'd call it political partisanship trumping the common good. During the Vietnam era, people who refused to participate because they believed they were being forced to run personal risks for a bankrupt policy were labeled cowards -- or worse.

This doesn't seem like "zing" to me.
 

Bart DePalma:

Apart from the difficulty in identifying an actual crime committed by the OLC attorneys, perhaps another reason why Justice is declining to recommend a criminal prosecution is because Justice and Third Circuit are relying in current litigation upon the same theories as those advanced by Yoo and Bybee.

McCarthy (possibly deliberately) confuses "purpose" (or "motive") with intent [McCarthy: "In so doing, prosecutors argued to the court that even if Demjanjuk were put in severe pain, there could be no torture unless he could establish that government officials had an evil motive to inflict severe pain and suffering on him."]

The distinction being drawn in the brief however is between "general intent" (as opposed to actions made by mistake) to simply perform the actus reus (the deportations in both Demjanjuk's and Auguste's cases, or the incarceration once deported) and the "specific intent" that actual pain result. In Auguste's case, the court held that there was no evidence of a specific intent of the Haitian government to inflict severe pain or suffering (also keep in mind the exemption in both CAT and 18 USC § 2340 for "incident[] to lawful sanctions"), and the gummint is arguing the same for Demjanjuk, even if such suffering may occur in some cases.

FWIW, I'd note that here is the Auguste statement of the requisite intent: "As we noted above, for an act to constitute torture, the actor must not only intend to commit the act but also intend to achieve the consequences of the act." There is no requirement that the motive be thus, only that the "intend[ed] consequences" of the actus reus be the prohibited result, even if this is done with quite some different purpose (such as extracting confessions, inflicting retribution or vengeance, or satisfying sadistic impulses). The Haitian government could have had such purposes in mind and intended any incarceration to achieve these purposes through the intentional infliction of the prohibited result of such incarceration. The court found that there was no evidence that they did so. Any such pain that might occur was incidental (and unessential) to their purpose in locking up criminals. This is quite diametrically opposed to the intent of inflicting the pain in the torture cases, where the pain was essential to the (purported) purpose of extracting confessions or information.

Cheers,
 

The torture memos are analogous to a getaway car. The driver of the getaway car does not participate in the bank robbery directly. Rather, he enables the robbers to evade the consequences of their crime, i.e. apprehension and trial.

The robbers rely on the getaway driver in planning and executing their crime. They would not rob the bank if the getaway car were not available, and the getaway driver knows this.

If the getaway driver's lawyer is Bart, then he covers his face with his hands during closing arguments, as Bart harangues the jury that, after all, driving a car is not a crime.
 

More McCarthy (from Bart's link):

Given that the Bush DOJ memos in question evince an assiduous effort not to cross the line into torture...

Not exactly. it could just as reasonably (and more plausibly) be read as an effort to move the lines to allow the infliction of the severe pain and suffering by writing the torture statute into a reductio ad absurdum. This they did by insisting that -- because various people were horrified by torture and referred to it as an "extreme" crime -- torture must be only the most extreme kind of treatment, and then saying that all kinds of things that don't manage to reach that extremum are thence not "torture" and are "legal". This is an inversion of the logic of such statements; quite literally asserting that because people say "torture is extreme punishment", then the quasi-inverse ("only the extremest of extreme is torture") should be true. But in staking out torture, and drawing the line at less that torture in defining extreme, one can't then take the right end of the "extreme continuum" [which includes a range of your everyday torture] as the new range of extreme to delimit "torture" in turn. It would be like saying "because torture is extreme, only the extremest torture is torture" and applying that recursively. This is what the definition of "severe" to be pain equivalent to that accompanying organ failure or death was ... the end result of such "analysis" stopped only by the fact that you can't get any more "extreme" than death. The banality of evil, really.

Cheers,
 

Bartboster:

Tsk, tsk. You are just asking to be banned.
 

As long as we're choosing our own hypotheticals:

[Bart]: I would adjust your hypo in one way to make it comport with the actual OLC memos. The memos simply opine that Obama's order to whack Rush is legal. The attorneys do not recommend that Obama take that or any other course of action. This is a critical point, as I will show....
How about we add that the OLC is told that this memo is absolutely necessary to persuade the leery CIA to do the whacking, and that the CIA have assured the preznit that they will indeed whack El Rushbutt once they are in receipt of the (suitably phrased) memo? OLC is asked to do their part and if they play ball, they will be subsequently rewarded for their co-operation?

Cheers,
 

Bart:

DNFTT.

Cheers,
 

Bart DePalma said:

Speaking as a lawyer, we are treading on very dangerous ground here. A client wants and needs candid advice from his or her attorney. If an attorney has to fear prosecution for criminal conspiracy if he or she gives a bad opinion concerning the legality of a course of action, no one will give candid or useful advice.

Wouldn’t candid or useful include possible negative consequences of the proposed action? How candid was it to leave out all of the negative legal results that could come from “enhanced interrogation”?

You seem to be taking the position that the lawyer’s duty is to tell the client how close he can get to the line without being arrested, or in this case, how far the client can go over the line before the outrage is so great that prosecutions will result.

With that attitude, I can understand why you think that lawyers should bear no responsibility for their legal opinions. Frankly, your argument comes across as though you are hoping to serve as consigliere to the Godfather.

I would prefer the advice I would get if the lawyer knew that he was putting his career and freedom on the line along with me (but then I’m am not interested in getting as close to criminal behavior as possible).
 

Little Lisa's bro is concerned that the role of the lawyer in advising his client may be in jeopardy:


"Speaking as a lawyer, we are treading on very dangerous ground here. A client wants and needs candid advice from his or her attorney. If an attorney has to fear prosecution for criminal conspiracy if he or she gives a bad opinion concerning the legality of a course of action, no one will give candid or useful advice."

Once again my trusty Webster's New World Dictionary is called upon:

"candid 1 free from prejudice or bias; fair; just; impartial 2 very honest or frank in what one says or writes"

Is it unknown to little Lisa's bro that a lawyer just might give uncandid (yet useful) advice to the client? How might a DUI attorney advise a client about beating the rap that might be a tad uncandid in earning his fee? Smile, little Lisa's bro, you're on Candid Camera.
 

Today's NYTimes provides two (2) editorials on topic:

"The Torture Debate: The Missing Voices"

"The Torture Debate: The Lawyers"
 

Slightly off-topic but related to future DOJ improvements, at LAW.COM:

"New OPR Chief Predicts More Transparency in Attorney Investigations"

Joe Palazzolo and Mike Scarcella
The National Law Journal
May 7, 2009
 

This is what the definition of "severe" to be pain equivalent to that accompanying organ failure or death was

It's a pretty jaunty definition of torture when you think about it. Let's focus our minds for a moment and ask how bamboo shoots under the fingernails could approach the pain of 'organ failure or death'?

So, bamboo shoots under the fingernails: not torture. Thank YOO!
 

In my 55th year before the bar, I continue to appreciate and abide by the attorney-client privilege. I also well understand that the privilege is not mine to assert but that of the client. This means that the client can reveal communications with the attorney. If the attorney's advice has not served the client well (for a myriad of reasons), then the client may blow the whistle on the attorney (again, for a myriad of reasons). So it behooves the attorney to make sure the advice rendered is indeed candid - and well documented.

With regard to the OLC memos/opinions, identifying exactly who are the clients served by the OLC attorneys may not be simple. So who can waive the privilege? Can the client disclose the communications with the OLC attorneys? What risks might the client run in doing so? What might benefit the client? Complicating this is the fact that significant public issues are involved, unlike the situation with respect to most attorneys rendering advice to a non-public client. So Bybee, Yoo and Bradbury do not control the privilege. Perhaps they take comfort that the clients (whoever they are) would be reluctant to waive the privilege to the extent it exists to protect their own backsides - that they all have to swim together or sink together. But that may not be the case. The public's interest may override the reasons for the privilege. In any event, the disclosures to date cloud DOJ/OLC and the clients they served, even if there is no formal investigation by a commission. Public opinion has a way of long festering those involved, which can be punishing. Consider the route of Nixon and his aides with Watergate.
 

No one I know has ever asserted that the OLC lawyers control the attorney-client privilege. That's a strawman argument.
 

Hank Gillette:

[Bart]: If an attorney has to fear prosecution for criminal conspiracy if he or she gives a bad opinion concerning the legality of a course of action, no one will give candid or useful advice.

Wouldn’t candid or useful include possible negative consequences of the proposed action?

"Or" is a conjunction true if either clause is true. And "useful" depends on what one is trying to accomplish. ;-)

Cheers,
 

"Tenure" in America spells "job protection." But that's a topic for a different day.Also, a topic of a previous day. It didn't go very well, particularly given it wasn't made it good faith to those who opposing the party line.
 

This comment has been removed by the author.
 

Arne Langsetmo said...

[Bart]: I would adjust your hypo in one way to make it comport with the actual OLC memos. The memos simply opine that Obama's order to whack Rush is legal. The attorneys do not recommend that Obama take that or any other course of action. This is a critical point, as I will show....

How about we add that the OLC is told that this memo is absolutely necessary to persuade the leery CIA to do the whacking, and that the CIA have assured the preznit that they will indeed whack El Rushbutt once they are in receipt of the (suitably phrased) memo?

1) All the evidence in the record indicates otherwise. The CIA interrogation following the Bybee memo was far more intense and involved combinations of techniques beyind what that memo opined were legal. CIA did not wait or even ask for another memo before waterboarding Zubaydah and KSM multiple times. It was not until about three years after the fact that CIA obtained the Bradbury memos. It does not appear as if CIA was waiting for anything.

2) As I have discussed above, the scenario you posit is an allegation that OLC somehow incited CIA to commit torture. The problem here is that OLC did not recommend a course of action, nevertheless incite one. No way such a charge survives a First Amendment defense.
 

Hank:

What negative consequences would you propose Yoo and Bybee have warned CIA about?

When these memos were written, there was no analogous precedent applying the Torture Statute anything close to these facts. On an earlier thread, Milan tried his best to come up with something and came up empty.

The political fallout from a minority on the left is beyond the scope of a legal memorandum. That would have been an issue for Karl Rove.
 

Shag from Brookline said...

With regard to the OLC memos/opinions, identifying exactly who are the clients served by the OLC attorneys may not be simple. So who can waive the privilege? Can the client disclose the communications with the OLC attorneys?

As the sole executive, the President was the client in a memo directed toward the Executive and is the only one who can waive the privilege, as Mr. Obama has done in this case.

The public's interest may override the reasons for the privilege.

If and only if there is credible evidence that the advice was actually a criminal act.

Public opinion has a way of long festering those involved, which can be punishing.

Or not. Majorities of the country support Bush's decision to waterboard KSM & Co and oppose the proposed witchhunts no matter who conducts them.

This fact of life is why Obama's responses on this subject are nearly incoherent as he tries to pander to his base without alienating his electoral majority.
 

Bart DePalma:

2) As I have discussed above, the scenario you posit is an allegation that OLC somehow incited CIA to commit torture. The problem here is that OLC did not recommend a course of action, nevertheless incite one. No way such a charge survives a First Amendment defense.

"[I]ncite"? No. Please read for understanding. It's my farking hypothetical, dammit. If I'd meant "incite", I'd have said so. Care to address the hypothetical I posed without generating yet another closer to what you'd really like to 'discuss'? If not, there's some goal posts in my back year that should be in my neighbour's yard, if you have the time.

Cheers,
 

Bart DePalma:

As the sole executive, ...

This may big big news for many, many people.

... the President was the client in a memo directed toward the Executive and is the only one who can waive the privilege...

Cites? Oh ... right ... nevermind.

Cheers,
 

Bart:

I warned you not to feed the troll. He does not desire a reasonable discussion.
 

So little Lisa's bro seems to be of the opinion that President Obama has the authority to waive the privilege of attorney/client confidentiality for prior presidents receiving legal advice:

"As the sole executive, the President was the client in a memo directed toward the Executive and is the only one who can waive the privilege, as Mr. Obama has done in this case."

I second Arne's request for a cite to authority for this.

And does this mean that the VP and others serving in the Executive Branch seeking the advice of counsel cannot waive the privilege? That if they do disclose communications with counsel without the approval of the President, they are violating the privilege? What if former VP Cheney, or for that matter former President George W, after President Obama's inauguration, made such disclosures - might that be improper?

Does it work this way for corporations in their attorney/client relationships regarding the privilege?
 

By the Bybee, has President Obama waived the privilege such that the former, Bradbury and Yoo are free to speak up and under a lawful subpoena obliged to respond with respect to communications relative to their OLC memos/opinions, subject of course to the Fifth?
 

What negative consequences would you propose Yoo and Bybee have warned CIA about?

When these memos were written, there was no analogous precedent applying the Torture Statute anything close to these facts.
The stupid! It burns!

Let us concede Bart's assertion re: precedent on the Torture Act.

Let us imagine that we are attorneys advising a client on what conduct might fall within the Act -- bearing in mind the criminal penalties therefor.

Do we then have a duty to explain to the client that there is a *range* of possible judicial interpretations? Or do we simply argue for one end of that range, as if the other end did not need discussion?

Do we then have a duty to explore off-point but potentialy persuasive authorities, like the 1983 Texas waterboarding case? Or do we leave our client unaware that such precedents, which a court might well find relevant, even exist?

In short: are we minimally competent lawyers, or are we Bart lawyers?
 

Shag from Brookline said...

BD: "As the sole executive, the President was the client in a memo directed toward the Executive and is the only one who can waive the privilege, as Mr. Obama has done in this case."

I second Arne's request for a cite to authority for this.

No one has ever challenged the President's exercise of this privilege that I am aware.

And does this mean that the VP and others serving in the Executive Branch seeking the advice of counsel cannot waive the privilege?

As its own office under the Constitution, the VP might have an argument for having the privilege for advice that he specifically requested. However, if the memo was drafted at the request of the President or one of his agents in the executive, the President as the sole executive has the privilege. All other members of the executive are agents of the President and none can waive the President's privilege unless the President delegates that power to them.
 

Shag from Brookline:

I second Arne's request for a cite to authority for this.Maybe Bart could cite those wonderful cases from the Starr Chamber era ... where all the courts upheld Clinton's ACP WRT gummint lawyers. I know they're out there, those decisions, but I have neither the time nor the urge to go find them....

Cheers,
 

Shag from Brookline said...

By the Bybee, has President Obama waived the privilege such that the former, Bradbury and Yoo are free to speak up and under a lawful subpoena obliged to respond with respect to communications relative to their OLC memos/opinions, subject of course to the Fifth?

I see no legal reason why Bradbury and Yoo could not testify as to the subject matter for which Obama has waived privilege and declassified. To be sure, Yoo and Bybee should request that the party asking the questions ask Mr. Obama to agree in writing that he has waived privilege and declassified the subject matter being asked about. Otherwise, I would decline to answer questions about which there is any doubt under privilege or classification.
 

CRH50H:
I find myself wondering if Bart would have the same opinions
about the Terrorists in Northern Ireland as the Terrorists in
The Middle East. Would he recommend the same type of harsh
treatment of bombers of Anglo- Saxon ancestry as he does for
humans who wear bedsheets and turbans?
 

The Clinton era precedents establish that there is no governmental attorney-client privilege in federal criminal proceedings. It is also doubtful that the privilege could be (properly) invoked with regard to congressional proceedings.

The Supreme Court has recognized that former presidents can invoke executive privilege under some circumstances, but it is not clear what would happen if Bush wanted to invoke the privilege and Obama wanted to waive it. This is one of the issues that was sidestepped by settling the Miers/Bolten subpoenas.

My understanding is that judges are not subject to bar discipline. The OPR report, therefore, probably will not recommend that Bybee be referred to the bar. Whether or not he could be referred to the judicial ethics council for conduct prior to his appointment, I do not know.

I am curious if anyone knows the answer to C2's question from awhile back. As far as I know, no one from OLC has ever been criminally investigated or prosecuted for anything related to their official duties. The same may be true of the Justice Department as a whole, prior to Watergate.
 

Bart,

Please do not blatantly misrepresent my words or actions.

On a previous thread, I pointed out that the CAT has been interpreted on numerous occasions by the circuit courts. Despite your interest in interrogation policy, you were apparently totally unaware of this. I cited three recent cases to show you that this was so. I never claimed that these were the closest analagous precedents. I have neither the time nor inclinations to sort throw 100s of circuit court decisions. My point is only were I tasked to determine what acts constitute torture by the White House (or any other client for that matter), I would at least take a look at these precedents. Yoo, Byee, etc., did not do this. As I asked in the previous thread, why do you think that is?

In addition, Bart, you completely glossed over my earlier point that the war crimes act provides a different ground for prosecution than the torture statute. Is this because you were unaware of the war crimes act?
 

Farris W said...

I find myself wondering if Bart would have the same opinions about the Terrorists in Northern Ireland as the Terrorists in The Middle East. Would he recommend the same type of harsh treatment of bombers of Anglo- Saxon ancestry as he does for humans who wear bedsheets and turbans?

When the left starts playing the race card, it is a sure sign they have run out of legitimate arguments and another lengthy thread has been exhausted.

To answer your smear, even though my maternal side is German/Irish and though I fully support Irish use of armed force to throw out the Brits once and for all, terrorism is terrorism. I have no legal or ethical problem with MI6 and the SAS treating the IRA as unlawful combatants and employing each and every method discussed in the OLC memos.

If you want to play outside the laws of war, then do not expect protection from the laws of war.
 

If you want to play outside the laws of war, then do not expect protection from the laws of war.
====
You yell at "the left" and then you come on shouting like a barking dog of war, with this (pun intended).

If anyone had actually, you know, studied how to defeat terrorist movements, they might have discovered that turning yourself into the biggest "baddass" in the world ... er, that's not the ticket to success.

Luckily, in Petreaus, we have a General who knows that, even if he is just one man. Yet, we are still not rid of the consequences of having got off to such a bad start, from the top down.
 

Milan:

BD: When these memos were written, there was no analogous precedent applying the Torture Statute anything close to these facts. On an earlier thread, Milan tried his best to come up with something and came up empty.

What precisely is misrepresented in this post?

You claimed that there was a raft of Circuit Court of Appeal precedent that could be applied to the CIA interrogation and then, after repeated requests for cites, offered completely inapposite cases finding that long term, vicious beatings causing physical injury were torture.

You came up empty.

The most interesting precedent you offered was a footnote in one of your cases citing to a fourth case where the Circuit found that a beating which "only" caused swelling of the face was not torture. While I suppose Yoo and Bybee could have used this as a compare cite to support their position, declining to do so is hardly the basis for disbarment for ignoring relevant case law.
 

Amicus said...

If anyone had actually, you know, studied how to defeat terrorist movements, they might have discovered that turning yourself into the biggest "baddass" in the world ... er, that's not the ticket to success.

Petreaus did not coddle al Qaeda prisoners. Rather, Petreaus won in Iraq by protecting and befriending the Iraq people while ruthlessly hunting down the terrorists. Mao observed once that guerillas swim in the sea of the people. However, when the people turn against the guerillas, the sea dries up and the guerillas dies like so many fish left on dry land.
 

Bart,

This part is incorrect: "On an earlier thread, Milan tried his best to come up with something and came up empty." I was NOT looking for an analagous precedent and in fact noted that the cases I provided could be distinguished. I'd be shocked if there was an analogous precedent to insect in the box, for example. Instead of looking at any of the Circuit Court decisions re: the CAT, however, Bybee and Yoo tried to define "severe pain" through a bizarre textual exegesis.

All I was trying to do is make the simple point that the meaning of torture has been interpreted by courts, your frequent claims otherwise notwithstanding. I was not trying to convince you that the acts you view as permissible are torture. And, not to rehash the previous thread, one of the cases I did cite did pick up on confining someone in a cramped space as torture.

Bart seems to sugggest that those who believe that Bybee and Yoo behaved unethically and even criminally must show that the exact procedures they sanctioned have been held to be impermissible by a U.S. court. It's not even enough to point out that waterboarding has been prosecuted as torture; apparently we must show that as performed by the Bush administration it qualifies as torture.

Personally, I don't believe that we have to have a specific precedent defining the very acts performed as torture to see the acts as torture. There is simply no justification for reading the torture statute (or most criminal statutes for that manner)in such a manner.
 

Did you just quote Mao Zedong? Now you've gone too far, Bart.
 

Swimming primates is a bridge too far for me.
 

Petreaus did not coddle al Qaeda prisoners.
====
Everything about the Bush-era language takes us in the wrong direction.

"Capture or kill" - wrong overtones!

Should have been "neutralize and unwind networks".

I understand why you can't stop barking; but, with luck, it will soon not be anything but an annoying sound in the distance, a bad chapter in the history books.
 

Amicus said...

BD: Petreaus did not coddle al Qaeda prisoners.

A: Everything about the Bush-era language takes us in the wrong direction.

"Capture or kill" - wrong overtones!

Should have been "neutralize and unwind networks".

I understand why you can't stop barking; but, with luck, it will soon not be anything but an annoying sound in the distance, a bad chapter in the history books.

LMAO!

I had to read your post a couple times to be sure that you were actually serious, but the dig at the end seems to indicate that you are.

Let's see now...

Team Obama could not bear to use the term "war" and has instead dubbed our conflict with al Qaeda as "overseas contingency operations."

Even the term "terrorism" made the new management at Homeland Defense and get all flustered. The new term is now "man-caused disaster."

Apparently, DHS uses the same style book as does the Dem press, who long ago discarded the term "terrorists" as too judgmental and replaced it with "militants," as if al Qaeda were the equivalent of the Grey Panthers.

I would not be at all surprised if the high priests of Hope and Change soon change DoD into the "Department of Interpersonal Conflict Management."

Now, you want this old grunt to trade in the terms "capture" and "kill" for "neutralize and unwind networks".

Seriously, could you folks on the left transform any further into a completely ridiculous gaggle of wussie weenies?

God save the Republic!
 

Bart says:

When the left starts playing the race card, it is a sure sign they have run out of legitimate arguments and another lengthy thread has been exhausted.

How utterly laughable. Like Kevin Bacon in "Animal House", you keep repeating the same thing over and over, acting as if people are not responding directly to your query and knocking your "arguments" completely out of the park...
 

Interrogation's LawWilliam Ranney Levi
Yale University - Law School
Yale Law Journal, Forthcoming

Abstract:

Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal more flexibility than the high-minded legal prohibitions of coercive tactics would suggest: all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before. The conventional wisdom thus elides an intrinsic characteristic of all former and current laws on interrogation: they are vague and contestable, and thus, when context so demands, manipulable.

To download the entire paper, go to the link, click download and then click the SSRN icon on the new page.
 

Bart wrote:-

To answer your smear, even though my maternal side is German-Irish and though I fully support Irish use of armed force to throw out the Brits once and for all, terrorism is terrorism. I have no legal or ethical problem with MI6 and the SAS treating the IRA as unlawful combatants and employing each and every method discussed in the OLC memos.If you want to play outside the laws of war, then do not expect protection from the laws of war.As to the first paragraph quoted above, Bart should be aware that human rights have moved on since his Irish ancestors left these Isles.

I am very glad to say that the Republic of Ireland and the United Kingdom of of Great Britain and Northern Ireland are signatories of both the Convention against Torture and the European Convention on Human Rights.

In the European Court of Human Rights Case Ireland v. United Kingdom the Court declared that a number of the lesser practices expressly sanctioned in the OLC memos for use on detainees (eg sleep deprivation, stress positions and hooding) constituted "inhuman and degrading treatment" and were therefore unlawful. That judgment was accepted by HM Government and compensation was paid to the victims.

That jurisprudence is binding on all ECHR signatory states. By virtue of the incorporation of Convention Rights into UK domestic law such rights have also been held by our Courts to apply to detainees in the effective custody of UK forces outside the UK (in Iraq for example). I cited this case on the previous thread but I accept that Bart has always sought to dismiss foreign precedents (or even common sense) as irrelevant and he probably did not bother to read it.

For his further information, Bart should be aware that both national governments in Ireland, and the devolved Northern Irish Government and most of the former paramiltary organisations are now committed to the resolution of all matters through the ballot box and not by the use of force. The supranational EU economic structure has helped with that as have the cross border institutions.

But the history of Northern Ireland shows that when "terrorists" obtain a certain level of popular support it is necessary to reach out, talk and reform. The simple application of military and police power inevitably fails.

Yesterday's terrorist leader is today's Deputy Chief Minister.

But then, although Bart describes himself as a veteran I do not believe he has any relevant active duty service in a peace enforcement or peace keeping role. More's the pity, because if he had, he'd realise just how inimical the approach he advocates has been to winning what Bush termed the "global war on terror". It makes matters worse, not better.

Given that the courts of very many countries would apply the CAT, would be willing to accept jurisdiction over US nationals, particularly where the detainee was one of their nationals or residents, I would have thought that even Bart want the OLC to have adverted very clearly to the possibility that persons relying on the opinions might one day find themselves arrested when, say, taking a vacation overseas. Dad's arrest at the gates of Eurodisney might rather spoil the trip for Mom and Junior.

Is that something to which the OLC memoranda should have adverted? Just a tad negligent not to have, perhaps?

That brings me to the issue of who is the client of the OLC. In the UK, the client of any government lawyer is the Crown. Office holders may sue and be sued in their official capacity. The duty of care and confidentiality is owed to the Crown and legal professional (attorney-client) privilege is that of the Crown and is claimed and waived by the officeholders for the time being or their successors.

Since the US sues and is impleaded as "The United States of America" and office holders many also sue and be impleaded in their official capacity with successors being substituted, it would seem that "the client" is the United States represented by the succession of office holders. The lawyers' duty is to "the USA".

Perhaps for the Counsel to the President and the Vice-President (eg Alberto Gonzalez and David Addington) their clients would be the President/Vice President personally (when acting in an official capacity) unless the personal privilege was waived - for example by sending a memorandum to (say) the OLC for its use on behalf of the United States.

Then there would be the additional issue of "executive privilege" which is, I think, something other than legal professional privilege and additional to it.

I'd be very interested in the views of others on the "who is the client" issue.

As to the second paragraph of the citation from poor Bart's post above, the whole purpose of instruments such as the Convention Against Torture and the European Convention on Human Rights (and its American sister), and the very US Constitution itself, is to hold the more evolved democracies to higher standard that others might one day seek to emulate.

OK, so there has been a 10 year intermission while the Toxic Texan's barbarians were running Washington, but they've gone back to Texas and the other places from whence they came.

Bart's conceptual problem might be expressed in the words of Kavafis:

Και τώρα τι θα γένουμε χωρίς βαρβάρους.
Οι άνθρωποι αυτοί ήσαν μια κάποια λύσις.

And now what shall become of us without any barbarians?
Those people were some kind of solution.

Bart and his fellow travellers need to learn that the world can do without any more Neocon "solutions".
 

Bart:

You claimed that there was a raft of Circuit Court of Appeal precedent that could be applied to the CIA interrogation and then, after repeated requests for cites, offered completely inapposite cases finding that long term, vicious beatings causing physical injury were torture.

See? Some people don't have any difficulty in figuring out if something's torture. Why you think they're inapposite is anyone's guess ... unless it's because they don't say what you want them to say....

But, say, should we ask them (the torturees) if the pain was equivalent to that accompanying organ failure or death? What if they said no? What if they said it was severe, but not the same as dying, as far as they knew?

Cheers,
 

First, Nancy Pelosi claimed that she was never briefed on the CIA interrogation program.

The Washington Post outed revealed that to be a lie.

Then, Pelosi claimed a couple weeks ago never to have been briefed that the CIA would :::gasp::: ever use these interrogation techniques on actual terrorists.

Screw with us, says the CIA? As if by magic, an DNI report was leaked today disclosing that, in September 2002, CIA briefed the two ranking members of the House Intelligence Committee - Pelosi and Goss - describing the interrogation techniques used to break Zubaydah. Pelosi did not raise a single objection to "torturing" Zubaydah.

I am sure you are all properly outraged and will ask for an immediate criminal investigation of the Speaker. After all, CIA never would have proceeded if Pelosi had objected to these techniques. Hell, she might as well have poured the water over the cloth on Zubaydah's face herself.

As Mourad would say, we cannot allow these barbarians to escape an accounting!

I will go collect the wood and stake. You folks get the torches and bring Ms. Pelosi to the public square.
 

Bart quotes Levi:

U.S. interrogation policy well prior to 9/11 has allowed a great deal more flexibility than the high-minded legal prohibitions of coercive tactics would suggest: all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before.

Of course, that doesn't mean they're legal (unless you are a Nixon apologist).

I'm of the opinion that various techniques used in our quasi-wars and even such as the Phoenix program in Vietnam are war crimes. True, the CIA does illegal things (and some might say out of "necessity"), and in fact that's a fair part of the overall DO job ... but then again they don't go crying to their mama about how unfair it is when they get caught and punished. They just put up another star.

Cheers,
 

Bart:

I will go collect the wood and stake. You folks get the torches and bring Ms. Pelosi to the public square.

The tu quoque is getting worn and trite, Bart. We'll light the fire if you first pile the wood around the actual perps, and not the bystanders/accomplices-after-the-fact. But if Pelosi had a significant hand in the torture, there's plenty enough wood around for her too.

This has been pointed out to you repeatedly. You should pay attention one of these years.

And I'll guarantee you your willingness to actually light the fire of investigation is just sham. You'll only do it for people with a "D" behind their names. Now that's dishonest.

Cheers,
 

Hopefully when the report is finally released, a reader can discern any changes made AFTER Pres. Obama's inauguration.
 

“Hopefully when the report is finally released, a reader can discern any changes made AFTER Pres. Obama's inauguration.”

That doesn’t seem likely. I expect that the OPR report will follow the format for a standard IG report. This means that the original report will be circulated for comments, and those comments will be reprinted in the appendix to the report, along with OPR’s responses to the comments. Any changes that OPR makes in the original report as a result of the comments it receives should be identified, though.
 

Seriously, could you folks on the left transform any further into a completely ridiculous gaggle of wussie weenies?
======

Wussie weenies?

It's hardly the people on the Left that have come to the conclusions that now prevail on how to fight global insurrection or terrorist networks / violent political ideologies.

What's more, we've seen the ugly results, many of them, of the political posturing to 'take the gloves off'.

The long, twilight struggle against violent political ideologies is a thinking-man's "war", not a biggest-badass war.

Slowly, we are replacing all the old Bush-era dualisms, craven and weak. (Some are on display just now, too. Notice that you would have us choose between "coddling al qa'ida" and torture...)

It was a huge effort to redo one exemplar, the Army Field Manual, but the changes are welcome.

Indeed, _IF_ one were to take a page from the Bush-era at all, it would be to remark that those who are not on board with the new conceptualizations are subverting the war effort. Put bluntly, Dick Cheney is subverting the war effort and not 'supporting the troops', almost everytime he opens his mouth these days. The Nation has moved on, yet he continues with the old, discarded ways. I'm sure he and others would bristle at that characterization; but, face it, that's how they treated others, so it's hard to gin up sympathy for tilted playing-field players who suddenly demand a fair hearing...
 

Arne:

Nancy Pelosi was not a bystander after the fact. The entire purpose the congressional intelligence committees were formed was to provide oversight and a check on illegal activities by the intelligence community.

In contrast, despite some protests here to the contrary, OLC works for the President. Jack Goldsmith admitted that his job was to find ways to to make the President's policies legal. OLC is not a check on the power of the President or the CIA.

Thus, besides being a unrepentant serial liar, Pelosi bears the larger culpability for approving the CIA enhanced interrogation, to the extent that one believes that there is any legal or moral culpability to be had.

The fact that you Dems are more than satisfied to have the serial liar and "torture" enabler Pelosi remain Speaker of the House and the #3 in your political leadership in line to be President, while screaming for criminal prosecutions of OLC attorneys in a GOP Administration, makes your true motivations crystal clear.

Despite my snark about hauling out the Speaker to be burned in the public square as part of your witch hunt, I do not see that Pelosi or the OLC attorneys did anything wrong in approving CIA enhanced interrogation because the techniques are neither illegal nor immoral. They are not torture and they saved lives.

One of the posters over at Ann Althouse's blog made a pithy observation as to why folks do not look at waterboarding as torture. You would not see reporters volunteering to undergo the beatings and the shoulder dislocation the NVA inflicted on John McCain. However, reporters and others literally fell all over themselves trying to find SF veterans to waterboard them as if it were a fraternity initiation. How can anyone take a procedure which a Brit intellectual like Chris Hitchens asked to have performed on him to be genuine torture?

That is if your motive is not purely partisan.
 

The statute says

"As used in this chapter—
(1) “torture” means 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; "

Why haven't we seen arguments that the phrase

"(other than pain or suffering incidental to lawful sanctions)"

rules out pain and suffering inflicted as part of an interrogation, as opposed to from private motives?

(This is not a rhetorical question; I wonder why it isn't in the Yoo memo, for example.)
 

May I draw attention to this contribution on the Jurist web site from Jordan J. Paust, Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School:-

Rice, Waterboarding and AccountabilityThe author suggests that on the basis of her own statements, Rice looks to be at risk and goes on to suggest that there is a case to answer against all the participants in the so-called "Principals Meetings" attended by Rice, Cheney, Addington, Rumsfeld, Tenet, Ashcroft, John Yoo and others.

I have long posited those meetings as the foundation of criminal charges and I am pleased to see that Professor Professor Paust takes the same view.
 

How can anyone take a procedure which a Brit intellectual like Chris Hitchens asked to have performed on him to be genuine torture?

# posted by Bart DePalma : 10:00 AM
Baghdad, I have seen reporters volunteer to be "tasered". Does that make it ok to use electrical shock when questioning one of your clients?
 

Mr. DePalma,

First, I will indulge your accusations about Pelosi. If you actually read Arne's post, he says he supports an investigation of Pelosi, and I believe that would include Rockefeller, et al, with the (D) after their name that were involved in the illegal conduct. I also support investigation. We aren't calling for their heads (yet) because sufficient investigation has not been conducted, and sufficient evidence has not been released to determine their culpability. I hazard to guess you will find no one on this blog who would object to investigation and public disclosure of their relationship to the criminal acts of torture. So stop setting up strawmen.

Second, your "pithy" comment is frivolous, and can be responded simply with "Why would SERE training include waterboarding if it was not a form of torture?" Since waterboarding is such a walk in the park, I guess you would suggest those persons who have taken SERE training are really not that tough after all, right? The only reason why anyone would ask to be waterboarded is to determine just what the act causes, since there are some people who seem to think it is a debatable question. No one seems to doubt beating and shoulder separation cause pain (though I bet some commentators on this blog would, if that had been what the Bush administration had done), but some people seem to doubt the cruelty of a technique with a 500 year track record of use. Why would the various people who have waterboarded in the past have used the technique if it did not cause extreme suffering and fear of death?

But to follow your point to its logical conclusion, I assume you are asking for President Obama to posthumously pardon those Japanese soldiers we convicted in WWII for torture by waterboarding, right?

RE: Jack Goldsmith's interpretation of his job - Mr. Goldsmith apparently did not take legal ethics, or consult any of the Rules governing his position as an attorney if he believes his job was to make what the President did legal. As an attorney, providing advice to your client, you don't always get to tell them what they want to hear. Your duty is to give candid, accurate legal advise. If your client asks you if he can steal his neighbor's car, your job isn't to find a way to torture an opinion making that action legal, it is to advise him of its illegality.
 

Jack Goldsmith admitted that his job was to find ways to to make the President's policies legal. OLC is not a check on the power of the President or the CIA.
====
That obviously cannot be the whole story, right.

Why have the OLC, then, at all? Why not just have 24 y.o. Liberty University smiley faces write "Amen!" on top of EOs?

Otherwise, that reads like a Frost-Nixon moment.

On the other hand, from what we know about the politicization of Justice in the Bush-era, you probably mean it. It would seem that Republicans reserve the right to call DOJ attorneys their very own and to run a Banana Republic (or as close to one as they can get. Huzza!).

You'd think that people interested in a-Democracy-if-you-can-keep it might keep that fact in mind, when voting, but who knows ... talk radio is a strong force.

Meanwhile, did the CIA brief the legal council of the select committees on intelligence? When?
 

Bart DePalma:

Thus, besides being a unrepentant serial liar, Pelosi bears the larger culpability for approving the CIA enhanced interrogation, to the extent that one believes that there is any legal or moral culpability to be had.

If I may, Bart, may I say that you are hardly in the strongest position to object to the dishonesty of others. Be that as it may, we recognise that a different level of culpability inures to those that actually perform (or order) the torture than to those that knew about it and (allegedly) lied about such.

As for your dishonesty, Bart, we have -- conveniently -- this most recent example right here:

The fact that you Dems are more than satisfied to have the serial liar and "torture" enabler Pelosi remain Speaker of the House and the #3 in your political leadership in line to be President, while screaming for criminal prosecutions of OLC attorneys in a GOP Administration, makes your true motivations crystal clear.

Well, if we did that, you might have a point. But since we didn't do that, this statement just makes you a liar. Anyone around here have some wood handy?

Despite my snark about hauling out the Speaker to be burned in the public square as part of your witch hunt, I do not see that Pelosi or the OLC attorneys did anything wrong in approving CIA enhanced interrogation because the techniques are neither illegal nor immoral. They are not torture and they saved lives.

As is apparent above, I knew this already, and there's really no need for you to confirm it. In fact, I think it best (for the reasons stated above) to judge your intentions not by what you say but by the far more informative extrinsic evidence. Which is why I could confidently say that you were not serious in your claim to be searching out firewood yourself.

Cheers,
 

Eric Rasmusen:

Why haven't we seen arguments that the phrase

"(other than pain or suffering incidental to lawful sanctions)"

rules out pain and suffering inflicted as part of an interrogation, as opposed to from private motives?

Because interrogation is not "lawful sanctions (FWIW, the CAT (see Article 1) explicitly bans such "purposes"). And the pain or suffering isn't "incidental". In fact, it's an essential part of the procedure.

Are you trying to "out-Yoo" Yoo?

Cheers,
 

Here's more for Bart from Greg Sargent:

"As I noted below, newly released documents appear to show that according to the CIA, officials briefed Nancy Pelosi and other Democrats back in 2002 about the use of torture techniques on terror suspects.

"But a letter that accompanied these documents, written by the head of the CIA, appears to clearly concede that the information in the docs about who was briefed and when may not be accurate or reliable."

Cheers,
 

1) That's CAT, not the law Yoo was writing about and that I quoted:

Arne Langsetmo wrote:

> Eric Rasmusen:
>
> /Why haven't we seen arguments that the phrase
>
> "(other than pain or suffering incidental to lawful sanctions)"
>
> rules out pain and suffering inflicted as part of an interrogation, as opposed to from private motives?
>
> /Because interrogation is not "lawful /sanctions/ (FWIW, the CAT (see Article 1) explicitly bans such "purposes"). And the pain or suffering isn't "incidental". In fact, it's an essential part of the procedure.
>

>


(1) That's CAT, not the law we're discussing, which of course explicitly allows such purposes.

(2) It doesn't matter if the pain and suffering is not incidental if it's "lawful sanctions". That's quite clear in the context of deliberate punishment following conviction of a crime.

The real question is whether "lawful sanctions" includes pain inflicted during interrogation. Any thoughts on that?
 

Arne Langsetmo wrote:
>
> As for your dishonesty, Bart, we have -- conveniently -- this most
> recent example right here:
>
> /The fact that you Dems are more than satisfied to have the serial liar
> and "torture" enabler Pelosi remain Speaker of the House and the #3 in
> your political leadership in line to be President, while screaming for
> criminal prosecutions of OLC attorneys in a GOP Administration, makes
> your true motivations crystal clear.
>
> /Well, if we did that, you might have a point. But since we didn't do
> that, this statement just makes you a liar.


Is it agreed, then, by those in this discussion who think Yoo should be disciplined that Nancy Pelosi is unfit to be Speaker of the House? If so, isn't it far more important to be going after her than a minor Justice Dept. official no longer in government service?
 

Mourad:

Proust is citing to some unidentified foreign law without mens rea requirements to make his claim that somehow Condu Rice is guilty of "complicity" in torture when he should well know that conspiracy to commit torture is a specific intent crime set forth in the Torture Statute.

It was precisely to avoid this kind of monkey business that the US declined to join the ICC.
 

nerpzillicus said...

Mr. DePalma, First, I will indulge your accusations about Pelosi.

Indulge? Are you really going to defend Pelosi's bald faced serial lying in this matter? I will generously assume that you have not listened to Pelosi or read about the memos.

If you actually read Arne's post, he says he supports an investigation of Pelosi, and I believe that would include Rockefeller, et al, with the (D) after their name that were involved in the illegal conduct. I also support investigation.

You may want to reread arne's post:

The tu quoque is getting worn and trite, Bart. We'll light the fire if you first pile the wood around the actual perps, and not the bystanders/accomplices-after-the-fact. But if Pelosi had a significant hand in the torture, there's plenty enough wood around for her too.

Translation: The GOP are "actual perps," while the Dem members of the intelligence committees are "bystanders" unless they had "a significant hand in the torture."

We aren't calling for their heads (yet) because sufficient investigation has not been conducted, and sufficient evidence has not been released to determine their culpability.

Putting aside for the moment why you Dems would tolerate a serial liar as Speaker of the House, lets get to the matter of her oversight duties.

What more do you need? You have already decided that the CIA committed torture, Pelosi claims that the CIA tortured, the CIA briefed Pelosi in detail concerning that torture and Pelosi at minimum failed in her oversight duty.

Isn't that enough for an ethical party to remove Pelosi from office for at minimum fasacilitating torture?

There are two additional things we could derive from an investigation: (1) multiple perjury charges if this serial liar is placed under oath and does not take the Fifth and (2) the testimony for the CIA briefers as to whether Pelosi actively supported the CIA interrogation and/or asked if it would be enough. The GOP has been good enough not to go public with the identities of their Dem colleagues actively supported the program. However, in an ethics investigation, well shucks, they would have no choice to let the cards fall where they may.

Second, your "pithy" comment is frivolous, and can be responded simply with "Why would SERE training include waterboarding if it was not a form of torture?"

Nothing in SERE training violates the Torture Statute or otherwise the trainers and their chain of command for the past generation are all felons. There is no training exception to the Torture Statute and our soldiers cannot waive criminal prosecution of their trainers for torture.
 

This comment has been removed by the author.
 

Amicus said...

Jack Goldsmith admitted that his job was to find ways to to make the President's policies legal. OLC is not a check on the power of the President or the CIA.
====
That obviously cannot be the whole story, right. Why have the OLC, then, at all?

I thought Jack was rather clear as to what his job was in OLC.

It is not the job of the President's subordinates in the Executive branch to provide a check on the sole executive.

Rather, Congress'' job is to provide those constitutional checks and the members of Congress charged with the task of providing oversight of the CIA were Pelosi and her colleagues in the intelligence committees.

Before you start picking on some junior level OLC attorneys for failing to do Congress' job, go clean up your own House starting at the top.
 

"Before you start picking on some junior level OLC attorneys .... "

Little Lisa's bro seems to be picking up on Abu Graib Bush/Cheney strategy aiming at the few low level grunts responsible, in describing Yoo, Bybee and Bradbury as "junior level OLC attorney" [yes, little Lisa's bro used the plural] to prevent going up the chain of command in the Executive Branch. But we didn't have a paper trail early on with Abu Graib to go up the military chain of command. With the OLC memos/opinions, we do have a paper trail that the Executive Branch solicited of these "junior level OLC attorneys" that were relied upon. And if Yoo is "junior level" at what level might one describe a DUI attorney in Colorado who obviously, for Bush/Cheney, believes in FREEDOM FROM ACCOUNTABILITY?
 

Mr. DePalma,
Mr. DePalma, First, I will indulge your accusations about Pelosi.
Indulge? Are you really going to defend Pelosi's bald faced serial lying in this matter? I will generously assume that you have not listened to Pelosi or read about the memos.
If you actually read Arne's post, he says he supports an investigation of Pelosi, and I believe that would include Rockefeller, et al, with the (D) after their name that were involved in the illegal conduct. I also support investigation.
You may want to reread arne's post:
The tu quoque is getting worn and trite, Bart. We'll light the fire if you first pile the wood around the actual perps, and not the bystanders/accomplices-after-the-fact. But if Pelosi had a significant hand in the torture, there's plenty enough wood around for her too.
Translation: The GOP are "actual perps," while the Dem members of the intelligence committees are "bystanders" unless they had "a significant hand in the torture."
First, you assume a code needing translation when it doesn’t exist, and then drop out key phrases for your own purposes. It is undeniable Pelosi did not actually torture someone, neither did she tell the torturers that what they were doing was legal. Right after the word “bystanders” comes “accomplices –after-the-fact”, which contains a connotation of culpability, thus you leave it out of your analysis. You have alleged she had a significant hand, so I don’t see your objection. I stand unequivocally on the side of investigations for anyone having a hand in this clear cut illegal affair.
But Arne’s point is that you can’t try and change the subject by calling for investigations on Pelosi, while absolving anyone with an (R) after their name. All or nothing.
We aren't calling for their heads (yet) because sufficient investigation has not been conducted, and sufficient evidence has not been released to determine their culpability.
Putting aside for the moment why you Dems would tolerate a serial liar as Speaker of the House, lets get to the matter of her oversight duties.
Did you object to Gingrich and his serial lying about his affairs? But this is neither here nor there, I want Pelosi gone because she allowed the telecom amnesty bill to come to the floor last year. Moving on
What more do you need? You have already decided that the CIA committed torture, Pelosi claims that the CIA tortured, the CIA briefed Pelosi in detail concerning that torture and Pelosi at minimum failed in her oversight duty.
Isn't that enough for an ethical party to remove Pelosi from office for at minimum fasacilitating torture?
I’m not against it if the evidence supports it. But we have not had the memos on her briefings released yet. So, you are kinda putting the cart before the horse. I’m kinda on the whole “innocent until proven guilty” bandwagon. But I agree, there is enough smoke, that there could be fire, and an investigation should be conducted. I’m sure you agree with an investigation of the Bush administration, too, since they were the ones briefing Pelosi, right?
There are two additional things we could derive from an investigation: (1) multiple perjury charges if this serial liar is placed under oath and does not take the Fifth and (2) the testimony for the CIA briefers as to whether Pelosi actively supported the CIA interrogation and/or asked if it would be enough. The GOP has been good enough not to go public with the identities of their Dem colleagues actively supported the program. However, in an ethics investigation, well shucks, they would have no choice to let the cards fall where they may.
Fine by me – Let’s go!
Second, your "pithy" comment is frivolous, and can be responded simply with "Why would SERE training include waterboarding if it was not a form of torture?"
Nothing in SERE training violates the Torture Statute or otherwise the trainers and their chain of command for the past generation are all felons. There is no training exception to the Torture Statute and our soldiers cannot waive criminal prosecution of their trainers for torture.
Either you don’t understand, or you are purposely trying to shift the discussion because you know you’re wrong. It isn’t a question of legality, but utility. What is the point of training people to resist waterboarding, if it ain’t no big deal? The fact that it is taught as part of a captured soldier resistance class blows your claim out of the water. The time taken exposing the students to the technique is wasted if it isn’t effective, and doesn’t require a great deal of resistance. So again, why would they teach it? [I also note you did not respond to the rest of my comment. I wonder why.]

(on a legal note, for it to be torture, the victim must be in the custody or control of the torturer. Since SERE training is voluntary, and you can ask to quit at any time, SERE training does not meet the definition of torture)

Also, this was not directed at me, but I must respond:
It is not the job of the President's subordinates in the Executive branch to provide a check on the sole executive.
Rather, Congress'' job is to provide those constitutional checks and the members of Congress charged with the task of providing oversight of the CIA were Pelosi and her colleagues in the intelligence committees.
Before you start picking on some junior level OLC attorneys for failing to do Congress' job, go clean up your own House starting at the top.
Actually, yes, yes it is the job of the President’s subordinates in the Executive Branch to assist him in implementing his duties as the executive –
Before he enter on the execution of his office, he shall take the following oath or affirmation:--"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."
he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices,
he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
The President has an affirmative duty to abide by the laws of the land and the Constitution, not subvert them for his own purposes. So yes, yes he should receive advice that he cannot do something. And yes, it is the job of OLC to advise him that he cannot do something. He breaches the oath of his office, and his duty to defend the Constitution when he attempts to take power that is not his. It is not just the job of the other branches to check the President, he has his own obligations.
 

Eric Rasmusen said:

Is it agreed, then, by those in this discussion who think Yoo should be disciplined that Nancy Pelosi is unfit to be Speaker of the House? If so, isn't it far more important to be going after her than a minor Justice Dept. official no longer in government service?

Would you consider is more important to go after a Democratic member of Congress for a parking ticket than to go after an ordinary Republican citizen for murder? What is the matter with you people?

As others have said, if it can be proven that Pelosi lied about her knowledge of what the CIA was doing, sure, go after her. But first get the people who actually tortured, authorized torture, and enabled torture by claiming it wasn’t legally torture.
 

Bart DePalma said:

It is not the job of the President's subordinates in the Executive branch to provide a check on the sole executive.

Rather, Congress'' job is to provide those constitutional checks and the members of Congress charged with the task of providing oversight of the CIA were Pelosi and her colleagues in the intelligence committees.


Shorter Bart:

It’s Pelosi’s fault Bush tortured! Get her!
 

This comment has been removed by the author.
 

Little Lisa's bro believes in the unitary Executive so that the buck stopped with George W from 1/20/01-1/20/09. But, he says,

"Rather, Congress' job is to provide those constitutional checks and the members of Congress charged with the task of providing oversight of the CIA were Pelosi and her colleagues in the intelligence committees."

There are 535 members of Congress, with many of them over the time period involved Republicans, including on the intelligence committees. Why isolate Pelosi? What about before the 2006 elections? Where were the Republican checks and balances in Congress, including on the intelligence committees? And the Executive executes the laws, not Congress.

What can you expect from a DUI defense attorney who defends his client by asking: "How fast was that tree traveling when it hit your car?"
 

Will Levi's article provides much needed post WWII context for the CIA interrogation.

From the end of WWII through the early 6Os, the CIA used physical beatings and other forms of direct physical pressure as well as drugs in interrogations.

Through the 60s until the end of Vietnam, CIA shifted from physical abuse and drugs to coercion meant to disorient and degrade the target's mental resistance. Yes, JFK and LBJ were the first Presidents to implement the current array of CIA enhanced interrogation techniques.

After Vietnam, the CIA HUMINT capabilities were gutted by the radical 1974 Congress and Jimmy Carter. However, the government's demand for intelligence did not lessen, so CIA simply farmed out interrogation to foreign intelligence agencies with far few scruples - with the full knowledge and approval of Presidents and congressional intelligence committees run by both parties. Ironically, in this alleged golden age of human rights law, our treatment of captured unlawful combatants reached its nadir as we relied upon government who employed old fashioned brutal physical torture.

It appears that Bush's return to the status quo ante of the 60s was a marked improvement over the prior two decades.

During the entire post war period, torture was prohibited, but had no enforceable definition. Torture was in the eye of the beholder. Thus, administrations of both parties did not consider the current array of enhanced interrogation techniques - or the other far worse techniques we have used or farmed out - to be torture.
 

just an aside .. when i went through SERE training in the mid-60's [then called escape-evasion-resistance skoolin'] as a marine/naval flight officer .. it wasn't voluntary .. and you couldn't "quit" unless you wanted to forfeit your wings and any idea one might have as a career officer .. it was "required training" .. period ..

we know torture has occurred .. and we know that over one hundred prisoners in our charge were "interrogated to death" .. under the color of authority .. there is no alternate way to slice it ..

anyone who defends such acts ..and such an outcome as somehow harmless or justified .. is an ass .. that's the plain and simple truth here..
 

Your serial lying, torture enabling Dem Speaker is at it again. Caught by the recently released DNI memo, Pelosi admitted to previously lying...and then lied yet again about her CIA briefings concerning CIA interrogation:

Pelosi issued a statement after CIA records released this week showed that Pelosi was briefed in September 2002 on the interrogation methods. The briefings memo appeared to contradict the speaker's claims that she was never told that waterboarding or other enhanced interrogation methods were being used.

"We were not -- I repeat -- were not told that waterboarding or any of these other enhanced interrogation methods were used," Pelosi said on April 23.

The emphasis seems to be on "were used," even though she conceded in a statement released Friday that she was told they would be used.

"As I said in my statement of December 9, 2007: 'I was briefed on interrogation techniques the (Bush) administration was considering using in the future. The administration advised that legal counsel for both the CIA and the Department of Justice had concluded that the techniques were legal,'" she said.

But even that statement is at odds with the official record of the briefings recorded in the CIA memo dated to Sept. 4, 2002. That memo says Pelosi received a "briefing on EITs (enhanced interrogation techniques), including use of EITs on Abu Zubaydah, background on authorities and a description of particular EITs that had been employed."

Please, won't someone change the topic so I won't have to lie again!
 

Please, won't someone change the topic so I won't have to lie again!

# posted by Bart DePalma : 11:18 PM


Sadly, changing the topic does not stop your lying.
 

Little Lisa's bro seems to confirm that the memos/opinions of the "junior level OLC attorneys" "blessed" actions that had already been taken by the in-terror-gators:

"But even that statement is at odds with the official record of the briefings recorded in the CIA memo dated to Sept. 4, 2002. That memo says Pelosi received a 'briefing on EITs (enhanced interrogation techniques), including use of EITs on Abu Zubaydah, background on authorities and a description of particular EITs that had been employed.'"

Did National Security requirements in effect impose a gag upon Pelosi and other Congressmen briefed such that she/they were limited in what they could say? What if she and they had then taken steps in Congress to reveal or address the briefings?

When an attorney is called upon to advise a client on actions already taken by the client, there is a pressure factor on the attorney to give the client what the client wants. This goes on routinely in the practice of law. The client needs an after-the-fact opinion supporting the client's actions. If one attorney will not provide such an opinion, surely there will be others prepared to do so. The client is protected generally by the attorney/client privilege with respect to the attorney who declines to opine as well as with respect to the attorney who so opines. Reminds me of "Paladin" as an attorney: "Have Briefcase, Will Travel" to provide the post-event opinion - for a fee of course. (Attorneys have been described at times as "hired guns" shooting from the lip.)
 

Today's LATimes features James Mandrell's OpEd "From the Inquisition to us" which opens with:

"The release of Bush administration torture memos proves one thing at least: When those at the highest levels of our government discussed 'enhanced interrogation,' they neglected to consider the sordid history of torture."

And George W minored in history at Yale (while majoring in cheerleading). Perhaps "Skull & Bones" honored the techniques of the Spanish Inquisition for its 'cruits. Ironic that a Spanish Investigative Judge is looking into this.
 

Today's WaPo lead editorial:

"Fairness in the Torture Probe
Why the Justice Department should embrace disclosure in its investigation of Bush administration legal advice"

details what should be disclosed. Query: Is the investigation by Pres. Obama's DOJ or former Pres. Bush's DOJ or a combination? If a combination, hopefully there will be a discernable line between their respective efforts such that political influences upon the investigation(s) can be ascertained.
 

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