Thursday, January 06, 2005

To Our Great Shame


The hearings on the nomination of Alberto Gonzales to be Attorney General of the United States have begun. Will no one in Congress say what should be obvious? That Gonzales has brought shame on our country by trying to devise legal strategies and arguments to circumvent laws against torture and to define away the abuse of prisoners? That such a man should not be the nation's chief law enforcement officer? This is not mere cronyism or financial corruption we are talking about. It is torture.

How can we tell the other countries of the world that we are genuinely interested in democracy or in human rights? Who will listen to us when our own soldiers are captured and abused?

The public has so far been largely silent about this great injury to America's image around the world. The feckless Democrats in Congress, humbled by their recent electoral loss, lack the courage to denounce what should be denounced, or to act on the courage of their convictions. And the party that runs the country is all too happy to sweep the problem under the rug. But the rest of the world is watching. And they will not soon forget. For years to come we will hear about America's mistreatment of prisoners, and how we failed to punish the architects of that policy, indeed, how we elevated and honored them, even after the sorry details were disclosed to a public unwilling to face them.

Almost a year ago, President Bush stood before the United States Chamber of Commerce and waxed eloquent about the importance of bringing human rights, the rule of law and democracy to the countries of the Middle East. He denounced the "[d]ictators in Iraq and Syria [who] promised the restoration of national honor, a return to ancient glories, [but who] left instead a legacy of torture, oppression, misery, and ruin." And he spoke eloquently of the key ingredients of successful societies throughout history, societies, he explained, who "limit the power of the state and the power of the military," who "protect freedom with the consistent and impartial rule of law, instead of selectively applying the law to punish political opponents," who "prohibit and punish official corruption," and who "instead of directing hatred and resentment against others . . . appeal to the hopes of their own people."

In the past months we have learned that our country systematically tortured and abused prisoners. It was not, we have learned, the work of a few bad apples, but a widespread practice. At the same time, lawyers for the Administration spent countless hours crafting legal mystifications and specious arguments to justify abusive prisoner interrogations by the CIA and military forces, and to explain why the President of the United States, who swears an oath to make sure that the laws be faithfully executed, has no legal obligations whatsoever to abstain from torturing people.

The question I want to know is this: Is America still a successful society?


We haven't learned that our country "systematically tortured and abused" prisoners.

We've learned that there was widespread mistreatment of prisoners, and that at least some prisoners were tortured. Which of course is a quite different thing.

There's no evidence connnecting the legal analysis done by the OLC to any mistreatment. Noting that they occurred 'at the same time" is not an argument that one caused the other, or that they're otherwise related.

One thing your post has in common with so much other commentary on this issue is that there's no real disagreement with the analysis offered by the administration lawyers. Saying that a lawyer spent "countless hours crafting legal mystifications and specious arguments" tells us that you think the lawyers got it wrong, but not why they're wrong. And that the conduct their analysis would have permitted is widely considered to be immoral isn't by itself an argument that their legal analysis is in error.


It all, "of course," depends on what *YOU* mean by "widespread," "mistreatment," and "torture." Professor Balkin can speak for himself, but it seems to me that "systematic" is an appropriate word when we find that these problems occurred, not just at Abu Ghraib, but also elsewhere in Iraq, AND Afghanistan, AND Guantanamo (and God knows where else).

As far as specific criticisms of Gonzales and the memos are concerned, there has been extensive analysis in numerous print media articles explaining that the Administration's position was shaped by a very controversial, almost universally disdained "unitary theory of executive power," which holds that president have unlimited discretion to act as they see fit, especially during wartime, due to his inherent authority as commander-in-chief.

See, e.g.,

As for your "causation" point. What exactly is your standard? Mine is that these widespread problems occurred under Bush's watch. I also can't ignore the fact that, as each ugly new fact about these policies and their implementation is revealed, the Bush Administration does its best to avoid disclosing anything about its views and its position, even when asked by Congress to do so. Gonzales continued that fine tradition of obfuscation and denial today.

Also: I'd like to know who made the call to have Gonzales' two young boys sitting directly behind him. Was the strategy to intimidate - ie., "What are you going to ask me now, what pictures do you dare show now...."

And one more thing: I couldn't care less that Gonzales came from Humble, Texas. I care more about the young men of Humble, Texas who are serving in the Texas National Guard who are being shipped off this week to Iraq. Gonzales has failed them. He has failed this country.

Bush Jr.'s creed on human rights seems to be "Do as I say, not as I do." Gonzales presents a technical, tortured, legal defense of his past positions on torture. Why, he might even take the fifth, if necessary. There is no accountability. We don't need proof beyond a reasonable doubt on this human rights/political issue. This is part of Gonzales' permanent record.

Thomas, the criticisms of the work of the OLC and the DOD have not been simply that they justified immoral things although that the legal arguments were correct. The criticism, both from myself and a very large number of legal scholars, is that this work is bad lawyering and that it twists precedents and misinterprets laws, treaties, and the U.S. Constitution. For example, here is my discussion back in July of 2004, of Youngstown and its relationship to the OLC torture memo:
You should also look at the discussions in Michael Froomkin's blog in the Spring of 2004; Michael goes through the statutory and treaty claims in great detail. When he (or I) conclude that the work of these lawyers is shameful, you may assume that we are not simply criticizing people who are otherwise following the law. We are saying that bad lawyers twist the law improperly to achieve unjust results.

As for the issue of systematic torture and abuse, you should understand that the reason why the OLC and the DOD twisted the law was to jusftify what the CIA was already doing and planned to continue doing. See this Newsweek story from last spring:
and this story from December:

In fact, as Marty Lederman has pointed out to me, the new OLC memo, which has widely been touted as repudiating the old one, is still carefully written to give the CIA broad lattitude to engage in "inhumane" treatment in interrogations that does not rise to the level of a fairly narrow definition of torture in 2340A. I agree with Marty that this conclusion, too, is not justified by existing law.

Obviously, this short blog post cannot repeat everything I've said (or Froomkin and others have said) on the subject for the past year, but there is plenty of material out there on these questions if you are interested in further investigation.


A bit out of order, but a response:

I don't read Marty's analysis to include the conclusion you give it--that the new OLC memo isn't justified by existing law.

Why would the DoD be involved in justifying the activities of the CIA? And how does any public OLC memo justify abusive prisoner interrogation methods by the military? There's some mystification going on here--blaming military misconduct at Abu Ghraib on the Bybee memo (when Marty's persuasive reading is that it was directed at the CIA), and blaming CIA interrogations on the DoD work.

I know a bit about some of the people at OLC at the time of the Bybee memo, and I know that, like the people who typically work at OLC, they are good lawyers, in the typical use of that phrase. Further, many in the profession--including Vermeule and E. Posner--believe that their work wasn't improper, even if it wasn't fully persuasive. I understand you disagree, but disagreement on that point is, it seems, reasonable. Rephrased, your complaint is that good lawyers did ordinary legal work that led to what you believe is an unjust result. Which, really, isn't that out of the ordinary either.

Disagreement about the meaning of law shouldn't involve name-calling within the profession. Froomkin's views on international and constitutional law are reasonable, for example, but they aren't the only reasonable view. He believes, for example, that the Congress can micro-manage the activities of the military. That's a reasonable interpretation of Article 1, but it isn't the only possible interpretation. The OLC, for example, specifically (and not unsurprisingly) rejected that notion in 1996, in a memo signed by Dellinger. I'd note that in rejecting that argument the OLC didn't even mention Article 1, and didn't cite Youngstown. Bad lawyers twisting the law? Or ordinary lawyering at the OLC?

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