Tuesday, April 01, 2008

[Post No. 3] 81 pages of "boilerplate"

Marty Lederman

From the Washington Post:
[Yoo] defended the memo in an e-mail yesterday, saying the Justice Department altered its legal opinions "for appearances' sake." He said his successors "ignored the Department's long tradition in defending the President's authority in wartime. . . . "Far from inventing some novel interpretation of the Constitution," Yoo wrote, "our legal advice to the President, in fact, was near boilerplate."


saying the Justice Department altered its legal opinions "for appearances' sake."

Yes, they appeared to be illegal.

" ... near boilerplate ... "

Fresh out of law school and into the practice of law we quickly learn of "boilerplate." For me it goes back to 1954 before word processing and even electic typewriters. A young attorney preparing a document, such as contracts, trusts, wills, etc, would soon learn of "boilerplate." This "boilerplate" would come from form books, often written out longhand for a secretary to type. Yes, back in 1954 there were photocopiers, but of the "wet" variety. Someone had to type up all that "boilerplate," usually a secretary, usually female.

Then the document would be reviewed for typos, completeness, etc, often requiring retyping going back to page 1 in many instances. Then there would be a review with the client or perhaps with counsel on the other side.

Many times the young attorney would be reviewing a document prepared by another attorney and would have to wade through the "boilerplate," perhaps raising questions regarding same. An experienced attorney might have told the novice attorney, "Oh, that's only 'boilerplate,' standard language." But as experience is gained, the young attorney questions whether indeed such "boilerplate" is standard.

Many of us have gone through this process. My sympathy over the years had been with the poor typist. But now with word processing, the mechanics of putting together a lengthy document with lots of "boilerplate" that generates billable hours has been simplified. As the young attorney gets older and more experienced, he tells young, inexperienced attorneys he deals with on documents he has prepared, "Oh, that's only 'boilerplate,' standard provisions." So there is a recycling with documents getting longer and longer.

[Note: consider the current effort to "simplify" mortgage documents so that subprime borrowers can understand them. Fat chance.]

Oh Yoo of little faith
Except in boilerplate.

The release of the Yoo torture memo should remind us how important it is to reject the phrase "the war on terror," which served as the semantic springboard for a disastrous power grab. On the one hand it helped to legitimize the Iraq war in the public mind by linking it, illicitly, with the events of 9/11. On the other, as the Yoo memo makes frighteningly clear, by calling all of this a "war" it provided a basis, again illicit, for the expansion of presidential power. This is a point that has been made by others, but it seems to me unacceptable that, unless I have missed something, the disastrously misleading effects of this phrase, and the importance of rejecting it, is a point that has not been made clearly in the Democratic campaign or by editorials in leading newspapers.

Tim Scanlon

I'm still stuck on "the Justice Department altered its opinions 'for appearances' sake'."

For the sake of appearing how exactly, to whom exactly?

And how does that statement serve as a "defense" for the memo? Someone enlighten me...

If by "boilerplate" Yoo means that he relying upon a raft of prior DOJ opinions dating back to the Civil War, then he may have a point. Beyond that, Yoo should be willing to (and I imagine will feel compelled to) defend his own largely novel arguments.

You guys have it all wrong. Boilerplate is what they do to you if waterboarding doesn't work.

Tim Scanlon wrote: “The release of the Yoo torture memo should remind us how important it is to reject the phrase "the war on terror," which served as the semantic springboard for a disastrous power grab.”

I could not agree more. The whole concept of a “war on terror” was a legal nonsense.

One would have expected the government lawyers to have started their advice by pointing out that “war” only takes place between two sovereign states – see Vattel's Law of Nations edited by Chitty as published in the United States in 1883 by T & JW Johnson & Co of Philadelphia at Book III Chap I.

As H. Wayne Elliott, SJD, Lt. Colonel (Ret.) U.S. Army, Former Chief, International Law Division; Judge Advocate- General School, U.S. Army wrote in a discussion in 2001 on the Crimes of War web site :
"Strictly speaking, war involves the use of force between States. Individuals, as such, cannot initiate war, though they can engage in conduct which mimics war. Similarly states cannot be at war with individuals. Individuals who wage “war” against a State, without the sanction of a State, are merely criminals."

Michael Byers who holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia in Vancouver and the author of War Law: Understanding International Law and Armed Conflict, set out the consequence in a 2005 web debate:-
“President Bush's decision was to cast the entire effort against terrorism as a "war" instead of as an exercise in criminal investigation, prosecution, and transnational judicial cooperation, including extradition. By choosing the military rather than legal framework, the United States crash-landed on the unaccommodating legal terrain of self-defense, the UN Charter and the 1949 Geneva Conventions.“

The Attorney-General and, in particular the Office of Legal Counsel are the Administration’s lawyers. The officials had therefore the ordinary duties of counsel to their client.

I do not know what are generally held to be the duties of counsel in the USA, but the English view is that:
(1) It is the duty of Counsel to advise a client to the best of his skill and ability on the accepted view of the law as expounded on the authorities before advancing personal theories which do not have general acceptance and there should be appropriate caveats accompanying novel propositions;
(2) It is part of the duty of Counsel to warn a client when a proposed course of action appears likely to be held to be illegal;
(3) Counsel should not assist a client to "manufacture" defences, mislead the court, or impede the due process of public justice.

It seems clear from the Memoranda in the public domain that the writers failed as regards duties (1) and (2).

Even if Messrs Ashcroft, Bybee, Yoo, Gonzalez et al did sincerely hold the crackpot view that that the Al Qaeda attacks had taken the USA into a new kind of “war” in which the rules of war, international treaties and even the Geneva Conventions did not apply, they were under a duty to warn that this was not a generally accepted view, and that actions of the Administration were likely to be held illegal whether inside the USA or internationally.

So, if these gentlemen should face legal problems of their own in future, they are ones of their own making.

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