Balkinization  

Saturday, May 16, 2009

Let's Investigate the OPR For a Criminal Violation

Brian Tamanaha

According to law professor Michael Stokes Paulsen (fellow Balkinizer), the OLC lawyers who concluded that waterboarding is not "torture" did a bang up job. He argues in the Weekly Standard that it would be wrong to investigate Bybee and Yoo for possible criminal or ethical violations. Rather, they should be commended for their work. According to Paulsen, their analysis was correct:

Constitutional law, in addition to legal ethics, is one of my areas of teaching and scholarship. In my opinion, the most basic problem with any suggestion of incompetence is that the memos' essential legal conclusions are correct. There is a fundamental distinction in the law between what constitutes actual, legal "torture" under applicable standards and what may be harsh, aggressive, unpleasant interrogation tactics but not, legally, "torture." Reasonable people will come to different conclusions as to where that line is, but the Bush administration's lawyers' conclusions are certainly defensible and, I think, ultimately correct.

Paulsen does not tell us why the conclusion that waterboarding is not "torture" is "correct." Never mind that the OLC's legal analysis entirely (uncritically, with no independent examination or verification) relied upon self-serving representations by the CIA that the degree of pain and suffering inflicted by these interrogation techniques did not rise to the level of "severe suffering" prohibited by the anti-torture statute. Never mind that the legal analysis in the memos approving waterboarding (combined with sleep deprivation) is completely circular.

Paulsen reminds us that he is a constitutional law and legal ethics professor and he assures us that Bybee's and Yoo's analysis is right. Nuff said. Based upon his credibility, we should simply accept Paulsen's conclusion that waterboarding is not "torture" in legal terms (even if something like this happens). The many people who think otherwise, including the top military lawyers who opposed the OLC legal analysis at the time, are misguided or wrong.

Paulsen also reminds us that the OLC lawyers were merely lawyers serving their clients (ignoring that the OLC occupies a special position that requires the lawyers to say "No" to their client if a correct reading of the law so dictates.)

In fact, he tells us, the Department of Justice investigators from the Office of Professional Responsibility (OPR) who reportedly concluded that the OLC lawyers possibly committed ethical violations should themselves be subject to a criminal and ethical investigation for leaking the Report (presumably he has some information that OPR lawyers were responsible for the leaks).

In a piece entitled "Obama's Injustice Department," Paulsen suggests that the OPR's negative finding and recommendations were political (which forgets that the OPR investigation was actually completed under the Bush Administration).

His conclusion: The OLC lawyers who found that waterboarding is not "torture" under the anti-torture statute did fine work, while the OPR lawyers who examined the conduct of the OLC lawyers should themselves now be investigated.

I don't get it.

Paulsen's essay ends by repeating an admonition he tells his students:
When I teach legal ethics, I tell my students that one aspect of competence is to know what you know and to know what you don't know, and to stay away from the latter.

That's sound advice (which I sometimes fail), and after issuing it he condemns the OPR lawyers for rendering opinions on matters they apparently know little about. The oddity is that Paulsen's extremely critical comments relate to a report he has not yet read:
Unethical leaks and confidentiality violations; outsourcing federal responsibilities; basic misunderstandings of legal ethics principles; incompetent analysis of constitutional, international, treaty, and statutory law. What more could be wrong with an ethics office's actions? It is hard to know for sure--without seeing OPR's report--the full extent to which it contains all of these problems.

That's a lot to say without actually having read the Report.




Comments:

"Paulsen also reminds us that the OLC lawyers were merely lawyers serving their clients (ignoring that the OLC occupies a special position that requires the lawyers to say "No" to their client if a correct reading of the law so dictates.)"

In fairness, this isn't quite what he says, inasmuch as I can see. Paulson doesn't claim that they were merely serving their clients and thus justifying their actions, but rather that they were serving them by "discussing with their clients the legal consequences of what they proposed to do and endeavoring to assist them to ascertain the meaning and scope of the laws and constitutional provisions involved." He even makes it a point to note that: "Clients always have a desired result in mind and would prefer that their lawyers say yes rather than no. Government agencies are, in my experience, no different from any other client in this regard."

Paulson is right when he notes that "[t]here is nothing wrong with exploring additional arguments that may support a client's proposed course of action, even if those might not have been part of a lawyer's initial thinking. There is nothing wrong even with a lawyer reconsidering or modifying his initial views in the course of such a process."

That said, the conclusions of all involved are plainly wrong and your criticism of the logic involved is spot-on. To rely on the self-assessment of the CIA when they have a clear interest in the matter was foolish, and so was any decision based on it.
 

Phae (cute kid!),

Thanks for your comments.

Your observations are well taken. However, the problem is that Paulsen fails to make clear that the OLC is in fact different. This difference is made explicit by OLC Bradbury in a memo he issued to the office a week after the 2005 memo that approved waterboarding (You can see his language quoted in the post I did on the special position of the OLC).

It is essential to keep this difference in mind because that is precisely why OLC opinions are binding within the Executive Branch. No other government lawyer has this special power. And with this power comes special responsibility.

When issuing a legal opinion, their job (as Bradbury states) is to provide the correct reading of the law. Paulsen failed to mention this, although it is THE essential point.

Brian
 

Brian:

What are the facts that indicate that this is a political hatchet job?

1) In an incredible breach of ethics, the OPR's preliminary findings were anonymously leaked to the press by OPR and/or the Obama DoJ and/or the Obama White House to begin the public destruction of the OLC attorneys' reputations without evidence or an opportunity to rebut the findings.

2) This intentionally leaked "finding" tellingly does not allege that the OLC attorneys got the law wrong, but rather "committed serious lapses of judgment." What the hell does that mean? This is an accusation of a "thought crime," not a legal argument.

3) As Paulson noted at length in his article, this intentionally leaked "finding" also fails to offer anything close to "smoking gun" evidence of any sort of a conspiracy between OLC and CIA to cook up a "cover memo." Rather, these slimy leakers simply play the innuendo by noting that CIA emails indicate that CIA wanted a green light from OLC. Paulson is completely correct to note that the client always wants a green light to proceed and this desire hardly represents an ethical lapse by OLC.

Obama is following Rule 13 of Saul Alinsky's "Rules for Radicals" (p. 130-39) - Pick the target, freeze it, personalize it and polarize it. In short, Obama is attempting to indirectly attack the legal opinions in the OLC memos by personally vilifying and destroying the OLC attorneys.

For those who are unfamiliar with this iconic book of the 70s New Left, Alinsky was the godfather of community organizing and his "Rule for Radicals" the manual used by Obama as a community organizer and apparently still uses as President. (See the President's personal vilification of CEOs and Chrysler lenders for other recent examples of Rule 13 in action. There are far more in Obama's political career.)

The OLC attorneys had better set up legal defense funds, then engage the best trial attorneys and public relations firms they can find. They are in a political back alley knife fight fought under Alinski's rules for radicals, not Marquis of Queensberry rules.
 

I think I see what you're saying... Paulsen failed to specifically emphasize the fact that the OLC has the power (and obligation) to interpret the law's strictures, and this is their primary task.

It does seem like they dropped the ball - it's noted in Paulsen's piece that they started off believing the methods were torture and accordingly illegal, but were convinced otherwise during discussions with the administration's officials. And knowing what we do about how they were convinced, it's hard to see how this was anything other than being persuaded to provide a legal framework for a preconceived decision with which they didn't agree. It's either breathtaking incompetence and susceptibility to intimidation by authority, or else an elaborate justification for abandoning the mandate of the OLC.
 

Bart,

Like Paulsen, you want to lay the critical OPR report on Obama.

Let's stick with the facts. The OPR report was completed BEFORE Obama came into office. There are multiple reports that Mukasey was extremely unhappy about the initial findings, which were presented to him while he was still A.G.

You no doubt have lots of stuff to pin on Obama, but not this one. It's simply not credible.

Brian
 

When our resident LLB* gets caught with his pants down as on Brian's earlier post with comments putting all the leaking blame on Obama, he comes up with this:

"1) In an incredible breach of ethics, the OPR's preliminary findings were anonymously leaked to the press by OPR and/or the Obama DoJ and/or the Obama White House to begin the public destruction of the OLC attorneys' reputations without evidence or an opportunity to rebut the findings."

For some (obvious) reason, LLB* fails to suggest that the leaking could have been by the Bush/Cheney OPR/DoJ or perhaps the Bush/Cheney OLC Ritz Brothers lawyers who may have been furnished copies via former AG Mukasey to give their sides of the story. (Do we know if Bybee, Yoo and Bradbury have furnished comments to OPR?)

Brian caught onto this with this comment addressed to our resident LLB*:

"Like Paulsen, you want to lay the critical OPR report on Obama.

"Let's stick with the facts. The OPR report was completed BEFORE Obama came into office. There are multiple reports that Mukasey was extremely unhappy about the initial findings, which were presented to him while he was still A.G."

Let the investigation include what and when Mukasey did with the draft report that HE received from HIS OPR.

*Little Lisa's bro
 

I just caught up with John Dean's FindLaw article last Friday that suggests the national security pressures on Obama regarding the reversal to release the photos and the torture issues in general, concluding with these two paragraphs:

" It is not likely that Barack Obama had widespread political support in the national security community, which would have had a natural affinity for one of their own like John McCain. But Obama needs to win their hearts and minds. He cannot effectively lead and protect the country without their support, and since so many are recovering from battered-by-the-White-House syndrome stemming from the Bush/Cheney years, he is dealing with their very bad mood. Rather than risk alienation, Obama has given in to them, at the expense of his natural constituency, the political progressives who find it appalling that the Bush/Cheney torture is not being fully exposed (and prosecuted) to prevent it from happening again -- and sooner, rather than later.

"I would encourage those who are demanding exposure and prosecution to keep pounding their drums. Clearly, they are on the right side of this issue, and Obama knows it. While he is going to placate the national security bureaucrats from time to time in order to lead them effectively, hopefully the pressure for him to deal with the atrocious behavior of Bush and Cheney is only just getting started."

It's available at:

http://writ.news.findlaw.com/dean/20090515.html

"The Politics of Excusing Torture In The Name of National Security"
By JOHN W. DEAN

So let's keep the pressure on.
 

Bart, I cannot believe that even you fail to see the irony in your concluding comment:

"They are in a political back alley knife fight fought under Alinski's rules for radicals, not Marquis of Queensberry rules."

The very essence of the legal opinions under debate was that they gave the Bush administration alleged "lawful" authority to throw away the rule books, both Marquis and Alinski's!

The detainess were in an alley knife fight with hoods over their heads, hands bound behind their backs and feet shackled to the floor - oh, and naked and sleep deprived for good measure just to make sure the fight was even!

And as for the alleged brilliant and fast effective nature of waterboarding - if it was so good at producing the truth why did they need to use it over 100 times on a single victim, and why were some al qaeda/taliban released to rejoin their forces, while innocents remained in detention (eg. the 17 Uigers)- becuase the TORTURE did not work.

Graham
 

"No independent examination"?! Then what were the INDEPENDENT sleep deprivation studies?
 

Brian and Graham:

The LEAKS of the OPR report came during Obama's watch.
 

Brian:

I did not and am not laying the report on Obama because you and I both lack evidence as to the actual history and authorship of the report outside the claims of anonymous Obama leakers.

I am most definitely laying the abuse of that report as a weapon of personal destruction against the OLC attorneys directly at Obama's feet. This Alinsky tactic has been part of the Obama MO from the time he entered politics and destroyed civil rights icon Alice Walker to the recent demonization of CEOs and the Chrysler creditors, not to mention DHS' declaration that conservatives and veterans are potential terrorists.

While you are fishing around fruitlessly to find some scintilla of evidence that the OLC attorneys "politicized" Justice, Mr. Obama is quite openly using Justice as a political weapon to destroy these attorneys. Don't you think that perhaps you are casting disapproving posts at the wrong people?
 

Fwiw, from someone who practices legal ethics law and who’s taught about 25 semesters of it, Paulsens first and second points have some merit, even if one condemns the memos.

First, leaking a draft of a prosecutorial report is a serious wrong. Paulsen says that “if” the leak can be traced back to OPR the leak should be prosecuted. I can’t imagine anyone disagreeing with that.

Second, Paulsen complains about what he calls the outsourcing of federal ethics. Why doesn’t the federal government assert disciplinary authority over the conduct of the OLC lawyers? Historically the state supreme courts regulated the legal profession; today, the federal government regulates more and more of it. Without getting into the details, suffice it to say that there are a lot of odd situations where the federal government has backed off of regulating lawyers. As I understand it, the DOJ lacks power to discipline lawyers no longer at DOJ and that the only authority who can now discipline is the state that currently licenses the former OLC lawyers.

Paulsen identifies one downside of the DOJ passing the buck: it permits the DOJ “to impose political punishment (of a sort) on Bush attorneys, but without bearing accountability.” The awesome power to accuse and condemn must be appropriately cabined and channeled. The power must be subjected to counter-attack, subjected to accountability. As it now stands, the DOJ suffers under the moral hazard of expressing its condemnation while other bodies would have to attempt to rigorously impose the condemnation. (Btw, it’s not clear how the Pennsylvania bar would have the requisite competence to prosecute this matter.)

In short, the DOJ ought to retain power to discipline attorneys for conduct while employed at DOJ. There’s nothing absurd about that, and if it takes a new law to create that power, let’s enact it.
For me, an evaluation of Paulsen’s third and fourth points awaits release of the memo.
 

At a future hearing, both of the authors of the torture memos might take a tack averring that the actual end product 'created' by the torturers failed to follow the actual prescription for permissible tortures in the original series of memos.

More straightforwardly, perhaps, may be the review soon to be provided in another document, the opinion* of judge Kessler in the Ahmed case, based on the prosecutorial standard of mosaic of evidence. The balkinization discussion for several years has reviewed discrete tortures, but, without depicting aggregate effects to the degree clearly contemplated in several of the later torture memos released to the public within the past month. The newly released memos demonstrate a process over many months to 'evolve' concepts from the original memos and to aggregate clusters of tortures; indeed, policymakers were depicted as 'signing-off' on various permutations of those aggregates.
-----
*Discussion is there; external links are provided at that site as well. The one-page Order evidently is all that is published so far, dated May 5 2009.
 

" At a future hearing, both of the authors of the torture memos might take a tack averring that the actual end product 'created' by the torturers failed to follow the actual prescription for permissible tortures in the original series of memos."

Yes, this might be so with respect to how the advice was followed AFTER the memos/opinions issued. But what about the "actual end products" that had actually taken place BEFORE these issued? Perhaps the response with respect to the BEFORE may be that the OLC attoneys were MISINFORMED by the CIA. The authors could indeed take the same tack as mere mortal attorneys rendering legal opinions on tax, securities or other matters that are subsequently questioned or challenged.
 

JohnSteele,

I agree with you that there are real questions about sending this to bar committees; my post did not focus on this aspect of his essay. You are also correct that he conditions his comments with an "if" they leaked--but this gets lost in his overwhelming condemnation that follows. Take a look at the final paragraph and you will see what I mean.

JohnLopresti,

You are absolutely correct that what is important here is the cumulative impact of these interrogation techniques. The posts I wrote in relation to the memos emphasizes that the OLC lawyers had no independent information about the consequences of the combination of these techniques (which OLC Bradbury, to his credit, admits), yet they found that the techniques did not constitute torture (in combination).

Brian
 

I am unwilling to draw conclusions about the quality of the OPR report based on fragmentary reports of a still-unrelated document, and of course I do not know who released it. The debate over OLC's August 2002 definition of "torture," however, obscures what may be a more important ethical issue.

The August 2002 report opined that waterboarded of the type used in naval survival training was not "torture" within the meaning of the torture statute, but it also opined that President could authorize violations of the torture statute. The waterboarding of Abu Zubaydeh that began almost immediately was far harsher, in terms of frequency, duration, and the method used, than the naval protocol, according the the CIA Inspector General's report. It may be that interrogators felt free to go beyond waterboarding that OLC had opined did not violate the torture statute because OLC had also opined that the President could authorize violations of the statute.

The view that the torture statute could not limit methods of interrogation was seriously flawed. It ignored the power of Congress under the Constitution to “define and punish” “Offences against the Law of Nations,” its power “to make Rules concerning Captures on Land and Water,” and Congress’s power “to make Rules for the Government and Regulation of the land and naval Forces.” And, of course, it also ignored the President’s constitutional obligation to “take Care that the Laws be faithfully executed.” Indeed, the Bush Administration itself eventually repudiated this aspect of the August 2002 OLC opinion. The client itself concluded that it had been given untenable legal advice.

It is a serious breach of professional ethics to advise a client that it may violate the law. That, however, is precisely the advice found in the August 2002 OLC memo.
 

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"Why doesn't the federal government assert disciplinary authority over the conduct of the OLC lawyers?"

Looking at reports on the illegitimate political firings, the OPR suggested various disciplinary techniques as well as future action if relevant, e.g. saying at one point "false statements to Congress render him unsuitable for federal service."

Criminal action, when warranted, was also suggested. It is unclear if the OPR found that here or that it was given that role. After all, we don't have the report. More proof Paulsen was premature. In fact, somewhat hypocritically so.

If the OLC lawyers are still in the employee of the federal government and wrongdoing is found, surely, the feds should do something. If they don't do this enough, I'm all for stronger tactics when warranted.

But, this doesn't mean state bar action is also not relevant. I also would be curious if a state bar could not act if there was clear evidence that a lawyer committed wrongdoing in federal service. That confuses me too.
 

There is no Supremacy-type constitutional problem with state bar discipline of federal government employees, because Congress has expressly authorized it: "Any attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State." 28 U.S.C. § 530B (added, 1998).
 

[Sorry for the deletions.]

I'm unsure if Paulsen has been consistently concerned with the rampant selective leaking, repeatedly of sensitive information, of the Bush Administration.

I don't find, his appeals to his own qualifications to make them aside, his conclusions of the merits of the report convincing, particularly since he relies on selective segments of a non-final report!

And, how is it "unconstitutional" for the feds to recommend state investigatory action? He cites a case where a state taxed a national bank, but the bank didn't ask to be taxed! Am I missing something?

Finally, if he is concerned with "political" punishments, concern with use of state bar committees (especially if the people involved are no longer in federal employ) does not end the matter. Why would a report that suggests wrongdoing alone not be "political" in nature?


But, I wonder the relevancy of this:

11. Referral of Findings of Professional Misconduct to Bar Disciplinary Authorities

In cases in which it finds professional misconduct (either intentional misconduct or conduct in reckless disregard of an applicable standard or obligation), OPR ordinarily advises bar disciplinary authorities in the jurisdiction where the attorney is licensed of its finding. Such a referral is not made if OPR determines that the matter involves purely federal or Department concerns and no bar disciplinary rule appears to be implicated. OPR’s investigative information may be disseminated to assist state bar disciplinary authorities to meet their responsibilities. 63 Fed. Reg. 68299 (12/10/98)


Prof. Paulsen refers to "longstanding federal policy" not being followed in this case.
Paulsen: "The report calls for state bar associations to investigate, and perhaps discipline."

What is the point of the referral to the state bar under the rules if not for them to investigate it if warranted? Even Paulsen says the report appears to say only "perhaps" discipline. Yes, if the state bar finds the material so warranted, it could "perhaps" do that.

Also, given the lawyers' very ability to practice law in an ethical and legal fashion is at stake, this does not seem to be purely of federal concern. This would make it different from, let's say, politicized firings. At least, the report might provide evidence showing this fact.

What exactly is the change in longstanding policy that is so "cowardly?" If the policy is dubious, don't blame the messenger. Counsel change of the policy.
 

If I had a lawyer who only told me what I wanted to hear and did not even mention the countervailing arguments, I would fire him/her.
I do believe this is a central point in all this debate over the torture memos. What responsible attorney fails to tell his/her client of likely opposing arguments - much less opposing law? If I had a lawyer who only told me what I wanted to hear and did not even mention the countervailing arguments, I would fire him/her.

I do believe this is a central point in all this debate over the torture memos. What responsible attorney fails to tell his/her client of likely opposing arguments - much less opposing law? This, surely, is the smoking gun: that the OLC writers of the torture memos did not even bother to ‘inform’ their ‘clients’ of either national or international law.
I care not how often Bart squawks nor Cheney justifies. Yoo, Bybee, et alia, knew what they were approving – and why.
 

CTS said...

I do believe this is a central point in all this debate over the torture memos. What responsible attorney fails to tell his/her client of likely opposing arguments - much less opposing law?

OK, what "opposing law" should the OLC have cited in 2002 and 2005 that applied the US Torture Statute to techniques disclosed by CIA? Foreign opinions applying inapposite foreign law to different facts are not relevant. Indeed, OPR would have a far better argument that OLC was unethically twisting the law for political purposes if it imposed inapposite foreign law on CIA ala Harold Koh as you are suggesting.

What "opposing arguments" should OLC have noted? What possible use would a memo serve that said: "On one hand, we don't think that waterboarding inflicts severe pain. On the other hand, someone in the future could disagree."

This 20/20 hindsight nitpicking demanding consideration of non-existent alternatives is getting absurd.
 

Bart, the only thing getting more and more absurd are your postings:

" What "opposing arguments" should OLC have noted? What possible use would a memo serve that said: "On one hand, we don't think that waterboarding inflicts severe pain. On the other hand, someone in the future could disagree."

This 20/20 hindsight nitpicking demanding consideration of non-existent alternatives is getting absurd."

It may come as a surprise to you, but the human body and its response to pain does not depend upon the law or jurisdiction in which a person is tortured.

Body slamming, sleep deprivation, waterboarding do not change in their impact on the human body or mind because someone crosses a border.

There are ample authoritative legal and judicial opinions that would clearly have indicated various proposed measures constituted torture. When dealing with a legal opinion which is addressing international law, including conventions to which the US is a signatory, any decent lawyer would address these international judicial opinions becuase that is clearly one of the forums in which the members of the Bush administration could be called to account.

Graham D.
 

Just a comment about an issue raised above.

While fulfilling the role of counselor, lawyers following the Model Rules often do address the various arguments on both sides of the issue and let the client decide which arguably legal path it wants to take. (MR 1.2; 2.1)

The role of the OLC isn't always like that. It often has to make authoritative decisions that bind everyone in the executive branch except the president. When you read the account of the proper role of OLC lawyers in Jack Goldsmith's book and in the position paper by the Clinton-era OLC lawyers, you see that the OLC is often called upon to follow norms that apply more to the judicial branch than to private practice lawyers. That is, OLC lawyers sometimes have to authoritatively pick between various interpretations and bind the EB. As I understand it, OLC lawyers don't always have the option of telling EB agencies "here are various reasonable options, now pick one."

As for the point about letting the client know about the alternatives, we know that in the context of deciding whether the Geneva Convention applied to persons seized in Afghanistan, the ultimate decider was intensely lobbied on the countervailing arguments. We have the competing memos that Colin Powell and Gonzales sent to president Bush. Tellingly, Gonzales's memo warned that a decision not to apply the Convention could degrade the behavior of the armed forces.
 

Paulsen does not tell us why the conclusion that waterboarding is not "torture" is "correct." Never mind that the OLC's legal analysis entirely (uncritically, with no independent examination or verification) relied upon self-serving representations by the CIA that the degree of pain and suffering inflicted by these interrogation techniques did not rise to the level of "severe suffering" prohibited by the anti-torture statute. Never mind that the legal analysis in the memos approving waterboarding (combined with sleep deprivation) is completely circular.There is a point here about the epistemology of law in general and legal scholarship in particular. Legal scholarship is dependent on the authority of the individual advancing an argument to a degree unseen in other disciplines. On the one hand this is because other disciplines actually engage in science--the empirical testing of propositions--where law professors generally dodge anything with numbers.

On the other hand, it's also an artifact of the legal profession. Lawyers rely on the argument from authority constantly in their daily lives. What is citing precedent but engaging in the argument from authority? Law is in some essential ways built around logical fallacies.

So, it's not surprising to me that Paulsen ultimately argues that the torture apologists are right because he thinks they are.

As Hank Williams Jr. would say, it's a family tradition.
 

Bart, here are some counter arguments to waterboarding that could & should've been addressed:

1. The U.S. prosecution of Japanese military after WWII with war crimes for carrying out waterboarding.

2. The discontinuation of the practice in Navy SEAL training because of its impact.

3. The CIA removal of technique from the newer version of the the CIA's manual.
 

Let's not lose sight of the bigger picture here. The CIA is, in effect, asking the OLC just how much abuse they can inflict before it crosses over the line into outright torture.

For starters, they are inflicting the abuse in secret, hidden "black sites" because if they inflicted it, say, in the US or on a US military base, then even if it didn't rise to the level of torture, it would violate any number of other laws. But they are hoping the black sites are outside the reach of any laws except the anti-torture statute, so anything goes short of outright torture.

Second, the law on exactly when abuse crosses the line into torture is not altogether clear. Contrary to what people like Paulsen, Bart, or Lindsey Graham like to imply, when a certain technique might or might not be torture, it is, in fact, more ethically imperative to point out why it might be torture than why it might not. Just because a type of abuse stops short of torture does not create a legal obligation to do it, after all.

Finally, am I the only person who finds the whole concept of asking for a legal opinion on how much abuse you can inflict before it crosses the line into torture really disturbing? Let's not forget that is exactly what was happening.
 

T,

And let's not forget the case of Hilao v. Estate of Marcos a US case, cited by the Torture Memos themselves, no less, that found torture in activities that included sleep deprivation, prolonged shackling, and waterboarding (as well, admittedly, as beating and death threats). Sounds relevant to me.
 

Our resident LLB* demonstrates his myopia with this:

"This 20/20 hindsight nitpicking demanding consideration of non-existent alternatives is getting absurd."

Is LLB* suggesting that foresight, such as regarding the OLC memos/opinions, should not be subjected to accountability? As for "nitpicking," our resident LLB* surely qualifies as an "expert" with his long status and insignificance as a NOAGN**.

Is LLB* suggesting there are no existing alternatives to torture?

Even our resident LLB*'s hindsight is far from 20-20 as once again he is looking through the wrong end of the telescope.

*Little Lisa's bro

**Nit On A Gnat's Nut

Oh, and by the Bybee, to counter LLB*'s citing of "Different Strokes" Paulsen as a sometime contributor to this Blog in support of "Different Strokes'" "Weakly Standard" screed, I trump LLB* with David Luban's posting at this Blog of his statement before the Whitehouse Subcommittee. (Perhaps we can expect our resident LLB* to counter with Sen. Lindsay Graham's comments displaying his feminine side.)
 

For some reason (guess what) the late Pat Paulsen of Smothers Brothers and presidential campaign fame comes to mind with his "picky, picky, picky" response to questions and issues. That was comedy. But here it is tragedy (or theatre of the absurd) when our resident LLB* complains of "20/20 hindsight nitpicking" on the torture issues.

*Little Lisa's bro
 

T said...

Bart, here are some counter arguments to waterboarding that could & should've been addressed:

1. The U.S. prosecution of Japanese military after WWII with war crimes for carrying out waterboarding.

The Japanese forced large quantities of water into the lungs and stomach of the soldier and then jumped on his abdomen, causing excruciating physical pain and physical injury.

The CIA dropped small amounts of water over a cloth covering KSM's face, creating an involuntary gag reflex and panic, but no pain according to the half dozen reporters and thousands of SERE trainees who underwent the process, including some who have posted here.

The only thing in common between these two examples is that they both involved water.

2. The discontinuation of the practice in Navy SEAL training because of its impact.

a. The SEALs actually used something akin to the Japanese method on their trainees, not the CIA method.

b. Waterboarding was discontinued because the trainees could not be trained to defeat it and broke every time, which was "bad for morale." There was no allegation of torture. If the SEAL and CIA techniques were the same, this is actually a utilitarian argument in a balancing test in favor of permitting the technique.

3. The CIA removal of technique from the newer version of the the CIA's manual.

What does this later policy decision have to do with the state of the law in 2002 and 2005?
 

"'3. The CIA removal of technique from the newer version of the the CIA's manual.'

"What does this later policy decision have to do with the state of the law in 2002 and 2005?"

Perhaps this was a CIA "OOPS!" moment. Or, it was not a "policy decision" but rather a form of acknowledgment of error or pangs of conscience or tacit admission of guilt.
 

EL:

For starters, they are inflicting the abuse in secret, hidden "black sites" because if they inflicted it, say, in the US or on a US military base, then even if it didn't rise to the level of torture, it would violate any number of other laws.

Precisely what other laws? The Torture and War Crimes statutes expressly apply overseas and use the same intentional infliction of sever pain definition.

Second, the law on exactly when abuse crosses the line into torture is not altogether clear. Contrary to what people like Paulsen, Bart, or Lindsey Graham like to imply, when a certain technique might or might not be torture, it is, in fact, more ethically imperative to point out why it might be torture than why it might not.

Actually, I have posted repeatedly that the severe pain definition is not at all clear and should be void for vagueness. The failure to acknowledge this reality is the only substantive fault I have with the OLC memos. However, given that most legal academics are also playing the game of pretending that the Torture Statute has an objective meaning, I can hardly argue that the OLC attorneys have committed a sanctionable ethical breach for playing along.
 

"As for the point about letting the client know about the alternatives, we know that in the context of deciding whether the Geneva Convention applied to persons seized in Afghanistan, the ultimate decider was intensely lobbied on the countervailing arguments."

What about all the other issues covered by the OLC memoranda? Why limit it to that issue?

I'm unclear if this issue of various options is really the debate here at all. The issue is if certain people did their job.

As you note, it in effect was a sort of judicial one. It required a faithful analysis. The fact others might have provided it -- others with less obligation to provide it -- is not the issue.

I think a faithful analysis of the legal criteria at issue actually would include a sort of discussion of the alternatives anyway. This is particularly the case when the argument is in part that the matter is compelled by the facts. The alternatives would need to be made to show why this is true, in effect, they need to be rejected.
 

Shag from Brookline said...

"'3. The CIA removal of technique from the newer version of the the CIA's manual.'

"What does this later policy decision have to do with the state of the law in 2002 and 2005?"

Perhaps this was a CIA "OOPS!" moment. Or, it was not a "policy decision" but rather a form of acknowledgment of error or pangs of conscience or tacit admission of guilt.

No, President Bush ordered CIA to discontinue waterboarding because there were no high value targets left to interrogate and to protect CIA from the brick brats being thrown by serial lying Dem Congress critter hypocrites like Nancy Pelosi. The Bush order like the following Obama order does not mean much because either can be reversed in a moment with a phone call to CIA.
 

Brian observes: "Paulsen reminds us that he is a constitutional law and legal ethics professor and he assures us that Bybee's and Yoo's analysis is right."

Maybe I've read way too many cases on admissibility of expert evidence, but I don't think Daubert allows even a constitutional law professor to get away with leaping to a conclusion without showing some underlying -- and accepted -- methodology and studies that back up his opinion. I realize Paulsen isn't testifying as an expert in court, but it seems to me that a law professor should be aware that "because I said so" isn't much of an argument.
 

Joe,

I limited that comment to the memos on the application of the Geneva Convention because I don't know whether or not the policy options were discussed in the context of the other memos.

I agree with you that this issue of "laying out all the options" isn't the sole or even dominating issue. I commented on it because in my view some commentors and some pundits have seized on the issue as if it provides a shortcut analysis.
 

Precisely what other laws? The Torture and War Crimes statutes expressly apply overseas and use the same intentional infliction of sever pain definition.Gee, Bart, you've been both a soldier handling prisoners and a prosecutor. You can't think of any laws that would be broken by, say, throwing a shackled prisoner into the wall 20-30 times?
 

Does our resident LLB* provide a cite for this:

"No, President Bush ordered CIA to discontinue waterboarding because there were no high value targets left to interrogate and to protect CIA from the brick brats being thrown by serial lying Dem Congress critter hypocrites like Nancy Pelosi."

No.

And just when was the date of that order? Was the order written? What were the contents of the order? And what were the alleged lies and the dates of the alleged lies by Pelosi (or by other Dem Congress hypocrites) that Bush was trying to protect the CIA from brick bats? Or is LLB* focusing upon recent alleged lies, well AFTER Bush issued this order? Timetables are important to keep LLB*'s pants from catching on fire as he digs into his Backpack of Lies. Back up statements of fact with cites, please.

By the Bybee, had Bush's "MISSION ACCOMPLISHED" been accomplished at the time of this order? No more "high value targets left to interrogate"? What was the Gitmo population under lock and key at the time as compared to just prior to 1/20/09? Did Dick Cheney move Bush's lips for this order or did Bush issue it despite Cheney's wishes?

*Little Lisa's bro
 

Sorry my first post was scrambled; glad to see it made some sense to some readers.

I do not think that OLC lawyers had a duty - precisely - to present the Admin with options to choose from. I realize they were trying to reach a legal judgment.

However, I assume that a good 'judge' offers argumentation for a conclusion, and I believe that good arguments always address likely counter-arguments. (This is what we teach our students, at least.)

Thus, the OLC lawyers ought to have provided their 'clients' with arguments - including relevant legal data - against the conclusion they reached. Further, they should have provided their 'clinets' with reasons overriding or setting aside those counter-arguments.

That none of this was done suggests to me that the conclusion preceeded the 'judgment'. And that, I think, was a serious failure of obligation on the part of the OLC lawyers.
 

Enlightened Layperson said...

BD: Precisely what other laws? The Torture and War Crimes statutes expressly apply overseas and use the same intentional infliction of sever pain definition.

Gee, Bart, you've been both a soldier handling prisoners and a prosecutor. You can't think of any laws that would be broken by, say, throwing a shackled prisoner into the wall 20-30 times?
None that apply to unlawful wartime combatants held overseas. Feel free to enlighten us.
 

T:

In a more recent post, Balkanization's own David Luban attempted to offer Congress some prior contrary legal precedent OLC could have cited in the form of United States v. Lee, 744 F.2d 1124 (5th Cir, 1984). This is a really good example of how far afield OLC critics have gone.

Lee concerned a US civil rights suit brought by a criminal prisoner against law enforcement for inflicting "water torture" on him. An appellate brief cited by David indicates that facts of the case involved water and a cloth over the prisoner's face, but provides no other details. The similarities between Lee and the OLC memos pretty much end there.

Lee addressed an appeal by one of the defendants from an order denying the severance of his trial from that of the others. The Court of Appeals did not even obliquely address a definition of torture in dicta.

The law at issue in the underlying case and not addressed at all on appeal was the Bill of Rights, not the Torture Statue which was enacted after the events of this case. Of course, KSM & Co do not enjoy protections under the Bill of Rights.

David offers Lee simply because the Court of Appeals uses the magic term "torture" on multiple occasions in the severance opinion. After acknowledging that neither the District Court or the Court of Appeals applied the Torture Statute definition, David cites a dictionary to argue that the definition of torture was commonly understood and the Court of Appeals would not have used the term unless it believed the act to be torture.

This is an interesting argument considering that David admitted in an exchange with myself in a recent Federalist Society debate that there is no commonly held definition of torture and that a jury would have to make its own determination after the fact.

In fact, the Court of Appeals started its opinion by enclosing the term "water torture" in quotations, indicating that it was simply repeating the allegation made by the plaintiff at trial.

David is standing precariously on a pretty damn thin reed indeed if he is suggesting the OLCs failure to cite to an opinion that did not address the question of what is "torture" in either its opinion or at least in dicta is somehow a sanctionable ethical violation.

And this is the best legal argument that I have heard yet from an OLC critic.
 

Apparently our resident LLB* with his Shadow-like qualities can read the minds of judges:

"In fact, the Court of Appeals started its opinion by enclosing the term 'water torture' in quotations, indicating that it was simply repeating the allegation made by the plaintiff at trial."

Is this textual interpretation by LLB* regarding the use of quotes in a court opinion? The late George Carlin would have some appropriate quotes for our resident LLB*.

David Luban can speak for himself. But perhaps Sen. Lindsay Graham can convince Sen. Whitehouse to invite our resident LLB* to testify before the same Subcommittee where LLB* may be challenged on some of his quotes at this Blog and elsewhere. Perhaps LLB* can tell the Subcommittee members that they are engaging in "20/20 hindsight nitpicking" on this torture issue.

*Little Lisa's bro
 

Here is an earlier comment by me:

Shag from Brookline said...

"'3. The CIA removal of technique from the newer version of the the CIA's manual.'

"What does this later policy decision have to do with the state of the law in 2002 and 2005?"

Perhaps this was a CIA "OOPS!" moment. Or, it was not a "policy decision" but rather a form of acknowledgment of error or pangs of conscience or tacit admission of guilt.

8:54 AM

On further consideration, there may have been a "policy decision" changing the CIA manual: The CIA changed from a "torture" policy to a "non-torture" policy. Is this what LLB* had in mind?

*Little Lisa's bro
 

Bart is an abysmally bad lawyer, or at least, represents himself as one on this blog.

First he says that there were no cases on point for the August 2002 memo to rely upon re: waterboarding as torture, vel non.

Okay. I'm a lawyer advising my client on potentially grave matters of law, which -- if the courts disagree with me -- could result in my client's being indicted and sent away for 20 years if not worse.

Therefore, when I find no authority on point, I look at *comparable cases*. Cases which, while not on point, might be deemed persuasive by a court.

United States v. Lee OBVIOUSLY is one such case. It was professional negligence not to discuss that case. Yoo/Bybee could have tried to distinguish it, but the possibility that it might be held relevant by a court should have been raised.

Imagine: you're a CIA spook, you read and rely on the August 2002 memos, you waterboard some dudes. Then, years later, you're indicted for violating the Torture Act. Your lawyer moves to dismiss the indictment, and the trial court refuses, citing Lee.

How do you then feel, knowing that Yoo/Bybee never bothered even to tell you that such a case even existed?

Do you feel that they were providing, as some have claimed for them, the best professional advice they could?

Bart is either stunningly dishonest, or should never write a memo for a client. I hope it's the former, as that presents less danger to the people he represents and who depend on him.
 

This comment has been removed by the author.
 

Bart is either stunningly dishonest, or should never write a memo for a client. I hope it's the former, as that presents less danger to the people he represents and who depend on him.

# posted by Anderson : 3:47 PM


Would you feel comfortable relying on legal advice from someone as dishonest as Baghdad Bart?
 

Dan Froomkin's White House Watch (WaPo) today features "Torture is Not for the Fallible" where Dan takes on the WaPo's Chuckie Krauthammer. Here's the closing paragraph:

"The slippery slope Krauthammer so enthusiastically plunges down is, unfortunately, anything but theoretical. It has become increasingly clear that in a series of decisions -- documented in the February 2002 memo in which former president George W. Bush exempted war-on-terror detainees from the Geneva Conventions, the August 2002 Justice Department memos (one and two) explicitly sanctioning measures that by any reasonable definition constitute torture, and the December 2002 memo from then-defense secretary Donald Rumsfeld authorizing the use of stress positions, hooding and dogs -- the Bush administration opened the door wide to abusive and degrading practices. Far from being limited to ostensibly 'high value' detainees, state-sanctioned cruelty was applied willy-nilly to many of those unfortunate enough to get swept up into the system, in such a way that history will judge us poorly and that the American public -- when it finally gets its head around what happened -- will undoubtedly reject it."

(The links are available at the site. Once again I apologize for my lack of linkage skills to provide the links here.)

Please note that our resident LLB* has failed to cite facts as to Bush's decision to change the CIA manual on waterboarding because of the lack of "high value" detainees.

*Little Lisa's bro
 

Anderson:

Glass houses and rocks, compadre.

Competent 1Ls, nevertheless experienced attorneys, do not make arguments like:

"Therefore, when I find no authority on point, I look at *comparable cases*. Cases which, while not on point, might be deemed persuasive by a court. United States v. Lee OBVIOUSLY is one such case. It was professional negligence not to discuss that case."



"OBVIOUSLY" is not a legal argument, even if you do put it in caps. As a 1L, your professor would have given you an F. As an attorney, your firm very likely would have fired you.

Even a halfway competent 1L would explain why the case was comparable or was distinguishable. I have distinguished this case on its law and facts. You are welcome to explain how a civil appeal ruling on trial severance is in any way relevant to legally defining the scope of criminal liability under the Torture Statute.

Your task will not be easy. What you are suggesting is analogous to citing an appellate opinion arising from a civil conversion case where the issue was whether the trial of one of the defendants should have been severed and the appellate court referred to the conversion as "theft" in its opinion for the proposition that it defined criminal theft. Good luck with that.
 

President Bush ordered CIA to discontinue waterboarding because there were no high value targets left to interrogate and to protect CIA from the brick brats being thrown by serial lying Dem Congress critter hypocrites like Nancy Pelosi.Good old Bart, always requiring cites from everybody else but never supplying any of his own. What kind of lawyer would conduct himself this way?
 

Dana Millbank's WaPo article today titled "Somewhere, Hammurabi Is Crying" informs us of the efforts of Kevin Zeese to have the D.C. Office of Bar Counsel take actions against the Bush/Cheney lawyers on torture. Millbank, with tongue in cheek obviously, suggests certain of the torture techniques might be employed with some of these lawyers, in the manner of the Hammurabi Code.

"Zeese admitted that the idea had some cathartic appeal. The 'confinement with insects' technique -- sticking the lawyers in a confined space with some pesky pests -- 'would really bug them,' he allowed. But Zeese found a flaw in the proposal: 'Torture is illegal,' he said. 'For the same reason you can't do it to al-Qaeda, you can't do it to Justice Department lawyers.'"

Fortunately, the First Amendment speech clause permits via the media its version of the Chinese Water Torture with the daily drip, drip, drip of news of investigations, etc, that will have a "cathartic" effect even if there is no investigation. Yes, sunshine on the Bush/Cheney lawyers can be punishing and thus serve as a limited form of accountability as if a scarlet "T" were emblazened on their foreheads, similar to what happened with Watergate - OOPS! There's that water again.
 

Here's more "drip, drip, drip" on torture:

Coalition Seeks Disbarment of Bush Lawyers Over Interrogation of Terrorism Suspects

Joe Palazzolo
The National Law Journal
May 19, 2009

available at LAW.COM, originally at the Blog of Legal Times. Bush/Cheney supporters with a bug up their ass, take note.
 

I should have added that this -

"Bush/Cheney supporters with a bug up their ass, take note."

might constitute self-inflicted torture.
 

I haven’t read through this thread (though I could probably predict the comments pretty much word for word), but I notice at the end a discussion of US v. Lee. I was sorry that Professor Luban did not open his post for comments because I had two. First, I was going to thank him for rebutting the allegation, posted at TPM Muckraker, that he had been “browbeaten” by Senator Graham. Anyone who watched the clip of the hearing could see that this allegation was ridiculous.

Second, Luban refers to US v. Lee as the “single most relevant case in American law” on the legality of waterboarding. If this be so, it would seem to underscore the absence of any “controlling legal authority” (as Al Gore would say) on the issue. Lee, of course, was decided before the torture statute was enacted and therefore has no direct bearing on the legal issue addressed by the OLC. More than that, though, the case contains no discussion of whether the actions in question constituted torture under any law. The court refers to the act performed by the defendant as “water torture” (in quotes) at the outset of the case, and then uses the term “torture” (without quotes) in the body of the opinion. But this terminology had absolutely no bearing on any legal issue in the case, and thus cannot be said to have even an indirect legal relevance to the issue considered by OLC.

Assuming that Luban is right that the acts involved in Lee were “almost identical” to those contemplated by OLC (an assertion which itself illustrates the danger of lawyers making factual determinations beyond their competence—a danger also overlooked by OLC), the most one could infer from the case is that waterboarding might be colloquially referred to as torture. Certainly OLC could have cited Lee for that purpose, but the notion that it was professional malpractice to fail to do so seems far-fetched.
 

In stating the following:

"If this be so, it would seem to underscore the absence of any 'controlling legal authority' (as Al Gore would say) on the issue."

is mls suggesting that there was no "controlling legal authority" regarding the OLC lawyers' memos/opinions on torture at the time they issued? Or is this comment limited to U.S. v. Lee as not constituting "controlling legal authority" on the torture issue? Surely there was "controlling legal authority" at the time the OLC lawyers issued their memos/opinions on torture. But what was the "controlling legal authority" that guided their memos/opinions? Consider actions taken by OLC AFTER the initial memos/opinions in assessing whether the OLC-3 (Bybee, Yoo and Bradbury) had properly addressed the "controlling legal authority" for their memos/opinions. This is a matter that would be included in a full investigation.

By the Bybee, the reference to Al Gore seems to be a distracting red herring that has been around a tad too long for even rabid Republicans, considering what happened in the 8 years since Bush v. Gore.
 

What Bart and MLS ignore, as pointed out already, is that Lee's not being on point is itself *beside* the point.

The premise here is that there were no controlling authorities on point for the Torture Act.

Therefore, if presented with whether waterboarding is torture, the courts were going to look at other cases *not* on point regarding water torture. That would surely include Lee, Mississippi case law on "the water cure," the Japanese cases, our use of the technique in the Philippines and Vietnam, etc.

Distinguishing those cases misses the point. It was the duty of the Torture Lawyers to raise, discuss, and perhaps distinguish those cases, while allowing for the possibility that a court might decide the similarities outweighed the differences.

Bart and MLS are ignorant of what a client memo does. It doesn't present the best face of a position, as does a legal brief submitted to a court. Rather, it advises the client as to different possible outcomes, some of which the lawyer disagrees with personally but believes that the court might potentially adopt.

Given the background of waterboarding, it was professional negligence not to look at that background and warn the client that courts might potentially rely on that background to hold that waterboarding was indeed torture. Bart and MLS's partisanism, masquerading as gross legal incompetence, prevents them from admitting this basic Lawyering-for-Dummies fact.
 

Perhaps what constitutes "controlling authority" should be defined or addressed. There is the Constitution, as amended. There are the statutes passed by Congress. There are treaties. Consider also the Law of Nations that the U.S. may be subject to. There are court decisions. Was "torture" a blank slate at the time the Torture Statute was enacted or at the time of the OLC-3 (Bybee, Yoo and Bradbury) memos/opinions? If there was no SCOTUS decision directly addressing what constitutes "torture" under the Torture Statute, would this provide a blank slate to the OLC-3 to opine as if there were no "controlling authority" and cherry-pick in deciding what to rely upon in issuing their torture memos/opinions? Or should they have focused upon the Constitution, etc, as well as some history, to justify and support their memos/opinions?
 

Anderson and Shag- if your arguments are so strong, how come they always have to be protected by a bodyguard of insults?

I have my own views, which I have expressed here from time to time, about OLC’s mishandling of the interrogation issue. I agree that this mishandling may have crossed the line into professional malpractice. However, this does not mean that I have to agree with every criticism made of OLC. The desire to oversimplify or distort the law in order to reach a desired result is not a failing limited to the OLC lawyers.

Professor Luban’s description of Lee made it sound as if the case was a legally relevant precedent. My point is that it was not. At most, Lee could have been cited to illustrate the common-sense point that one might describe waterboarding, or similar activities, as torture in ordinary language. I think that OLC’s failure to acknowledge this point could be a small piece of a professional negligence case, but the failure to cite Lee is virtually meaningless.
 

Bart (and AOCBs):

Paulsen himself says:

Here, the original leak dates back to December....

Can you just be honest enough for one millisecond to acknowledge this? I doubt it, but let's see.

Cheers,
 

The Bybee/Gonzales Aug. 1st, 2002 memo (included in "The Torture Debate in America", Greenberg, ed) itself listed 19 instances where courts found torture (and 2 where they did not) in the Appendix.

Can we please dispose of this ridiculous argument that courts can't properly decide when torture occurs?

Cheers,
 

Anderson:

Mississippi case law on the water cure

When did CIA pour water down the nose and into the lungs of an al Qaeda prisoner?

CIA water boarding is NOT the "water cure."

This is like claiming that cases holding that burning heretics at the stake during the Inquisition is torture are precedent that turning up the temperature in an al Qaeda's cell is torture.
 

My, my, mls is so sensative:

"Anderson and Shag- if your arguments are so strong, how come they always have to be protected by a bodyguard of insults?"

I can't speak for Anderson, whom I do not know - and he may very well not know me. I don't characterize my arguments as "strong" or otherwise, but I know how to make a case. "A bodyguard of insults?" Wow, are you easy if you consider what I have said as insults that may pertain to you. You have your technique for discourse and I have mine. I don't have to be a mind reader to understand your technique. I make it clear that I am for a full investigation. Reading between your lines, you seem not to want an investigation but do not wish to so state forthrightly. So be it. Let the chips fall where they may, but let's investigate.

By the Bybee, what exactly is "a bodyguard of insults"? I could not get an answer via Google. Do you have some "controlling authority" to cite?
 

"Water cure"

Not to go too far off topic, there were "water cures" offered by the medical profession in the middle of the 19th century. But this was voluntary on the patient's part and involved mineral waters used in various ways (including up your nose with a rubber hose). These petered out after several decades, sort of like some "medical" diets over the past several decades.

As for Mississippi, it may have been different. I had come across "water cures" offered by medical doctors in the course of historical research in central Massachusetts where they seemed more like spas. But the detainees did not come to Gitmo or elsewhere voluntarily for the waters, so to speak.
 

Dan Froomkin's White House Watch (WaPo) today features "Torture Watch - What's the latest torture news?" which includes:

"Joby Warrick reported last week for The Washington Post that the CIA rejected Cheney's request to release documents that he says show that the agency's harsh interrogation methods helped thwart terrorist plots. The CIA cited 'pending legal action' as the only reason for keeping the memos secret. But it turns out that legal action consists of Freedom of Information Act lawsuits from a variety of human rights groups. So the CIA won't release the memos to Cheney because other people are asking for them, too? Ridiculous."

There's lots more of the "drip, drip, drip" - "Water, Water, everywhere, With Bush/Cheney in despair."
 

"When did CIA pour water down the nose and into the lungs of an al Qaeda prisoner?"

Bart continues to pretend incompetence. He ignores everything I wrote about looking at cases NOT 100% ON POINT in order to ascertain what a court *might* rule.

MLS: If I mistakenly lumped you in with Bart, I apologize.

If you disagree that OLC had a duty to advise its client of off-point authority that courts might consider relevant, and to set forth possible outcomes other than those preferred by Yoo/Bybee, then I don't think I was mistaken.
 

Re: Arne's comment, note that Yoo/Bybee did cite (in their appendix) Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996), which they described in part as follows:

"He was denied sleep and repeatedly threatened with death. At one point, while he was shackled to a cot, the guards placed a towel over his nose and mouth and they poured water down his nostrils. They did this for six hours."

The opinion expressly refers to this as "water torture."

No mention of Hilao in the specific-methods memo when waterboarding is mentioned, where they pretend that "pain and suffering" means "pain" and somehow distinguish "severe" from "acute," where most people would consider those synonyms.

No mention of Hilao in the main text of the first-released Aug. 2002 memo, despite the fact that they knew at the time that waterboarding would be used.

Yoo and Bybee sold out their clients, at best, and deliberately participated in a conspiracy to commit torture, at worst.
 

Anderson:

[A]dvise its client of off-point authority that courts might consider relevant...

Now that you have conceded that none of these cases are on point on the facts and/or the law, let's get to your fall back position that courts for some reason might still consider the cases to be relevant.

Why would these cases be relevant if they do not contemplate the same or similar law and/or the same or similar facts?

For example, the Hilao court held that a variety of acts including pouring water down the nostrils of the plaintiff for six straight hours could be considered torture by a jury under the severe pain definition.

This case actually applied the statutory definition of torture, which is why Yoo/Bybee offered it in the appendix as a point of comparison. However, a point of comparison is all that Hilao is good for because its facts are completely different from the CIA interrogation.

There is no comparison at all between pouring water over a cloth on KSM's face for a minute and a half and pouring water into the Hilao plaintiff's nostrils for 360 minutes. The two acts are completely different in kind and quantity.

This would be like comparing slapping your kid on the butt once with lashing the kid 240 times with a switch. Slapping your kid on the butt once is lawful, while lashing the kid 240 times with the switch is felony aggravated child abuse here in Colorado.

Any competent judge would laugh at you if you tried to cite a case affirming the child abuse conviction of someone who lashed his kid 240 times with a switch as authority that a single swat on the behind was likewise child abuse.
 

Tom Dispatch today at:

http://tomdispatch.com/

provides us with "Why We Can't See the Trees or the Forest - The Torture Memos and Historical Amnesia" by Noam Chomsky. The article runs 8 pages (printer friendly) and puts the current torture issue in a historical perspective. Chomsky notes that Obama is not that distant from Bush/Cheney on the current issue. Here's his closing paragraph:

"Historical amnesia is a dangerous phenomenon, not only because it undermines moral and intellectual integrity, but also because it lays the groundwork for crimes that still lie ahead."

The failure to investigate thoroughly will add to the historical amnesia and result in a lack of accountability. There is plenty of blame over the years for both major parties. In addition to the current financial and banking messes we have this moral mess. Shouldn't we clean up all of these messes, or at least try? Is America too big to fail?
 

Now that you have conceded that none of these cases are on point on the facts and/or the lawI said that from the start. Sorry you're reading-impaired as well as lawyering-impaired.

and pouring water into the Hilao plaintiff's nostrils for 360 minutesYou really think the court meant that was done continuously for 360 minutes? Is partisanship really worth pretending to be stupid as well as incompetent?
 

Anderson:

BD: ...and pouring water into the Hilao plaintiff's nostrils for 360 minutes

You really think the court meant that was done continuously for 360 minutes? Is partisanship really worth pretending to be stupid as well as incompetent?

Let's see what the court actually wrote...

When this round of interrogation ended, he was denied sleep and repeatedly threatened with death. In the next round of interrogation, all of his limbs were shackled to a cot and a towel was placed over his nose and mouth; his interrogators then poured water down his nostrils so that he felt as though he were drowning. This lasted for approximately six hours...

Perhaps, the court simply missed the plaintiff's testimony about rest and recovery breaks that only you appear to know about.

It is amusing to be called incompetent by another attorney who has problems identifying relevant case law and makes up facts that were not considered by the cited court. Then again, I have seen frustrated attorneys without supporting facts or law act like children in open court, so I guess it is not surprising to see juvenile name calling in the anonymity of a blog.
 

his interrogators then poured water down his nostrils so that he felt as though he were drowning. This lasted for approximately six hours...6 hours of water down one's nostrils would not "feel as though" one were drowning.

Would you care to further feign imbecility? The dumber you can make the pro-torture position look, the better for the human race.
 

Bart,

I have a question - what would we have to show you to demonstrate that waterboarding, as performed by the CIA against KSM and others, constituted torture? Presumably any case documenting waterboarding as torture (see Hilao) you will argue is inapposite because of the length of torture or the presence of medical personnel or perhaps even the reasons it was being done. Actually, your position is that it is not just inapposite but irrelevant and not worth citing and/or examining.

I'm sorry I'm not buying. Any reasonable attorney, including Bart, would be careful to address possibly analagous precedents when advising a client on such a serious issue. You are letting your sympathy for the conclusions obscure the fact that what Bybee and Yoo produced is pathetic work product. Any law student entrusted with the task would at minimum do a google and westlaw search to search for things like "waterboarding". They might even see how courts have defined/construed "severe" pain in the torture context and not go off on some textualist frolic and detour.
 

There's a curious opinion around that you can't convict someone of a crime unless you have a precent directly on point that shows that the specific acts and facts at issue are illegal. Because this prevents any such prosecutions under the law until such precedent is established, therefore no new crimes may be defined or criminal prohibitions enacted. This, needless to say, is a "novel" theory. That is to say, fiction. Those that express it should be ridiculed and derided at every opportunity until they are ashamed to show their face in civilised society ever again.

Cheers,
 

until they are ashamed to show their face in civilised society ever againI'd settle for getting rid of the silly backpacking photo.
 

.... the Hilao court held that a variety of acts including pouring water down the nostrils of the plaintiff for six straight hours could be considered torture by a jury under the severe pain definition.Dateline 5/19/2011: The U.S. v. Ctheney decision was handed down today, holding that a variety of acts -- including sleep deprivation for over a week, slamming into walls, forced nakedness, prolonged exposure to cold, stress positions with hands chained above the head, and waterboarding over a period of a month, with 183 episodes of pouring water over the covered nose and face of the bound prisoner in five separate, prolonged sessions -- was the textbook definition of aggravated, extended torture.

Cheers,
 

But I would point out that the main reason I mentioned the Yoo/Bybee appendix was simply to address "Bart"'s risible suggestion that courts are incapable of determining what torture is. And there have been more cases in the interim. No one has had any problem ... except for those that would like to see a "problem" in pursuit of their own political ends.

Meanwhile, Hannity still hasn't been waterboarded. I vote for Jesse Ventura to to the job. That fat a$$ Hannity needs to figure out that he's not such a brave guy when he doesn't have a mike-kill button at hand.... :-)

Cheers,
 

Shag from Brookline:

Embedding HTML links:

<a href="[link URL]">[text to be blue-clickied]</a>

Thus:

<a href="ttp://tomdispatch.com/">TomDispatch link</a>

gives:

TomDispatch linkHappy linking!

Cheers,
 

It is amusing to be called incompetent by another attorney who has problems identifying relevant case law and makes up facts that were not considered by the cited court....... such as citing the Pentagon Papers case for a holding they never made ... twice? And stating that Brown II held something that it never held?

Then there's that "research" where a certain somebody cut'n'pasted from a minority report and got a cite wrong. At least you admitted that one. You refuse to admit the other two above.

"Pot", "kettle", and "black" somehow come to mind.

Cheers,
 

The U.S. v. Ctheney decision...

Surely that's too good to be a typo?

Ah -- I see, indeed not.

That suggests a new translation:

'Ph'nglui mglw'nafh Cthulhu R'lyeh wgah'nagel fhtang'...

"In his undisclosed location in R'lyeh dead Ctheney waits dreaming."
 

Willie Shakespeare might have described our resident LLB* as

"Hoist with his own petar"

as he corkscrews himself with what is and isn't torture. Perhaps LLB* is willing to accept 360 continuous minutes of water up a detainee's nose as torture but anything less is subject to interpretation by the OLC-3 (Bybee, Yoo and Bradbury) in their torture memos/opinions.

*Little Lisa's bro
 

I thought Bart's discovery that KSM was only waterboarded during five different sessions was the nail in the coffin for this nonsense. 183 different times, but hey only five fun-filled sessions.

So, if done according to SERE, water was poured over a Saran-wrapped face in order to simulate drowning only 183 different times in five sessions.

According to people upthread, this Mississippi case only involved pouring water over a cloth--functioning like Saran Wrap, but perhaps not quite as effective, for six hours.

If each of KSM's sessions only lasted an hour, that's only 36-37 times in an hour, giving him a full minute or so to breathe between incidents.

Ultimately, it boils down to whether Saran Wrap is more effective than a towel at keeping moisture out of the nostrils. The fact that the sensation is identical is beside the point--it's kinda like the obvious fact that a blowjob doesn't count as sexual relations.
 

The part that puzzles me, PMS, is that it seems as if Saran Wrap would smother one quite effectively, no water required.
 

" The part that puzzles me, PMS, is that it seems as if Saran Wrap would smother one quite effectively, no water required.
# posted by Blogger Anderson : 9:22 PM
"

Or the Saran Wrap could serve like a diver's mask, with an air source, although the air source may be limited. Exactly how is the Saran Wrap used to simulate drowning? Or is is employed to simulate suffocation? Would the latter be called "plastic boarding"? Maybe our resident LLB* will pick up on this distinction. (I'm thinking of "The Graduate" when Dustin Hoffman is advised as to the future for him as a recent college graduate - "Plastics!" Maybe this impressed the OLC-3.)

*Little Lisa's bro
 

I think the saran wrap story was thrown out as a diversion. I'm highly skeptical that there was any such positive barrier used during actual EIT sessions. Nor would it have made any sense to use saran wrap in the SERE program as it would have defeated the stated purpose of giving our troops fair warning of what they might be in for.

Certainly, by destroying video evidence of these sessions, the CIA hasn't shown any willingness to confirm the facts.
 

Milan said...

Bart, I have a question - what would we have to show you to demonstrate that waterboarding, as performed by the CIA against KSM and others, constituted torture?

Actual evidence that CIA waterboarding caused the severe pain similar to that found in the cases you cited where immigrants had been beaten to a pulp in their home countries or actual evidence of long term mental trauma.
 

arne:

U.S. v. Ctheney? Cite please.
 

actual evidence of long term mental trauma.

# posted by Bart DePalma : 10:30 AM


Like your behavior in here?
 

Bart,

But you have previously stated that "severe pain" is entirely subjective.
 

Milan said...

Bart, But you have previously stated that "severe pain" is entirely subjective.I still do.

We are dealing with two different issues here.

If I were the OLC, I would have discussed a void for vagueness defense. However, I am unaware of any court publishing an opinion applying this defense to a criminal prosecution under the Torture Statute (there my have been an unpublished ruling on this defense in the recent Chuckie Taylor torture prosecution, though). Because courts have applied the Torture Statute definition in civil matters, I would have to assume that a criminal court may follow suit and reject a void for vagueness defense. Thus, my memo would have to address relevant case law applying the Torture Statute definition to the same or similar facts.

I understood your question to ask when would I consider case law to be relevant for the purposes of citation in the OLC memos. My response was when the facts of the CIA interrogation are the same or similar to those of the cases proposed for citation and I gave illustrative facts.
 

This comment has been removed by the author.
 

Hilao again: --

The jury instructions in the liability phase had defined torture, in relevant part, as "any act, directed against an individual in the offender's custody or physical control, by which severe pain or suffering . . . whether physical or mental, is intentionally inflicted on that individual"....

So, "severe pain or suffering" wasn't too vague for the jury in that case. Seems like some judges think that people can make up their own minds what's "severe pain or suffering."

A lawyer advising his client as to what might be held "severe pain or suffering" would not write as if there were only one possible outcome ... or impose on "suffering" a quality of duration over time that is not borne out by the most common dictionary definitions.

Yoo/Bybee wrote to justify a foreordained conclusion, not to provide honest, professional legal advice.
 

On a related subject, the Dems and now Obama surrendered today on the nutty proposal to close Gitmo and then admit and release many of these terrorists into the United States.

The Dem Senate voted 90-6 to keep Gitmo open. Then Press Secretary Gibbs waved the white flag:

"I think he'll say this tomorrow, that we've made some hasty decisions that are now going to take some time to unwind, and closing Guantanamo Bay is one of those decisions."
 

As usual our resident LLB* excerpts just a tad that pleases him. Go to Dan Froomkin's White House Watch (WaPo) today for his piece "With Friends Like These" on the Senate vote. Dan includes:

"White House spokesman Robert Gibbs said yesterday that Obama will be giving a speech tomorrow on his Guantanamo plans, as well as other issues relating to detainees and detention policy.

"'Thursday he'll outline his thoughts on detainee and detention issues, as well as the other issues like photos and memos,' Gibbs said. 'He'll outline the reasoning of why he strongly believes, and many in both parties believe, that closing Guantanamo Bay is in our best national security and foreign policy interest. And he will go through a number of the decisions related to that and other issues that we've discussed in the last few weeks that all relate to it.'"

Of course Obama will be competing with Dick Cheney who will be appearing at AEI (just add OU and you've got all the vowels - or an Old MacDonald tune).

The prisons in the U.S. are too crowded because of the law and order crowd - exept when it comes to torture - and adding 100 prisoners/detainees will rupture the system? Or, by golly, we want to keep our prisons all-American (including for DUIs) so that these terrorists won't lead them astray.

Let's listen to what Obama has to say tomorrow.

*Little Lisa's bro
 

Shag-

Have no fear. When Obama states he still intends to close Gitmo tomorrow, undoubtedly Mr. DePalma will acknowledge he was "hasty" in concluding the administration had waved the white flag on this nutty proposition.
 

On a related subject, the Dems and now Obama surrendered today on the nutty proposal to close Gitmo and then admit and release many of these terrorists into the United States.

Well, yes, that might be a nutty proposal, but no one has suggested doing such ... except for the Rethuglicans that want you to be pissing your boots (which "Bart" does so well).

OTOH, the Dubya administration has, on their own volition, released a vast majority of these "Terra-ists". That bothers the Rethuglicans not the least ... because Rethuglican anger is irrational and/or feigned (albeit loud) and Rethuglican logic is nonexistent. Discuss.

Cheers,
 

nerpzillicus said...

Shag- Have no fear. When Obama states he still intends to close Gitmo tomorrow, undoubtedly Mr. DePalma will acknowledge he was "hasty" in concluding the administration had waved the white flag on this nutty proposition.

No. We will simply have returned to the status quo of Mr. Obama saying one thing and various folks in the rest of his administration saying the complete opposite. The only question then will be: Who is lying?

Poor befuddled Mr. Gibbs can be forgiven for thinking that his boss, if he was being honest, would admit tomorrow that the proposal for closing Gitmo was a "hasty decision."

However, Mr. Obama may indeed dishonestly claim he still intends to close Gitmo for the consumption of his base and the EU with the full knowledge that the Dem Congress has his back and will not fund this silliness.

I will leave it to you Dems who voted for Hope and Change to decide whether you prefer lies or an honest surrender on "principles we hold dear". I have no dog in this fight because my policy preferences win out either way. However, I do get to needle you about Obama's ongoing adoption of all those "dictatorial" and "unconstitutional" Bush war policies with the nearly universal support of your lapdog Dem Congress.
 

Bart:

arne:

U.S. v. Ctheney? Cite please.

No reason to advertise that you're slow on the uptake, Bart. Unless you want people to know that....

Cheers,
 

Tell you what, Bart: I'll make you a deal. I'll provide my cites to cases decided in the future after you provide cites to your authorities from the past. Fair 'nuff?

Cheers,
 

Arne:

Mr. Bush released most of the Gitmo detainees to the "supervision" of their home governments with about an 11% terrorist recidivism rate. Hardly an encouraging statistic to Congress critters into whose districts Obama proposed to unleash the next batch of detainees after abjectly failing to convince the hypocrites in the EU to take any of these alleged innocents (apart from the French taking Boumediene because his family lives there).

Obama may be a rock star to the EU left, but they are not so stupid as to actually act on their professed beliefs and take custody of these former and not so former terrorists.
 

However, Mr. Obama may indeed dishonestly claim he still intends to close Gitmo for the consumption of his base and the EU with the full knowledge that the Dem Congress has his back and will not fund this silliness.

Bart, your claims to knowledge well beyond your reach are a familiar sight around here. Will you make a point of cheerfully admitting you're a chucklehead and a fool if and when Obama closes Gitmo?
 

Bart:

Mr. Bush released most of the Gitmo detainees to the "supervision" of their home governments ...


... to the howls and frightened alarm of all the Rethuglicans, who immediately clamoured for Dubya's head on a pike. Oh ... right ... that was the alternative ending that ended up on the cutting room floor after the RNC determined it wouldn't play in Peoria. Nevermind. My point stands as stated.

... with about an 11% terrorist recidivism rate....

We've already dealt with this made-up 'fact'. Amongst the "terrorist" acts committed by this stangely (and oppotunistically) changing number of "recidivists" was expression of less that total gratitude to the U.S. for their hospitality. Never mind that there was no determination that these people had previously been "terrorists" ... not to mention that if they had been such, then WTBF! was Dubya doing releasing them?!?!? Which was also my point.

No one with an ounce of sapience can think that the Dubya maladministration's overall actions WRT the detainees showed any coherency, planning, or even the slightest smidgen of sapience ... much less humanity. Scholars from the future will look at that and say, "WTF were they thinking?!?!?Cheers,
 

Former FL Senator Bob Graham (Dem) has an OpEd in today's WaPo: "Eyes Forward on Intelligence" that discusses the role of the Gang of Eight, outlining a bill of rights for Congress' involvement with covert actions that includes:

"-- At the earliest date possible, the full committees should be briefed. This is the law, honored mostly in the breach. (According to the CIA calendar, the first briefing of the full Senate and House intelligence committees took place Sept. 6, 2006, more than four years after enhanced interrogations commenced.)"
 

Dan Froomkin's White House Watch (WaPo) yesterday under "Quick Takes" includes this:

"According to a recently declassified Justice Department timeline, the White House's official approval of waterboarding and other techniques that constitute torture for use by the CIA came on July 17."

That's July 17, 2002. I have yet to master Arne's link-technique. But at Dan's site "timeline" provides the link to a very interesting timeline.
 

Michael Dorf's Find.Law article at:

http://writ.news.findlaw.com/dorf/20090520.html

titled "The Supreme Court Dismisses a 9/11 Detainee's Lawsuit" should provide some sobering concerns to civil litigators with the potential breadth of this 5-4 decision on motions to dismiss challenging "notice" complaints. According to Dorf, the majority (led by Justice Kennedy) buys into the "few bad apples" theme of Bush/Cheney on Abu Graib. (I thought a few bad apples spoiled the barrel.) Might this limitation on "notice" pleadings in civil cases extend beyond the Federal Rules to the states? Perhaps reactions of defendants' counsel to this 5-4 decision may bring back full employment of the legal profession, especially litigators.
 

Senator Graham’s op-ed is really quite amazing. One would think that this is the first time that the fact of restricted briefings (ie, briefings limited to the chair and ranking members of the intelligence committees) had been brought to his attention. He seems to be under the impression that restricted briefings are only used when covert actions are involved. In fact, restricted briefings for sensitive intelligence matters that do not involve covert actions have been used for many years. See, e.g., L. Britt Snyder, “Sharing Secrets with Lawmakers: Congress as a User of Intelligence, Center for the Study of Intelligence, CIA (Feb. 1997).

If Graham was disturbed by the briefing procedures in place at the time that he served in Congress, one wonders why he has not mentioned it before. It is not like he didn’t have the opportunity. For example, in December 2002, the Joint Congressional Inquiry on the 9/11 Attacks (co-chaired by Graham) issued its report. It contains a number of recommendations relating to congressional oversight of intelligence—reform of briefing procedures is not mentioned. In May 2003, Graham, along with Pelosi, Harman, Goss and others, testified before the 9/11 Commission regarding congressional oversight of intelligence. Again, nothing about this subject. The 9/11 Commission report, which calls congressional oversight of intelligence “dysfunctional” and makes a number of reform recommendations, also is silent on this issue.

Just last December, Graham’s Commission on Weapons of Mass Destruction issued its report. Again, there are recommendations on congressional oversight of intelligence (much of which focuses on Congress’s utter failure to implement the reforms called for by the previous two commissions). This is as close as the report comes to saying anything about the subject of briefings:

“The next President should establish a greater level of trust by reaching out to Congress on intelligence issues, improving consultation with the intelligence committees, and making clear that Congress should play a vigorous role in overseeing intelligence. For its part, Congress should use its oversight to build cooperation and a shared sense of mission with the intelligence community and the President. The leaders of Congress should take responsibility, especially in their own parties, for ensuring that members do not make intelligence a political issue. This cooperative approach must be balanced by Congress’s legitimate interest in checking executive branch power and protecting civil liberties.”

So the report calls for “improving consultation,” but nothing specific about ensuring that the full intelligence committees are briefed about all matters (or at least all matters that do not involve covert actions). This omission seems particularly surprising in light of the Intelligence Authorization Act of 2009 (HR 5959), which passed the House on a voice vote in July 2008. Far from reconsidering the existing statutory procedures with regard to briefing on covert actions (as Graham now suggests), that bill would have explicitly authorized the President to limit briefings on other matters to the chair and ranking member of the intelligence committees, but would have permitted the chair and ranking member, acting jointly, to share the information with other members of the committee. Essentially, this provision would have formalized existing law and practice.

If Graham were serious about improving congressional oversight of intelligence, he would address this commonsense proposal (which enjoyed bipartisan support on the House Intelligence Committee) and explain why it is not the best way of addressing this matter. One would have to conclude that he is not serious.
 

mls seem quite stern in his critique of former Sen. Graham, stating at the close:

"One would have to conclude that he is not serious."

mls has not indicated whether he is for a full investigation of the Bush/Cheney torture issues (including Pelosi and other members of Congress). One would have to conclude that while mls may be stern, he is not serious.
 

mls:

If you had followed the transition of "Electric Chair" Bob Graham from Governor to Senator in Florida, you would have long ago realized he is not a serious man.

As governor where all of his actions were in the spotlight, Bob played the hard ass cracker executing murderers and otherwise acting like a rural conservative. This is where Bob made his name.

When he could escape to the relative anonymity of the Senate, Bob pulled a 180 and became a reliable liberal, complete with Pelosi style prevarications about intelligence briefings.

Bob reminds me of Bill Clinton in that he appears to have a desperate need to be accepted where ever he goes and will adjust his principles accordingly.
 

arne:

I apologize for providing you with stale data.

Yesterday, the NY Times broke the story that the Obama DoD is set to release a report concluding that 74 of the 534 or 14% of the prisoners released from Gitmo have returned to terrorism.

Apparently, the Dems are holding up the release of the DoD report because the GOP is using the leak to flog unmercifully Obama's terrorist asylum program.

A new age of openness and transparency?

In fact, I found it slightly amazing that the NYT published the story. Maybe, the Obama liaison at the Times editorial board who spiked the pre-election story on the alliance between the Obama campaign and ACORN was off this week.
 

Turnabout is fair play for our resident LLB* with this revision of his observtion to mls:

"If you had followed the transition of 'Electric Chair' George W. Bush from Governor of Texas to President of the US of A, you would have long ago realized he is not a serious man."

And that would be putting it mildly.

*Little Lisa's bro
 

Bart:

I apologize for providing you with stale data.

Yesterday, the NY Times broke the story that the Obama DoD is set to release a report concluding that 74 of the 534 or 14% of the prisoners released from Gitmo have returned to terrorism.

From the N.Y. Times article's first paragraph:

"An unreleased Pentagon report concludes that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantánamo Bay, Cuba, has returned to terrorism or militant activity, according to administration officials."

As Hertz would say, "Not exactly."

This is a Pentagon report, the same source for the previously widely varying numbers. I guess if you just wait ling enough, they will come out with the tots you want...

But it neither changes nor defeats any of my prior criticisms of your comments in this regard. As pointed out:

1). No determination that they were Terra-ists beforehand, making the "returned" rather conclusory

2). Their alleged recidivism includes such horrors as making speeches or writing articles less than laudatory on the U.S.

3). Dubya's maladministration released them

Apparently, the Dems are holding up the release of the DoD report because the GOP is using the leak to flog unmercifully Obama's terrorist asylum program.

A new age of openness and transparency?

It could be. Or it could be that the Pentagon's "conclusions" are perhaps not as transparent as they could be. You know, like pretending that Obama wants to implement a "terrorist asylum program". Or it could just be that Obama's being polite and doesn't want to embarrass the Dubya maladministration....

In fact, I found it slightly amazing that the NYT published the story. Maybe, the Obama liaison at the Times editorial board who spiked the pre-election story on the alliance between the Obama campaign and ACORN was off this week.

<*sigh*> Cites for these three "facts"?

Cheers,
 

Shag's Froomkin article clickified.

Cheers,
 

This comment has been removed by the author.
 

Shag- what a cutting wit you are. You must have been quite the terror on the playground, devastating “sensative” souls such as myself with your clever name-play.

Your logic, OTOH, leaves something to be desired. Even if I were opposed to any kind of investigation of Bush-era interrogations, I don’t see how that would be relevant to my critique of Graham’s op-ed.

As it happens, there are some types of investigations I oppose, some I favor and some I regard with mixed feelings.
 

More for Bart to suck on:

"Pentagon officials said there had been no pressure from the Obama White House to suppress the report about the Guantánamo detainees who had been transferred abroad under the Bush administration. The officials said they believed that Defense Department employees, some of them holdovers from the Bush administration, were acting to protect their jobs."

Cheers,
 

arne:

1) Every single detainee at Gitmo had one or more hearings determining that they were enemy combatants with due process far in excess of the simple battlefield determinations required by the GCs.

2) DoD would be the best and only executive department to make military determinations concerning the activities of al Qaeda. However, you are welcome to go to Pakistan and Yemen to verify DoD's determinations.

3) Anonymous "Pentagon officials" quoted to provide cover for the Administration are not reliable sources. Why would the actual DoD officers in charge of this work need to remain anonymous to deny that the Administration was blocking release of the report? You Dems control the entire government, so there would hardly be any political retribution if DoD made a public denial. The reason they do not is because the report is indeed being blocked.

I am sorry that reality has again intruded upon your fantasy world view.
 

Bart:

1) Every single detainee at Gitmo had one or more hearings determining that they were enemy combatants with due process far in excess of the simple battlefield determinations required by the GCs.

The GCs require not a "battlefield determination", but an honest determination. See GC3, Art. 5:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

and:

GC4, Article 78:

"Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power."

Such review can't be a blanket "determination" of "group membership" by the Preznit, Yoo/Bybee notwithstanding.

2) DoD would be the best and only executive department to make military determinations concerning the activities of al Qaeda. However, you are welcome to go to Pakistan and Yemen to verify DoD's determinations.

Guantánamo is in Pakistan? Wow. Google maps has a serious bug in it.

3) Anonymous "Pentagon officials" quoted to provide cover for the Administration are not reliable sources....

Yet you swallow the anonymously leaked report whole.... Go figure...

... Why would the actual DoD officers in charge of this work need to remain anonymous to deny that the Administration was blocking release of the report?...

Well, for one thing, because the Obama administration has no political interest in covering up the misdeeds (if any) of the Dubya maladministration....

... You Dems control the entire government, so there would hardly be any political retribution if DoD made a public denial. The reason they do not is because the report is indeed being blocked.

I gave you the linkie. Go read it.

I am sorry that reality has again intruded upon your fantasy world view.

The words "Pot", "china cup", and "black" come to mind....

Cheers,
 

mls seems to have been "wedged-out" at Playground 101 but he favors us with his variation of the Goldilocks approach:

" As it happens, there are some types of investigations I oppose, some I favor and some I regard with mixed feelings."

as he ducks the question.
 

What a surprise! Today, the House Dems voted down the creation of a bipartisan panel to investigate Dem House Speaker Pelosi's charges that CIA has been criminally lying during her briefings.

What happened for that search for truth?

Yet another piece of evidence to add to the stack that the Dem calls for criminal investigations of CIA interrogation are only partisan witch hunts meant to destroy members of the Bush Administration and have nothing at all to do with an unbiased search for truth or justice.
 

What a surprise! Today, the House Dems voted down the creation of a bipartisan panel to investigate Dem House Speaker Pelosi's charges that CIA has been criminally lying during her briefings.

No, "Bart". The only ones that have been slinging accusations of "criminal[]" lying have been people like you and Newtie, concerning Pelosi's comments not under oath and not to Congress (and for that matter, still highly in doubt as to inaccuracy or falsity).

This "bipartisan" panel is some Rethuglican stunt, and it's to 'investigate' Pelosi, not the CIA. But there's no need to investigate Pelosi, as has been repeatedly pointed out....

And "Bart" will ignore my other comments ... as usual. Once again, of teh opinion that if he doesn't see it (or acknowledge such), it just doesn't exist (which explains a lot of his behaviour).

Here, "Bart", more for you to suck on.

Cheers,
 

And more:

"The CIA has sent lawmakers its notes and memos on 40 congressional briefings on the interrogation techniques. But that document has been found to include several errors."

Guess that settles it. But if not:

"CIA Director Leon Panetta acknowledged in a May 6 letter to House Intelligence Committee Chairman Silvestre Reyes, D-Texas, that the CIA's list may not be completely accurate."

And if that's not enough, there's always Hoekstra's and Boehner's comments/admissions that the CIA is not always the most reputable organisation. No need to waste time on a Congressional photo-op/circ... -- umm, sorry, "panel" -- to figger out what everyone but the Rethuglicans already know....

Cheers,
 

"Well, for one thing, because the Obama administration has no political interest in covering up the misdeeds (if any) of the Dubya maladministration."

Makes his use of the states secrecy doctrine a bit curious in some cases.
 

Thank goodness for Vice President Joe Biden. In one of the few amusing parts of the Wanda Sykes comedy routine at the White House Correspondents' Dinner, she said: "God forbid that Joe Biden falls into the hands of terrorists....We're done. Oh, they won't even have to torture him. All they have to do is go, 'How's it going, Joe?'"

Indeed. It seems that all a reporter has to do to find out about the pickle Barack Obama's is really in over his promise to close the Guantanamo Bay prison is to ask the veep, who was talking to the press at Camp Bondsteel in Kosovo on the final day of his trip to the Balkans.

So will Obama fulfill his vow - announced amid great fanfare in an executive order on day two of his presidency - to close the facility by January 2010? "I think so," Biden responded, according to Newsweek's Holly Bailey.

So perhaps he will. Or perhaps not. We'll see.

Biden continued: "But, look, what the president said is that this is going to be hard. It's like opening Pandora's Box. We don't know what's inside the box."

He also said that "to the best of my knowledge" the number of prisoners "who are a real danger who are not able to returned or tried" has "not been established" by the Obama administration.

So he basically just confirmed his predecessor Dick Cheney's analysis that the decision was taken "with little deliberation, and no plan".

For those citizens who might be a tad concerned about hardened Islamist fighters being housed in jails on the American mainland, the veep suggested they should visit the Unabomber or Richard Reid at the Colorado's Supermax.

"There's a bit of a hysteria about, well, my God, these guys are so dangerous. Go to some maximum security cells if you want to know some dangerous people. Matter of fact, it might be an awakening to them."

Got that? Stop being hysterical and go buy a Greyhound ticket to the Supermax.

Rest assured though, Biden said that during his visits to Bosnia, Serbia and Kosovo he'd discussed "the prospect of a detainee coming back to the region".

That's "a detainee", singular. There are currently some 240 at Gitmo.

http://blogs.telegraph.co.uk/toby_harnden/blog/2009/05/22/out_of_the_loop_joe_biden_says_decision_to_shut_guantanamo_was_like_opening_pandoras_box_
 

Dan Froomkin's White House Watch (WaPo) feature today titled "Problems with Preventive Detention" includes:


"Carrie Johnson and Walter Pincus write in The Washington Post: "'n news conferences, speeches and debates this week, lawmakers from both parties, as well as the director of the FBI, have sounded alarms about moving Guantanamo Bay detainees to federal prisons, where they could launch riots, hatch radical plots or somehow be released among the populace....

"'But the apocalyptic rhetoric rarely addresses this: Thirty-three international terrorists, many with ties to al-Qaeda, reside in a single federal prison in Florence, Colo., with little public notice.'"

This may account for our resident LLB*'s paranoia, assuming he knew this earlier. (If he didn't know this, sleepless nights and bad dreams.) With the Colorado success with no escapes from this prison, perhaps it could become the Yucca for the remaining Gitmo detainees.

*Little Lisa's bro
 

A couple small problems, Shaq. There's only ONE bed available at said prison in Florence, Colorado, and the ACLU is not trying to release any terrorists already there:

http://www.weaselzippers.net/blog/2009/05/obama-well-move-gitmo-detainees-to-colorados-supermax-prison-supermax-we-have-1-bed-available.html
 

More importantly, as MSNBC host Rachel Maddow noted last night, talking about the "two speeches" Obama gave. "One speech that could have been billed as a ballad to the Constitution -- a proclamation of American values, a repudiation of the lawless behavior of the last administration. And another speech -- announcing a radical new claim of presidential power that is not afforded by the Constitution and that has never been attempted in American history, even by George W. Bush and Dick Cheney."

She approvingly shows video of Obama criticizing Bush for his "ad hoc legal approach." But moments later, Maddow said, Obama announced "his own ad hoc legal approach for fighting terrorism....

"We will incarcerate people preventively -- preventive incarceration. Indefinite detention without trial. That's what -- that's what this is. That's what President Obama proposed today if you strip away the euphemisms....

"How can a president speak the kind of poetry that President Obama does about the rule of law and call for the power to indefinitely, preventively imprison people because they might commit crimes in the future? How can those two things co-exist in the same man, even in the same speech?"

Glenn Greenwald writes for Salon that "once you accept the rationale on which this proposal is based -- namely, that the U.S. Government must, in order to keep us safe, preventively detain 'dangerous' people even when they can't prove they violated any laws -- there's no coherent reason whatsoever to limit that power to people already at Guantanamo, as opposed to indefinitely imprisoning with no trials all allegedly 'dangerous' combatants, whether located in Pakistan, Thailand, Indonesia, Western countries and even the U.S."
 

Dan Froomkin's White House Watch (WaPo) today has as its latest feature "Cheney's Desperate Defense." This is quite lengthy and it includes a link to a current NiemanWatchdog article by Dan, which is also lengthy, on the Bush/Cheney torture watch. It's no wonder Cheney does not want an investigation. (Sorry I haven't mastered links as yet, including golf.)
 

Colbert King has an interesting article at today's WaPo: "Our Prison System vs. the Terrorists" that closes:

"At issue: If federal prison officials can be outfoxed by D.C. inmates, are they up to al-Qaeda?"

So it is the U.S. prison system, separate and apart from the remaining Gitmo detainess, that requires addressing. This has long been an unresolved problem.
 

Actually, I'm more concerned about the ACLU outfoxing the U.S. justice system and getting terrorists freed who then KILL Americans, thereby depriving our citizens of their civil liberties. Luckily, so is Obama (finally).
 

This comment has been removed by the author.
 

Apparently still smarting from his virtual debate last week with former Vice President Dick Cheney over the ethics and effectiveness of the CIA enhanced interrogation program, President Obama argued during his Naval Academy Commencement Speech:

Yesterday I visited the National Archives and the hall that holds our Constitution, Declaration of Independence and the Bill of Rights. I went there because as our nation debates how to deal with the security challenges that we face, we must remember this enduring truth: the values and ideals in those documents are not simply words written into aging parchment, they are the bedrock of our liberty and our security. We uphold our fundamental principles and values not just because we choose to, but because we swear to. Not because they feel good, but because they help keep us safe.

Because when America strays from our values, it not only undermines the rule of law, it alienates us from our allies, it energizes our adversaries and it endangers our national security and the lives of our troops. So as Americans, we reject the false chose between our security and our ideals. We can and we must and we will protect both.

One could be forgiven for understanding our new President to be arguing that the Constitution somewhere forbids coercive interrogation of foreign terrorists and that Obama's America will follow the Constitution. Take that Dick Cheney!

Then again, one would be wrong. It appears that Obama's America has simply returned to the rendition of high value terrorists to foreign intelligence agencies for enhanced interrogation...or worse:

The United States is now relying heavily on foreign intelligence services to capture, interrogate and detain all but the highest-level terrorist suspects seized outside the battlefields of Iraq and Afghanistan, according to current and former American government officials.

The change represents a significant loosening of the reins for the United States, which has worked closely with allies to combat violent extremism since the 9/11 attacks but is now pushing that cooperation to new limits.

In the past 10 months, for example, about a half-dozen midlevel financiers and logistics experts working with Al Qaeda have been captured and are being held by intelligence services in four Middle Eastern countries after the United States provided information that led to their arrests by local security services, a former American counterterrorism official said.

In addition, Pakistan’s intelligence and security services captured a Saudi suspect and a Yemeni suspect this year with the help of American intelligence and logistical support, Pakistani officials said. The two are the highest-ranking Qaeda operatives captured since President Obama took office, but they are still being held by Pakistan, which has shared information from their interrogations with the United States, the official said.

The current approach, which began in the last two years of the Bush administration and has gained momentum under Mr. Obama, is driven in part by court rulings and policy changes that have closed the secret prisons run by the Central Intelligence Agency, and all but ended the transfer of prisoners from outside Iraq and Afghanistan to American military prisons.

It seems our new President was not, in fact, referring to a constitutional value against enhanced interrogation. Rather, President Obama is referring to another heretofore unknown constitutional value - rank hypocrisy.
 

Our resident LLB* passes on commentary on Obama by a third party and concludes:

"It seems our new President was not, in fact, referring to a constitutional value against enhanced interrogation. Rather, President Obama is referring to another heretofore unknown constitutional value - rank hypocrisy."

Yes, LLB* describes as "fact" the opinion of a third party, demonstrating once again that adorned with his Backpack of Lies LLB* is not only rank, but a hypocrite. Eight years of Bush/Cheney requires a lot of paper - and flushing.

*Little Lisa's bro
 

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