OLC’s Aug. 1, 2002 Torture Memo (“the Bybee Memo”)

The Washington Post has placed online the full text of an August 1, 2002 memo from the Justice Department's Office of Legal Counsel (OLC) to White House Legal Counsel Alberto R. Gonzales.

A few words of context before substance. The OLC is sometimes called “the Attorney General's Lawyer”. It's an elite bureau in the Justice Dept. staffed by very very intelligent and highly credentialed people. Its primary function is to give opinions on matters of constitutionality regarding interdepartmental and inter-branch relations, and to opine on the constitutionality of pending legislation. By all accounts working at OLC is one of the most interesting jobs in government if you are interested in constitutional law or the working of government.

In August 2002, the head of the OLC was Jay Bybee, now a sitting judge on the 9th Circuit. His signature appears on page 46 of this memo.

White House Counsel Alberto Gonzales, who requested this memo, is not the head of the OLC. The White House Counsel is part of the Office of the President, and the Counsel is the President's staff lawyer, just as the Attorney General is the President's institutional lawyer; neither of these people however is the President's personal lawyer.

OK. On to the substance.

The memo is about what limits on the use of force (“standards of permissible conduct”) for interrogations conducted “abroad” are found in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment ( Torture Convention) “as implemented” by 18 USC §§ 2340-2340A (the Torture statute).

The memo concludes that the restrictions are very limited — that only acts inflicting and “specifically intended to inflict severe pain or suffering”, whether mental or physical, are prohibited. Allowed are severe mental pain not intended to have lasting effects (pity if they do…), and physical pain less than that which acompanies “serious physical injury such as death or organ failure” (p. 46). Having opined that some cruel, inhuman, or degrading acts are not forbidden, only those that are “extreme acts” (committed on purpose), the memo moves on to “examine defenses” that could be asserted to “negate any claims that certain interrogation methods violate the statute.”

  • This is not a draft, but it's not an action document either. It's legal advice to the Counselor for the President. The action document was Gonzales's memo to Bush.
  • This OLC document is a legalistic, logic-chopping brief for the torturer. Its entire thrust is justifying maximal pain.
  • Nowhere do the authors say “but this would be wrong”.
  • This memo also has a full dose of the royalist vision of the Presidency that informs the Draft Walker memo. In the views of the author(s), there's basically nothing Congress can do to constrain the President's exercise of the war power. The Geneva Conventions are, by inevitable implications, not binding on the President, nor is any other international agreement if it impedes the war effort. I'm sure our allies will be just thrilled to hear that. And, although the memo nowhere treats this issue, presumably, also, the same applies in reverse, and our adversaries should feel unconstrained by any treaties against poison gas, torture, land mines, or anything else? Or is ignoring treaties a unique prerogative of the USA?

Synopsis and commentary:

Pages 2-13 are the same sort of unconvincing criminal law analysis that others have critiqued in the Walker Working Group memo

Admitting that the Torture Statute is designed to implement the Torture Convention, and that therefore the interpretation of the treaty should inform one's interpretation of the statute, page 14 of the Bybee memo starts in on the Torture Convention. It finds in the Convention a distinction between the worst acts of torture and lesser acts of “cruel, inhuman or degrading treatment or punishment”. (P. 15) That's fair enough.

Then things get weird. When the Senate ratified the Torture Convention in 1994 it stated “[t]hat the United States considers itself bound by the obligation under Article 16 to prevent 'cruel, inhuman or degrading treatment or punishment,' only insofar as the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” 136 Cong. Rec. 17491 (Oct. 27, 1990).

It's obvious (I hope) that the various horrors the memo would allow, such as hurting prisoners a great deal (but not quite to the point of 'torture'), drugging them, scaring them, and so on, indeed very many things we would call “cruel, inhuman or degrading” would be the sort of thing that we would domestically prohibit as “cruel and unusual” punishment. But if that's right, then the memo is deeply, horribly, wrong.

So, here's how they try to reason out of that hole: It's not the Senate's view that really counts. No, it's the King's President's view of the treaty's meaning that has the “greatest weight” (p. 16). To get to this conclusion they cite a bunch of court decisions that say the executive's view is entitled to “great weight” (which it is)…but the difference between “great” and “greatest” is, well, pretty great.

Having decided that it's the executive branch's views that matter, the memo then parses the Reagan administration's submissions to the Senate relating to the proposed ratification of the the Convention. One problem with relying on what the Reagan administration said is that the Senate didn't ratify the Convention until the first Bush administration. Arguably it did so in reliance on the Bush administration's submissions which, as the memo delicately puts it used “less vigorous rhetoric” (p. 18). In fact, the Bush administration used language much like that in the Torture Statute; but the memo chooses to rely on the Reagan language instead (p. 19) to find that only the most extreme conduct would be prohibited.

As for what the Senate may have said in the ratification debates, the memo's attitude is — Who Cares? “[A]part from statements by Executive Branch officials, the rest of a ratification debate is of little weight in interpreting a treaty”. For a statement of the contrary, and widely accepted, view that requires a court to consider legislative sources, see Restatement (3rd) of the Foreign Relations Law of the United States § 325 comment 5.

Despite the increasingly heard right-wing complaint that the Supreme Court should not rely on the decisions of foreign courts, the Memo then turns to what other nations have said constitutes torture. The most important case on which the Memo relies is “Ireland v. United Kingdom”:, a 1978 decision of the European Court of Human Rights which held that “interrogation in depth” involving “five techniques” was not “torture” but merely “inhuman and degrading treatment”. The five techniques were:

a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

b) hooding: putting a black or navy coloured bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation;

c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

e) deprivation of food and drink.. subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

If one believed that US law banned only “torture” and not mere “inhumane and degrading treatment” then I think the Memo would be right to rely on this precedent. The key issue is whether that initial distinction is right.

(The memo also noted, at pp. 30-31, the Israeli Supreme Court's decision in “Public Committee Against Torture in Israel v. Israel”:, 38 LL.M. 1471 (1999), which discussed even more aggressive measures and found them to be “inhuman and degrading”. The Bybee Memo argues somewhat unpersuasively that this means the Court did not believe them to be torture, a reading it buttressed by noting that Court accepted there might be a necessity defense in some cases. I'm no expert here, but I'm dubious: the Israeli Supreme Court was ruling in a charged and political case, and was very mindful of the potential effect on international public opinion. It had every incentive to avoid the word 'torture'; as for the necessity defense, the Israeli rule, like the US rule, contemplates permitting some things under domestic law that violate international law. “Necessity” in Israel is seen as touching national survival.)

Page 31 returns us to Wonderland. Here the memo reverses field and says, basically, if we were wrong about any of this stuff and the statute did ban an interrogation technique then the statute would be unconstitutional as an impermissible encroachment on the President's Commander-in-Chief power to wage a military campaign, especially in circumstances “unprecedented in recent American history”. (Note the qualifier: it is NOT the first time we've had an attack on our shores or even on core government institutions. After all, the British burned the White House in 1814.) The next couple pages recite what a great threat Al Qaeda is, and the great national effort to fight it, concluding that “the capture and interrogation of such individuals is clearly imperative to our national security and defense” as they could tell us information that would prevent future attacks.

[In what now must seem highly ironic this section of the memo concludes by citing Padilla's arrest as an example of the valuable intelligence that could be gathered to prevent future attacks on the US. (In fact, by all accounts other than the Justice Department's, Padilla was at worst a nasty, ill-intentioned incompetent or perhaps just a big talker; his lawyer argues he was a guy who soured on Al Qaeda and made up stuff so they'd let him go back to the US).]

The memo then argues (pp. 33- ) that any criminal statute such as the Torture statute, which might be read to limit the President's authority to wage war must be read to avoid this constitutional problem. It's certainly right that reading statutes to avoid constitutional problems is a good interpretive strategy. The problem here, as I've suggested previously, is that there isn't actually much of a constitutional problem here: a President negotiated the statute, the Senate ratified it, both houses of Congress passed implementing legislation that a different President signed. Treaties are the law of the land. Once implemented in legislation (few treaties are “self-executing,” so legislation is almost always needed), the President has a duty to take care that they be faithfully executed unless Congress relieves him of that obligation. That didn't happen here.

The memo argues (p. 35) that Congress “may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” Either this is just bunk, or the Geneva conventions, the prohibitions on the use of poison gas, all the rest of the web of international agreements to which the US is a party, are so much tissue paper. We're no longer committed to the rule of law, but the rule of force. (In fact what the OLC seemed to argue for in other memos was a double standard in which international law still applied to everyone else.)

In any case, there's an enormous difference between unfettered discretion to move troops around on the battlefield and unfettered discretion to order war crimes. One has to do with determining what tools the President has available to conduct the war, the other with the conduct of it. Congress has a great say in the first, even if it has no say in the second.

[Update (6/14/04 12:10): In response to a question, I guess I should clarify this: Congress has discretion to choose the tools available to the President. It can rule some practices unlawful, either under its Art I, sec. 8, para. 14 authority “To make Rules for the Government and Regulation” of the armed forces or under the Art. VI Treaty power. I would argue it can order all troops leave a given country, if only under the power of the purse. But it cannot direct a brigade to go here or there in the field of battle.]

Page 36 pulls back a bit in the direction of reality. Perhaps realizing that its argument is a little daft, the memo considers the possibility that “[i]t could be argued that Congress enacted 18 U.S.C. § 2340A with the full knowledge and consideration of the President's Commander-in-Chief power, and the Congress intended to restrict his discretion in the interrogation of enemy combatants.” But the visit is merely temporary, for the memo quickly asserts that even if this were the case, “the Department of Justice could not could not [sic] enforce Section 2340A against federal officials acting pursuant to the President's constitutional authority to wage a military campaign”.

Note that the argument here is not that the DOJ should use its prosecutorial discretion, but rather that it would have a legal duty to abstain from prosecution. Why couldn't the DOJ prosecute what appears to be a crime? Because the President's power to protect the nation's security is paramount (p. 36), and plenary, especially “in grave and unforseen emergencies” (p. 37).

Now, there really is great substance to the argument that the President's powers are at its apex if he has to repel a sudden attack on the US. I think all constitutional scholars would agree with that. But the scenario to which this applies is the invading army, the advancing missile or aircraft, not the detainee captured half way across the world.

By page 39 of the memo, however, we're back to the Vesting Clauses of the Constitution, and the argument the President is a law to himself regarding anything touching military matters. “Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President.” And since intelligence gathering is so critical to modern warfare against terrorists, Congress certainly can't interfere with that.

In short, it's the same Nixonian argument all over: the DOJ can't prosecute anyone who, in anything arguably connected to the war effort, does what the President tells them to.

But that's not enough. The Memo then turns to other defenses besides Presidential authorization that might be raised by a person accused of torture. [I take it that this section of the memo applies to both accusations of “torture” which the authors admit is torture and accusations of “torture” that the memo writers would characterize as mere “cruel, inhuman, or degrading acts” that are not actual torture, but it's a little vague on this, and it's conceivable the authors mean this section only to apply to the latter. The memo speaks of force, even deadly force, which suggests it includes what they call torture, but elsewhere it notes that the force must be “proportional” to the need; given that the “need” is national security, and the memo treats this as the summum bonum, I read the memo to intend the defenses potentially to apply to all uses of force including the most severe torture.]

The first is the “necessity” defense, the second is a notion of “self-defense”. I will leave it to others to skewer these. But I do feel a need to point out just how far down the slippery slope this memo goes by page 45. It argues that otherwise criminal individual acts can be defended by invoking the nations's not the individual's right to self-defense (and even in a footnote argues that there's a relevant analogy to the right to national self-defense under international law. And this applies to suspected prospective attackers and their associates as well as soldiers in the field. How this differs from saying that if the US even suspects anyone of wanting to harm it, it can do anything it wants to them is not clear on first reading.

Ultimately, the best legal commentary on this memo may belong to Professor Jay Leno:

According to the “New York Times”, last year White House lawyers concluded that President Bush could legally order interrogators to torture and even kill people in the interest of national security – so if that's legal, what the hell are we charging Saddam Hussein with?

Remember: the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it — they're people who really have the most to answer for.

This entry was posted in Guantanamo, Iraq Atrocities, Law: International Law. Bookmark the permalink.

127 Responses to OLC’s Aug. 1, 2002 Torture Memo (“the Bybee Memo”)

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  2. JC says:

    Another terrific review. I think though that the professor is too easy on the lawyers at the end. Yes those implementing the policies need to answer for their actions, but the lawyers’ advice is abhorant to the Constitution and therefor inexcusable. The worst sort of legal advice, bestoying unlimited power to the President. To torture(!), no less. This is contrary to our Constituion, our laws, our heritage.

    It is plainly unAmerican.

  3. stumpy says:

    Interesting in light of the recent complaints about using international law in deliberations on legality.

    “(It had every incentive to avoid the word ‘torture’; as for the necessity defense, the Israeli rule, like the US rule, contemplates permitting some things under domestic law that violate international law. “Necessity” in Israel is seen as touching national survival.)”

  4. Ronjazz says:

    While it may be easy to jump on the lawyers (see Shakespeare), in this case it is those who pushed the lawyers for this result that need to be monitored. The office of the VP is especially close to this view, and Cheney is the one most likely to hang for treason, many years into his war profiteering too late…

  5. Ray Radlein says:

    If the OLC is “an elite bureau in the Justice Dept. staffed by very very intelligent and highly credentialed people,” how on earth could they have produced such a steaming pile of… work product as this?

    Perhaps the fault lies not with the lawyers of the OLC, but with the task laid before them: to justify the unjustifiable. I mean, if you took a group of world-class physicists and gave them the corresponding task of producing a paper which defends the thesis that the world is flat and sits on the backs of four elephants astride an enormous tortoise, you’d wind up with something similar: They’d bend this bit as far as they possibly could, bend that bit as far as they possibly could, wave their hands around, point off in the distance at the amazing sparkly thingbob, write “QED,” and hope that no one notices what a load of tripe they’ve just been asked to swallow.

    As for what it stands on, I’m afraid it’s tortures all the way down.

  6. Jerry says:

    According to news reports, At Berkeley, one of the lawyers involved in this mess has been the subject of protests calling for his resignation.

    Given their lack of “moral sense”, and the outcome it has led us to, what ethical responsibilities do the authors of this memo have? What ethical responsibilities do the various bars have towards them? And what ethical responsibilities would their peers (say other lawyers on the same faculty) have?

  7. rea says:

    “. . . so if that’s legal, what the hell are we charging Saddam Hussein with?”

    Leno’s comment takes on an extra tinge of irony in light of the International Red Cross’ recent criticism of the US for holding Saddam without charging him . . .

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  9. Kirk Tofte says:

    What defense can the President have if WAR IS NOT DECLARED by Congress, as so many of our wars HAVE NOT been over the last sixty years, or CANNOT BE DECLARED in the war on terror because there is no party ANYONE can declare war ON?

  10. Kirk Tofte says:

    What defense can the President have if WAR IS NOT DECLARED by Congress, as so many of our wars HAVE NOT been over the last sixty years, or CANNOT BE DECLARED in the war on terror because there is no party ANYONE can declare war ON?

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  13. Gary Kleppe says:

    According to the “New York Times”, last year White House lawyers concluded that President Bush could legally order interrogators to torture and even kill people in the interest of national security – so if that’s legal, what the hell are we charging Saddam Hussein with?

    Impeding the economic interests of the corporate elite, of course. That’s a felony, bub. Matter of fact, it’s the only real felony there is.

  14. JimPortlandOR says:

    I’m wondering if the legal community outside the government intends to rebut the arguments on what torture means under the law, and the extent to which the President can ignore the law in his role as Commander-in-Chief.

    By legal community, I mean more than individually, but a “collective brief” that criminal lawyers (in the torture case) and constitutional lawyers (in the CIC authority case) can put there name to.

    Individual opinions are great, but the media won’t pay attention until some very distringuished legal names are jointly willing to advocate an alternate view of the law in these two areas.

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  16. J Ryba says:

    But it would appear that the defense is only valid if the president acknowledges he authorized the torture. How likely is that? Loyalty is one thing, but that would political suicide. If the president authorized the torture based on this memo, it’s difficult to believe he thought it through, on how it would be applied in a legal setting.

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  18. pennywit says:

    I skimmed over the memo myself, but the parts that I saw struck this 3L as high-grade legal horseshit. Nice to see that other people agree.

    –|PW|–

  19. TR says:

    Thank you for the analysis. I will be digesting this for some time.

    One question though…
    You say: “In any case, there’s an enormous difference between unfettered discretion to move troops around on the battlefield and unfettered discretion to order war crimes. One has to do with determining what tools the President has available to conduct the war, the other with the conduct of it. Congress has a great say in the first, even if it has no say in the second.”

    Did you mean to say that? Or did you mean to say that Congress has a great say on the *second*, even if it has no say on the *first*?

    Thanks.

  20. But it would appear that the defense is only valid if the president acknowledges he authorized the torture. How likely is that?

    Very if it is in writing somewhere. I think there is a secret presidential directive out there somewhere that authorizes torture. This is beyond Bush’s authority and a violation of the Constitution. The only question is if that order will be leaked and if so when?

  21. cc says:

    Jim, it probably won’t happen. It should, but it won’t.

    I don’t think the media will jump on this as hard as say, Watergate or the myriad of Clinton faux-scandals because it’s just too complex for them. I know, I know… it shouldn’t be but asking these people to do research or legwork? Well, it’s asking a lot. Also the opinions of the Chuck Hagel’s and Joe Lieberman’s of the world are held by many, that those who are being tortured would otherwise be torturing us so where’s the problem.

    In a better world, something like this or the fifty other things their guilty of would get the Resident impeached and the whole clan fired by the end of business day. But you’re exactly right–it does take more than individual opinions, however cogent those opinions may be.

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  23. Sam says:

    Great analysis except for one thing: the law is what Ted Olsen, John Ashcroft, and Antonin Scalia say it is. That means that the federal government can interfere with state elections, it means that US citizens can be held without habeas corpus indefinitely, and it means that “cruel and unusual” means whatever the above named people say it means, and it means that the application of law depends entirely on who the defendants and plaintiffs are.

    The entire exercise means specifically that democracy died in December of 2000, and the newly established government of the United States is totalitarian or at least authoritarian, and amounts to an oligarchy directed by unknown persons via a Vice President in an undisclosed location.

    But you shouldn’t be surprised by this memo; it is the kind of thing that Republican rules committees have been doing since 1994 when they took over the Congress. This week the same rule they cited last week has changed its meaning 180 degrees and means something entirely different. If you ask the same people to comment on the rights of American soldiers who have been captured in combat, you will get a very different memo.

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  27. Richard Stencil says:

    If torturing prisoners saves lives of innocent civillians, we must have saved a lot of lives by now since we have been torturing prisoners for quite a while. Why don’t we publish a list of names of the people who have been saved. Perhaps we could have them give testimonials about how grateful they are that all those people were tortured so they could live.

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  29. Richard Stencil says:

    If torturing prisoners saves lives of innocent civillians, we must have saved a lot of lives by now since we have been torturing prisoners for quite a while. Why don’t we publish a list of names of the people who have been saved. Perhaps we could have them give testimonials about how grateful they are that all those people were tortured so they could live.

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  33. Barbara says:

    I skimmed it too, last night, and realized that, all the analysis about extreme pain and mental suffering aside (I couldn’t read that part of it in detail), ultimately, it rests on the tautological reasoning that you have so deftly skewered: Every legal principle that normally applies would seem to make it illegal, but . . . it can’t be, because then we would have to conclude that the president broke the law, which can’t happen during wartime without creating a constiutional infirmity — Slobodan Milosevic and the Nuremberg trials don’t even make it into the footnotes.

    It’s really sad, especially since, when you look at legal opinions in the area of persecution to support political asylum, “torture” is hardly defined in such a hairsplitting fashion.

    I’ve seen lots of memos trying to defend the indefensible, usually of the “how can we cheat shareholders” variety, but I guess I never thought I would ever see something like this. And to think, torture is essentially being used after the fact because the very same administration couldn’t be bothered to engage in the kind of advance planning that might have made the use of torture seem less “necessary.”

  34. Bill O says:

    Thanks for interpreting the memo for those of us without legal training. Although legal training is not necessary to see that this is morally repugnant and against everything that this country claims to stand for.

    So, what are next steps? How do we begin to fix this mess? I mean if Clinton can be impeached for lying about sex…

    Perhaps some legal folks out there can explain what constitutes an impeachable offense. I saw treason mentioned in one of the posts above, what constitutes an act of treason? I realize that we have a Republican lock on the House and Senate but this should transcend partisan politics. (naive of me I know)

    Thanks in advance

  35. dms says:

    TR,

    I had trouble with that paragraph also. I think the problem arises, however, because the order got switched between the first and second sentences, not between the second and third.

    That is:

    “unfettered discretion to move troops around on the battlefield” = “conduct of it [war]” (this is number 2 in second sentence).

    “unfettered discretion to order war crimes” = “determining what tools the President has available to conduct the war” (this is number 1 in second sentence)

  36. Matt says:

    I noticed an interesting contradiction in the memo. On page 12, the argument is made that the threat of imminent death constitutes mental torture. The memo parses “imminent” this way:

    “Common law cases and legislation generally define imminent as requiring the threat be almost immediately forthcoming.”

    Thus (it is argued) threats of eventual (and not immediate) death do not contribute to mental torture.

    Then on page 43, the argument is made that self-defense may be a justification for torture, if the threat being defended against is “imminent.” Here, imminent seems to have a different definition:

    “It would be a mistake, however, to equate imminence necessarily with timing — that an attack is immeditely about to occur.”

    Interesting spin, isn’t that?

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  39. Romdinstler Jones says:

    A somewhat off the wall comment: I find it interesting that this memo justifies the use of stress positions but makes no comment on what is allowed if a detainee refuses to assume the position in the first place. (I’m assuming that the memo does not, in fact, address this issue. Does it?).

  40. Lori says:

    This is in reply to Mr. Stencil. Here’s the list of innocent people saved by the torture of detainees:

    That’s right. None. See, the problem is, most of the people we’re torturing are innocent, too. Hard to get actionable intelligence from farmers, taxi drivers and grandmothers. The other problem, not incidentally, is that most people are willing to say anything just to get the torture to stop. Think, for a moment, about what you’d be willing to confess if someone was beating your own child in front of your eyes. Yes, we’ve been doing that, too.

    So we may have been getting lots of “intelligence” but how much of it is any good? How many innocent people are we willing to torture randomly just to try to find one guilty person?

  41. molly bloom says:

    “Remember: the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it — they’re people who really have the most to answer for.”

    As a lawyer, I disagree. Lawyers have a higher standard and duty. This is a perversion of our calling and the lawyers who drafted this memo belong in the 7th circle of hell.

  42. Jason says:

    While I really don’t think anyone in the Bush White House will get nailed for signing off on even the most egregious violations of international law, it IS pretty interesting that Don Rumsfeld told Congress under oath that he knew “nothing” about the torture at Abu Ghraib. A violation of international law is a dodgy, difficult thing to prove or prosecute. Lying under oath to Congress, however, is a pretty straightforward charge that even the dimwitted media can understand.

    If anti-Bush politicians want to do their part, they should get these guys in front of Congress under oath for some grilling. If the press wants to do its part, it should track down the memos that *prove* guys like Rummy are lying under oath. Getting Ashcroft in front of the Senate is a start…but he’s a lawyer and he knows how to parse words. Rumsfeld and Wolfowitz aren’t nearly as clever.

    There is one rule in Washington scandals: it’s not the crime that kills you, it’s the cover up. The Democrats have to get these guys under oath and talking. Then they’ll sink themselves with their lies.

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  45. IGrantius says:

    Here’s my question for all the lawyers out there…

    If Bush gets to decide what is legally permissable in wartime, then presumably that privelage would extend to future presidents as well.

    And furthermore Bush seems to be claiming that privelage retroactively, isn’t he? He’s not arguing that the 1994 treaty doesn’t apply to him anymore; he’s arguing that it never did.

    So what’s to stop the next president from simply deciding that he’s wrong? It seems to me a Kerry Administration could declare that by their interpretation of the treaty, Bush and his gang bungled it. And since only the President’s opinion matters, couldn’t he just have them hauled off to prison?

    It seems to me the memo argues more than maybe it means to.

    The nasty thing about claiming kingly powers, when you don’t actually rule for a lifetime, is that sooner or later, someone else is going to be king.

    Or am I missing something?

  46. Al says:

    Froomkin’s distinction between “determining what tools the President has available to conduct the war” and “the conduct of [the war]” makes no sense. These are essentially the same thing. Froomkin says tha t Congress cannot Constitutionally “direct a brigade to go here or there in the field of battle”. I would agree. But this is EXACTLY “determining what tools the President has available to conduct the war” — that is Congress cannot say that Brigade X must stay over Hill Y and away from combat; well, then the President doesn’t have Brigade X to use in his conduct of that portion of the war!

    A little too cute, Froomkin. Try again.

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  49. RuthAlice says:

    Saying that the lawyers are not responsible because they were merely finding justification for the desired policies of the Administration would also excuse those bureaucrats at the Wannsee Conference.

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  51. cs says:

    Thank you so much for sharing this analysis with us lay folk. Well, all except for that last apologia for the drafting attorneys. Are you arguing that lawyers working in “an elite bureau in the Justice Dept. staffed by very very intelligent and highly credentialed people” ; whose “primary function is to give opinions on matters of constitutionality regarding interdepartmental and inter-branch relations, and to opine on the constitutionality of pending legislation; and which is “[b]y all accounts . . . is one of the most interesting jobs in government if you are interested in constitutional law or the working of government” are to be excused for undermining the very thing they were hired to uphold because they lost their moral centers in an atmosphere of national hysteria?

    Give me a break. They didn’t lose their moral senses; they forked ‘em over, if they ever had them to begin with. We are at the crux of a great event here. If our Constitutional republic endures, these folks have acted treasonously, in fact if not in law, and must never be given a chance to do so again. If the republic falls, well, they’re accessories to its murder. No doubt, as such, they’ll fare well in whatever ugly thing comes next. Long live the king . . .

  52. alspotter says:

    For those who may stumble on this thread, and read the pseudo-criticism by “Al”, don’t bother to reply.

    Al is a well known troll at the blogs of Matthew Yglesias and Kevin Drum.

    It’s not worth trying to argue with him — just ignore him. He’s not actually trying to make sense or have a conversation. He’s just trying to piss in the pot, create doubt with fallacious arguments, and distract people by stirring them up.

  53. Chuck Smith says:

    Picking up on Leno’s joke, if a nation is bound by ratified treaties and international law only to the extent that the country’s constitution makes its executive branch bound by such treaties, then how on earth could the U.S. claim that Saddam was accountable for breaches of U.N. resolutions? Surely, the Iraqi constitution then vested Hussein with the power to ignore U.N. resolutions. Or is the Bush administration taking the position that it is vested with more executive power than that held by the form Iraqi dictator?

  54. Gary Kleppe says:

    IGrantius:

    I think that what you’re missing is that Kerry would never do such a thing. While he might disagree with some of Bush’s tactics, the two of them are ultimately on the same side. Good cop is still a cop.

  55. walden says:

    Is there any significance, do you think, to the fact that this memo was written after Mr. Bybee had been nominated for a Court of Appeals judgeship but before his Senate confirmation hearing had been held?
    Was this, in effect, a demonstration of continued loyalty to Gonzales?

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  61. Evelyn Blaine says:

    Just a trivial point:

    > I would argue it [Congress] can order all troops leave a given country, if only under the power of the purse.

    Is this really even a point of dispute? Not even Nixon claimed he could keep troops in Cambodia once the funding deadline had passed. I think this may be the one power this memo doesn’t arrogate to the president.

  62. Frederick says:

    Your analysis is great as usual, but I can’t agree with your conclusion:

    Remember: the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it — they’re people who really have the most to answer for.

    Lawyers are supposed to give their clients sound legal advice, and certainly are supposed to tell them, when appropriate, “you can’t do that; it would illegal.” This memo, like the March 6, 2003 Working Group Report, displays an extreme, untenable, and immoral reading of the law. It also betrays a fundamental misunderstanding of the Constitution and the limits it, and treaties enacted pursuant to the Constitution, place on executive power.

    This is inexcusable, especially coming from supposedly brilliant attorneys. The Third Reich probably had some smart attorneys, too — and I do not draw such comparisons lightly. But when you start claiming that the president has the power to override all laws and treaties, such comparisons are appropriate.

    Although I am not normally a Bush apologist, it seems to me that the actions of Bush and other non-lawyers who requested, reviewed and/or acted on this memo are closer to being defensible than the actions of Bybee and other lawyers who participated in drafting this atrocity. Bush is no legal (or any other kind of) scholar. The actions of Bybee and the other lawyers are utterly indefensible. I can somewhat more readily understand Bush et al. saying, “hey, they’re the legal geniuses and they said this was fine.”

    It is appalling that Bybee is now on the Ninth Circuit. He should be impeached, convicted, removed from office, and disbarred.

  63. Frederick says:

    Your analysis is great as usual, but I can’t agree with your conclusion:

    Remember: the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it — they’re people who really have the most to answer for.

    Lawyers are supposed to give their clients sound legal advice, and certainly are supposed to tell them, when appropriate, “you can’t do that; it would illegal.” This memo, like the March 6, 2003 Working Group Report, displays an extreme, untenable, and immoral reading of the law. It also betrays a fundamental misunderstanding of the Constitution and the limits it, and treaties enacted pursuant to the Constitution, place on executive power.

    This is inexcusable, especially coming from supposedly brilliant attorneys. The Third Reich probably had some smart attorneys, too — and I do not draw such comparisons lightly. But when you start claiming that the president has the power to override all laws and treaties, such comparisons are appropriate.

    Although I am not normally a Bush apologist, it seems to me that the actions of Bush and other non-lawyers who requested, reviewed and/or acted on this memo are closer to being defensible than the actions of Bybee and other lawyers who participated in drafting this atrocity. Bush is no legal (or any other kind of) scholar. The actions of Bybee and the other lawyers are utterly indefensible. I can somewhat more readily understand Bush et al. saying, “hey, they’re the legal geniuses and they said this was fine.”

    It is appalling that Bybee is now on the Ninth Circuit. He should be impeached, convicted, removed from office, and disbarred.

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  67. a Phoenician in a time of Romans says:

    The nasty thing about claiming kingly powers, when you don’t actually rule for a lifetime, is that sooner or later, someone else is going to be king.

    I’m sorry – having claimed kingly powers, what makes you think that he won’t be ruling for a lifetime?

    Or to be more accurate, his kin and ilk won’t be ruling for a lifetime. Cf Diebold.

    Do you still believe you live in a democracy?

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  69. Erik says:

    I promise this won’t be a random right wing rant, but I just want to throw a little something onto the other side of this discussion.

    First, about torture. Some things are clearly what we call ‘torture’ (electrical shocks; waterboarding when you don’t know in advance that it’s just training; physical beatings; rape, etc). Other things (being forced to assume humiliating positions with sexual innuendo; being kept in a dark room for three days) seem in many people’s mind to be damned unpleasant, but not exactly torture as we’ve imagined it. Still more are somewhere in between–forced physical exertion, sleep or food deprivation, and the like.

    We might have more success pushing the right to avoid ‘torture’ if we don’t try to lump all three categories together. Yes, it is shocking (and inappropriate) that we stripped prisoners and made them pose like they were having sex, for example. But can anyone really claim that was even vaguely equivalent to holding someone’s head underwater until they lost consciousness? To rape? To threats of death? THESE are the things we should be focusing our vision and efforts on for multiple reasons.

    First, if we pretend that we see absolutely no moral difference between acts which vary widely in repugnance, we come across as lacking a sense of balance. Second, a culture taht allows the really bad stuff is less likely to able to control more moderate (a relative term) abuse.

    But most importantly, there’s some value to unpleasantness if it it gains information. If (hypothetically) we could strip every prisoner of war naked and get valuable information, i’m not so sure that would be a bad thing. SOME of these prisoners, after all, would have happily killed us earlier, had they the chance. The modern concept of a ‘just’ or ‘friendly’ war, in which the peons gratuitously slaughter each other but act politely when captured, is a little odd when you thinkn about it. I mean, to some degree I wonder what the %^$! all the complaining is about–it’s OK to bomb cities and kill civilians, it’s OK to slaughter largely-conscripted troops by the tens of thousands, but if one of them happens to surrender it’s not OK to beat him up? Get real, people. War sucks, and if you don’t like it we should not go to war.

    As for the legal issue: Almost every legal positino was at one point in the minority. If you don’t at least try to make an argument, you will never win… and if you refuse to make any agument which doesn’t ‘seem to be based on the law’, well you won’t have a job for long. many people argue for reversal frequently, and while this memo seems to have produced unfortunate results it’s not at all obvious that the lawyers didn’t do the right thing. Look: if your boss says “Write me a memo about the occasions under which it might be legal to take someone else’s house” you write the damn memo. It’s your job. And no, the lawyers are not to blame for the torture itself: that’s solely on Bush’s head, and his commanders. So stop the picking at them.

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  72. Billmon says:

    “But can anyone really claim that was even vaguely equivalent to holding someone’s head underwater until they lost consciousness? To rape? To threats of death? THESE are the things we should be focusing our vision and efforts on for multiple reasons.”

    But our bully boys have been doing those things, too. It’s all become part of a continuum of “crual and inhumane” treatment, and at the moment we don’t really know how far that cotinuum stretches. The memos seem to leave enough room for it to stretch about as far as the president wants it to stretch. Given that our current president shows some pronounced signs of being a sociopath, that’s not very reassuring.

    “I mean, to some degree I wonder what the %^$! all the complaining is about–it’s OK to bomb cities and kill civilians, it’s OK to slaughter largely-conscripted troops by the tens of thousands, but if one of them happens to surrender it’s not OK to beat him up? Get real, people. War sucks, and if you don’t like it we should not go to war.”

    Ah, what a clever juxtaposition, Erik – “bombing” cities and “slaughtering” troops by the thousands, versus beating up a single prisoner. But what about:

    “it’s OK to bomb cities and kill civilians, it’s OK to slaughter largely-conscripted troops by the tens of thousands, but if one of them happens to surrender it’s not OK to use him for science experiments?”

    Or:

    “it’s OK to bomb cities and kill civilians, it’s OK to slaughter largely-conscripted troops by the tens of thousands, but if some of them happen to surrender it’s not OK to use them for bayonet practice?”

    Or:

    “it’s OK to bomb cities and kill civilians, it’s OK to slaughter largely-conscripted troops by the tens of thousands, but if millions of them happen to surrender it’s not OK to use them for slave labor?”

    Your ethical education clearly has been mishanded, Erik. You sound like some Nazi bitter ender, telling his fellow Germans to bite the bullet: “Get real, people. War sucks, and if you don’t like it we should not go to war.”

  73. David Tiley says:

    The physicists comparison by Ray Radlein is instructive. Could you in fact find a group of physicists at the highest level who would deny reality and the basic laws of their science?

    You probably could – Lysenko had biologists and I wonder about the star wars enthusiasts – but they would still be bad scientists according to the collective testable beliefs of their discipline.

    Are lawyers actually so different? Is there not a mass of evidence, threaded through morality and custom to be sure, that constitute the collective testable beliefs of their discipline?

    Sure there is. And these “lawyers” have betrayed their profession and their society. Oh, and themselves.

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  76. Steve says:

    Uhhmmm I’m going to go out on a limb here and call some of analysis bunk. The complaint of conservatives (broadly used to include libertarians) is when the SCOTUS looks to other countries to interpret our Constitution. Looking at how other countries look on treaties on the other hand, i.e., international agreements strikes me as the right thing for the SCOTUS to do. Do that part of the analysis is a strawman.

    Nowhere do the authors say “but this would be wrong”.

    Uhhh, were they asked for an ethical analysis or a legal one? Seems to me the above goes to the former and is not necessary for the latter. It would be like your accountant telling you what kind of car to buy.

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  80. JC says:

    1. In response to the 11:16 am post: Regardless of whether Bush authorized any of this, it would be valuable to find out if he agrees with the conclusions. Ashcroft sidestepped that question last week.

    2. In response to the 11:40 am post: This is not too complex for the American people. “The President claims he is above the law, allowing him to authorize torture!” Again, this is plainly unAmerican!

    3. Telling that all of this, and so much more, is being kept secret (“classified”) by the administration. So scary, just like the Inquisition — secrecy, torture, the whole nine yards.

  81. Jaded says:

    Erik,

    I understand where you’re coming from when you point out the difference between “torture” and “unpleasantness”. For what it’s worth, I’ve never thought that stress postures or being kept in a dark room for days at a time should be forbidden. But, we must understand that what *we* think isn’t really the issue here. The issue is whether or not our *laws* permit such practices. The Geneva Conventions says that such practices are forbidden. Our Constitution says that any treaties signed by the President and ratified by Congress must be regarded as the law of the land. The Geneva Conventions is a treaty. It was signed and ratified. It is the law of the land. If our President finds the treaty constraining, he can try to change it, but he doesn’t have the right to flout it while it’s still in effect.

    “it’s OK to slaughter largely-conscripted troops by the tens of thousands, but if one of them happens to surrender it’s not OK to beat him up?”

    We treat surrendering enemies differently than enemies on the battlefield because of the way human emotions work. Consider this: pretend you’re a conscripted soldier fighting against U.S. forces. You’re people are out-numbered and out-gunned. The Americans give you a chance to surrender. You know that if you accept there’s a fairly good chance you’ll be tortured or abused. You may even be killed during an interrogation. Is it possible that you would rather fight to the death (and take out as many Americans as you can before you go) in that situation? That would be *my* choice, anyway. I’ve often wondered if Taliban and al Qaeda fighters in Afghanistan think about the possibility of being sent to Guantanamo if they’re captured. My guess is that they think of it often, and that doesn’t bode well for U.S. forces there. No, there’s a reason we should treat our prisoners/detainees humanely. It really has nothing to do with logic or morality. We do it as a CYA stunt.

  82. JC says:

    To add to Jaded’s post: As Sen. Biden said, the US signed and ratified the treaty, and thought it was the law of the land, because we did not want our own sons and daughters to be tortured, or “unpleasantly” abused by others. That is the reciprocal nature of treaties. (We also may have had some touch of humanity, but I doubt it.)

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  84. Tom Doyle says:

    INTRODUCTION

    The US ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,(herinafter Convention) in 1994. The Convention requires states that become a party to it to file reports on how they are implementing it. The US filed its first report on Oct. 15 1999. Below are excerpts from the report that seem at odds with the recenly publicized memos, and what the US has been doing.

    The link below is to the report’s introduction, which has links to the rest of the document.
    http://www.state.gov/www/global/human_rights/torture_intro.html

    U.S. Department of State
    Initial Report of the United States of America to the UN Committee Against Torture
    Submitted by the United States of America to the Committee Against Torture, October 15, 1999

    INTRODUCTION

    The Government of the United States of America welcomes the opportunity to report to the Committee Against Torture on measures giving effect to its undertakings under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment…This Report has been prepared by the U.S. Department of State with extensive assistance from the Department of Justice and other relevant departments and agencies of the federal government. Substantial contributions were also solicited and received from interested non-governmental organizations, academics and private citizens. The Report covers the situation in the United States and the measures taken to give effect to the Convention through September 1999.

    The United States ratified the Convention Against Torture in October 1994, and the Convention entered into force for the United States on November 20, 1994. In its instrument of ratification (deposited with the Secretary General of the United Nations on October 21, 1994), the United States made a declaration pursuant to Article 21, paragraph 1, recognizing the competence of the Committee Against Torture, on a reciprocal basis, to receive and consider a State Party’s claims that another State Party is not fulfilling its obligations under the Convention. The United States also conditioned its ratification on two reservations and a number of interpretive understandings; these are included at Annex I and discussed at the relevant portions of this Report.

    In 1992, the United States became a party to the International Covenant on Civil and Political Rights, some provisions of which may be considered to have wider application than those of the Convention Against Torture. The initial U.S. Report under the Covenant, which provides general information related to U.S. compliance with and implementation of obligations under the Covenant, was submitted to the Human Rights Committee in July 1994 …The United States also ratified the International Convention on the Elimination of All Forms of Racial Discrimination at the same time as it ratified the Torture Convention. In February 1995, the United States signed the Convention on the Rights of the Child.

    The United States has long been a vigorous supporter of the international fight against torture. U.S. representatives participated actively in the formulation of the UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in 1975, and in the negotiation of the Convention Against Torture. The United States continues to be the largest donor to the U.N. Voluntary Fund For Victims of Torture, having contributed over $12.6 million as of August 1999. The U.S. Government pursues allegations of torture by other governments as an integral part of its overall human rights policy, highlighting such issues in its annual Country Reports on Human Rights Conditions.

    Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. U.S. law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.

    No government, however, can claim a perfect record in each of the areas and obligations covered by the Convention. Abuses occur despite the best precautions and the strictest prohibitions. Within the United States, as indicated in this Report, there continue to be areas of concern, contention and criticism. These include instances of police abuse, excessive use of force and even brutality, and death of prisoners in custody. Overcrowding in the prison system, physical and sexual abuse of inmates, and lack of adequate training and oversight for police and prison guards are also cause for concern. The national conscience was sharply challenged in 1991 by the widely publicized beating of Rodney King by four officers of the Los Angeles Police Department and by their subsequent prosecution by state and federal authorities. More recently, a Haitian immigrant, Abner Louima, was brutalized by New York City policemen after being taken into custody. Concerns about the excessive use of force by federal agents arose from widely publicized incidents in 1992 at Ruby Ridge, Idaho, and in 1993 in Waco, Texas; similar charges were leveled against the Philadelphia Police Department in connection with the May 1985 bombing of the headquarters of the radical African-American organization MOVE.

    As a result of these and other instances, American society has renewed its efforts to ensure that appropriate guidelines on the use of force are respected and that the prohibitions against torture and other forms of physical, mental and psychological abuse by law enforcement and correctional officials are observed in practice. Indeed, in 1994 the U.S. Congress enacted important legislation which authorizes the Attorney General to institute civil lawsuits to obtain remedies for patterns or practices of misconduct by law enforcement agencies and agencies responsible for the incarceration of juveniles. The Department of Justice is actively enforcing this statute, as well as older laws that permit criminal prosecution of law enforcement and correctional officers who willfully deprive individuals of their constitutional rights, and statutes that enable the Department of Justice to obtain civil relief for abusive conditions in state prisons and local jails.

    In addition, in the United States, some have voiced concerns related to other areas covered by or related to the Convention, such as non-consensual scientific and medical experimentation, treatment of the mentally ill and illegal immigrants in custody, and imposition of capital punishment. These and other issues are discussed in connection with Article 16.

    Every unit of government at every level within the United States is committed, by law as well as by policy, to the protection of the individual’s life, liberty and physical integrity. Each must also ensure the prompt and thorough investigation of incidents when allegations of mistreatment and abuse are made, and the punishment of those who are found to have committed violations. Accomplishment of necessary reforms and improvements is a continued goal of government at all levels. The United States intends to use its commitments and obligations under the Convention to motivate and facilitate a continual review of the relevant policies, practices, and institutions in order to assure compliance with the treaty.

  85. social democrat says:

    Terrific analysis. Leno’s crack, however, may be the most important part of the post. He’s a Republican — remember the help he gave to Schwarzenegger — so if Bush has lost him in mid-June, the party may be truly over.

  86. LA Activist says:

    The assumption that the lawyer who occupies the top spot at OLC is chosen because of his or exquisite intelligence and excellent credientials perhaps was correct in some other administration, but not this one. Bybee was chosen for his ideological “purity” and it shows in this horrific pile of specious, faulty, bankrupt alled “reasoning.” He has few academic credentials, no academic stature, until, in true Federalist Society – network style, he was plucked from fringe obscurity to head OLC. This is absolutely and completely typical for the people who are making decisions throughout the government under this Administration. Competence, much less excellence, is not the objective.

    As to the idea that we should forgive them because they were just doing what they were asked – please!!
    As a lawyer, I am deeply offended by that argument. I agree with the previous poster who points out that if anything, as officers of the court, we have a higher standard. Remember, lawyers’ obligation is to represent their clients diligently in every aspect other than facilitating the commission of a crime or fraud. If these memos aren;t drafted to facilitate the commission of crimes, it is hard to see what is.

  87. Ray Radlein says:

    By the way, when I said, “Perhaps the fault lies not with the lawyers of the OLC, but with the task laid before them: to justify the unjustifiable,” I was not talking in terms of moral responsibility, or professional ethics — I was simply referring to the fact that a cabal of the best and brightest, supposedly, had produced a memo as full of specious arguments and logical failures as this one was.

    I asked the rhetorical question of how such a group of top-drawer talents could produce something so shoddy, and then I answered that perhaps it was because the basic task was impossible — since there’s no way that a legally sound argument could be constructed that the President is really a God-Emperor whose whim commands unquestioning fealty, and who can authorize torture at will, it’s not terribly surprising that the memo’s arguments stink.

    Hence my analogy to physicists tasked with outlining a patently counterfactual scientific thesis: An impartial audience (or, to use the physicists’ own idiom, “An observer, ‘O’“), reading their finished report, would undoubtedly marvel at how such a group of eminent scientists could have produced such a ludicrous argument.

  88. Rob says:

    http://www.whitehouse.gov/news/releases/2003/06/20030626-3.html
    mentioned above is no longer at the whitehouse web site. Still available at Google archives, however.

  89. Steve says:

    As a lawyer, I am deeply offended by that argument. I agree with the previous poster who points out that if anything, as officers of the court, we have a higher standard. Remember, lawyers’ obligation is to represent their clients diligently in every aspect other than facilitating the commission of a crime or fraud. If these memos aren;t drafted to facilitate the commission of crimes, it is hard to see what is.

    Ha ha ha ha, you’re so funny. Yes, lawyers are really the good guys. Lets try this: lawyers are hired guns.

    Lawyers have a higher standard. Bwa ha ha ha.

    Have you thought of a career in stand up?

  90. RoguePlanet says:

    http://www.whitehouse.gov/news/releases/2003/06/20030626-3.html
    mentioned above is no longer at the whitehouse web site.
    _______

    It’s not? I found it at the WH web site. Anyway, it’s interesting:

    ***Statement by the President
    United Nations International Day in Support of Victims of Torture

    Today, on the United Nations International Day in Support of Victims of Torture, the United States declares its strong solidarity with torture victims across the world. Torture anywhere is an affront to human dignity everywhere. We are committed to building a world where human rights are respected and protected by the rule of law.
    ******
    Notorious human rights abusers, including, among others, Burma, Cuba, North Korea, Iran, and Zimbabwe, have long sought to shield their abuses from the eyes of the world by staging elaborate deceptions and denying access to international human rights monitors. Until recently, Saddam Hussein used similar means to hide the crimes of his regime.
    ******
    The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment.

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  92. Mr.Murder says:

    Hope these judges never get to decide on the use of tactical nukes, listening to Mr.Kennedy speak now…

    What your definition of “is” = Ashcroft’s definition of “torture”

    It’s torture unless Bush says otherwise, if Bush condones torture then by Executive authority it is legal and breaks no law, I will not disclose what he said in the document…

    Is Bybee part of the Enron legal channels like Gonzales and Starr were via Vincent & Elkins? Enough! Justice has been hijacked.

    Cruel, inhumane, unusual are S.T.O.P.s for Israel, in violation of 1441. Nice of Bush to to retain the high ground on torture rooms…

    Buch/Cheney ’04 Compassionate Rape Rooms…

  93. Dan says:

    And here I was thinking the word “supreme” (as in “supreme law of the land”) had meaning. But Resident Dumpty apparently gets to define his terms as well as everything else in his unHoly Administration.

    With the exception of his wealthy upbringing, he fits EXACTLY the wingnut apocalyptics’ definition of “antiChrist.”

    As for torture itself. We see in Israel the logical and intelligent response to the use of torture to gather information: people who would rather suicide than be captured. It plays directly into the hands of those opponent leaders who have no more morals than the torturers! It is a superb recruiting tool, and the smattering of useful information is way offset by the mass of disinformation that must be sifted in order to find the pearls. Especially in a war setting, where time is of the essence, torture is absolutely counterproductive.

    In my army, an officer who tortured prisoners would be sacked; an officer who used information garnered through torture would be shot for needlessly endangering the lives of his men.

    I read a lot of material “published” by NeoCons, including personal postings of everyday people.

    The current batch of NeoCons (especially the pawns) appear to be very sick individuals. They delight in others’ misfortunes, their “humor” almost entirely revolves around the infliction of pain (when they are not exposing how ignorant they are by attempting to ridicule people for being correct), they constantly talk about harming other people (often with guns) to the point where they fantasize about creating situations where violence is the only solution (they take excessive pleasure in “action” movies and post-nuclear scenarios).

    Typical adolescent boy fantasy stuff, which is tragic because these people are supposedly adults, and some are leaders, with no moral foundation or background knowledge.

    They are the first to hurl epithets, especially in writing, which are always meaningless within the discussion, and always off the mark (and they usually strut around slapping each other on the back for their “clever” retorts that most of us remember from our elementary school playgrounds); yet they are always first to whine when retaliated against in like kind, and completely oblivious when an actual insult, with content and subtlety, is placed on their plate.

    Although some have a decent factual knowledge base, few can associate facts to come up with useful information. They are absolutely uncritical and unquestioning of their political information sources – if they are told the source is __________ the information is to be unquestioningly trusted as absolute truth (TM); if the source is ______________ it is absolutely false, definitely blasphemous, and probably treasonous.

    They are, in a term, stereotypical lemmings, happily moving toward the cliff despite all their senses tell them about the outcome. That in itself would be tragic. Unfortunately, they are not content to jump by themselves, but insist on taking us over the cliff with them.

  94. Syzygy says:

    I second Bill O’s request.

    Could any legal people talk about the possibilities of bringing the right people to justice here?

    I am not really talking about a little perjury here and a little there. Clearly, there’s a lot more going on than perjury here. Some of it seems to have been unmasked. What are the possibilities?

    Americans can’t be charged in an international court, as I understand it, but what is possible here at home?

  95. Jaded says:

    Quite right JC. I’d forgotten about Sen. Biden’s argument. Thanks for adding that.

  96. Barbara says:

    Most of the “redress” that could ever be imposed here would be moral — electoral defeat, protests, inability to get hired for speaking engagements, and so forth. Of course, I don’t think Bybee, Mary L. Walker, Janis Karpinski, et al. should plan a European vacation in the near future. Although it would be more of a publicity stunt, I have no doubt that they could be hounded a bit for their actions. It’s possible one or more might be liable civilly, but this would definitely depend on a whole lot more than we know — and it is unlikely in the real world, though perhaps Law & Order can do an episode grounded in wishful thinking.

  97. Monkeyboy says:

    Something that really strikes me as odd in the midst of all the legal-ease about the President’s power to wage war — CONGRESS DID NOT FORMALLY DECLARE WAR AGAINST IRAQ (or anyone else for that matter).

    Shouldn’t we have a Constitutionally authorized war before we get to the question of what limits (if any) the Constitution puts on Congress’ ability to circumscribe the executive’s power to carry out a war?

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  99. Monkeyboy says:

    Another thing …

    Which is it? A few bad apples who, acting without direction, embarassed the nation by treating the Abu Grhaib prisoners inhumanely…?

    Or soldiers acting with under the command of our Commander-in-Chief, who ordered them to go right up to the line of permissible “degrading” treatment, but to avoid torture?

  100. janinsanfran says:

    Yesterday I posted the following at dKos about an address by Prof. Terry Karl on the similarities between efforts to bring Salvadoran generals to justice for torture and our situation. I hope people here don’t mind my sharing it again at some length; it seems very relevant.

    The speaker at Stanford’s graduation was Sandra Day O’Connor. But by vote of the students themselves, Professor Terry Karl spoke at this year’s class day event. Karl teaches Latin American Studies, but her claim to fame in the wider world is that she participated in bringing to trial and convicting Salvadoran generals responsible for torture and massacre.

    That case was a successful application, in a US court, of the legal doctrine of “command responsibility” which holds that civilian and military leaders are accountable for the acts of subordinates carrying out their policies, even if the generals and leaders didn’t order the specific acts of torture.

    Here are excerpts from Dr. Karl’s speech:

    “After completing my doctorate at Stanford, I conducted research in El Salvador’s civil war in the 1980s. Military leaders repeatedly assured me that their army did not commit human rights abuses. But the testimony of countless others told a different story. Salvadorans described how they had been hooded or blindfolded for days; deprived of sleep, food, and water; beaten and shocked; raped and forced to watch the torture and murder of others.  

    “At El Mozote, a massacre site where a forensic team would later dig up the bodies of over 100 children under the age of 12, a peasant woman approached me. “You are American. You are powerful. You will find out who is responsible for this.” That night, flying back to the United States, I railed against that woman. “Powerful? A general is powerful. A president is powerful. I am five feet tall. I am a woman from Missouri. I don’t have tenure. I am not powerful.”

    “Now, fast forward two decades to a South Florida courtroom, in June 2002, where two Salvadoran generals living in the U.S., Generals Jose Guillermo Garcia and Eugenio Vides Casanova, stood on trial, charged with responsibility as their country’s top commanders for the abuse of Salvadoran civilians. Three survivors of torture brought the courtroom to tears as they testified about what had happened to them.

    “As the expert witness in this trial – a trial that few believed would ever take place and even fewer believed could be won — I documented how the actions these generals had taken (and the actions that they had failed to take) were interpreted down the chain of command as a “green light” to commit torture. Thus these men should be held responsible for crimes committed against Salvadoran civilians.  

    “In their defense, the generals denied their responsibility. They were fighting terrorism. They could not be expected to control the actions of all their soldiers. They were not present when prisoners were humiliated, abused and murdered, and they were not the actual torturers. So why, they asked the jury, were they on trial for what a few “bad apples” had done?

    “Because the law demands it.

    “The doctrine of “command responsibility,” the product of an American initiative enshrined in law since the Nuremberg Statutes after World War II, affirms that civilian and military leaders may be held legally accountable for abuses committed by their subordinates — even when these commanders did not personally order abuses, witness such abuses, have direct knowledge about them or conspire to commit them. This law recognizes the tremendous danger of abuse inherent in war and, in tribute to the awful sacrifices of the Holocaust and those who died in two world wars, it places the moral worth of each and every person at the center of our international order. Rather than permit leaders to turn a blind eye to abuse, it charges both military and civilian authorities with an affirmative duty to prevent crimes, to control their troops, to act when a crime is discovered, and to punish those found guilty of committing the actual crime – no matter how high responsibility may reach in the chain of command.

    “Thus, a Florida jury found these once powerful Salvadoran generals responsible for gross human rights abuses.  In an historic and precedent-setting ruling, a jury of ordinary people reaffirmed the doctrine of command responsibility in an American court. Their verdict, covered in every major newspaper and widely televised around the world, sent a powerful signal. It warned murderers, torturers and dictators to think twice before retiring to the United States. And it demonstrated that, at our best, America’s freedoms and the energies of people like our lawyers, researchers, translators – people just like you — can be harnessed to transcend national borders and to hold even the most powerful to account for their actions against the vulnerable.

    “…9/11 was an earthquake in the psyche of America, and flying airplanes into buildings where people work is a crime against humanity. But the behavior depicted in the terrible photos of the hooded Iraqi led around on a leash and the 37 homicides of prisoners in U.S. detention now under investigation are also criminal acts. While the numbers may not be the same and the circumstances are different, U.S. law and international law are clear: both are crimes against humanity.  

    “The simple truth, whether we like to hear it or not, is that since the attacks of September 11, 2001, officials of the United States, from Afghanistan to Guantanamo to Iraq, have been torturing prisoners. They have done this with the institutional approval of the U.S. government advised by memoranda from the President’s own counsel, with official declarations aimed at side-stepping the historic safeguards of the Geneva Conventions, and with actual written policies permitting the use of “moderate physical force” – policies that violate rulings by our courts, the European Court of Human Rights, the Inter-American Court, and the Supreme Court of Israel. By the military’s own calculation, an estimated 80 percent of prisoners subjected to this treatment are innocent of any wrongdoing.

    “…[the US] stand[s] more alone in the world than we ever have.

    “This decline in our reputation is a decline in our security.

    “… we must address the damage that has been done in our name  - no matter how far up the chain of command this requires. For our spirit and our security, we must demonstrate that we are a nation of law, democracy, and decency. We must show the world that we will apply, at the very least, the same standards to our own leaders as we have to Salvadoran generals.”

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  102. Things will be different come the revolution.

  103. JC says:

    Hope remains when we see actions and words of a Prof. Karl and even the (law?) students at Stanford. Contrast these with the latest crop of “best and brightest” who authored the recent torture memos.

  104. Atty. Grass says:

    1. Enjoyed the analysis.
    2. Re Bybee’s credentials and duties at OLC: I can’t help but be reminded of another old DOJ hack some years back, an ideological fringer with a bright future judicial career, though he at least had a sound academic record. Old Bugs Rehnquist used to write all sorts of crazy memos — whenever Nixon wanted to do something, Bugs would write some crazy explanation how he could. Advice was unsound, but still helped his career, especially since the memos he wrote were withheld from the Senate during confirmation.
    3. Re President as King: I think of the military tribunal order from November ’01. Few people seem to have commented that the tribunal’s finding is really just a recommendation to the King, who makes the final judgment based on his royal whimsy. If the tribunal finds you innocent, Bush can still say, off with your head!

  105. I’m not a lawyer, and don’t play one on TV, but don’t lawyers, like soldiers, owe their “first fealty” to the Constitution?? Isn’t any lawyer, asked to justify the unconstitutional, obligated to say “The Constitution does not permit that”??

    All this bunch did was argue that Bush is exempt from Constitutional restraint, apparently by Divine Right.

    The lot of them should be sentenced to play “The dopey landlord” on fake TV trial shows for ten years.

    Worst part is that they were exactly wrong on the basic matter. Actual terrorists already expect to be treated this way, it would be far smarter to confuse the hell out of them by treating them well. Disprove a central tenet of what they’ve been told and you can make progress on the rest of what they believe. If we are not the Godless hordes after their virgins we should act like we aren’t, giving us a shot at getting the best possible Intelligence, willing cooperation.

    Not torturing anybody, as a matter of Policy, also reduces “collateral damage”, which isn’t limited to those killed by a bomb. Torture an innocent man and let him live, you have created an enemy.

  106. Ray Radlein says:

    Torture an innocent man and let him live, you have created an enemy.

    Please — don’t give them any more ideas.

  107. Raven says:

    Erik wrote:

    Look: if your boss says “Write me a memo about the occasions under which it might be legal to take someone else’s house” you write the damn memo. It’s your job.

    And if your boss says, “Fire the special counsel investigating me,” you issue the damn order.

    … or, like Elliott Richardson and William Ruckelshaus, you resign instead of following an unethical order.

  108. P.M.Lawrence says:

    Janinsanfran, acting extraterritorially like that isn’t America at its best, it’s at its worst. That’s because of the reasoning in the “Man for all Seasons”, when Norfolk says he would tear down every law to get at the Devil, and Thomas More asks where will he hide when all the laws are down and the Devil turns on him? Hard cases make bad law, and trying Salvadoreans under US law is yet another step down the slippery slope – all the more tempting when they are guilty. It destroys what the law rests on with every piece of jurisdiction it destroys.

    Erik, you are wrong in thinking there is no problem in breaching surrender terms if you are anyway being harsh in war. The thing is, war crimes ultimately rest on “perfidy”. IF you accept a surrender, you must respect it – but of course you needn’t accept it; Banastre Tarleton is wrongly accused of not respecting surrenders and killing prisoners, when he actually refused to accept surrender offers and took no prisoners. (Apparent exceptions rest on implied prior acceptance.) Perfidy matters precisely because there is no outside enforcing mechanism, such as the civil state. IF you start in with perfidy, you cannot ever get the benefit of the doubt yourself. This is why a recent episode of Law and Order, screened in Australia, seemed fatuous; a lawyer accused a vigilante of never being trained to murder people in the US military. Well, now you know that was never true – but we never had grounds for supposing the USA a paragon in the first place.

    So it comes down to the USA needing to BE honourable, just like the Turks withdrawing from their Italian toehold obtained by treachery. Montaigne explains clearly this was necessary to stay respected.

  109. David says:

    Thich Nhat Hanh had some worthwhile comments on the torture question, at http://www.beliefnet.com/story/146/story_14636_2.html.

  110. p noore says:

    Our appointed president is a nazi thug!
    p a moore sonewhere in PA

  111. Scalia Slime says:

    Well, this fine young lawyer who wrote this torture memo is now appointed to the Federal Bench for life. This is the kind of person I can use on the Supremes, he will follow my lead more closely than Clarence!

    Facts:
    Jay S. Bybee nominated Jan 7, 2003 by George W. Bush
    confirmed March 13, 2003

    Nice reward for a 46 page torture memo. Check out the Fahrenheit 9/11 trailer, Bush is toast if we can get the TV watchers to see this

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  113. Julie says:

    Gentle Irony:

    King George I
    King George II – (this would be our Bush #1)
    King George III – The guy known as the king who lost America. He was insane due to sickness and disease, but golly gee, haven’t we come full circle? We are lead by an insane person?

    —–

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