Daily Archives: July 15, 2004

Seymour Hersh says the US government has videotapes of boys being sodomized at Abu Ghraib prison in Iraq.

“The worst is the soundtrack of the boys shrieking,” the reporter told an ACLU convention last week. Hersh says there was “a massive amount of criminal wrongdoing that was covered up at the highest command out there, and higher.”

See Ed Cone for pointers to more grisly stuff.

Of course, none of this in any way should be laid at the feet of our leaders, who consistently deplore torture in all forms. Indeed, the very concept of command responsibility, and especially 'buck stops here' theories of the Presidency, are anachronistic thinking ill-suited to the realities of modern governance in large organizations.

Where once we aspired to leadership of virtue, now we must learn to enjoy Virtual Leadership.

Adrian Vermeule and Eric Posner, both respected law scholars at U. Chicago, penned an op-ed last week [now suddenly offline, only available via google cache] in which they argued that the torture memos were in fact quality lawyering, a view endorsed by the pseudonymous member of the Volokh conspiracy (who often writes as if s/he were a government lawyer).

There are a lot of things I find disturbing about this view. First, if the Torture Memo author(s) (mostly John Yoo) were asked to survey the field and opine on the best answer, they clearly failed. They did not even let on there was another side to the Presidential power question, much less that the majority of the Supreme Court had endorsed it, and most likely would again endorse it.

The Chicago profs counter this argument by saying that the OLC engaged in “standard lawyerly fare, routine stuff”. And,

Although it is true that they did not, in their memorandum, tell their political superiors that torture was immoral or foolish or politically unwise, they were not asked for moral or political advice; they were asked about the legal limits on interrogation. They provided reasonable legal advice and no more, trusting that their political superiors would make the right call. Legal ethics classes will debate for years to come whether Justice's lawyers had a moral duty to provide moral advice (which would surely have been ignored) or to resign in protest.

Wrong. This isn't a close call at all. To the extent that they lawyers may have been told they had to justify as much torture as could be squared with the law, they again failed on two grounds. First, their arguments as to specific intent, at least, were (I have it on good authority) specious. Second, if tasked with justifiying a given and evil conclusion, they should have found somewhere to mention that torture would be wrong. The failure to do so, as Jack Balkin noted some time ago, makes the entire argument one of those documents that makes you ashamed to be a lawyer.

Indeed, Balkin again has useful things to say about this op-ed, focusing on the claim that in the Torture Memo the OLC was just doing what it usually does, asserting a strong view of Presidential power.

Both Posner and Vermeule (and yes for that matter John Yoo also) have written scholarly papers that I respect. But there's something worryingly wrong here when smart lawyers endorse the view that a lawyer is a machine, and can or should turn off his moral compasses, justifying it by saying he is just following the client's orders, or meeting his expectations, or that saying “this would be wrong” is a futile gesture. This is never more true when they are government lawyers with an independent oath and obligation to the American people and to the Constitution.