Monthly Archives: June 2004

Why The Bybee Memo Reads Like a One-Sided Brief: It Was (for the CIA)

One of the minor mysteries troubling lawyers who care about such things was why the Bybee memo was such a lousy piece of craft. The OLC is traditionally drawn from the elite of the profession, even if its head sometimes has to pass an ideological litmus test. One would expect an advisory memo on a major issue like torture to at least present both sides. If the key to a major part of the argument is an expansive view of separation of powers that has in the past been championed by Justice Scalia but has been repeatedly rejected by the Supreme Court as a whole (or, if you prefer, never adopted), one would expect to see a caveat or two somewhere as to the operational realities. But, just like there is a chilling absence of morality, there's also this puzzling disconnect with the state of the law (as I've also noted elsewhere, the crim law types have similar complaints).

One plausible explanation for these mysteries appears now on the New York Times web site and will presumably be in tomorrow's paper, Aides Say Memo Backed Coercion for Qaeda Cases: the Bybee memo was not written in a vacuum, nor (perhaps) due to some order from on high motivated by a desire to squeeze more info from detainees who were not coughing up the locations of weapons of mass destruction. No, what the NYT suggests is that the memo was written after the CIA had already done something — presumably excessive — to one of the detainees. Thus, it seems likely the White House was scrambling to find some legal cover for abuses that had already happened:

The legal memo was prepared after an internal debate within the government about the methods used to extract information from Abu Zubaydah, one of Osama bin Laden's top aides, after his capture in April 2002, the officials said. The memo provided a legal basis for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, the chief architect of the attacks of Sept. 11, 2001, who was captured in early 2003.

It has been known that the methods used on Mr. Zubaydah and other senior Qaeda operatives stirred controversy in government counterterrorism circles. But until now, it was not been clear that the memo was written in response to the Central Intelligence Agency's efforts to extract information from high-ranking Qaeda suspects, and was unrelated to questions about handling detainees at Guantánamo Bay or in Iraq.

The full extent of the tactics used during his interrogation are still not publicly known, but the methods provoked controversy within the C.I.A. and prompted concerns about whether agency employees might be held liable for violating the federal torture law.

Does the provision of this context mean that the attacks on Bybee have been unfair? No. Being asked to come up with justifications for the CIA's behavior might mean that he was in a much tougher spot than if he was just engaging in a theoretical exercise, but his moral and professional obligations — and the need to provide quality, balanced advice not a one-sided and ultimately unpersuasive screed — were every bit as strong if not stronger.

Furthermore, and perhaps because of this memo (the NYT does not claim direct causation), whatever happened to Abu Zubaydah was not unique:

It is known that some Qaeda leaders were deprived of sleep and food and were threatened with beatings. In one instance a gun was waved near a prisoner, and in another a noose was hung close to a detainee.

Mr. Mohammed was “waterboarded” — strapped to a board and immersed in water — a technique used to make the subject believe that he might be drowned, officials said.

In the end, administration officials considered Mr. Zubaydah's interrogation an example of the successful use of harsh interrogation techniques.

Some things just are not legal, and you have to say so.

Some Background:

Update: Jack Balkin on the role of the government lawyer.

Posted in Iraq Atrocities | 27 Comments

Unsubstantiated Hearsay About Cheney’s Vocabulary

The Vice President is going around saying things like he's not sure if he really swore at a Senator, but he felt better afterwards (huh?), and Yes, that's not the kind of language I ordinarily use.

Consider the following to be totally unsupported hearsay: Yesterday I received an email from a reader of this blog who said he used to be in and out of Cheney's office before he was the Veep (the email was specific, I'm being vague), and that Cheney regularly used language that was not just salty but downright radioactive.

Not that swearing matters much in my book, but lying does.

If said reader wishes to say more s/he knows how to do so, although I can understand why one view of professional obligations might counsel against it.

Posted in Politics: US | 1 Comment

Comments Are Now In Season

I read an awful lot of blogs via an aggregator, which means that I only get exposed to the comments if I do some clicking. I know from the feedburner logs that a substantial fraction of the readers of this blog do the same thing. That's certainly fine—that's what the feed is for. But I thought I ought to mention to long-time readers that in the past couple of weeks the comments have heated up, and that overall the discussion on some of the more active threads has been both meaty and (with minor exceptions) breathtakingly respectful. I'm impressed, and you might be too.

So far I have had no need to revise my comments policy although of course I'm always open to suggestions on that or anything else. (The one exception may be “would you add this blog I just found to the blogroll” — I blogroll only the sites I read or scan via the aggregator. I'm certainly happy to hear about new sites, but rarely list them until I decide if I'm going to be a daily reader.)

I should also mention that I have closed the comments on a very small number of ancient posts because they were being repeatedly targeted by comment spammers. They must all be in cahoots.

Posted in Discourse.net | Comments Off on Comments Are Now In Season

Jon Stewart Is a National Treasure

If anything persuades me to buy a TV, it's going to be the Daily Show.

Via Over/Spun, a link to Stewart acting as a one-man truth squad.

How come the respectable media tip-toes around this stuff?

Posted in Iraq | 3 Comments

What We Learn from Microsoft’s Rules of Software Design

Item 12 on 21 Rules of Thumb – How Microsoft develops its Software, a Microsoft developer's list of rules of great software design:

“Portability is for canoes.”

Figures. Indeed, verges on abuse of a dominant position?

It's also sort of interesting to compare this list to legal task organization, for example large-team litigation. Some of the rules work perfectly, some are irrelevant.

The first rule should certainly be engraved on every lawyer's heart, and is something I always make a point of telling my students in every class I teach:

It is essential not to profess to know, or seem to know, or accept that someone else knows, that which is unknown. Almost without exception, the things that end up coming back to haunt you are things you pretended to understand but didn’t early on.

Posted in Law: Practice, Software | 5 Comments

Law, Lawyering and the Cheney Case

Scrivener's Error has a very lawyerly analysis of the Cheney decision.

Posted in Law: Constitutional Law | Comments Off on Law, Lawyering and the Cheney Case