I never thought I’d agree with John Ashcroft.

Mark Danner has a remarkable article on the Bush administration’s torture policies in the current issue of the New York Review of Books.  Those policies not only were disgusting (and always plainly so to anyone paying attention), but also enormously damaging to our country’s interests both in reducing our moral stature in achieving any chance of genuinely bringing those responsible for 9/11 to justice.  I cannot but help save a special contempt, however, for the lawyers who — it is obvious to me in looking at the purported justifications for their conclusions — were obeying orders to come up with any justification, no matter how baseless, for what their bosses wanted to do.  As Danner writes:

[In] the spring and summer of 2002, the administration was devising what some referred to as a “golden shield” from the Justice Department-the legal rationale that was embodied in the infamous “torture memorandum,” written by John Yoo and signed by Jay Bybee in August 2002, which claimed that for an “alternative procedure” to be considered torture, and thus illegal, it would have to cause pain of the sort “that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.” The “golden shield” presumably would protect CIA officers from prosecution. Still, Director of Central Intelligence George Tenet regularly brought directly to the attention of the highest officials of the government specific procedures to be used on specific detainees-”whether they would be slapped, pushed, deprived of sleep or subject to simulated drowning”-in order to seek reassurance that they were legal. According to the ABC report, the briefings of principals were so detailed and frequent that “some of the interrogation sessions were almost choreographed.” At one such meeting, John Ashcroft, then attorney general, reportedly demanded of his colleagues, “Why are we talking about this in the White House? History will not judge this kindly.”  

Who’s the good guy?

When they begin studying law my students most of my students, like children and cartoons, divide the world into good and evil. They believe that most cases can be explained by figuring out who’s the “good guy” and who’s the “bad guy.” To the beginner, every explanation is a strained effort to demonstrate why someone in a case has lied, cheated, or stolen. I try to explain to them that cases involving evil doers victimizing innocents are the easy ones. More importantly, perhaps, they’re the rare ones. The tough stuff to understand and explain are the vast majority of feuds, the feuds in which each side believes it is acting in good faith and for the best.

Life inevitably results in misunderstandings, accidents, mistakes, death, and failures (of investments, businesses, buildings and bridges, operations, etc.). Doing justice is most sensibly and correctly resolving the fights that result from those inevitable, though regrettable, events.

Justice, therefore, is blind.

So I am particularly disturbed by the willingness of people to cast aside the law on the grounds that certain lawbreakers meant only to do good. Charles Fried, Solicitor General under Reagan, for example (whose scholarship on Contracts I very much respect), condemns torture without qualification and yet argues we can’t prosecute people who decided to break the law and order torture because well, . . . unlike actual criminals the people who justified and ordered torture meant well:

But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders.

They are the same crimes — breaking the law in the belief that breaking the law is justified. Then why should Dick Cheney and the lawyers who lied about the law to justify torture get off?

Michael Mukasey is the Attorney General, and this week he apparently made the decision not to prosecute a former Justice Department lawyer who quite plainly could be indicted and tried for breaking federal law:

[A] former senior Justice Department official, Bradley Schlozman, set out to hire so-called “Right-Thinking Americans,” including members of the Federalist Society and other Republicans, for what were supposed to be apolitical career positions. He then gave them plum assignments on civil rights cases when he was helping to run the Civil Rights Division, beginning in 2003. . . . Mr. Schlozman . . . gave false statements to Congress when he repeatedly denied factoring politics and ideology into his hiring decisions.

The . . . case against Mr. Schlozman relies heavily on his words, from e-mail and phone messages to colleagues and underlings. His disdain for the traditional independence and mission of the Civil Rights Division is palpable. He spoke brazenly about reshaping the division by doing away with “pinko” and “crazy lib” lawyers and others he did not consider “real Americans.”

“As long as I’m here, adherents of Mao’s Little Red Book need not apply,” he wrote in one e-mail message. The report found that Mr. Schlozman transferred three lawyers out of the division because they were viewed as liberals who opposed his political agenda. The transfers, the report found, violated federal civil service law and “constituted misconduct.” All three lawyers brought federal discrimination claims and returned to the division after Mr. Schlozman’s departure.

Yet, without explanation, the Justice Department has decided not to prosecute Mr. Schlozman.

Charles Fried and Michael Mukasey can identify with federal officers and lawyers. They are or were federal officers and lawyers. They know even when people try hard things sometimes go wrong. But that doesn’t mean people who set out to do wrong things for even good reasons are above the law.

Fried and Mukasey know that, but somehow that knowledge escapes them when the defendants look and act just like them. That’s not the rule of law. It’s the rule of an aristocrats watching out for each other.

The Bush Administration’s tyrannical torture policies and its rewards

I’ve written here before of the Bush Administration’s “interpretations” of law that lied about and distorted the rules on which their authors based their conclusions.  One point I made was that achieving real intelligence in any creative endeavor, including law and art, requires acting within constraints. Anthony Lewis has an excellent article in the current New York Review of Books that goes into some detail on the history of what he calls “Official American Sadism.” Among other matters (read the whole article), I am grateful that he points out that with respect to torture and the treatment of prisoners in the so-called “War on Terror,” many U.S. lawyers, military lawyers who have represented “enemy combatants,” have followed the “rule of law,” the very constraint that keeps the President from acting like an arbitrary tyrant. In contrast to those real heroes, Lewis’s suggests that members of the administration have committed war crimes, a point that is certainly not far-fetched, though I doubt we’ll ever see them prosecuted:

Unlike John Yoo and William Haynes, most American lawyers who have been involved in the issues of torture and boundless detention have defended American ideals of justice. That has been strikingly so in the case of lawyers in the military services, the judge advocates general. Major Frakt, whose powerful argument on behalf of Mohammed Jawad I noted above, is one example among many. Large numbers of private lawyers have volunteered their time and struggled against official obstacles to represent prisoners. . . .

To date the “enablers of torture” . . . are doing fine. President Bush, Vice President Cheney, and David Addington remain in office. Jay Bybee, who issued the legal opinion that said the president had unlimited power to order the use of torture, was nominated and confirmed as a judge of the United States Court of Appeals for the Ninth Circuit before his torture role became known. John Yoo is in his professorship at the Berkeley law school; the dean, Christopher Edley, said in April that tenure protected him there and that his clients—President Bush et al.—were “the deciders.” Yoo is also regarded by television programs and by the opinion pages of newspapers, including The Wall Street Journal and The New York Times, as a legitimate voice on issues of presidential power, and he appears frequently.

Yoo and Addington appeared in June before a House Judiciary subcommittee; they ducked questions about their responsibility. When Addington was asked whether it would be legal to torture a detainee’s child, he replied: “I’m not here to render legal advice to your committee.” [Yoo, on the other hand, has not been as evasive, at least in the past. In December 2005 he stated in a Chicago debate that there is no law that could prevent the President from theoretically ordering the torture of a child of a suspect in custody - including by crushing that child’s testicles.”] William Haynes, the former Defense Department general counsel, appeared before a Senate committee and repeatedly said, in answer to questions, that he could not remember. A Washington Post column on his testimony was headlined “Abu Ghraib? Doesn’t Ring a Bell.”

Torture by officials is prohibited by US criminal law as well as by the international Convention Against Torture and the Geneva Conventions. According to the new book by Jane Mayer, the International Committee of the Red Cross concluded in a report last year that interrogation methods used by the CIA on a high-level prisoner “categorically” constituted torture. Her book, The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals, says the ICRC report was sent to the CIA, the detaining authority, which “shared it with the President and the Secretary of State.” Mayer writes that the report “warned that the abuse constituted war crimes, placing the highest officials in the US government in jeopardy of being prosecuted.”

(hyperlinks added; footnotes omitted).