Justice Department: Torture Memos were “insane” but not the product of professional misconduct

From Jurist

The US Department of Justice (DOJ) [official website] has overruled the findings of a report [DOJ Ethics Report] released Friday concluding that two Bush administration lawyers committed professional misconduct when they wrote memos [JURIST news archive] authorizing the use of certain interrogation techniques that critics have called torture. Instead, the DOJ said that John Yoo [academic profile; JURIST news archive], and Jay Bybee [official profile; JURIST news archive] were only guilty of “poor judgment” in writing the memos. An internal ethics investigation by the Office of Professional Responsibility (OPR) concluded that Yoo had committed “intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” The report also found that Bybee had committed professional misconduct when he acted in “reckless disregard” of his duty to exercise independent legal advice. However, David Margolis, an associate deputy attorney general, released a separate memo [DOJ Margolis Report] overruling the OPR’s report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct.

Back in August of 2008, when I began writing this blog, I explained my then long-held conviction that the White House Office of Legal Counsel — and in particular Jay Bybee (now a federal judge) and John Yoo (a tenured law professor) had acted immorally and in violation of their professional duties as lawyers in writing the so-called “torture memos” that gave legal approval to the torture the Bush Administration began. Both the DOJ Report and the DOJ Margolis Report confirm the details of  what I wrote back in 2008 — the memos were plainly written to justify a pre-determined conclusion. As I wrote then:

Somehow a justice department lawyer who is now a tenured professor at Boalt Hall Law School at U.C. Berkeley, along with his boss, who is now a judge on the U.S. Court of Appeals for the Ninth Circuit, thought they could get away with this utterly fictional definition of “severe pain.” And they did. Plainly, though, Yoo does not believe in constraints. 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.”

And now the DOJ Margolis Report concludes that “the’ evidence of the knowing violations . . . led us to conclude that Yoo put his desire to accommodate the client above his obligation to provide thorough, objective, and candid. legal advice, and that he thereforecommitted intentional professional misconduct.”

Mr. Margolis in the DOJ Margolis Report also stated:

While I have declined to adopt O.P.R.’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client.

The reports really are remarkable testaments to how far the Bush Administration went to force its desire to torture within a rule of law that does not permit torture. Among other things, the DOJ Ethics Report quotes other Bush Justice Department appointees stating that John Yoo needed “adult supervision” and describing the torture memos as “insane,” a “one-sided effort to eliminate any hurdles posed by the torture law,” “plainly wrong,”  and “slovenly”:

Our view that the memoranda were seriously deficient was consistent with comments made by some of tlie former Department officials we interviewed, even though those individuals would not necessarily agree witl! some of our findings in this matter. [Daniel] Levin stated that when he first read the Bybee Memo, “[I had} the same reaction I think everybody who reads it has - 'this is insane, who wrote this?'". Jack Goldsmith found that the memoranda were "riddled with error," concluded that key portions were "plainly wrong," .and characterized them as a "one-sided effort to eliminate any hurdles posed by the torture law." [Steven G.] Bradbury told us that Yoo did not adequately consider counter arguments in writing the memoranda and that “somebody should have exercised some adult leadership” with respect to Yoo’s section on the Commander-tn-Chief powers. [Michael] Mukasey acknowledged that the Bybee Memo was “a slovenly mistake,” even though he urged us not to find misconduct.

” Insane” about sums it up. You’re not acting as a lawyer if the research and analysis you do is insane. But, I guess, “insane” is not a sufficiently firm legal standard for Mr. Margolis. The funny thing is that I’d expect any reviewing official who didn’t see discern a standard in the report he was reviewing to state the proper standard and make his own determination whether the facts set forth satisfied or did not satisfy that standard. Or he could have sent the matter back to the ethics people with instruction to set forth a clear standard. Instead, he plainly was looking for a way to find no ethical violations here. Honestly, if the flat out lies about the law contained in the torture memos is permitted, then anything is permitted in the “war on terror.” Which, of course, is exactly Yoo’s position.

Creativity and Civilization Require Constraints

Creativity, paradoxically, requires constraint. As the poet George Szirtes put it in a piece in the February 2006 issue of Poetry, “I would contend that the constraints of form are spurs to the imagination: that they are in fact the chief producers of imagination.”

Szirtes, whose family fled Hungary as refugees in 1956, clearly is not concerned only with aesthetics. He makes clear that negotiating the tension between form and anarchy not only underlies the poetic “triumph of meaning and structure over chaos and meaninglessness,” but also “the triumph of civilized values over barbarity.”

Legal reasoning, if it is in fact reasoning, also requires respect for constraints. Though there is of course considerable debate about the proper nature of the constraints to be applied, there is little debate that without any constraints legal interpretation is nothing but the assertion of raw power. Thus, as the Stanford Encyclopedia of Philosophy’s article on “Interpretation and Coherence in Legal Reasoning” puts it,”[m]uch jurisprudential writing on interpretation in legal reasoning is concerned with how to strike the right balance between the conserving and creative elements in interpretation, and with the constraints which are and/or should be operative upon judges as they undertake this balancing act.

Thus, on the one hand, Owen Fiss argues that “judges are constrained both by the need to be faithful to the original legal text which they are interpreting, and by supplementary norms of interpretation which are constitutive of the judicial role.” Stanley Fish, on the other hand, would argue that the texts Fiss identifies as constraints upon interpretation cannnot serve that purpose because those texts themselves “do not have meanings in advance of particular interpretations of them.” Nevertheless, as the Stanford Encyclopedia article makes clear, Fish is not arguing for a radical, unconstrained indeterminacy in legal interpretation:

This seemingly radical indeterminacy is deceptive, however, for although Fish removes the constraints on interpretation provided by legal texts or supplementary norms of the judicial profession, he replaces them with the conditioning and training processes of ‘interpretive communities’, which ensure that, ‘…readers are already and always thinking within the norms, standards, criteria of evidence, purposes and goals of a shared enterprise’, such that, ‘the meanings available to them have been preselected by their professional training.’ (Fish 1989, 133).

In short, there must be some intellectually sound justification for a legal interpretation; else it ceases to be an interpretation and is reduced to mere edict.

Lying about the law removes all constraint, and there is no milder way to characterize the 2002 Department of Justice memorandum (the “Torture Memo”)(pdf), drafted by John Yoo and signed by Jay Bybee. The Torture Memo limited the definition of “torture” to treatment causing pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” (Torture Memo at 1) Thus, treatment that did not cause that high intensity of pain and suffering was, according to Yoo and Bybee, perfectly legal.

In drafting the memo, Yoo genuinely was constrained by existing law that prohibited subjecting prisoners to “severe pain.” But how did he come to define “severe pain” as “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”?

He did two things: he tried to derive a definition of “severe pain” from a federal statute that had nothing to do with the subject matter or the purposes of his analysis, and he lied about what that federal statute actually stated.

The statute from which he sought guidance governed benefits under the “Medicare + Choice” plan. (Torture Memo at 5-6) In other words, in trying to determine the proper treatment of prisoners under U.S. law, he looked to law that sought to ration payouts from an insurance fund in order to maintain the solvency and effectiveness of that fund. One would expect Congress to define the benefits it grants and the circumstances under which it grants them narrowly; U.S. taxpayers would demand it.

But Yoo did not merely seek a definition of “severe pain” from an absurdly inappropriate place. He made his definition up out of whole cloth. The statute does not define the term “severe pain.” Rather, it defines the circumstances that constitute an “emergency medical condition” requiring coverage under the Medicare + Plan:

The term “emergency medical condition” means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in-

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part.

Somehow a justice department lawyer who is now a tenured professor at Boalt Hall Law School at U.C. Berkeley, along with his boss, who is now a judge on the U.S. Court of Appeals for the Ninth Circuit, thought they could get away with this utterly fictional definition of “severe pain.” And they did. Plainly, though, Yoo does not believe in constraints. 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.”

Unconstrained, and thus without any scintilla of creative imagination, law is merely barbarity. I hate to start writing about creativity in law from this dark abyss, but it is going to take creativity and imagination to overcome the barbarity the Yoos and Bybees (and the long line of banal technocrats from whom they intellectually descend) have loosed upon the world.