Happy Birthday, George, and thank you for the wisdom on torture.

After the Battle of Trenton, as his troops were preparing to run captured British soldiers through the “gauntlet,” Washington ordered them to

Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British Army in their treatment of our unfortunate brethren who have fallen into their hands.

The consequences of doing otherwise would be dire — to match the crime:

Should any American soldier be so base and infamous as to injure any [prisoner]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause… for by such conduct they bring shame, disgrace and ruin to themselves and their country.

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.

Vengeance breeds vengeance; we are a country of laws, not torture.

There’s creativity in legal thought, and then there’s “interpretation” utterly unhinged from any logic or authority to justify evils such as torture. Eric Martin at Obsidian wings points out another stupid mistake in any argument in favor of torturing in order to obtain information to aid the so-called “war on terror” — it discourages people from coming forward with information. People applaud “the underpants bomber’s father, Alhaji Umaru Mutallab, who had the strength of character to report his son’s activities to U.S. authorities despite the possible legal repercussions for his son.” But if a father knows his son will be tortured, he’s far, far less likely to turn him in. And, of course, if we’re trying to win the hearts and minds of, among others, Afghanis, aren’t we undercutting our purposes by betraying our morality and our laws? Martin writes:

Alienated Muslims that feel guilty for nothing other than being Muslim are less likely to cooperate with U.S. authorities in thwarting plots. Parents, siblings and friends will not be as quick to intercede if they think their loved one will be brutalized, psychologically scarred beyond repair and denied basic rights. Innocent victims of military strikes will be radicalized as enemies, not converted to allies.

Yet, despite the stakes, certain pundits would have us sacrifice potentially life-saving assets for the sake of maintaining a torture regime – a morally reprehensible practice in its own right, one that corrupts prisoner and questioner alike, and that produces inferior, unreliable intelligence regardless. Not only do they want to keep employing these self-defeating policies that sully our principles, they intend to demagogue the issues relentlessly. Dick Cheney and the GOP leadership – as well as their media enablers – use Obama’s refusal to torture and profile as political cudgels when, in reality, the blows will they attempt will fall most heavily on the American people in the end.

At the end of The Libation Bearers, the second play in the Oresteia trilogy, the story of the seemingly endless cycle of guilt and retribution that plagued the noble House of Atreus, Aeschylus asks:

Where will it end? When will it all/ be lulled back into sleep, and cease,/ the bloody hatred, the destruction?

The answer is the culmination of the third play, The Eumenides: Athena establishes a court of law as the remedy, in place of vengeance, for criminal guilt. At bottom, I think that vengeance is all the advocates of torture can legitimately claim we are getting from torture, and we’ve understood for thousands of years that vengeance does nothing but breed vengeance.

Addendum: I realized that in discussing the Oresteia in connection with torture and the rule of law, I was “betraying” my liberal arts background. But, of course, our blindness to the consequences of abandoning the rule of law because of the alleged necessities brought on by the 9/11 attacks goes hand in hand with a culture that has decided that money is the only valid measuring stick of value and that “free” markets are the best means of making all our choices, even our choices about war.

And the market is governing our choices about education, making liberal arts undergraduate majors so unpopular they’re beginning to disappear. Thus, according to an annual survey by the University of California, Los Angeles, of more than 400,000 incoming freshmen:

In 1971, 37 percent responded that it was essential or very important to be “very well-off financially,” while 73 percent said the same about “developing a meaningful philosophy of life.” In 2009, the values were nearly reversed: 78 percent identified wealth as a goal, while 48 percent were after a meaningful philosophy.

People don’t read the Oresteia anymore. I would bet only a handful of my students even know what it is. So I’m afraid the only thing I don’t agree with when Glenn Greenwald writes the following is any particular sense of being astounded:

It’s truly astounding to watch us — for a full decade — send fighter jets and drones and bombs and invading forces and teams of torturers and kidnappers to that part of the world, or, as we were doing long before 9/11, to overthrow their governments, prop up their dictators, occupy what they perceive as holy land with our foreign troops, and arm Israel to the teeth, and then act surprised and confused when some of them want to attack us. In general, the U.S. only attacks countries with no capabilities to attack us back in the “homeland” — at least not with conventional forces. As a result, we have come to believe that any forms of violence we perpetrate on them over there is justifiable and natural, but the Laws of Humanity are instantly breached in the most egregious ways whenever they bring violence back to the U.S., aimed at Americans. It’s just impossible to listen to discussions grounded in this warped mentality without being astounded at how irrational it is. What do Americans think is going to happen if we continue to engage in this conduct, in this always-widening “war”?

Homeland uber alles.

I’m not Hannah Arendt’s biggest fan, but the prominence she gave to “banality of evil” is an accomplishment that ought to be honored through the ages. As Wikipedia explains her thesis as well as it can be concisely described, “the great evils in history generally, and the Holocaust in particular, were not executed by fanatics or sociopaths but rather by ordinary people who accepted the premises of their state and therefore participated with the view that their actions were normal.” The role of the legal profession in Nazi Germany is, I think, a relatively neglected topic, but one can recognize when judges engage in specious reasoning to transform ugly, degrading, murderous, and unspeakable acts into the “normal” way of protecting our homeland.

I’ve compared the case of Maher Ahar to The Trial. I’m afraid that comparing it to fiction was my own effort to deflect the ugliness. As Glenn Greenwald describes Arar’s nightmare:

Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” — despite his pleas that he would be tortured — to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.

Yesterday, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of Arar’s lawsuit (pdf) alleging, among other things, that his treatment by U.S. officials violated his constitutional rights to due process. Why? Because he couldn’t name the people who did what they did to him:

Arar alleges that “Defendants” — undifferentiated — “denied Mr. Arar effective access to consular assistance, the courts, his lawyers, and family members” in order to effectuate his removal to Syria. But he fails to specify any culpable action taken by any single defendant, and does not allege the “meeting of the minds” that a plausible conspiracy claim requires. He alleges (in passive voice) that his requests to make phone calls “were ignored,” and that “he was told” that he was not entitled to a lawyer, but he fails to link these denials to any defendant, named or unnamed. Given this omission, . . . we agree with the District Court and the panel majority that this Count of the complaint must be dismissed. Slip op. at 24-25 (emphasis added).

So next time you’re hauled in off the streets, held incommunicado, and sent to Syria to be tortured, be sure to get down the names of the “officials” doing this to you. Otherwise, you have no constitutional protections against this treatment. It’s all in the name of national security, and that trumps all, right?

This is “judging”?

Jesse Ventura on torture.

I think we should shoot puppies!

There — that headline should ensure I never can be confirmed for federal office.

Dawn Johnsen, a law professor at the University of Indiana, is President Obama’s nominee to head the Justice Department’s Office of Legal Counsel, which ” provides authoritative legal advice to the President and all the Executive Branch agencies.”  It’s the office that produced the “torture memos,” those shockingly ill-reasoned legal fig-leafs for the Bush administration’s policies regarding the treatment of “detainees in the War on Terror.” Ms. Johnsen was an “unsparing critic” of those memos.  As a result, Senate Republicans are threatening to filibuster her nomination.  But that’s not the reason they are expressing.  What is their pretext?  Twenty years ago in a footnote of a brief she wrote in a lawsuit in which she represented the National Abortion Rights Action League, she wrote that “forcing a woman to bear a child when she had no desire to do so was ‘disturbingly suggestive of involuntary servitude.’” Thus, the Republicans threatening filibuster say, she has “equated abortion with slavery” and is therefore unqualified to fill those posts once occupied by John Yoo and Jay Bybee (currently a tenured law professor and a federal court of appeals judge, respectively), who purported to provide legal justification for the waterboarding and beatings of U.S. prisoners.  (The torture, of course, ensured that we can never bring the terrorists subject to it to justice since no U.S. court would ever consider the evidence obtained by torture reliable enough to convict those terrorists.)

The Republicans are also threatening to do all they can to block the nomination of Harold Koh to be legal counsel to the State Department.  Koh is the dean of Yale Law School.  Why is he unqualified to fill the job he’s nominated for?  Because, purportedly, he thinks “Sharia law could apply to disputes in U.S. courts.” This stuff is actually taken seriously. Even though none of it is true.

I’m flabbergasted.  Effective persuasion and argument require being open to all sorts of ideas, but it also requires constraints — one cannot persuade with unpersuasive arguments.  But whether justifying torture or opposing perfectly reasonable people who happened to oppose the justification of torture, there seems to be a remarkable willingness to rely on the hope that whatever one says, no matter how empty or absurd, will have an impact.  It reminds me of the “Obama pals around with terrorists” line.  Since he had professional connections with Bill Ayers 30 years after Ayers’ days in the Weather Underground, we were supposed to imagine Obama hangs out on his off days with his friends from Al-Qaeda.  I would expect the U.S. Senate could have as much sense as the entire electorate demonstrated last November in rejecting those ridiculous arguments.  So far, it seems, I’m wrong about the Senate.

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.”  

Are we not men of laws?

No.  We are, apparently, Devo.

I’m with Glenn Greenwald on this one. In today’s Washington Post, David Rivkin and Lee Casey argue that there should be no domestic efforts to prosecute U.S. officials for any crimes they may have committed (under domestic law and under treaties to which the U.S. is a party) in purported furtherance of the “War on Terror.” As Greenwald points out, Rivkin and Casey have previously criticized international efforts to prosecute U.S. citizens for crimes committed in purported furtherance of U.S. interests because “‘[I]t is up to American . . . authorities to determine whether any offense was committed.’”

The logical inference to draw from these arguments is that U.S. officials are entirely unencumbered by any legal restraint as long as they believe they are carrying out what they consider the best interests of the nation. Greenwald writes:

The implication of their argument — which is now the conventional Beltway view — is too obvious to require much elaboration. If our political leaders can’t be held accountable for their war crimes and other serious felonies in foreign countries or international tribunals, and must never be held accountable in the U.S. either (because to do so is to “pour acid into our democratic machinery”), then it means that American political officials (in contrast to most other leaders) are completely and explicitly exempt from, placed above, the rule of law. That conclusion is compelled from their premises.

At least to me, it’s just endlessly perplexing how anyone — let alone our political class in unison — could actually endorse such absolute lawlessness for political leaders. Didn’t our opinion-making elites learn in eight grade that the alternative to a “nation of laws” was a “nation of men” — i.e., the definition of tyranny? Those are the only two choices. It’s just so basic.

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 beginning of the end of a legal nightmare?

Sanity is beginning to take hold once again in our country’s legal institutions.  Judge Richard J. Leon is no wild eyed liberal.  He was appointed as a judge by George W. Bush in 2002.  Back in the ’80s he served as counsel to the Republicans in the congressional investigation of the Iran-Contra affair, and he was Special Counsel to the U.S. House Banking Committee for its “Whitewater” investigation.  In January 2005 he dismissed the habeus corpus petitions of 5 Algerian detainees in the U.S. military prison at Guantanamo Bay.

Yesterday, however, Judge Leon ordered (pdf) the release of the same 5 detainees after evaluating and rejecting government evidence that they were dangerous enemy combatants.  According to the Washington Post, “The Algerians were detained for years on allegations that they had been plotting to blow up the U.S. Embassy in Sarajevo when they were picked up by Bosnian authorities and later turned over to U.S. officials. Bush mentioned the bomb plot in his 2002 State of the Union Address. But the government withdrew those allegations last month without explanation.”  Judge Leon explained in his order that to allow the detention to continue based on “so thin a reed” (emphasis in original) of evidence as that presented by the government “would be inconsistent with this Court’s obligation.”  He also explained, “Unfortunately, due to the classified nature of the Government’s evidence, I cannot be more specific about the deficiencies of the Government’s case at this time.”

Judge Leon ordered that a sixth detainee, Belkacem ben Sayah, remain in custody because the government’s evidence against him was sufficient to label him an enemy combatant.

Last month another federal judge ordered the release into the United States of a small group of Chinese Muslims held at Guantanamo Bay.  The government conceded that those men are not threats to the United States.

But the Bush administration will not give up the fight it began years ago when it set up the prison at Guantanamo.  The Chinese Muslim prisoners have not been released pending the government’s appeal, which is based on the argument that regardless of the threat posed by the prisoners the courts do not have the power to order the executive branch to release a detainee into the United States.  And the Justice Department, in response to yesterday’s decision by Judge Leon, praised the decision to keep ben Sayah in custody while stating, “We are of course disappointed by, and disagree with, the Court’s decision that we did not carry our burden of proof with respect to the other detainees.”

As Jurist reports, “In a related development Wednesday, a military judge at Guantanamo Bay rejected evidence against detainee Mohammed Jawad [JURIST news archive], finding that it had been obtained through torture. Other evidence against Jawad for his pending trial by military commission was excluded in October, also because it had allegedly been obtained through torture.”

Perhaps this is the beginning of the end of a long national nightmare.  The Bush Administration set up the prison at Guantanamo after 9/11 on the theory that, since Guantanamo is not technically U.S. territory, the executive branch could do anything there to anyone without any legitimate review by any institution independent of the executive.  It could take people from China or Algeria, and even U.S. citizens, stick them in Guantanamo, torture them, and throw away the key, and there would be nothing anyone could do about it.

But let’s not be naive.  Four Supreme Court justices in Boumediene v. Bush (pdf) argued that the Guantanamo detainees were not entitled to the right to a habeus corpus hearing requiring the government to establish grounds for their detentions.  Justice Scalia in his dissenting opinion in Boumediene, joined by Justices Thomas and Alito, wrote that allowing the type of hearing that Judge Leon held “will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.”  Picking up on this vitriolic rhetoric from three of our highest jurists, conservative commentators wrote things like the following:

On June 12, the Supreme Court in Boumediene v. Bush gave the roughly 270 prisoners held at our prison camp in Guantanamo Bay, Cuba, the same constitutional rights as you and I. These foreign terrorists all plotted, planned, fought against and even killed American soldiers, who, now thanks to an oligarchy of five justices, can go before a U.S. federal judges in civilian court to challenge their years-long detention. (emphasis added)

Judge Leon made clear what the truth is: in the United States of America you cannot throw people into a cage and throw away the key without some legitimate basis for doing so.  The mere fact the military, the CIA, or (as in the case of the Algerians freed by Judge Leon) Bosnian authorities detained people and sent them to Guantanamo does not establish that they have plotted, planned, fought against, or killed U.S. soldiers.  We have to do away with Guantanamo, and we have to do away with torture.  We have fought and won wars far more threatening and damaging without abandoning our constitutional principles and the principles of the Geneva Convention.  January 20, 2009 cannot come soon enough.

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Not only is Jurist one of the Ancient Wise Oracles of the online legal world, it is a moment-to-moment legal media center.  Just to give two examples of particular concern to me:

As I wrote yesterday, Google seemed on the verge of settling the long-running and profound disputes concerning its Google Library Project.  Jurist now reports the settlement is final:

With respect to another profound concern of mine, military torture, Jurist reports that a federal judge has ruled that evidence obtained by torture cannot be admitted in the trial of a Guantanamo detainee:

A US military judge ruled Tuesday that a confession given by Guantanamo Bay [JURIST news archive] detainee Mohammed Jawad [DOD materials; JURIST news archive] to Afghan officials following his capture in 2002 was obtained using torture and is therefore inadmissible at his upcoming military commission [JURIST news archive] trial. Army Col. Stephen Henley found that Afghan officials threatened to kill Jawad and his family unless he admitted to throwing a grenade that injured three US soldiers in Kabul in 2002. Henley ruled that obtaining a confession using threat of death amounted to torture, and that under Guantanamo trial rules his confession is therefore inadmissible. Reuters has more.

Jawad, who was transferred into US custody after the confession to the Afghanistan government, was designated an “enemy combatant” in 2004. He was later charged [charge sheet, PDF; JURIST report] with attempted murder and intentionally causing serious bodily injury for his role in the attack, which injured two US soldiers and an Afghan translator. The case against him faces growing problems. Last month, former military commissions chief prosecutor Army Lt. Col. Darrel Vandeveld resigned [JURIST report], citing “ethical qualms” with the military commissions’ defense counsel discovery procedures. In May, Jawad moved [JURIST report] to have all charges against him dismissed, alleging that he has been tortured in US custody and subjected to the so-called “frequent-flier program,” in which certain inmates are moved between cells at two to four hour intervals in an attempt to cause physical stress through sleep deprivation. Jawad, the fourth Guantanamo detainee to be formally charged with war crimes under the 2006 Military Commissions Act [text, PDF], is set to face military commission on January 5, 2009.

The Army said get information, and feel free to be creative in doing so.

At 30, Tony Lagouranis was bored and broke. But he was good with languages, wanted to learn Arabic, and figured the Army would teach it to him while he paid down his student debts. Even when he became an interrogator, his superiors assured him the Iraqis he questioned would be cooperative. During the First Gulf War, the Iraqi captives had freely volunteered truthful answers to the questions they’d been asked. But by the time Lagouranis arrived in Iraq, well after the 2003 invasion, things had changed, and his superiors’ instructions had changed as well. They gave him a list of authorized interrogation tactics, which Lagouranis describes as follows:

[I]t was also an open-ended document. It said explicitly that the interrogator needed the freedom to be creative. It said these [techniques -- the use of dogs, dietary manipulation, using sleep deprivation, stress positions and 'environmental manipulation' --] are only suggestions of what you can do. So basically there were no limits.

As The First Post further explains, Lagouranis realized the futility of his “interrogations”:

Lagouranis saw people crippled through prolonged use of the stress positions he forced them to adopt, and driven to the verge of insanity through weeks of sleep deprivation and psychological disorientation. But maybe it was worth it if it produced valuable intelligence in the fight against the insurgency? No, he says. As a method of getting intelligence it was useless. And besides, the aim of interrogations shifted subtly. “A lot of what we ended up doing was trying to gather confessions, not intelligence. I think that the commanders wanted to show that they were doing a good job and were picking up guilty people. But in fact we were just rounding up whoever was on the street. They just wanted us to force people to confess so that they could brief their commanders and say that they had captured all the terrorists.”

Lagouranis quit, managed to get an honourable discharge on the grounds that he suffered from an “adjustment disorder, and is now working as a bouncer in Chicago.

What is obscene?

Glenn Greenwald points out an interesting irony. A federal judge last week sentenced Paul Little to nearly 4 years in prison for distributing a porn film the court determined was “obscence” despite the fact it involved only consenting adults and was distributed only to consenting adults. Little’s attorneys argued that the film couldn’t be obscene because it involved no pain to the participants. The judge rejected the argument, writing, “This is clearly degrading, clearly humiliating and intended to be so.”

The Bush Department of Justice makes it a point to prosecute producers of adult pornography. The irony, of course, is that this is the same Department of Justice that argued that “torture” does not include any conduct that does not cause “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” To compound the obscenity, “our Congress retroactively immunized anyone and everyone in the Government who may have been involved in any state-sanctioned line-crossing behavior even after the lines were radically re-drawn”

September 11, 1973

September 11 is a date that resounds with infamy, and not only in the way most of you think.  On September 11, 1973, Augusto Pinochet, with the aid of the CIA, overthrew the democratically elected government of Salvador Allende, imposing a brutal military dictatorship and giving Milton Friedman and his acolytes their first laboratory for the application of their truly radical free market economics. I don’t mean that capitalism is radical.  I mean that the capitalism of Friedman and his followers was and, even though today it has come to represent the common wisdom today, still is.

Chile, economics, and even September 11 are obviously off-topic for me, but I  couldn’t help but think I had to bring it up after listening on PRI this afternoon to  the story of American Mishy Lesser, who was in Chile on September 11, 1973 and, hunted by the newly installed military dictatorship, was taken in, along with her boyfriend, by a family with no particular political commitments.  They subsequently helped her get out of the country, but for their efforts were arrested, imprisoned, and tortured.  Lesser’s boyfriend ended up as one of the legion of Chilean “disappeared.”  Thirty five years later, Lesser returned to Chile to find the family who gave her sanctuary so that, among other things, she could find out why they did risked so much for a stranger who brought them so much tragedy.  Go here to listen to her story.

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).

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.