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Yoo on Padilla v. Yoo:

In today's Philadelphia Inquirer, John Yoo responds to the lawsuit filed against him by a Yale legal clinic on behalf of Jose Padilla.

Walk down Broad Street and you pass by a brown mansion, squeezed in between a music store and a Banana Republic. With its statues of proud soldiers in front, the Union League stands as a symbol of the sacrifices necessary to win the Civil War.

After being sued by convicted terrorist Jose Padilla, I wonder whether our nation today has the same unity and tenacity to defeat the great security challenge of our day, the rise of fundamentalist Islamic terrorism. Even as our brave young soldiers fight in Afghanistan and Iraq, and our intelligence agents succeed in disrupting follow-ups to the 9/11 attacks, terrorists are using our own legal system as a weapon against us.

They use cases such as Padilla's to harass the men and women in our government, force the revelation of valuable intelligence and press novel theories that have failed at the ballot box and before the president and Congress.

"Lawfare" has become another dimension of warfare. . . .

Think about what it would mean if Padilla were to win. Government officials and military personnel have to devise better ways to protect the country from more deadly surprise attacks. Padilla and his lawyers want them, from the president down to lowest private, to worry about being sued when they make their decisions. Officials will worry about all of the attorneys' fees they will rack up to defend themselves from groundless lawsuits.

My situation is better than most, since I am a lawyer with many lawyer friends (that is not the oxymoron it seems). I can fend for myself; fine attorneys have volunteered to represent me, and the government may defend me. But what about the soldiers, agents and officers who have to respond to the next 9/11 or foreign threat? They will have to worry about personal liability, hiring lawyers.

Would we have wanted President Abraham Lincoln to worry about his personal liability for issuing the Emancipation Proclamation freeing the slaves (done on his sole authority as commander-in-chief)?

If so, then we will have a government that will avoid any and all risks, shun making any move that is not an exact repetition of locked-in procedure of 20th-century vintage, and keep plodding along the same path regardless of contemporary circumstances. These are exactly the conditions that make a nation susceptible to a surprise attack, whether a Pearl Harbor or a 9/11.

Adam J:
I'm sorry, I think I threw up a little in my mouth after hearing him compare his legal opinion justifying torture to the emancipation proclamation.
1.16.2008 2:01pm
J.N. (mail):
sounds like a Rudy stump speech
1.16.2008 2:08pm
Ralph Phelan (mail):
His point, that criminalizing policy disagreements is a bad idea, stands. As does the point that merely the threat of having to defend ones self against frivolous suits has a chilling effect - such defenses don't come cheap.

This thing needs to be slapped down hard, with sanctions against the lawyers who brought it.
1.16.2008 2:10pm
Adam J:
Ralph- sure, let's have the government off it's leash, with no fear of "policy disagreements" over little things like torture, I hear that worked quite well for the Third Reich.
1.16.2008 2:13pm
Gregory Conen (mail):
If we're going to throw around inane metaphors, I would have wanted the various Nazi officials to consider their personal liability for genocide and torture.
1.16.2008 2:14pm
Tracy Johnson (www):
O'er lawyers' fingers, who straight dream on fees; ...
1.16.2008 2:15pm
srg:
Yoo would have been better advised to refer to Lincoln's over-riding of habeas corpus rather than to the Emancipation Proclamation.
1.16.2008 2:17pm
shameless:
so he's managed at once to paint Yale as a shill for terrorists and himself as abraham lincoln...
1.16.2008 2:18pm
SJE:
Poor John Yoo. If only there wasn't those pesky thinkgs like the Constitution, laws, courts, separation of powers etc. Unfortunately for John, this is supposed to be a "government of laws, not of men." If he wants to live in a nation where the executive has unfettered power to protect the people from its enemies, I can recommend any number of authoritarian regimes.

Under a Pres. Hillary, Yoo may not be so deferential to the power of the executive, especially if there are some very overactive federal prosecutors. He may come to appreciate the usefulness of things like law, courts etc.
1.16.2008 2:20pm
Mr. X (www):
Padilla v. Yoo is unfortunate only in that both parties can't lose.
1.16.2008 2:21pm
The Ghost of Xmas Past (mail):

Think about what it would mean if Padilla were to win. Government officials and military personnel have to devise better ways to protect the country from more deadly surprise attacks.



Yes that would be horrible.
1.16.2008 2:23pm
Dilan Esper (mail) (www):
This term "lawfare" that is being bandied about by the right really needs to be challenged.

At first, it was used to describe a hypothetical attempt by an enemy such as Al Qaeda to deploy lawyers to bottle up our anti-terrorist strategies in court. Of course, there was no evidence that Al Qaeda or anyone else was doing this. But at least that definition is a coherent concept, i.e., the idea that a terrorist group is using the courts and due process as a tool of warfare.

But now, the term is deployed as Yoo deploys it, i.e., against any attempt to have any portion of the war on terror declared illegal or unconstitutional. In other words, for Americans to attempt to enforce the law is the equivalent of terrorist warfare.

No, John, it isn't. And if you truly believe that-- if you weren't just using an unfortunately talking point buzzword-- then you have no business teaching at an uncredited law school or practicing in a rural justice court, much less teaching at Boalt Hall or working for the Justice Department.
1.16.2008 2:28pm
ATL (mail) (www):
I corrected one of Yoo's errors:

Think about what it would mean if Padilla were to win. Government officials and military personnel have to devise better ways to protect the country from more deadly surprise attacks adhere to the requirements of our nation's laws.
1.16.2008 2:30pm
Aultimer:

These are exactly the conditions that make a nation susceptible to a surprise attack, whether a Pearl Harbor or a 9/11.

[/cringe] The existence of poor intel analysis is the only such condition, and with good analysis "locked-in procedure of 20th-century vintage" is more than sufficient to avoid such attack.
1.16.2008 2:31pm
SJE:
"But now, the term is deployed as Yoo deploys it, i.e., against any attempt to have any portion of the war on terror declared illegal or unconstitutional. In other words, for Americans to attempt to enforce the law is the equivalent of terrorist warfare. "

In Yoo's world, Jefferson, Hamilton, Madison etc would be traitors.
1.16.2008 2:32pm
Ralph Phelan (mail):
Unfortunately for John, this is supposed to be a "government of laws, not of men."

Yes it is. Find me the law that says lawyers who give incorrect advice to their clients are responsible for the actions of their clients when they take it.
1.16.2008 2:32pm
Ralph Phelan (mail):
But now, the term is deployed as Yoo deploys it, i.e., against any attempt to have any portion of the war on terror declared illegal or unconstitutional.

The problem is not the attempt to have the Bush administration's policies declared unconstitutional. The problem is the novel theory that advisors should be held legally liable for giving bad advice - which, as Yoo correctly points out - will bring *all* government to a standstill.

Who's gonna want to be a lawyer for the EPA if you're gonna get personally sued by one side or the other every time the agency takes an action based on your advice? Remember, the suits don't have to prevail to have a chilling effect on a low-level bureaucrat, just cost him a few hundred thousand in legal fees.
1.16.2008 2:37pm
Adam J:
Ralph- Normally the client is responsible for the bad advice, and the attorney is responsible to the client thru malpractice law.
1.16.2008 2:42pm
Jonathan F.:
@Ghost of Xmas Past and ATL. Yoo wrote:
Think about what it would mean if Padilla were to win. Government officials and military personnel have to devise better ways to protect the country from more deadly surprise attacks. Padilla and his lawyers want them, from the president down to lowest private, to worry about being sued when they make their decisions. Officials will worry about all of the attorneys' fees they will rack up to defend themselves from groundless lawsuits.
Note that the second sentence is not the consequence of the first, it is a continued part of the setup of the issue. It doesn't say that, if Padilla were to win, officials "would then have to devise better ways to protect the country." Instead, Yoo posits it as a given that officials have to do this; it is that fact, in the event of a Padilla victory, that leads to the conclusion: officials will "worry about being sued when they make their decisions."
1.16.2008 2:42pm
SJE:
There is a presumption that the lawyer is offering good faith, independent legal advice. (see, e.g. the model rules of professional responsibility). Lawyers are not liable for legal positions taken on the basis of good faith interpretations of the law. However, lawyers can be liable for the actions of their clients if they are merely using the law as a cover for a clearly illegal scheme.

I am not going so far as to assert that Yoo would be criminally liable in this case. I also agree that policy makers need to be give broad discretion to act without fear of criminal prosecution.

However, the facts that have emerged during this administration suggests that there may have been actions that were so clearly illegal as to be prosecutable (subject to more evidence coming out, which, of course, never seems to happen, with witnesses not appearing before congress, tapes being destroyed etc).

The underlying point, moreover, is that Yoo is trying to make not a legal argument for his innocence, but a statement of how one should think about the power of the executive and its relationship with the other branches of government. His position, it seems to me, is so far removed from the constitution as to be contemptable.
1.16.2008 2:43pm
Anderson (mail):
Good lord, what a self-important little creep Yoo is.

How terrible indeed that the fine Americans who defend their country would have to self-consciously abstain from torturing their prisoners. How can we possibly defend our freedom without behaving like barbarians?

(Also from eating said prisoners. See Churchill's famous line from The World Crisis:

When all was over, torture and cannibalism were the only two expedients that the civilized, scientific, Christian States had been able to deny themselves: and these were of doubtful utility.)
1.16.2008 2:44pm
Houston Lawyer:
It is, I believe, unprecedented that the judicial branch of our government would try to regulate the prosecution of a war. Our judiciary increasingly sees itself as the arbiter of all things anyone has the temerity to put into a plaintiff's petition. The proper arena for these discussions is the political. The judiciary is ill suited for the task.

I do not presume good faith in those going after Woo personally. It is time for the courts to stop allowing plaintiff's attorneys to financially destroy anyone with whom they have a beef with no fear of repurcussion to themselves.
1.16.2008 2:45pm
Gregory Conen (mail):
@Ralph Phelan:
Not advisors giving policy advice, lawyers giving legal advice (which can, in theory at least, be objectively right or wrong). And having that advice acted upon, in an extreme fashion, before the action can be challenged in court. And the advice has to violate clearly established law, or else qualified immunity takes care of it.
1.16.2008 2:46pm
Kevin P. (mail):
<blockquote>
Who's gonna want to be a lawyer for the EPA if you're gonna get personally sued by one side or the other every time the agency takes an action based on your advice? Remember, the suits don't have to prevail to have a chilling effect on a low-level bureaucrat, just cost him a few hundred thousand in legal fees.
</blockquote>
Of course, that's different. The EPA are the good guys. Everything they do is legal. Yoo worked for the Bush Administration. They are the bad guys. Everything they do is illegal.

End sarcasm.

While it is not unpatriotic to criticize or even legally challenge the tactics of the government during a time of war, there are certainly organizations like the Center of Constitutional Rights that can reasonably be termed as collaborators.
1.16.2008 2:47pm
Ralph Phelan (mail):
Adam J:
Ralph- Normally the client is responsible for the bad advice, and the attorney is responsible to the client thru malpractice law.


Which seems to make sense, as allowing the victim of the client's bad act to bypass the actor and go for the lawyer creates all sorts of perverse incentives and general chaos.

So why should Padilla be allowed to bypass the usual procedure and go after Yoo rather than the Bush administration officials who acted on his advice? Just because he's got less resources to defend himself than they do?

And if such a precedent is set, what's to prevent drug companies from using the same technique to intimidate the FDA's lawyers into never stating an opinion that inconveniences a drug company?
1.16.2008 2:48pm
ATL (mail) (www):

Find me the law that says lawyers who give incorrect advice to their clients are responsible for the actions of their clients when they take it.


Of course, that's not what happened here.

But it is a wonderful red herring that I'll tackle. If I'm an in-house attorney and advise my in-house clients to break the law, for example, by intentionally causing the release of hazardous substances, I could potentially for my advice as an operator under CERCLA because I "manage[d], direct[ed], or conduct[ed] operations specifically related to pollution ...[or]... to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations."

This is not a case of merely giving bad advice, it a case of authorizing illegal conduct.
1.16.2008 2:48pm
Adeez (mail):
"susceptible to a surprise attack, whether a Pearl Harbor or a 9/11."

I think he means "surprise" attack.
1.16.2008 2:51pm
Ralph Phelan (mail):
Gregory Conen:
@Ralph Phelan:
Not advisors giving policy advice, lawyers giving legal advice (which can, in theory at least, be objectively right or wrong). And having that advice acted upon, in an extreme fashion, before the action can be challenged in court. And the advice has to violate clearly established law, or else qualified immunity takes care of it.


Even with all those qualifiers attached, it still looks to me like setting this precedent would allow Exxon and Pfizer to effectively intimidate the EPA and FDA with the threat of nuisance suits.
1.16.2008 2:52pm
ejo:
self important? does it make you uncomfortable when he points out the nature of our enemy and their goals?

How can we possibly defend our freedom without behaving like barbarians? we have behaved in a barbarous manner in the past in defending our freedoms. this has been pointed out ad nauseum, along with the simple fact that war is not pleasant and our enemy is worse. Yale, just as Yoo says, is making legal arguments which will hinder us and help our enemy. that will have real world consequences but, of course, dead americans really don't count to Jose Padilla, their client.
1.16.2008 2:52pm
Bob from Ohio (mail):

Under a Pres. Hillary, Yoo may not be so deferential to the power of the executive, especially if there are some very overactive federal prosecutors. He may come to appreciate the usefulness of things like law, courts etc.


Dream on. Neither Clinton or Obama would sign off on a prosecution of Yoo or anyone else for the crimes you imagine they committed.

Among other reasons, they don't want to look like they give aid and comfort to our enemies.

Clinton in particular would not like rendition to be looked at too closely, her husband having started that procedure.


At first, it was used to describe a hypothetical attempt by an enemy such as Al Qaeda to deploy lawyers to bottle up our anti-terrorist strategies in court. Of course, there was no is evidence that Al Qaeda or anyone else was Yale is doing this.


Fixed that for you.
1.16.2008 2:56pm
Kevin P. (mail):
Here is another example of using the courts as another front to aid the country's enemies. CCR has filed a complaint with a German prosecutor asking for the prosecution of former Secretary of Defense Rumsfeld.

Think about this for a second: A US organization of US citizens, during a time of war, tries to get their government's secretary of defense and several military and civilian officers prosecuted by a foreign country. This is treasonous and we tolerate it. During the gentle days of Franklin D. Roosevelt, we know what would have happened to CCR.
1.16.2008 2:57pm
Ralph Phelan (mail):
ATL

Under such circumstances, I expect you'd be prosecuted as part of sizeable conspiracy also including executives and plant operators.

In the absence of any other legal action, could an environmental group come along and allege that you are responsible for illegal dumping due to advice you gave while ignoring everyone else involved, thus forcing you to take on the entire cost of your employer's defense?
1.16.2008 2:57pm
Rich B. (mail):

Walk down Broad Street and you pass by a brown mansion, squeezed in between a music store and a Banana Republic. With its statues of proud soldiers in front, the Union League stands as a symbol of the sacrifices necessary to win the Civil War.


I just want to point out -- since obviously none of the other posters here are from Philadelphia -- that the Union League of Philadelphia is an very expensive, very exclusive Republican "supper club" with very strict membership guidelines that keep out all but the "right sort."

Comparing the value of torture to the value of the civil war is one thing -- comparing the values of the civil war to the values of the Union League of Philadelphia is even more laughable.
1.16.2008 2:57pm
Ralph Phelan (mail):
of course, dead americans really don't count to Jose Padilla, their client

Actually, I think they count a lot - positively.
1.16.2008 2:59pm
Kazinski:
ATL,
Since Yoo's memo is public, could you point out the phrase, sentence, paragraph where Yoo says that it is OK to break the law? The way I read the memo he says the enhanced interrogation techniques are within the law.

I'm not aware the OLC has ever claimed it has the power to grant dispensation to break the law. They may at times issue opinions that a particular law doesn't apply, but that is something altogether different.
1.16.2008 3:01pm
Tony Tutins (mail):
Liability for advising clients to break the law depends on if the advice was offered in good faith or not. Normally the only consequence of offering bad advice in good faith is losing one's job (Baskins and Hunsaker after advising HP board that pretexting is OK, Paul Daugerdas, late of Jenkins and Gilchrest, after cranking out tax opinion letters). These folks have yet to be either disciplined by the bar or criminally prosecuted.
1.16.2008 3:02pm
SJE:
If we think that torture is OK, then why were the guards at Abu Ghreib punished.

The courts have sentenced low level soldiers etc who abused prisoners, despite their claims that they were acting under the explicit or implicit authority of superiors. should not have been prosecuted. This suggests that the law does not condone torture. If so, and we think torture is not OK, then what about moving up the chain of command. What happened to the responsibility of the superiors?

Alternatively, if you think that Lynddie England and Charles Graynor acted alone, completely unknown to anyone else, I have a bridge I'd like to sell you.
1.16.2008 3:04pm
The Ghost of Xmas Past (mail):
Jonathan F:


Note that the second sentence is not the consequence of the first, it is a continued part of the setup of the issue. It doesn't say that, if Padilla were to win, officials "would then have to devise better ways to protect the country." Instead, Yoo posits it as a given that officials have to do this; it is that fact, in the event of a Padilla victory, that leads to the conclusion: officials will "worry about being sued when they make their decisions."


Yoo goes on to say:

"Padilla and his lawyers want them, from the president down to lowest private, to worry about being sued when they make their decisions. Officials will worry about all of the attorneys' fees they will rack up to defend themselves from groundless lawsuits."


...and um that would be horrible?

I know it may be a shock to Yoo [pun intended?], but some people do not think that persons in positions of power should be free from constraint when making 'their decisions'.

And in what way is torturing people 'devising new ways' of combating enemies abroad? I'm pretty sure they've been doin' that one for awhile.
1.16.2008 3:05pm
Anon Y. Mous:

Walk down Broad Street and you pass by a brown mansion, squeezed in between a music store and a Banana Republic. With its statues of proud soldiers in front, the Union League stands as a symbol of the sacrifices necessary to win the Civil War.

After being sued by convicted terrorist Jose Padilla, I wonder whether our nation today has the same unity and tenacity to defeat the great security challenge of our day, the rise of fundamentalist Islamic terrorism.


He's using the Civil War as an example of national unity?
1.16.2008 3:06pm
Tony Tutins (mail):

the phrase, sentence, paragraph where Yoo says that it is OK to break the law? The way I read the memo he says the enhanced interrogation techniques are within the law.

Someone smart enough to be admitted to the Yale Law School would surely be smart enough to rephrase "performing this act is illegal, but go ahead and do it anyway" into "as I understand the law, performing this act is not illegal, so go ahead and do it."
1.16.2008 3:08pm
JohnAnnArbor:

Who's gonna want to be a lawyer for the EPA if you're gonna get personally sued by one side or the other every time the agency takes an action based on your advice?

Who would want to be a lawyer for ANY government agency dealing with the creeps of the "Church" of Scientology? Basically, being able to sue like this will give carte blanche to litigious jerks like the Scientologists to intimidate their way through government agencies.

This would be less of a problem under a loser-pays lawsuit system, of course. Then, government lawyers, knowing they're in the right, could confidently fend off nuisance lawsuits, knowing they won't be personally ruined financially.

So, choose your poison: loser-pays and allowing this kind of litigation, or disallow this kind of litigation and continue as we do now, where even victorious defendants can have their lives ruined by lawyer-debt?
1.16.2008 3:14pm
Mr. X (www):
I do not presume good faith in those going after Woo personally. It is time for the courts to stop allowing plaintiff's attorneys to financially destroy anyone with whom they have a beef with no fear of repercussion to themselves.


Have you considered reading Padilla's complaint, the one in which he asks for nominal ($1) damages?

I hope you put a little more original effort into your professional work, and don't just cut-and-paste inapplicable phrases.
1.16.2008 3:22pm
JohnAnnArbor:

Have you considered reading Padilla's complaint, the one in which he asks for nominal ($1) damages?

Yep, because damages are the only cost a defendant takes on. Lawyer fees and time are free, of course. /sarcasm
1.16.2008 3:28pm
guy in the veal calf office (mail) (www):
If I read one strain of comments correctly, allowing Padilla to file a suit against Yoo means that government functionares at the EPA, OSHA, Department of Education, Department of Energy, AmeriCorps, etc would not be able to perform their jobs and regulate America?

Cool.
1.16.2008 3:28pm
Q the Enchanter (mail) (www):
"terrorists are using our own legal system as a weapon against us."

Exactly. We must suspend our legal system immediately!
1.16.2008 3:30pm
frankcross (mail):
Self righteous sanctimony isn't the best rhetorical tactic.

But at least we know John Yoo worries not for himself, his only concern is for others.
1.16.2008 3:30pm
ejo:
he's using the Civil War as an example of a war in which tough decisions were made and brutal methods were used to win a useful and necessary war. Lincoln, if the anti-Yoo standard were used, was the bad guy. he used unconstitutional methods and behaved in a manner far worse than Chimpy McHitler. yet he's a hero. too bad there were no lawyers like the Yalies around back then to have hamstrung him.
1.16.2008 3:35pm
Constitutional Crisis (mail):
What an interesting psychological study Yoo would be.
1.16.2008 3:38pm
ejo:
Lincoln too-he took property from Americans by issuing a Proclamation. he suspended the Constitution. what a monster he must have been.
1.16.2008 3:49pm
EH (mail):
Taking all of the criticisms of Padilla's side of this case into account, is there an irony here that the plaintiff might be attempting to push the boundaries of law in a similar way to what Yoo did in counseling torture? Perhaps we'll see a case of "live by the thin wedge, die by the thin wedge."


I'm not aware the OLC has ever claimed it has the power to grant dispensation to break the law. They may at times issue opinions that a particular law doesn't apply, but that is something altogether different.


No it isn't. In a practical sense, disregarding a law that may apply is no different than breaking that law. In fact, knowingly disregarding a law can make things worse by showing premeditation.

And really, enough with dragging OSHA/EPA/FDA into this. Regulatory agencies are not germane.
1.16.2008 3:53pm
M. Gross (mail):
If anything, this editorial appears to be more evidence that Yoo acted in good faith with his advice at the heart of this lawsuit. Admittedly, this is kind of post facto, but given the mountains of evidence, one wonders what basis they hope to proceed on.
1.16.2008 4:04pm
Ralph Phelan (mail):
EH:
And really, enough with dragging OSHA/EPA/FDA into this. Regulatory agencies are not germane.

What would prevent this precedent from being applied to staff lawyers in other agencies of the executive branch?
1.16.2008 4:06pm
Don de Drain:
Yoo is not unlike the attorneys and accountants who gave "advice" regarding the large corporate tax shelters. Now many of those attorneys and accountants are paying a price for their advice (witness the $76 million fine agreed to by Jenkins &Gilchrist and OPR).

Whether some of those attorneys and accountants violated the law will be answered by the courts in civil and criminal actions, some of which are pending now. Even if you think that these attorneys and accountant should not be accountable criminally or civilly for their actions, you would be hard pressed to deny that the actions of these attorneys and accountants was bad for the system.

The actions of Yoo in writing the "torture memo," whether legal or illegal, were bad for the system. Institutionalizing torture is a bad idea, period. The Geneva Conventions have recognized this point for a number of years. Yoo will never get my sympathy, regardless of the merits (or lack thereof) of the lawsuit against him.
1.16.2008 4:06pm
ejo:
might we have a bigger problem with someone who is a convicted terrorist and enemy of our country "pushing the envelope"? I realize it's not fashionable to point these little facts out, but Padilla travelled overseas to learn how to kill lots of us and came back here to put what he learned to practical use. but, compared to the grand rhetoric used by his abetters, what's a few american lives?
1.16.2008 4:08pm
Ralph Phelan (mail):
more evidence that Yoo acted in good faith
On the anti-Yoo side, please note that M. Gross is claiming good faith, not good sense.

I'm totally agnostic as to whether what was done to Padilla was lawful, having really not paid that much attention to the case. My concern is purely with the possible side effects of creating a new cause of action against government lawyers - side effects that could be far larger in importance than the Padilla case.
1.16.2008 4:10pm
Anderson (mail):
If anything, this editorial appears to be more evidence that Yoo acted in good faith with his advice at the heart of this lawsuit.

I don't think "good faith" means "really believes this should be the law." It's not a subjective test. I might in good faith believe that Tom Cruise's mastery of Scientology dogma puts him beyond mere human law, but that would not be of any interest to a court (unless I were pleading an insanity defense).

I think the test would have to be objective -- would a reasonable attorney believe that he was providing competent legal advice in which, for instance, he evaluated the President's wartime power to contravene statutory law, without so much as citing, let alone distinguishing, Youngstown Steel? Etc., etc.
1.16.2008 4:11pm
Adam J:
I think M. Gross is right- it proves that Yoo is totally divorced from reality.
1.16.2008 4:11pm
AntonK (mail):
And those waging lawfare unfortunately have the support of a vast array of American academics, attorneys, judges and officeholders.

But just be grateful those folks are so patriotic. God only knows what they would do if they weren't.
1.16.2008 4:13pm
Scote (mail):

Kazinski:
ATL,
Since Yoo's memo is public, could you point out the phrase, sentence, paragraph where Yoo says that it is OK to break the law? The way I read the memo he says the enhanced interrogation techniques are within the law


By that standard nothing is illegal as long as you get a lawyer to rationalize it first.

BTW, "enhanced interrogation techniques"? Please, let's not let torturers frame this issue. You mean "The way I read the memo he says the enhanced interrogation techniques aretorture is within the law
1.16.2008 4:15pm
Tony Tutins (mail):
but Padilla travelled overseas to learn how to kill lots of us and came back here to put what he learned to practical use

And sadly, Miranda was set free to rape and rob some more. If you disagree with Americans' prioritizing due process over punishing offenders, I suggest you work to repeal the Fourth, Fifth, and Sixth Amendments.
1.16.2008 4:16pm
Scote (mail):

If anything, this editorial appears to be more evidence that Yoo acted in good faith with his advice at the heart of this lawsuit. Admittedly, this is kind of post facto, but given the mountains of evidence, one wonders what basis they hope to proceed on.

I don't think that an unsworn, self-serving editorial written by the defendant post facto can be considered "evidence" of innocence.

As to mountains of evidence, indeed there are mountains of it and they generally tend to inculpate Yoo, not the other way around. We are talking torture! Torture apologists are antithetical to the constitutional protections that form the basis of our society of laws.
1.16.2008 4:20pm
ejo:
I hope we don't lose a war because of the misplaced application of them-might render them moot. war raises the stakes a bit, don't you think. should Lincoln have upheld the Constitution and lost the War of Northern Aggression-how much darker would history have been as a result? darn that John Yoo for bringing the practical impact of decisions into the discussion.
1.16.2008 4:24pm
New World Dan (www):
Non-lawyer question: Couldn't Yoo just pay the $1, admit nothing and be done with this instead of grandstanding?
1.16.2008 4:24pm
ellisz (mail):
Boy, Yoo's name really sets some people off.

This lawsuit is a stunt and will be treated as such. and while I disagree with what I know of the conclusions reached by Yoo, to my knowledge Congress has not stepped in to change the law (despite making an effort - which suggests the law was unclear), so it's inaccurate to claim he was so far out in right field that he couldn't have reached his conclusions in good faith.
1.16.2008 4:25pm
ejo:
to Padilla, those mounds of bodies would be a cause of good cheer. to his abetters, they would be irrelevant.
1.16.2008 4:25pm
bobolinq (mail):
Yoo writes:
They use cases such as Padilla's to . . . press novel theories that have failed at the ballot box and before the president and Congress.
For my money, this is the best — i.e., most ridiculous — argument Yoo makes, because it reveals his utter contempt for the courts. A key purpose of the courts is to serve as a check on the legislative and executive branches. Just because a theory (novel or not) has "failed at the ballot box and before the president and Congress" does not mean that it is a theory unsupported by the Constitution.

This joker should be denied a law-professor job not because of his politics, but because he does not believe in the law.
1.16.2008 4:25pm
MDJD2B (mail):

Have you considered reading Padilla's complaint, the one in which he asks for nominal ($1) damages?

And what do yuo think it will cost him to defend the lawsuit?
1.16.2008 4:41pm
TGGP (mail) (www):
Laws are supposed to be used to restrict the government, that's what we call "rule of law".

As long as we continue to worship Lincoln and FDR, Presidents who similarly abuse their power during wartime are going to point to them as excusing their actions. That's why I think the paleos associated with LvMI/LRC provide an invaluable service. I elaborate on the necessity of attacking popular examples of statism, like our intervention in WW2, here.
1.16.2008 4:49pm
Anderson (mail):
Non-lawyer question: Couldn't Yoo just pay the $1, admit nothing and be done with this instead of grandstanding?

I don't think so. Besides the fact that the complaint seeks att'y fees, it also asks for a ruling "that the acts alleged herein are unlawful." There are several reasons why Yoo, and the erstwhile masters whom he hopes will be picking up his defense, would not want that.
1.16.2008 5:04pm
genob:

Have you considered reading Padilla's complaint, the one in which he asks for nominal ($1) damages?


And what do yuo think it will cost him to defend the lawsuit?



Why defend it at all?...Decline to answer, take a default, pay the dollar that is awarded. (along with minimal costs perhaps.) Does the suit ask for other relief beyond the $1?
1.16.2008 5:05pm
PLR:
So, I take it that John Yoo does not dispute the factual allegation of Padilla's torture, nor that Yoo's advice was relied on by the torturers. He objects only to Padilla's standing.

What a guy.
1.16.2008 5:35pm
ejo:
yep, that's what I read from his column. why can't he be a more admirable attorney, like Lynne Stewart, and actually side with our enemies?
1.16.2008 5:39pm
ATL (mail) (www):

ATL,
Since Yoo's memo is public, could you point out the phrase, sentence, paragraph where Yoo says that it is OK to break the law? The way I read the memo he says the enhanced interrogation techniques are within the law.


Sure, and I could write that dumping hazardous substances on the back forty is within the law. It wouldn't make it right and it certainly wouldn't absolve me of liability related directing activities that caused a plaintiff to incur response costs recoverable under CERCLA. If you could cloak such direction by calling it "legal advice," things would be too easy.


I'm not aware the OLC has ever claimed it has the power to grant dispensation to break the law.


That's exactly what Yoo did, though, by advising the US that torture isn't torture.
1.16.2008 5:46pm
Bart (mail):
For those interested in the origins of Lawfare theory, you might want to check this out.
1.16.2008 5:48pm
Anderson (mail):
He objects only to Padilla's standing.

Well, that's all he needs, and he can probably get 5 votes on the SCOTUS for it.

Torture ceases to flourish when the torturers' victims can sue in court for redress. Yoo and his friends would like to postpone that day as long as possible, so that torture can continue to flourish.
1.16.2008 6:10pm
Jagermeister:
For a legal blog, there is a conspicuous lack of evidence presented for the vast majority of the negative comments posted about Mr. Yoo, and most of the remainder is argument by ad hominem attack, presenting the conclusions as if they were the facts, and deliberate misrepresentation of what facts are known.

As one who does not see the dividing line between "torture" and "aggressive interrogation" to be so clearly drawn and obvious as some of you seem to view it, and who is desirous of formulating a solid legal and ethical framework for determining it, you are not winning any converts to your points of view. More legal reasoning and facts and less vituperation would perform better in any effort to broaden the base of your appeal.

The Yoo memo (which I think is behind this argument) is available at news.findlaw.com, yet no one has yet seen fit to refer to it. If I was part of any court deciding the issue I would have to find you all incompetent to practice before the bar.
1.16.2008 6:21pm
Randy R. (mail):
ejo: "I hope we don't lose a war because of the misplaced application of them-might render them moot."

Ejo, I find your comments irritating not just because they are smug, but because they are so wrong. Apparently, you believe, along with Yoo, that torture is good, and even necessary in a war. Was it you who said that we need to act like barbarians?

Actually, it is the supporters of torture who are naive. Even the Nazis dispensed with torture, not because they were nice guys, but because they realized that the information obtained under duress is highly unreliable. In times of war, you want reliable information, right? But that's just me — Bush and Co. don't seem to care whether the information is reliable for not, which is probably why we are mired this in this pointless war.

And in fact, the interrogators during WWII recently held a reunion here in Washington, and they said that sure, they roughed up guys from time to time, but they never did anything that would violate their own conscience. And they learned that they would obtain more information and better intel by playing chess with a Nazi general than any other techniques.

And furthermore, we don't want to torture because then it gives our enemies an excuse to torture OUR guys. We can hardly object to it when we are doing it ourselves, unless we want to be mere hypocrites, another Bush specialty.

But the real point of torture isn't to get information or anything else — it is merely revenge. And the comments here support that. You see, Padilla is a really, really bad guy, who wanted to kill lots of Americans. So torture is good, because it makes us feel good to extract revenge. Perhaps revenge of this barbaric sort is approved of by your religions, but our republic has been founded upon the opposite.

So, sure, I'm sure the ejo and Yoo would find playing chess with Padilla (perhaps today computer games?) is just too quaint, as though it's a tea party. And tea parties are NOT attended by such he-men such as ejo or Yoo or Cheney. Oh no. It's better to prove how tough you are than to actually get good information out of someone.

And that's the real tragedy.
1.16.2008 6:21pm
Montie:

And really, enough with dragging OSHA/EPA/FDA into this. Regulatory agencies are not germane.


Why would that be? Regulatory agencies have pushed the envelope before -- aided and abbetted by government attorneys.
1.16.2008 6:24pm
Smokey:
Houston Lawyer:

It is... unprecedented that the judicial branch of our government would try to regulate the prosecution of a war. Our judiciary increasingly sees itself as the arbiter of all things anyone has the temerity to put into a plaintiff's petition. The proper arena for these discussions is the political. The judiciary is ill suited for the task.

I do not presume good faith in those going after Woo personally. It is time for the courts to stop allowing plaintiff's attorneys to financially destroy anyone with whom they have a beef with no fear of repurcussion to themselves.


Needed to be said again. And again.
1.16.2008 6:30pm
Kris:
Look, most people with even an inkling of a former soul, even lawyers, would probably have had serious qualms about giving the advice Yoo gave. But even if you think Yoo should be shot at dawn, consider the precedent you create in condoning this sort of legal action. I'm a prosecutor. I'd like to think I'm a good one. I stand between the police power to arrest and charge and the courts, and some day, I may be standing there when you are falsely accused or over-charged, and facing the expenses and stress of being subjected to the criminal justice system, perhaps unfairly. I've dismissed a case or two in my day, and I take very seriously my obligation under the laws of my state and my bar association to protect the rights of the accused. Whether or not you believe in me personally, or think I'm full of crap, you'd hope the system has prosecutors like that in it. Judges like that in it. Legal advisors to governors and legislators like that in it. And you are a crazy person to both hope for honorable judges, prosecutors, and legal advisors in your government, and then condone their being subjected to personal liability for bad calls. Governmental immunity has the imperfect consequence of protecting bad lawyers who are also bad people, but it also protects decent lawyers who try to be good people. If you take it away, only corrupt people who believe they can game the system would have any reason to stay in these jobs.
1.16.2008 6:55pm
Thorley Winston (mail) (www):
For a legal blog, there is a conspicuous lack of evidence presented for the vast majority of the negative comments posted about Mr. Yoo, and most of the remainder is argument by ad hominem attack, presenting the conclusions as if they were the facts, and deliberate misrepresentation of what facts are known.


There's a reason for that -- if the facts or the law were actually on their side, they wouldn't have to resort to the tactics you described.
1.16.2008 6:55pm
Waldensian (mail):
Shame on Yoo.
1.16.2008 7:06pm
therut:
LAWFARE. Finally a word to describe what I have been feeling for a long time. Quite appropriate I think. Covers many things other than the lawfare aganist the war activity. What a wonderful word. I am not being scarcastic.
1.16.2008 7:19pm
EH (mail):

if the facts or the law were actually on their side, they wouldn't have to resort to the tactics you described.

If either of you would like to apprise yourself of the facts and issues undergirding the discussion today, there have been a week's worth of posts about the legal issues involved. This particular thread is concerned with Yoo's Op-Ed, which is in the domain of opinion. Conversely, if you have any facts or evidence to add why Yoo shouldn't care a whit about the advice he's given in the past, I'm sure we'd all like to see it. Otherwise, doesn't metacommentary fall under the "potshots from the peanut gallery" department?

As far as I can tell, there's a consensus forming that Yoo will have some difficult days ahead if Padilla makes it past standing.
1.16.2008 7:34pm
U.Va. 3L:
should Lincoln have upheld the Constitution and lost the War of Northern Aggression-how much darker would history have been as a result?

Is there any evidence that Lincoln's several actions of dubious constitutionality are the but-for cause of the Northern victory?
1.16.2008 7:54pm
Crimso:

Poor John Yoo. If only there wasn't those pesky thinkgs like the Constitution, laws, courts, separation of powers etc. Unfortunately for John, this is supposed to be a "government of laws, not of men." If he wants to live in a nation where the executive has unfettered power to protect the people from its enemies, I can recommend any number of authoritarian regimes.



Wait, wait. Did you mean "John Yoo", or "Abraham Lincoln?"


Apparently, you believe, along with Yoo, that torture is good, and even necessary in a war.



Quite obviously. And, according to Anderson, it's positively flourishing.
1.16.2008 8:05pm
Bored Lawyer:

Lawyers are not liable for legal positions taken on the basis of good faith interpretations of the law. However, lawyers can be liable for the actions of their clients if they are merely using the law as a cover for a clearly illegal scheme.

. . .

However, the facts that have emerged during this administration suggests that there may have been actions that were so clearly illegal as to be prosecutable (subject to more evidence coming out, which, of course, never seems to happen, with witnesses not appearing before congress, tapes being destroyed etc).


A distinction should be made between civil and criminal liability. It has long been held that certain actors -- judges, prosecutors -- enjoy absolute immunity from civil suit, because otherwise they could not do their job. They are still liable criminally, however.

Say a judge is accused of taking a bribe. He is absolutely immune from civil liability. Not because we approve of bribery, but because if such suits were allowed every nutcase litigant would sue the judge for perverting justice.

But judges can still be liable criminally for accepting a bribe. Prosecutors are generally trusted to exercise discretion and only prosecute judges where there is a real basis to believe a crime has been committed.

Yoo's argument is essentially one for immunity, at least from civil suit, and strikes me as a solid one. It is good to remember that immunity from civil suit is not immunity from criminal prosecution. If indeed Yoo and his clients were engaged in "using the law as a cover for a clearly illegal scheme" they should and can be prosecuted. Otherwise, they should not bear the burden of civil litigation by every litigant trying to score a political point.
1.16.2008 8:05pm
Crimso:

Is there any evidence that Lincoln's several actions of dubious constitutionality are the but-for cause of the Northern victory?



If they're not held up as that (and who can really say for sure?), then that's even more damning. He shredded the Constitution for no reason.
1.16.2008 8:09pm
DangerMouse:
There's a reason for that -- if the facts or the law were actually on their side, they wouldn't have to resort to the tactics you described.

Comment winner!

Of course, I think that Kris makes an excellent point as well. Revolutionaries never really understand the consequences of their actions, and these lawfare jokers are no exception.

I eagerly await the day that Exxon sues lawyers at the EPA, or when the NRA sues government lawyers in DC for defending their gun ban. Oh, this is going to be FUN!
1.16.2008 8:10pm
Anderson (mail):
Bored, I like the idea of a criminal suit, but unfortunately the enforcement of the law is a political matter, and we could all die waiting for Yoo to be indicted.

As for Kris's reasonable comments about a chilling effect, today's article in Slate by Emily Bazelon quotes the Supreme Court in Mitchell v. Forsyth, wherein a fellow sued John Mitchell for illegal wiretapping:

"Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate."

Sounds good to me.
1.16.2008 8:15pm
Anderson (mail):
(Btw, the quoted portion is in part II of the opinion, which is joined only by a plurality; but it's a quote from Harlow v. Fitzgerald.)
1.16.2008 8:22pm
Thoughtful (mail):
"Walk down Broad Street and you pass by a brown mansion, squeezed in between a music store and a Banana Republic."

Clearly, John Yoo has no trouble recognizing a Banana Republic when he sees one...
1.16.2008 8:29pm
Crimso:

he should be made to hesitate.


Like the way the intel agencies hesitated to share info prior to 9/11/01? Hey, at least they were following the law. Cold comfort for those who hesitated so they could decide whether to be burned alive or leap. The Rule of Law served them well. Too bad we can't solicit their views.
1.16.2008 8:31pm
Anderson (mail):
Wow, Crimso, we should just ignore the law altogether, because who knows what bad things might happen if we follow it ... you sure you're not Rudy Giuliani's sockpuppet, btw?
1.16.2008 8:42pm
Oren:
His point, that criminalizing policy disagreements is a bad idea, stands. As does the point that merely the threat of having to defend ones self against frivolous suits has a chilling effect - such defenses don't come cheap.
Characterizing what Yoo did to the Convention Against Torture as a "policy disagreement" is like characterizing Jackson's reaction to Worcester v. Georgia as a "legal disagreement" - he didn't so much disagree as just pretend it didn't exist.
1.16.2008 8:45pm
Jagermeister:

There have been a week's worth of posts about the legal issues involved.


Actually, no. I have been following the discussion for the entire time, and although there have been tangential discussions of standing, the Unitary Executive, and such, but the previous five threads worth of commentary contain relevant to what appears to be the substance of Padilla's complaint. Instead, Yoo's detractors have assumed and presented as facts their various opinions that:

- Padilla's treatment constituted torture.
- Water boarding is torture.
- John Yoo advocated torture (despite Yoo's explicit proviso that his opinion concerned interrogation methods that did not violate 18 USC 2340's "prohibition on torture").
- Yoo advocated knowingly violating U.S. law.
- U.S. interrogation techniques were broadly applied for the purposes of "revenge".
- Yoo's opinions are on a par with those of Nazi war criminals.

From these comments and others, and the lack of any rational discussion of interrogation vs. torture, or any constructive criticism of what opinions should have rendered in place of Mr. Yoo's, it is clear that the vast majority of invective posted here results from those who bear personal animus against Mr. Yoo, and see this forum simply as a means to air their anti-Bush or anti-war or anti-GWOT opinions.

Mr. Yoo deserves both the presumption of good faith and the presumption of innocence. Those who deny this simply betray their hyper partisan biases and their inability to reason past their emotional prejudices. If Mr. Yoo's detractors have facts and reasoning to demonstrate the validity of their case, they need to trot them out and show them to the rest of us. If the Yale law clinic's case rests on as shoddy a foundation as their proponent's here have demonstrated, they surely risk a Rule 11 sanction.
1.16.2008 8:53pm
Crimso:

we should just ignore the law altogether


Of course I said that. Just like torture is flourishing, eh? Oh wait, you did say that. No, not ignore it altogether (that would lead to all sorts of chaos, like people crossing the borders illegally), just use some common sense as to when it should be ignored. Now, if every Tom, Dick, and Harry walking down the street were being rounded up and tortured, I'd have a problem with that. KSM? Not so much.
1.16.2008 8:57pm
Anderson (mail):
Jager, baby, you obviously haven't been keeping up with the comment threads -- there have been very specific criticisms of Yoo's legal reasoning -- so if you're really interested, go look, and if you're not, then I don't see why I should go look for you.

Crimso, "common sense" as to when laws against torture should be ignored? Here's what common sense says: never. Sort of like rape, genocide, and other things that are wrong by definition.

There is no reason to believe that torture obtains any reliable intel that can't be obtained by standard interrogation methods.

Unfortunately, this country has a bad way of losing its freakin' mind in wartime -- cf. WW1, WW2, Vietnam -- and we get ridiculous lawbreaking in the name of National Security, which we're then supposed to forget about later, because, hey, we were all really stressed at the time.

If Yoo and the other persons responsible get punished this time, then maybe the NEXT time our rulers decide to freak out after an attack -- because there will always be another attack -- maybe the people expected to facilitate the freaking-out will say, "uh, no way dude, remember Yoo?"

Anticipating such a scenario would be a big step towards a rational approach to surprise attacks, wartime emergencies and the scope of executive power therein. A rational approach that's negotiated between the Legislature and Executive, and can stand up to scrutiny by the Judiciary. An approach that comports with the Constitution instead of interpreting it out of existence.
1.16.2008 9:10pm
Jagermeister:
Anderson, baby. You're wrong again, as usual. There have NOT been specific criticisms of Yoo's reasoning on these threads. There are some excellent critiques out there, such as this one here: Apologia Pro Tormento , but they're not being made here.

I'm open to some serious discussion of the pros and cons. I'm just not seeing it here, and its frustrating wading through all the garbage.
1.16.2008 9:18pm
Crimso:
Never, ever, EVER? Under any circumstances? You're welcome to suffer the consequences of that philosophy, just don't ask me to. If I'm carrying a firearm, and someone points a gun at me, I'll shoot them and worry about the consequences later. But shoot them I will, whether they threaten me or not. Might not be legal, but I'd rather be wrong than dead. As to your assertion that torture never provides useful info, didn't someone who actually interrogated KSM (and disagrees with waterboarding) admit that waterboarding him provided info that prevented further attacks? Wouldn't he be in a position to know, as opposed to you?
1.16.2008 9:19pm
Crimso:
And when should habeas corpus be suspended? Never? If so, then when can we begin demolishing the Lincoln Memorial? Or does the end sometimes justify the means? And if sometimes, when? When you say?
1.16.2008 9:31pm
Anderson (mail):
RIF, Crimso. "As to your assertion that torture never provides useful info" ... what I said was, "There is no reason to believe that torture obtains any reliable intel that can't be obtained by standard interrogation methods."

Jager, I know that I've specifically flagged Yoo's assertion that commander-in-chief powers trump a statutory enaactment, which he made without even attempting to distinguish the lead case on that very subject, Youngstown Steel. That is a specific criticism.

You may refer to Kathleen Clark's article, brought to my attention by another commenter here at the VC, for other criticisms of Yoo's memo.
1.16.2008 9:32pm
Jagermeister:
Just to be clear. I'm not a big fan of Yoo's reasoning, which I find to be deficient on grounds of form as much as substance. I find Yoo's arguments to be unpersuasive in a number of areas, but all of that is a long, long, way from the presumption that Yoo's reasoning supported illegal acts, and that he knew it at the time.

The issues of what constitutes torture, and which branches have what degree of control over interrogation are one's that do not have obvious solutions to me, and those who present their opinions as if they were settled law do a disservice to the rest of us trying to figure this stuff out.
1.16.2008 9:34pm
Jagermeister:
Anderson: Thank you for the link. Sorry to be "snippy".
1.16.2008 9:36pm
Anderson (mail):
Jager, my apologies as well.

Here btw is an excerpt from the invaluable Jane Mayer's must-read article on Alberto Mora, onetime general counsel for the U.S. Navy:

"The memo espoused an extreme and virtually unlimited theory of the extent of the President's Commander-in-Chief authority," Mora wrote in his account. Yoo's opinion didn't mention the most important legal precedent defining the balance of power between Congress and the President during wartime, Youngstown Sheet &Tube Company v. Sawyer. In that 1952 case, the Supreme Court stopped President Truman from forcing the steel worker's union, which had declared a strike, to continue producing steel needed in the Korean War. The Court upheld congressional labor laws protecting the right to strike, and ruled that the President's war powers were at their weakest when they were challenging areas in which Congress had passed legislation. Torture, Mora reasoned, had been similarly regulated by Congress through treaties it had ratified.

In an e-mail response to questions this month, Yoo, who is now back at Berkeley, defended his opinion. "The war on terrorism makes Youngstown more complicated," he said. "The majority opinion explicitly said it was not considering the President's powers as Commander-in-Chief in the theater of combat. The difficulty for Youngstown created by the 9/11 attacks is that the theater of combat now includes parts of the domestic United States." He also argued that Congress had ceded power to the President in its authorization of military force against the perpetrators of the September 11th attacks.


It's fine for Yoo to argue that about Youngstown ... but NOT for him to keep quiet about it in his memo. The entire point of a memo like the Yoo-Bybee memo is to explore the state of the law, favorable and unfavorable, and give the client an accurate depiction. You most certainly do not get to privately ignore the leading case adverse to your position because, on your own view of the facts, that case law is now called into question.
1.16.2008 9:45pm
Crimso:

There is no reason to believe that torture obtains any reliable intel that can't be obtained by standard interrogation methods.


And the evidence that they skipped "standard interrogation methods" and went directly to waterboarding is? I thought they resorted to waterboarding (in three cases) precisely because "standard methods" weren't working.
1.16.2008 9:48pm
Crimso:
And as far as your hysterically funny reference to RIF, see my 8:57 comment and heal thyself.
1.16.2008 9:52pm
Anderson (mail):
Crimso, once the veil of CYA secrecy is lifted, we can evaluate how hard they tried. Ron Suskind's book has them not even trying; I am still waiting for a better account.

See also another Jane Mayer article, which hints at the stunning amateurism of CIA's interrogation efforts (I've quoted this before @ VC, but hey, it's a good quote):

On September 17, 2001, President Bush signed a secret Presidential finding authorizing the C.I.A. to create paramilitary teams to hunt, capture, detain, or kill designated terrorists almost anywhere in the world. Yet the C.I.A. had virtually no trained interrogators. A former C.I.A. officer involved in fighting terrorism said that, at first, the agency was crippled by its lack of expertise. "It began right away, in Afghanistan, on the fly," he recalled. "They invented the program of interrogation with people who had no understanding of Al Qaeda or the Arab world." The former officer said that the pressure from the White House, in particular from Vice-President Dick Cheney, was intense: "They were pushing us: 'Get information! Do not let us get hit again!' " In the scramble, he said, he searched the C.I.A.'s archives, to see what interrogation techniques had worked in the past. He was particularly impressed with the Phoenix Program, from the Vietnam War. Critics, including military historians, have described it as a program of state-sanctioned torture and murder. A Pentagon-contract study found that, between 1970 and 1971, ninety-seven per cent of the Vietcong targeted by the Phoenix Program were of negligible importance. But, after September 11th, some C.I.A. officials viewed the program as a useful model. A. B. Krongard, who was the executive director of the C.I.A. from 2001 to 2004, said that the agency turned to "everyone we could, including our friends in Arab cultures," for interrogation advice, among them those in Egypt, Jordan, and Saudi Arabia, all of which the State Department regularly criticizes for human-rights abuses.

That should rightly astonish anyone, I think. And there are ample accounts of FBI's attempting to provide trained interrogators, only to be shunted aside as, essentially, pussies who weren't up to the manly demands of the GWOT.
1.16.2008 9:58pm
Anderson (mail):
Here btw is a suddenly-discovered legal argument, worth its weight in electrons:

(1) The Torture Act defines torture more narrowly than does the UN Convention.

(2) The War Crimes Act, however, criminalizes grave breaches of Geneva Conventions I-IV.

(3) GC IV defines grave breaches at Art. 147 to include "those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment ...."

So: what is "torture" under GC IV, and is it as narrow as the Torture Act, or is it broader? Recall that the WCA has a narrower scope of application (persons protected by the Convention), so there's no logical conflict in its having a broader definition.

See the Commentary on Art. 147:

' Torture. ' -- The word torture has different acceptations. It is used sometimes even in the sense of purely moral suffering, but in view of the other expressions which follow (i.e. inhuman treatment including biological experiments and suffering, etc.) it seems that it must be given here its, so to speak, legal meaning -- i.e., the infliction of suffering on a person to obtain from that person, or from another person, confessions or information. Looked at from this angle, torture is a concept which in general is not dealt with as such by national penal codes. It is more than a mere assault on the physical or moral integrity of a person. What is important is not so much the pain itself as the purpose behind its infliction. This, therefore, is a point which will require additional clauses in most national legislations; fortunately, judicial torture has disappeared from all civilized penal systems.

' Inhuman treatment. ' -- This idea is rather difficult to define. In general, the Convention provides, in Article 27 , that protected persons must always be treated with humanity. The sort of treatment covered by this Article, therefore, would be one which ceased to be humane. It could not mean, it seems, solely treatment constituting an attack on physical integrity or health; the aim of the Convention is certainly to grant civilians in enemy hands a protection which will preserve their human dignity and prevent them being brought down to the level of animals. That leads to the conclusion that by "inhuman treatment" the Convention does not mean only physical injury or injury to health. Certain measures, for example, which might cut the civilian internees off completely from the outside world and in particular from their families, or which caused grave injury to their human dignity, could conceivably be considered as inhuman treatment.


(This issue probably is familiar to genuine students of the subject; I just stumbled on the WCA via a ref in Mayer's article on Mora.)
1.16.2008 10:06pm
Anderson (mail):
Okay, one more quote &I'll go away - Mayer again, on Zubaydah:

The C.I.A. program's first important detainee was Abu Zubaydah, a top Al Qaeda operative, who was captured by Pakistani forces in March of 2002. Lacking in-house specialists on interrogation, the agency hired a group of outside contractors, who implemented a regime of techniques that one well-informed former adviser to the American intelligence community described as "a 'Clockwork Orange' kind of approach." The experts were retired military psychologists, and their backgrounds were in training Special Forces soldiers how to survive torture, should they ever be captured by enemy states. The program, known as SERE--an acronym for Survival, Evasion, Resistance, and Escape--was created at the end of the Korean War. It subjected trainees to simulated torture, including waterboarding (simulated drowning), sleep deprivation, isolation, exposure to temperature extremes, enclosure in tiny spaces, bombardment with agonizing sounds, and religious and sexual humiliation. The SERE program was designed strictly for defense against torture regimes, but the C.I.A.'s new team used its expertise to help interrogators inflict abuse. "They were very arrogant, and pro-torture," a European official knowledgeable about the program said. "They sought to render the detainees vulnerable--to break down all of their senses. It takes a psychologist trained in this to understand these rupturing experiences." * * *

... the SERE experts' theories were apparently put into practice with Zubaydah's interrogation. Zubaydah told the Red Cross that he was not only waterboarded, as has been previously reported; he was also kept for a prolonged period in a cage, known as a "dog box," which was so small that he could not stand. According to an eyewitness, one psychologist advising on the treatment of Zubaydah, James Mitchell, argued that he needed to be reduced to a state of "learned helplessness." (Mitchell disputes this characterization.)

Steve Kleinman, a reserve Air Force colonel and an experienced interrogator who has known Mitchell professionally for years, said that "learned helplessness was his whole paradigm." Mitchell, he said, "draws a diagram showing what he says is the whole cycle. It starts with isolation. Then they eliminate the prisoners' ability to forecast the future--when their next meal is, when they can go to the bathroom. It creates dread and dependency. It was the K.G.B. model. But the K.G.B. used it to get people who had turned against the state to confess falsely. The K.G.B. wasn't after intelligence."


This will be the part that puzzles future history students -- that we excoriated the Soviet evil empire for 50 years, only to jump at the chance to imitate their most notorious agents.
1.16.2008 10:12pm
Bob from Ohio (mail):

And furthermore, we don't want to torture because then it gives our enemies an excuse to torture OUR guys.


They need an excuse?

Are we talking about the same enemies? The enemy that seizes civilian airliners and crashs them into buildings? The enemy that saws off the head of an American reporter because he is Jewish? The enemy that bombs markets and restaurants and kills teachers etc.

So, if we put our prisoners up at the Intercontinental, they won't have an "excuse" and will abide by the Geneva Conventions and all the Laws of War? Man, let's call the President, it is all so clear now.
1.16.2008 10:13pm
Brian K (mail):
Are we talking about the same enemies? The enemy that seizes civilian airliners and crashs them into buildings? The enemy that saws off the head of an American reporter because he is Jewish? The enemy that bombs markets and restaurants and kills teachers etc.

So, if we put our prisoners up at the Intercontinental, they won't have an "excuse" and will abide by the Geneva Conventions and all the Laws of War? Man, let's call the President, it is all so clear now.


that's very short sighted.
1.16.2008 11:06pm
Jagermeister:
In an effort to be substantive, let me posit the follow:

It appears to me that the dictionary wiggling and other issues aside, Yoo is completely incorrect in asserting that Presidential authority as commander in chief obviously trumps Congress' authority in Article I, Section 8, "To make Rules for the Government and Regulation of the land and naval Forces." Given the congressional role in establishing the UCMJ, it is hard to read "rules ... for the government" of the armed forces to exclude rules of behavior. Any reading that excludes that seems to render the Art I powers inoperative, because to what else could "government" refer than rules of behavior?

My reading of the Yoo memo is unable to detect Yoo's addressing the conflict between Congress' powers in Art I, Sect 8, and the Executive powers in Art II, Sect 2, and I am unaware of a reading of "Commander in Chief" that grants complete authority over the rules of war (else why have treaties if they have no force of law). At the least, there is a tension between the two that Yoo does not address.

So, having detected an omission in Yoo's analysis, the next step is to determine if the omission constitutes a breach of attorney responsibility, as Kathleen Clark maintains. From my readings, it would appear that the issue is whether the memo constitutes advice, advocacy, or a plausible defense in case of prosecution. This memo states that the cover memo (to which, if I understand correctly, the later memo is a full response) is in response to the question of if

interrogation methods used on captured al-Queda operatives which do not violate the prohibition on torture found in 18 U.S.C. 2340-2349A would either (a) violate our obligations under the torture convention, or (b) create the basis for a prosecution under the ... ICC.

My reading seems to indicate that the original request was for legal advice, and that the authors were therefore obligated to provide a full accounting of contrary interpretations and challenges to their own reasoning. It does seem to me that Yoo's job was NOT to provide the broadest possible reading of Executive authority to exceed statutory definitions of torture and permissible behavior.

I am left to conclude that Yoo gave the AG spectacularly bad and incomplete advice.

I don't see that the Geneva Conventions necessarily enter into the argument, since the conventions do not appear to apply to "illegal combatants". Instead, I would think the more broad protections such as Declaration of Human Rights would apply, if at all, but I don't see Yoo as necessarily deficient in not addressing them. The memo does touch upon international norms, albeit briefly, in the opening pages.

Now, assuming all that to be true, I still don't see how Padilla has a case. To get anywhere, Padilla has to prove that if Yoo had provided better or more complete advice that any (alleged) torture would not have been committed. To do that he would have to prove:

1) The conditions to which Padilla was subjected constitute torture, under a reading of 18 USC 2340.

2) That Congressional legislation cannot be overridden by the Commander in Chief (i.e., litigate and resolve the conflict between Art I and Art II).

3) That had Yoo analyzed the situation better or more completely, that he would have come to the same conclusion as in Item (2), and so advised his client.

4) That Yoo's advice had a deciding effect on the Executive (who, given his moniker as "Decider-In-Chief", would seem to assume for himself such a role rather than delegate it to others), and had he advised his client fully, that Padilla would not have been subject to the conditions alleged in Item 1.

5) And lastly, that Yoo knew all the above, and that he did knowingly violate his obligations to his client and his legal ethics.

THAT seems a rather long list of issues to overcome to come to a positive judgement for Padilla. I could see the Justice Department as having a course of action against Yoo for incompetence, but I doubt they would pursue it, and what remedy could they gain?

So, after all of that, I am left to conclude that the Yale clinic has a rather weak case, with political rather than legal consequences, and that there action is one of street theater instead of serious jurisprudence.
1.16.2008 11:08pm
Anderson (mail):
Interesting analysis, Jager. I would note at the outset that the complaint alleges conduct by Yoo going beyond the "torture memo."

But sticking to the scope of your analysis, I agree that Padilla has a long row to hoe, though I don't agree that makes the case "street theater." Following your points:

(1) The feds are likely to invoke "state secrets" to prevent us from even knowing what was done to Padilla, which would helpfully prevent his proving his point here. I think it's pretty evident however that the "learned helplessness" techniques used on him were intended to cause severe mental suffering, pretty much by definition.

(2) This looks like the easiest hurdle -- I am mystified how the President can "override" a statute. Weimar, this ain't.

(3) I think Yoo could at best have trotted out his "Youngstown is quaint" theory, but he would've had to advise that on the state of the current law, the President was fighting an uphill battle if he tried to order torture. That would've been very different in substance and tone from the triumphalism of the memo.

(4) This is the causation problem, and it's been recognized from Day One that this was the biggest hitch in the case. However, that didn't stop us from putting German legal officials in the dock at Nuremberg. Further, given a reasonable but very, very unlikely scope of discovery, this might be easier to prove than we'd think, since there are probably lots of people who'd testify they relied on the advice in Yoo-Bybee's memo, "but for" which they would have refrained from certain acts. However, I think the odds of Padilla's getting to depose any of those people are roughly those of a snowball in Houston in July. See (1) above.

(5) I think the standard here is "knew or should have known," and I think it can arguably be met. Yoo knew damn well that, for instance, Youngstown was the gorilla in the room, and his failure to even mention it was a big clue that he didn't have a plausible argument.

The most fitting penalty for Yoo might be the one suggested by Kathleen Clark -- bar discipline. Suspending his license or disbarring him would send a loud message to OLC today &in the future.
1.16.2008 11:26pm
Kazinski:
Anderson:
Yoo should have cited Jackson's Youngstown in his memo:

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society.


That is the salient part of Youngstown when it comes to authorizing levels of acceptable force against enemy combatants. Jackson goes on to say:

But, when it is turned inward not because of rebellion, but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

Which of course imparts clear meaning that in the context Yoo was addressing,an external threat which is by no means "lawful", the President should have indulgence. This wouldn't be a case you'd want Jackson to rule on.
1.16.2008 11:32pm
Jagermeister:
Kazinski:

Granting the President the widest latitude for his executive functions in commanding the armed forces, how can such powers be broadly read without invalidating Congress' powers for setting "rules ... for the government" of the armed forces? It is not as if Congress has NO powers powers over the armed forces, since they are explicitly mentioned in the Constitution.

A reasonable reading might be that the President has complete freedom, within the confines established by the Congress (e.g., he cannot order a member to violate the UCMJ, for example).

Is there also a question of the applicability of the U.S.C. to members of the armed forces? I not not familiar enough to know if members of the armed forces are subject to such laws in addition to, or in replacement of, civilian laws.
1.16.2008 11:42pm
Don de Drain:
Jagermeister--

I enjoyed your analysis. As others have commented, it is possible for someone to escape civil liability but still be liable criminally (the bribed judge being a good example). I wonder whether it would be possible to put together sufficient evidence to present a jury question as to whether there was some sort of illegal conspiracy between Yoo and his client (i.e., similar to the standard used by Courts of Appeal when reviewing the sufficiency of the evidence at trial to support a conviction). I'm not accusing anyone of committing a crime, mind you, but I wonder if a prima facie criminal case could be made based on the evidence that is currently in the public domain. The answer may very well be "no", but it would be an interesting exercise for someone who has knowledge of the potentially relevant criminal statutes to do an analysis.

To me, Yoo's failure to discuss key topics which someone in his position should have addressed (as you point out in your analysis), together with Yoo's obvious intelligence, does not bode well for Yoo. That type of conduct can get a writer of tax opinion letters in deep trouble under Circular 230.
1.17.2008 12:08am
Kazinski:
Jagermeister:
That is a good point, but in this particular situation Yoo didn't assert that UCMJ didn't apply, it doesn't even come up because these enhanced interrogation techniques were not being applied by the military but by the CIA. Yoo also says that the conduct does not violate US law. So I don't even see where Youngstown comes in, in this case, but Anderson kept bringing it up. So unless Anderson is claiming that Jackson's three part test is the proper standard for interpreting conflicts between the ICC and the President then I can't see where it applies, since Yoo says the ICC has no jurisdiction not Congress.
1.17.2008 12:15am
Jagermeister:
Kazinski:

As you point out, I think Yoo is safest when claiming that the interrogation techniques do not violate US law. Although I find his parsing somewhat tedious, his dependence on dictionary definitions rather than case precedent unconvincing, and his reliance on intent shaky, at least his conclusions in those sections are debatable and open to reasonable disagreement.

If Yoo's assertions for the primacy of the executive in setting the outer limits for the rules of interrogation get the most attention, it is only because they are the least defensible, IMHO, especially in light of the expressed will of Congress. (If I recall correctly, the Boland Amendment was never litigated, and the conflict between the two branches never resolved. I would think such a resolution would be illustrative now).

You bring up an important point in making the distinction between the CIA and the military, in that I think it weakens the case for the executive. If the CIA is a creation of congress (National Security Act of 1947, according to Google) wouldn't that tend to increase the authority of Congress over the activities of the CIA? I deduce the executive claim is that intelligence gathering is part of the President's inherent war making authority under Art II, but I think there is some precedent for limiting it (Webster v. Doe, No. 86-1294 comes up as an example).

I'd like to see a broad executive power for interrogation, but its hard to see how such a power can exceed the express limits set by Congress.
1.17.2008 12:41am
Dilan Esper (mail) (www):
Which of course imparts clear meaning that in the context Yoo was addressing,an external threat which is by no means "lawful", the President should have indulgence. This wouldn't be a case you'd want Jackson to rule on.

I seem to recall that when a case came to the Supreme Court challenging the President's power to lock up folks without fair trials, Jackson dissented from the decision confirming the power and called it a "loaded weapon". That would suggest that your rather acontextual reading of the Youngstown concurrence isn't a correct one.
1.17.2008 1:03am
Kazinski:
Jagermeister,
Like I said, Yoo makes no claim in his memo that the President can exceed the express limits Congress has laid out in this instance. In fact he says "... interrogation methods used on captured Al Qaeda operatives which do not violate the prohibition on torture found in 18 U.S.C. 2340-2340A" are OK to use because 1) the Geneva Convention does not apply to Al Qaeda and 2) the ICC does not have jurisdiction.

Where the President can exceed the express limits laid out by Congress is in areas where Congress is transgressing on the Presidents constitutionally conferred authority, such as foreign intelligence gathering. Different argument, different set of memos.

Dilan,
"I seem to recall that when a case came to the Supreme Court..."
That gives us a lot to go on. I have to admit I didn't provide a link for the Jackson concurrence, but its pretty easy to find, if your going cite other precedent to claim my "rather acontextual reading of the Youngstown concurrence isn't a correct one." please identify the case. It makes your assertion so weak as to be meaningless. But if that is the standard then I seem to recall that the Supreme Court said the President could lock up hundreds of thousands of citizens and legal aliens without trial just because he didn't like their looks.
1.17.2008 1:43am
Kazinski:
Dilan,
It looks like we were both talking about Korematsu. But that doesn't pertain because no body ever asserted that Korematsu was an enemy combatant of any kind.

If you really want Jacksons thoughts on Padilla look at his unpublished draft opinion in Ex Parte Quiren:

[I]n the long run it seems to me that we have no more important duty than to keep clear and separate the lines of responsibility and duty of the judicial and of the executive-military arms of government. Merger of the two is the end of liberty as we in this country have known it. If we are uncompromisingly to discountenance military intervention in civil justice, we would do well to refuse to meddle with military measures dealing with captured unlawful enemy belligerents.

So much for my "acontextual reading". Of course he does not address here whether or not Congress can intrude into the question of unlawful enemy belligerents, but that wasn't a question then and it isn't now, since Congress came down squarely on the presidents side in the MCA.
1.17.2008 2:09am
Public_Defender (mail):
Just who was Yoo trying to persuade? His op/ed is red meat to the Coulter crowd, but I doubt it could persuade anyone to change their opinion in his favor.

Under Yoo's theory, the lawyers for the Duke lacrosse players were pro-rape. Demanding that government treat the accused according to law is not the same same thing as supporting the activity that allegedly occurred. And guess what? Sometimes the government gets the wrong guy.

Yoo and Nifong are cut from the same cloth.
1.17.2008 5:13am
Bob from Ohio (mail):

that's very short sighted


Ok, future enemies. Let's see, who are our potential future enemies.

China? I think we have real life proof that that is not true. I think it was called the Korean War.

Iran? Again, we have proof that they don't obey well established intrernational law. Embassies have been off
limits for a long time. When they took the British boat crew hostage, they did not obey Geneva either.

France? Not a likely enemy. But the Algerians or Greenpeace may have somethinhg to say.

Belgium? Yes, I agree, if we fight them, they would only start to totrure if we did it first.

I agree, I am short sighted.

I do not see any likely potential enemies that will obey the Laws of War or the Geneva Conventions. That is not to say we shouldn't obey them, but the "excuse" argument is pretty lame. They don't need excuses.
1.17.2008 9:46am
Tony Tutins (mail):
The Jane Mayer New Yorker article linked to several times in the comments -- "Outsourcing Torture" -- describes how State Department legal adviser William Taft IV listed the flaws in Yoo's reasoning point-by-point, in a 40 page memo. Yoo did not take any input from this experienced international lawyer, instead merely sending back a rebuttal. Further, Mayer quotes an unnamed State Dept. lawyer: [Our job is] not to tell the President, 'Here are the ways to avoid the law.' " He went on, "There is no such thing as a non-covered person under the Geneva Conventions. It's nonsense. The protocols cover fighters in everything from world wars to local rebellions." The lawyer said that Taft urged Yoo and Gonzales to warn President Bush that he would "be seen as a war criminal by the rest of the world," but Taft was ignored. This may be because President Bush had already made up his mind. According to top State Department officials, Bush decided to suspend the Geneva Conventions on January 8, 2002—three days before Taft sent his memo to Yoo.

Moreover, Yoo argues that torture is Constitutional. Further, Yoo invites those who believe Bush acted wrongly to impeach him: Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation's defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn't have the power to "tie the President's hands in regard to torture as an interrogation technique." He continued, "It's the core of the Commander-in-Chief function. They can't prevent the President from ordering torture." If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment.
1.17.2008 10:27am
Oren:
Demanding that government treat the accused according to law is not the same same thing as supporting the activity that allegedly occurred.
QFT.
1.17.2008 11:08am
Kazinski:
Oren,
"according to law" in the case of Padilla and his Al Qaeda cohorts is the laws of war, not civil law.
1.17.2008 11:34am
Tony Tutins (mail):

"according to law" in the case of Padilla and his Al Qaeda cohorts is the laws of war, not civil law.

This is a textbook example of begging the question. Padilla is a domestic criminal because he was a native-born US citizen, and thus must have been first prosecuted under US domestic law. Besides, Yoo said al-Qaeda were not subject to the laws of war. You pro Yoo-ers shouldn't be able to have it both ways.
1.17.2008 11:53am
Dilan Esper (mail) (www):
So much for my "acontextual reading". Of course he does not address here whether or not Congress can intrude into the question of unlawful enemy belligerents, but that wasn't a question then and it isn't now, since Congress came down squarely on the presidents side in the MCA.

More importantly, Kazinski, in the Quirin draft he doesn't address the issue of when the Administration is LYING about a person's status as an enemy belligerent and ABUSING the enemy combatant designation to lock up people for life without trial (as the Bush Administration routinely does). And his Korematsu dissent suggests he would have NO problem with the courts intervening in that situation.
1.17.2008 12:14pm
Kazinski:
Tony,
"Padilla is a domestic criminal because he was a native-born US citizen..."

I'm not begging any question, the Supreme Court was unanimus in Quiren that American citizenship was irrelevent in a case where a citizen was acting under the direction and in conjunction with a foreign power. What made Timothy McVeigh a criminal and Jose Padilla an enemy combatant was the fact McVeigh acted alone (or with other individual conspiritors), Padilla acted in concert with an organization with which America is at war. It is a pretty easy distinction to make.

Yoo didn't say Al Qaeda wasn't subject to the laws of war, he said they weren't subject to the Geneva convention protections for enemy combatants. You are confusing the Geneva conventions for the entire body of the laws of war.
1.17.2008 12:15pm
Dilan Esper (mail) (www):
Also Kazinski, you obviously didn't know the loaded weapon quote, given your first post. And that quote comes from one of Jackson's 2 most famous opinions on the bench.

Don't you think you should have read all of Jackson's opinions regarding military detention before you opined about how he would decide such cases?
1.17.2008 12:15pm
Bart (mail):
Anderson (mail):


Here btw is a suddenly-discovered legal argument, worth its weight in electrons:

(1) The Torture Act defines torture more narrowly than does the UN Convention.

(2) The War Crimes Act, however, criminalizes grave breaches of Geneva Conventions I-IV.

(3) GC IV defines grave breaches at Art. 147 to include "those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment ...."

So: what is "torture" under GC IV, and is it as narrow as the Torture Act, or is it broader? Recall that the WCA has a narrower scope of application (persons protected by the Convention), so there's no logical conflict in its having a broader definition.

See the Commentary on Art. 147:

' Torture. ' -- The word torture has different acceptations. It is used sometimes even in the sense of purely moral suffering, but in view of the other expressions which follow (i.e. inhuman treatment including biological experiments and suffering, etc.) it seems that it must be given here its, so to speak, legal meaning -- i.e., the infliction of suffering on a person to obtain from that person, or from another person, confessions or information. Looked at from this angle, torture is a concept which in general is not dealt with as such by national penal codes. It is more than a mere assault on the physical or moral integrity of a person. What is important is not so much the pain itself as the purpose behind its infliction. This, therefore, is a point which will require additional clauses in most national legislations; fortunately, judicial torture has disappeared from all civilized penal systems.

' Inhuman treatment. ' -- This idea is rather difficult to define. In general, the Convention provides, in Article 27 , that protected persons must always be treated with humanity. The sort of treatment covered by this Article, therefore, would be one which ceased to be humane. It could not mean, it seems, solely treatment constituting an attack on physical integrity or health; the aim of the Convention is certainly to grant civilians in enemy hands a protection which will preserve their human dignity and prevent them being brought down to the level of animals. That leads to the conclusion that by "inhuman treatment" the Convention does not mean only physical injury or injury to health. Certain measures, for example, which might cut the civilian internees off completely from the outside world and in particular from their families, or which caused grave injury to their human dignity, could conceivably be considered as inhuman treatment.


The MCA adopted our statutory and treaty definition of torture for the purposes of applying the Geneva Conventions to our citizens.

As I have posted before, the statutory definition of torture is too vague to criminally enforce because it is impossible to objectively define severe pain and suffering.

However, the GC commentary on the definitions of torture and inhuman treatment are so indefinite as to make our subjective statutory definition look like the epitome of objectiveness. For example, how the hell do you objectively define "moral integrity?"

Courts will sometimes allow subjective elements of criminal statutes to survive vagueness challenges on the ground that the element is within the common experiences of the jury - basically a "I can't define it, but I know it when I see it" argument. However, torture in particular and the physical and mental trials of normal warfare in general are beyond the experience of nearly all civilian jurors.

How is an average civilian supposed to distinguish between the normal pain of war (which includes such things as standing and marching for long periods of time until your feet are swollen and bloody, enduring extremes of heat and cold, enduring stress positions for hours on end, irregular eating patterns and sleep deprivation) and the extreme pain of torture? Most civilians I have encountered on blawgs without any military experience often think that what soldiers endure as a matter of course is "torture." Consequently, subjective terms like "torture" are too vague to allow civilians to apply in criminal prosecutions of war fighters because the term has no objective meaning and the reality of true torture as opposed to everyday war is far outside the normal life experiences of civilians.

Therefore, if you want to criminalize certain interrogation techniques as torture, you need to define those techniques. The GC is a subjective exercise in counting proverbial angels on a pinhead.
1.17.2008 1:09pm
Kazinski:
Dilan,
Any honest reading of Jackson in Quiren, Korematsu, and Youngstown would see the recurring theme of deference to the executive in national security matters.

In Youngstown:

I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society.

In Korematsu (even when he thought Roosevelt was wrong):

I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task.


In Quiren (where he was willing to go further than the rest of the court in defering to military justice):

...we would do well to refuse to meddle with military measures dealing with captured unlawful enemy belligerents.
1.17.2008 1:21pm
Tony Tutins (mail):

American citizenship was irrelevent in a case where a citizen was acting under the direction and in conjunction with a foreign power.

Fine. Which finder of fact made the determination that Padilla was acting under the direction and in conjunction with a foreign power? This is a threshold issue in determining which laws apply.

Yoo didn't say Al Qaeda wasn't subject to the laws of war, he said they weren't subject to the Geneva convention protections for enemy combatants. You are confusing the Geneva conventions for the entire body of the laws of war.

I was taught that the whole included the parts that make up the whole. Further, "enemy combatants" is a term made-up by the W. administration, without meaning in international law.
1.17.2008 1:53pm
Kazinski:
Tony,
Under SC precedent (Hamdi and Quiren) and the MCA, that finder of fact is a military commission. Which puts the judicial, legislative and executive branches all in agreement, at least for right now.

Enemy Combatants isn't a new concept, the term "Enemy belligerents" was used previously. Belligerents is just an old-fashioned usage. You are just grasping at straws.
1.17.2008 2:18pm
Don de Drain:
Kazinski--

Are you saying that, in the case of U.S. Citizen, all it takes is a ruling of a military commission (re their status as an enemy belligerent) to permanently deprive him/her of their rights as a US citizen ? Given the statements made by the high level JAG attorney who recently went public with his concerns about the hearing procedures used by the military for determining the status of Guantanamo detainees, I think all U.S. citizens have reason to be concerned with such a state of the law, notwithstanding the likelihood that many/most of the members of our military would react the same way as the high level JAG attorney reacted to efforts to politicize the military commissions process.
1.17.2008 3:33pm
Tony Tutins (mail):
Kazinski: under Quirin, to be an enemy belligerant, one has to be associated with an enemy nation. Which enemy nation was Padilla associated with?
1.17.2008 3:49pm
ejo:
wow, you are not concerned about terrorists, a non-hypothetical danger given their goals and past murders. that is strictly for bedwetters. however, I am supposed to be somehow fearful of hearings being done, with more protections than have ever been given to similar captives in the past, because they are coming for me next? but you're the rational one and we are the bedwetters?
1.17.2008 3:53pm
Kazinski:
Don,
In a word, yes. See this for a summary that is hardly sympathetic to the Adminstration but appears to be accurate. Note that Congress could have set up different procedures under the MCA for citizens but chose not to. Nor has the Supreme Court, to date, required a separate procedure for citizens.

As a practical matter why should it matter if Padilla was an American Citizen when he joined Al Qaeda and went to war against the US? What matters is that he did go to war against us, and should reap what he sowed.

Take a different example, say John Walker Lindh was a Taliban soldier, rather than Al Qaeda, and he was captured fighting US troops. As a soldier of a de-facto government he would be a legal enemy combatant, subject to being held as a POW until hostilities were over. He doesn't get a trial because he hasn't committed any crime (lets ignore the neutrality act).

In Padilla's case he infiltrated the US in order to commit acts of terrorism as an agent of Al Qaeda, that not only makes him a enemy combatant, but an illegal enemy combatant because he violated the laws of war. The Government chose to try him in civilian criminal court, but by statute and precedent the adminstration was entitled to use military commissions to determine his status, judge him, and execute the sentence.

I realize there are those in JAG, the courts, congress, etc. that do not like the process, but I think politicize is the wrong word. Can you point to an instance of the adminstration or the military using the process against political opponents?
1.17.2008 4:59pm
Dilan Esper (mail) (www):
In a word, yes. See this for a summary that is hardly sympathetic to the Adminstration but appears to be accurate. Note that Congress could have set up different procedures under the MCA for citizens but chose not to. Nor has the Supreme Court, to date, required a separate procedure for citizens.

Wait a couple of months, Kazinski. The justices of the Supreme Court are about to set aside a lot of the conservative talking points and recognize a constitutional right to court review. (And by the way, as to citizens, they already recognized one in Hamdi v. Rumsfeld.)

And I would suggest that the reason this is going to happen is because the Bush Administration hasn't exactly deployed its claimed powers with necessary care and caution. They have clearly imprisoned people who are not enemy belligerents, and they clearly have no criteria for what would constitute a "cessation of hostilities", which means they are essentially claiming the power to impose life sentences.

Conservatives who don't like the idea of judicial review of these sorts of determinations have only themselves to blame, for blindly supporting a President who was clearly abusing his powers.
1.17.2008 5:53pm
Don de Drain:

Kazinski--

A fair question. And the answer is "no", I can't, such as your question is framed. But, can you tell me that something along those lines has never been discussed or contemplated by anyone in the current administration?

In light of what this administration did/ attempted to do with the US Attorney's Offices and the USDOJ, can you blame people for being concerned about what it might attempt elsewhere? Bush &Co. have attempted to politicize all sorts of things, including criminal prosecutions. Per the JAG attorney, the administration has been trying to manage the tribunal process for its own political advantages, even though such manipulation does not involve siccing the military tribunals on political enemies. The "plea bargain" with detainee sent to Australia (Hicks?) is a good example of that manipulation.

In light of what Bush has done/attempted, and what others who follow him may attempt, I think more protection than a military tribunal for US citizens is prudent.

And for those who comment that a concern about proper "process" for the government to deprive its citizens of liberty (and possibly life) is somehow traitorous or "pro- bad guy", or that such concern in any way indicates a lack of concern for the past victims and potential victims of the "bad guys," I say this: The mere existence of people with your an additude is one of the best possible arguments there is for ensuring that are sufficient limitations on the government's ability to deprive its citizens of liberty and life, just in case people with your attitude are ever put in charge of running the show.
1.17.2008 7:48pm
allwrits (mail):
Yoo counsels how to commit crimes against humanity and he kvetches because he gets sued? Thats the definition of balls.
1.17.2008 8:45pm
Anderson (mail):
Thats the definition of balls

I think Yoo is actually better described as a closely-related body part.

Bart, re: the MCA, I am not prepared to say I've mastered its devious ways, but I was struck by one thing: the portion on the War Crimes Act seemed to be all about limiting liability for violations of GC III, without touching the fact that a "grave breach" of *any* part of the GC is a crime under the WCA. As my quotation showed, torture is a grave breach under GC IV. And however vague you may affect to find that, I have no doubt whatsoever that waterboarding would qualify.
1.17.2008 9:20pm
Kazinski:
Don,
Yes, I can say unreservedly that I don't think anyone in this administration has contemplated trying to use any extra-legal or military justice means to silence, arrest or intimidate political opposition. I think some in the administration would like to indict the NY Times for breaching classified information, but that is civil law. I'm not saying that they aren't overzealous at times, and I'm not saying they haven't used the war on terror against their opponents politically at times, but I do think all of the intended targets of rendition, interrogation and incarceration are actual enemies of the United States, intent on doing us violence.

The paranoia of left is sometimes just stunning. It makes them feel important if they imagine themselves persecuted and just one false step from the gulag.

I didn't understand them releasing Hicks either, he should still be in Gitmo, he was an admitted member of Al Qaeda both pre and post 9/11. I think Bush let him go because he thought it might help Howard before the elections last fall in Australia, it didn't.
1.17.2008 11:00pm
Anderson (mail):
Good heavens, Kazinski, why would the administration bother trying to silence the political opposition, feckless and fruitless as that opposition is?
1.18.2008 12:14am
Kazinski:
My point exactly Anderson, its obvious the Administration hasn't tried to silence anyone; their opponents are shrieking loudly from ever street corner, editorial page, government subsidized public affairs program, and Sunday morning talking heads slot, all to no effect. But both sides have scrupulously kept it inside the normal give and take of the political arena without histrionics or bombast. In fact I'm just beaming with pride after the compliment Don payed me above:

The mere existence of people with your an [sic, I think he meant "yourn"] additude is one of the best possible arguments there is for ensuring that are sufficient limitations on the government's ability to deprive its citizens of liberty and life, just in case people with your attitude are ever put in charge of running the show.


Don,
If I ever start a blog, that goes on my banner.
1.18.2008 2:44am
Don de Drain:
Kazinski-

I think the Pollyanna-ish attitude of many on the right is stunning. Judge Luttig learned his lesson. So did Don Siegelman (sp??). And so did a few US Attorneys.

Fortunately, the vast majority of the people in the government and the military are basically moral people with integrity, whether I agree with their politics or not. But there are people out there who, if given the chance, would use any available means, including the military, against their political opponents. After all, they have already used the USDOJ against them.

And, by the way, how paranoid do you think the right will get if Hillary is elected Prez? My own desire to ensure that there are appropriate limitiations on the government's powers to deprive people of their liberty transcends political parties. Power corrupts, regardless of political affiliation.
1.18.2008 3:09am
Kazinski:
Don,
If Hillary gets elected there will be nutcases on the right that will get frothing at the mouth paranoid. That is a given. But it doesn't make the frothing at the mouth paranoid on the left now any less mental.

But once again can you cite any instance where "they have already used the USDOJ against them"? Firing administration political appointees to make room for new administration political appointees doesn't count.
1.18.2008 12:20pm
Montie:

This is the causation problem, and it's been recognized from Day One that this was the biggest hitch in the case. However, that didn't stop us from putting German legal officials in the dock at Nuremberg.


Should we really use Nuremberg as the standard? It was not exactly the finest legal process ever conceived. First, some of the alleged "crimes" were also committed by the Allies. (For example, the U.S. and the U.K. accused German defendants of "illegal" unrestricted submarine warfare despite the fact that they had both adopted this tactic.) Second, the involvment of the Soviet Union in the process was highly problematic as they actively tried to pervert the process in ways too numerous to be contained in a single post. Third, several independent jurists and lawyers (including Supreme Court members) expressed extreme unease with the court.
1.20.2008 1:30am