[Richard Painter, guest-blogging, March 29, 2009 at 4:14pm] Trackbacks
A response on torture and setting the right priorities:

I face the curious accusation that I oppose torture in order to sell copies of my book. At most eight pages (129-134 and 137-141) of the book deal with the torture memos. Nobody should pay $55 (probably the best price for my book on line) in order to hear from me a new and insightful argument against torture. The fact that cruel and degrading treatment of human beings is wrong has already been conclusively established, for example in a best selling book available free of charge in most motel rooms.

I have been asked to provide more specifics to support my argument. There are enough specifics provided in the comments to my posts, including references to crushed testicles and similar inflictions. We should not be talking about this kind of thing in the United States.

From the opposite side, I face criticism for not being enthusiastic about state bar associations sorting through what went wrong. Fact is that, with the notable exception of the District of Columbia bar, state bar associations have said relatively little that is specific and informative about the obligations of government lawyers besides prosecutors. There have been relatively few disciplinary proceedings, apart from those against prosecutors. Ethics of government lawyers is a topic – like the role of corporate lawyers prior to Sarbanes-Oxley – that has suffered from benign neglect. Most authorities on legal opinion writing are oriented toward private clients, and many of these authorities are slanted toward allowing the lawyer too much flexibility in telling the client what the client wants to hear. As I pointed out in an earlier post, malpractice litigation not bar disciplinary proceedings is the mechanism by which sloppy opinion writing for private clients is deterred. It is perhaps unfortunate that we do not have, and may not be able to design, a similar malpractice regime for the government bar.

I said in my book that competence standards in legal opinion writing should be strictly enforced by the states where lawyers are licensed to practice, by the federal government, or by both (page 133). The problem is that these authorities have not, except in the most general language, articulated what those standards are. A lot more attention needs to be paid to defining and enforcing standards in this area.

What is needed is an executive order banning torture and anything that comes close to torture (I believe we now have one, but given the amount of hairsplitting in our conversation, I should reread the President’s order to make sure). We then need an act of Congress signed by the President that says the same thing so the definition of torture will not change every four to eight years. The law should specifically provide that tactics such as waterboarding, sleep deprivation, and humiliation are illegal and criminal. Finally, a mechanism should be set up within the Department of Defense and the CIA to enforce the law. Prisoner abuse, whether in United States custody or in Chicago police stations, has been the subject of a “don’t ask, don’t tell” mentality for too long.

I will not respond to invective against the Right Rev. Gene Robinson, Bishop of New Hampshire. None of that is interesting to most readers here, except perhaps the fact that when people in New Hampshire choose their own clergy, or their own license plates saying “live free or die”, there is bound to be trouble if others do not leave them alone.

The more relevant point on that topic is that many of our political leaders as well as parts of our religious establishment have focused debate in recent years on issues that reflect the wrong priorities. In 2005, in the midst of wars in Afghanistan and Iraq, weeks were spent by officials at the highest levels of all three branches of the federal government debating both sides of a case involving one terminally ill patient in Florida. That case involved important issues, but did they have to be federal issues? Meanwhile, hundreds of thousands of American soldiers are depending on our government to make decisions – ranging from proper interrogation techniques to proper protective gear -- that could determine whether they live or die. Sometimes the federal government should have the good sense to know when it is into enough difficult matters already and should stop getting into more.