THE BOOK--Playing The Percentages In Baseball

I don’t know anything about Bybee, but I have heard John Yoo speak, and this is typical of what I’ve heard:

http://www.salon.com/opinion/blumenthal/2006/01/12/alito_bush/

“If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?”

“No treaty,” replied John Yoo, the former Justice Department official who wrote the crucial memos justifying President Bush’s policies on torture, “war on terror” detainees and domestic surveillance without warrants. Yoo made these assertions at a public debate in December in Chicago, where he also espoused the radical notion of the “unitary executive”—the idea that the president as commander in chief is the sole judge of the law, unbound by hindrances such as the Geneva Conventions, and possesses inherent authority to subordinate independent government agencies to his fiat. This concept is the cornerstone of the Bush legal doctrine.

Here’s the interview with Yoo, which you can hear:

http://rwor.org/a/026/torture-victims-confront-advocate.htm

I read as much as I could (I stopped at page 13).  You guys can just read that page, since it provides a summary.

The thing reads like an “end justifies the means” report.  The “prolonged” reasoning to establish torture is ridiculous.  It would seem to me that pulling someone’s fingernails off is not torture under that reasoning.  You can decide to cut someone open (under anesthesia), and patch him back up, and it’s not torture.  Heck, you can remove his kidneys and appendix and tonsils and it’s not torture.

The summary on page 13 says it all, as far as the incredible bias here.

Indeed, he says, correctly:
“...subjecting a prisoner to mock execution or playing Russian roulette with him would have sufficient immediacy to constitute a threat of imminent death.”

Sounds like waterboarding to me.  If you feel that you are about to drown, and you are held captive, then it goes exactly along the quoted passage.

Bybee should have started that memo with “this is my best shot as to how I can parse all these definitions, but this would never pass O’Connor’s reasonable-man test, and indeed, writing this report is akin to being the defense attorney to a mass murderer: no hope to win, if the other side gets to prove their case”.

Yoo is definitely worse, but the Bybee memo is hardly in the clear.

For a specific case of flawed logic, look at the section on “Severe Pain or Suffering”, starting on page 5. In an attempt to define “severe pain”, he refers to a statute about emergency medical conditions. In that statute, severe pain is listed among the symptoms that could cause a reasonable person to believe “the absence of medical attention to result in - placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of a bodily organ or part”. He uses this statute to suggest that, in order for pain to be considered “severe”, it must rise to the level associated with death or organ failure.

You cannot hand-wave away the context like he does. The medical statute is defining the appearance of a medical emergency condition (imminent death, organ failure, etc). Thus, when it refers to severe pain, it uses it in the context of an emergency medical condition. This does not mean pain is not severe when it does not rise to the level of an emergency medical condition.

MGL:  I haven’t read the memo yet, so won’t comment on it.  But a crucial issue here in forming a judgment about Bybee is whether this reflects his real, honest legal opinion, or whether he said what his bosses wanted to hear.  Reportedly, the Justice Department’s internal review—which had access to emails and earlier drafts that might shed light on that question—reached some very harsh conclusions about both Bybee and Yoo in this regard.

Without that information, I don’t think the memo alone tells you the whole story....

It is not merely the “media” and “politicians” who are vilifying Bybee.  Scores of law professors are, too. 

Most of the articles I’m reading on this subject are quoting law profs who think Bybee’s analysis and interpretation of the law seem designed to fit a conclusion.

The memos that have been in the news this week were only released a week ago, so it is not possible that you “read it ... but not recently.” Click my name for a copy of the one by Bybee, which, unlike the one you referred to, discusses the specific torture techniques used.

In any case, I fail to see the relevance of how smart Bybee is, how nice a guy he comes off as, or whether he lets his political views, whatever they may be, leak into his teaching. What is relevant is that he used his position to give legal cover to Cheney et al. to commit acts that can only be described as war crimes. The fact that he may have done so under the guise of “a typical and straightforward legal opinion with little if any subjectivity” only reinforces the contempt that so many have for his profession.

Apparently reasonable minds can disagree on this.

Guy, I fully admit that it appears that Bybee is guided by what his bosses wanted to hear. But, as I said, to me at least, I still think the memo is reasonable from a legal perspective.

Don’t forget that if you are not unbiased, in that you are one side or another (which, again, Bybee clearly is), you can have a completely different take on a legal matter from someone on the opposite side and both sides can still be “correct” legally speaking.

Look at it this way.  Every case that has ever been argued in front of a judge or jury involves two attorneys (or more of course), both offering completely different and opposing views legally or factually, and it is not a given, by any means, that one side or the other is being dishonest or unethical.

Think about the debate in front of the US Spupreme Court for Roe v. Wade.  While you may vehemently disagree with one side or the other, I don’t think you can suggest that the side you don’t favor should be “impeached” for their interpretation of the C. with respect to abortion.

That is the way I view this memo.  When you, for example, work for a law firm as a junior associate, one of the things you do a lot, is to write memos offering your legal opinion on whatever cases the firm is working on.  While you are supposed to treat both sides objectively and give the other attorneys pros and cons for their side of the case, OF COURSE, you are trying to make a case for their side!  You don’t have to lie or be legally unethical in order to do that.  And you are not supposed to of course.  If you do that, you lose your job or at least your credibility.

Again, that is how I view this memo. If Bybee truly thought that there was no ambiguity and that the interrogation techniques the Bush admin was using or wanted to use were clearly illegal according to some legal proscription, then I think he would have said so.  Again, objectively I see nothing out of line with that memo from a “legal memo” perspective.

The arguments above are legitimate but they are merely the same kinds of arguments that opposing counsel would make in any case.  OF COURSE, if you don’t like “torture” you will think that Bybee’s interpretation of the law is incorrect.  That is not the issue!  You don’t get impeached or should resign because someone does not like your interpretation of a statute that is not clear cut.  There is no arguing that this statute (that he discussed in the memo) is not clear cut.  It can’t be. At one end are interrogation techniques that may be unpleasant but clearly are not torture.  At the other end is clear torture.  Somewhere in the middle there HAS to be a gray area.  AND, reasonable minds may even disagree on the boundaries of the gray area.

The Office of Legal Counsel, which is a part of the Justice Department:
http://www.usdoj.gov/olc/

By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies.

I would expect that authoritative legal advice to mean that it is not there to provide legal cover for whatever the Executive Branch wants to implement.  It does not pass laws.  It doesn’t even enforce laws… the Attorney General does that.

All the OLC is provide authoratative legal advice.  It does not absolve anyone who gets its opinion as if it was acting in concert with the law.

And a defense attorney is there after a crime is committed, not before.  So, if you want to treat Bybee as if he was a defacto defense attorney, it doesn’t apply here.

The OLC is nothing more than law professors who explain the law as best they can, and will tell you how the law applies to whatever it is you are doing, and how it will stand up to the scrutiny of the Supreme Court.

What the OLC did here was so far out of what it was supposed to do, it’s downright puke-worthy.

"While you are supposed to treat both sides objectively and give the other attorneys pros and cons for their side of the case, OF COURSE, you are trying to make a case for their side!”

I appreciate that you are also a lawyer, MGL, but the above, if I am reading you correctly, is counter to everything that was expected of me as an associate in the NY office of Sidley and Austin and is counter to everything expected of me today as a consultant on anti-doping matters.  An associate who writes a memo providing legal advice to a partner or senior associate and who, in that memo, does his best to frame the issues in such a way to “make a case for their side” has done a tremendous disservice to that partner.

Likewise and more-to-point, for example, anti-trust counsel asked to provide a client a memo regarding the possible legal consequences of a proposed course of action will have done that client a tremendous disservice if counsel writes the memo always with an eye to what the client wants to hear.

At a minimum, Yoo and Bybee are guilty of writing memoranda with an eye to what the client (POTUS) wanted to hear rather than an objective analysis of the law.  Personally, I think they were guilty of more than that and in a private civil matter context they committed malpractice.  But your characterizing their memos as “nothing wrong with them” falls far short.  Likely you are letting your personal feelings toward a former professor guide your view on whether an injustice is being committed.

Paul is absolutely right here.

What the OLC should be doing is providing the arguments for BOTH sides.  They should be detailing exactly the issues, and how definitive their opinions are, and how separate those opinions are from facts.  They should be acting as defacto judges, frankly, not as private counsel for King Henry as he tries to find a way to get an annulment from his wife.

How the heck are they supposed to provide authoritative legal advice if they present such one-sided opinions?  Authoritative.  Almost judgement-like.  What kind of a judge would agree with this memo?

The OLC is nothing more than law professors who explain the law as best they can, and will tell you how the law applies to whatever it is you are doing, and how it will stand up to the scrutiny of the Supreme Court.

That is 100% correct and that is exactly what I think they did.

An associate who writes a memo providing legal advice to a partner or senior associate and who, in that memo, does his best to frame the issues in such a way to “make a case for their side” has done a tremendous disservice to that partner.

Yes, of course.  That is why I said that they would lose their job or their credibility.  I should not have said that “they are trying to make a case for their side.” If anything, they should be doing the opposite which is playing devil’s advocate and anticipating and articulating the other side’s argument.  That is what we learned in law school at least.

Of course we are talking about a legal memorandum and not a brief or an argument in court.

Paul did you read the entire memo?  I am truly interested in a lawyer’s opinion.  I really don’t think there is anything in that memo (or I should say the memo in general - as I am sure it is not a perfect memo) that rises to the level of malpractice, dishonesty, misrepresentation of the facts or of the law, or anything close to that.

Yes, it is someone perhaps stretching the boundaries of the law or liberally interpreting a statute in order to suit their bosses’ desires, but that is what lawyers do, especially when they work for the government.  If you impeach Bybee for this, you literally impeach almost any government counsel.  Have you ever seen the arguments made by state and local DA’s and AG’s in legal cases (not criminal prosecutions) involving individual rights and what have you? They are often frightening and atrocious along the same lines that Tango and others think that this legal opinion was atrocious. 

Yes, I am probably a little biased because I knew, liked and respected Bybee, but I honestly think I would have the same opinion if I did not know anything about him at all.  And again, this is coming from someone who things that the Bush policies with regard to harsh interrogations were shameful and deplorable.

I just helped you guys sell another “the book” at a game chat on-line. Just trying to help out the good guys (you) ^^

Yes, it is someone perhaps stretching the boundaries of the law or liberally interpreting a statute in order to suit their bosses’ desires,…

The “boss” of the OLC is the Attorney General, not the president or the white house.

The white house is a(n unpaid) client of the OLC.  But the OLC answers to the AG.

Client: “Listen, I want to torture these people I don’t like.  Can you draft me a memo?”

Lawyer: “Yeah, sure.  I can give you a pro argument on any matter short of murder.”

Client: “Great, will it stand up in court?”

Lawyer: “Only if there is no defense attorney.”

Lawyer’s boss: “Uh, do not advise a client that he may be doing something right, when you know he’ll be found guilty of doing something wrong.”

Lawyer: “You are not my boss.”

Brent: cool, thanks!

MGL,
I have read it.  A few times, actually, mostly to keep myself properly informed when discussing it at the Dorf on Law blog.  I’ll go over it again and extract some of the more problematic areas.

I think, in part, your defense of the memo might be misguided only because of the light in which you are reading it.

“Have you ever seen the arguments made by state and local DA’s and AG’s in legal cases (not criminal prosecutions) involving individual rights and what have you?”

If the memo was not a memo intended to inform the POTUS of the legality of his intended actions, but was instead an after the fact legal defense of those actions, the the arguments presented there in (though I wholly disagree with them) would be sound and legally reasonable.  When DA’s and AG’s represent their clients (a government agent) it is their duty as part of that zealous representation to present the evidence in a light most favorable to their clients and to use all reasonable legal arguments in defense of their client’s actions.  But that is not a fair manner in which to judge this memo. 

It must be judged from the same perspective of a client asking her counsel for advice regarding the legality of a future intended act.  I encourage you to read it again with a particular focus on whether the memorandum even attempts to set forth reasonable argument.  I suggest to you that it does not.  There is no, to borrow a quick and easy law-school construct - “The issue is whether X.  X is Y because.  But see Z, where X is not Y.  etc.” This memorandum is nothing other than a string of conclusory statements with corresponding reference to the source of the statement.  There is no even attempt at analysis.  There is not the slightest suggestion whatever that a dissenting view may exist, much less be supportable by substantial law.  On the very rare occasions such possibilities are acknowledged, they appear in footnotes (refer to fn7 as a good example) and are very weakly presented even in the note.

In short, this memo pretends there is clear, “black letter” law regarding torture.  Can find even one section of the memo where Bybee diligently address all reasonable (or heck, even two reasonable) constructions of the language of a statute in question, presents those arguments, suggests the consequences of each (or both) construction and then provides analysis as to why one construction should be favored over all/the other(s)?  If you can, direct me to it and we should discuss it further.

You know, after reading Paul’s and others’ commentary, I have changed my mind about the memo itself, but not in the least concerning my original point, which is my criticism of the notion that somehow this memo constitutes an impeachable or “resignable” offense.  I still think that is a preposterous position.

Paul, you compare this memo to a typical one written in a law office when they are contemplating taking a case or getting the ball rolling on a case.  This was clearly not intended to be that kind of a memo. It was clearly intended to give the administration (and the agencies that work for them) some “piece of mind.” In that, the OLC did exactly what it was supposed to do.  In this case at least.  I imagine the administration asked something like, “This is what we are doing (interrogation-wise). How much risk is there that we could be legally liable under such-and such statute?” And the answer was, “I don’t think that what you are doing is prosecutable, and here is my legal argument why.  But keep in mind that I don’t know exactly how a court might interpret the statute.  It is obviously not precise.”

The only reason that a lawyer writes an objective memo concerning a case they are working on is not to satisfy some ethical or moral high water mark - it is to suit and serve their law firm - to make sure that they pursue a case that is winnable and if they do, that they do the best job possible in arguing that case.

In this case, the memo was written to assure the admin that the interrogation methods they were using or wanted to use were likely not proscribed by the statute or statutes in question.  Period.  I doubt that they (OLC) were asked to write a brief that gives both sides of the argument or at least they were not prepared to do so, probably in order to preserve their jobs.

So let’s not compare or judge this thing from the perspective of something completely different from what it was.

The discussion has gotten off track.  My intention was not to comment on or debate the merits of the arguments in the memo.  My only question to Paul or anyone else is, “Was the memo even remotely an impeachable offense or something worthy of a resignation, and if so, why the heck would that be?

While all the arguments above are legitimate, they don’t even come close to answering that question.  If your answer is, “Because it was not a very good memo,” or, “It was not written objectively,” or, “It did not present the other side in a legitimate or thorough fashion,” that isn’t even close to rising to the level of impeachment or resignation, in my opinion.

And the answer was, “I don’t think that what you are doing is prosecutable, and here is my legal argument why.  But keep in mind that I don’t know exactly how a court might interpret the statute.  It is obviously not precise.”

No way is that what his answer is.  The answer is more likely: “What you are contemplating as a future crime will be prosecuted if discovered, and your only defense, which is very shaky and will not hold up is the following.”

And like I said, the objective of the OLC, its sole objective, is to provide an authoritative legal opinion.  And such an opinion can only be offered if you present both sides of the argument which you analyze to the fullest, and then present your opinion (along with the strength of that opinion).

***

As for whether its impeachable, well, we’d have to go back to what the law is.  What are the arguments for and against?

Well, firstly, this is not merely a poorly written memo.  Viewed in the best possible light it is utter incompetence.  Viewed in a least favorable light it is willing and knowing support of a criminal enterprise.  I think it was somewhere in between. 

I find it implausible that a learned professor and his entire staff of highly capable attorneys were actually so incompetent as to think the memo written would pass muster.  The two most plausible situations are: 1. Bybee was a Bush “true believer” and his color of the law reflected his desire to justify the actions of the policies of the POTUS, irrespective of any questions a fair and thorough review of the law would provide or 2. Bybee wrote the memo in hopes of pleasing Bush for the purpose of political gain (with obvious success on his part, if this was the case).

Impeachment requires proof of the commission of “high crimes an misdemeanors.” It is very clear that mere incompetence in a prior job does not reach that standard.  Likewise, it is also very clear that willing and knowing participation in a criminal conspiracy to torture does reach that standard.  As to either of the two, I think more plausible, explanations I suggested as likely to be the truth, I am not sure as to #1, but I think #2 probably passes a reasonable construction of that standard.  Further, #2 does not need to be true to start impeachment proceedings.  All that is required is that the accusation be an accusation of high crimes or misdemeanors.  Proving that case up will then be up to the Senate.

wow, good discussion here. 

today’s Washington Post has a piece that suggests Bybee is feeling regret for having written the memo.

"In this case, the memo was written to assure the admin that the interrogation methods they were using or wanted to use were likely not proscribed by the statute or statutes in question.”

MGL:  I think the core of the disagreement here is your assumption that Bybee’ job here is that of an advocate.  If that’s his job, then—arguably—his behavior was reasonable.  But my understanding—which could definitely be wrong—is that in this position at OLC, and in this context, he is NOT supposed to be acting as the president’s or administration’s advocate here.  He’s supposed to determine what is legally correct.  And I believe there are special laws that apply to potential war crimes—which this definitely was—that eliminates the I’m-just-defending-my-client defense here. 

So I think you’re using the wrong standard.  In this situation, he is not an advocate like a criminal defense or civil attorney; he is more like a judge.  Here, his obligation is to the nation, the constitution, and the law—not the president.  A lot of people—including Bybee himself, if WaPo story is correct—think he failed to meet that obligation.

I agree that that was supposed to be his job - that of the OLC - to advise the White House, with objective analysis.  And that that was not done, for obvious reasons. 

And I believe there are special laws that apply to potential war crimes—which this definitely was...

We seem to have gotten - at least with Guy and Tango - from the point of, “He did not provide objective thorough analysis” to, “What the Bush admin did was definitely unlawful.” That is patently false.

The law in question is definitely not clear in that it does not list any particular techniques as allowable or not.  It would be up to a court/judge to determine whether any particular acts met the standard of extreme pain and suffering required by the law to be unlawful.  That, obviously, is a matter of opinion.  If Bybee had said, as Tango and Guy seem to be saying, that, “What you are doing, Mr. POTUS, or are planning to do, is definitely a crime,” I believe he would have been just as guilty of incompetence or dereliction of duty as he is now…

MGL:  I meant it definitely was in the category of “potential war crime,” not that it definitely was a war crime.

That said, I think you’re setting the bar for Bybee too low by saying it’s up to a judge to determine the legality of these actions. According to the Bush administration, the torturees have no right to habeas corpus, and I believe the administration argued no court has jurisdiction to review what they did.  So Bybee and his colleagues were certainly the only ones in a position to stop the torture from happening, and according to the administration’s own legal theory, the only ones in a position to EVER rule on its legality.

There are two issues:  One, if a US court has jurisdiction to prosecute under the federal statute in question, whether the interrogation techniques were likely lawful or not, which is what the memo was about, and two, whether the President, via the War Powers Act, or whatever, can do whatever he wants.  Bybee was merely addressing the US “anti-torture” statute, if in fact, it would be applicable.  His interpretation was that the various interrogation techniques supposedly being used or contemplated did not rise to the level of torture according to the statute.  Let’s not mix up the two issues.  Bybee or anyone else advising the admin was in no position to “stop the torture” because, one, they merely advise the admin as to the legality of their various acts, and two, they deemed it likely that there was “no torture,” as legally defined by this particular statute.

Thank god we were able to send soldiers for a few years for abusing (not torturing) prisoners at Abu Ghraib.

It seems that the position seems to be that if there is no torture, there is no crime.  Well, if something approaches torture, it at least passes through abuse.  And abuse is a crime.  Even american prisoners in american jails are (theoretically anyway) protected from abuse.

Tango/25: I think there’s a big difference between abuse and torture, and the two examples you use are not the same.

Without advocating torture, it’s obvious that the practice (or anything we want to lump into the category of “potentially torture") in this case is with the intent of extracting information. Right or wrong, there is a clear goal. The abuse of prisoners is not meant to further any objective. That abuse inflicted at Abu Ghraib was bullying. It was abusing power just because it could be done. Don’t you think there’s a pretty clear distinction between the two cases that makes it really hard to compare them or line them up on some kind of continuum?

There is no doubt that there was abuse.  And abuse of suspected terrorist detainees during the interrogation process is NOT a crime.  Only torture (it does not matter what you call it) as defined by the applicable law.

Tango, you are talking about two different things.  One is how we treat prisoners, either regular ones in our jails, or suspected terrorist prisoners in jails such as Abu Ghraib.  The other is how harsh we are allowed to be, by law, in interrogating detainees and prisoners in order to extract information from them which presumably might aid us in defending our country or preventing our people from injury or death.  Two completely different things with completely different standards and laws, as well there should be.

And BTW, defining anything on a continuum is ALWAYS going to be problematic and controversial and open to interpretation and opinion.  And some things have to be defined on a continuum.

Intentionally touching someone without their permission is not a crime.  That is easily defined and interpreted.  Touching someone in an offensive manner or with intent to commit bodily harm is battery.  Defining “offensive” is not always easy and reasonable minds can differ as to what is offensive.  As well, individual biases can influence whether one thinks that a certain touching is offensive.  Intentionally touching someone which causes or is intended to cause substantial bodily harm is aggravated battery in some jurisdictions.  Again, not so easy to define “with substantial bodily harm” and reasonable minds can differ on that too…

Right or wrong, there is a clear goal. The abuse of prisoners is not meant to further any objective. That abuse inflicted at Abu Ghraib was bullying. It was abusing power just because it could be done.

According to the defendants at Abu Ghraib, they were told to “soften them up” for interrogation. 

According to the CIA interrogators at Guantanamo, they were told they were given guidelines as to what they can do.

As for as I can see, both had some objective.  The only difference is that the soldiers were mostly knuckleheads who probably let the power get to their heads, while the CIA interrogators were more of the cold, calculating types.

Don’t you think there’s a pretty clear distinction between the two cases that makes it really hard to compare them or line them up on some kind of continuum?

I’m not comparing, but I am putting them on a continuum.

My point is that the comments herein is that a crime only exists if torture took place.  But abuse is a crime, to the degree based on the level of abuse.

Rape, for example, would likely be the most severe level of abuse.  Is this worse than torture, or not?  According to the Bybee memo, rape would not fall under the guidelines of torture.  This does NOT mean that anything short of torture is permissible!  If you go down one-level below torture, you’ll find rape and other horrendous levels of abuse.  Just because Bybee is absolving the president of torture actions does not mean that he’s absolving him of abuse actions.

Are we agreed that there’s at least one statute that prevents the president of raping anyone he wants to, regardless of circumstances?

I’ll also take exception to this characterization at Abu Ghraib:

suspected terrorist prisoners

The purpose of the US invasion was to root out Hussein, because he didn’t comply with the UN resolution. It was NOT to locate terrorists.

Indeed, any citizen of his own country, who is captured by an invading country cannot be accused of terrorism on the invaders if done on their own home soil!  This would be like Mexicans invading USA because they suspect the Americans of supplying arms to the cartel, capturing Texas army soldiers on US soil, and declaring those soldiers terrorists for fighting back the Mexicans with grenades and bombs on US soil.

Are we agreed that there’s at least one statute that prevents the president of raping anyone he wants to, regardless of circumstances?

No.  Please supply us with the statute that makes that a crime.  Clearly the “normal” statutes which make it a crime to even slap someone do not apply to detainees who are being interrogated.

Tango, you keep talking about what YOU think is right or wrong in terms of how we treat or interrogate detainees. I am only talking about what is or is not proscribed and allowed by law, and the fact that there is no clear-cut (and there CAN’T be) definition or distinction in those laws, as to what is permissible.

I’m not a lawyer.  I presumed this would be the case.  If Paul or whoever else is knee-deep in this, I’d like to hear what prevents the president from raping anyone he wants, regardless of circumstances.

Tango,
I assume when you say “raping anyone he wants” you are suggesting not merely detainees, but ordinary civilians (American or otherwise) in an American jurisdiction.  The answer to that, and this would apply to ordinary citizens as well as to detainees of any facility, can be found in the general criminal laws of the jurisdiction in question.  The crime of rape will be defined by statute (both federal and State) and is highly unlikely in any jurisdiction to provide any provision that would exclude the POTUS or prisoners/detainees from its reach.

I assume he means detainees in the course of an interrogation.  In that case, I don’t see any reason why that would be prohibited under the statute in question unless it rises to the level of “torture” according to the statute. Clearly the normal criminal statutes don’t apply in the case of a detainee being interrogated.  In actuality, I doubt that rape would be allowed and there might be some other statute or treaty that prohibits that kind of abuse.  In fact, there probably is.  Keep in mind that the Bybee memo only addressed Title 18, section 2340 and 2340A of the US Code, and not some other applicable international treaty like the Geneva Convention, which may or may not apply to these kinds of detainees.

I want to point out something else in the memo for those of you who did not read it or who read it but do not remember exactly what it said:

In Part IV we discuss whether Section 2340 may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President’s Commander-in-Chief powers. We find that in the circumstances of the current war against Al-Queda and its allies, prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war.  In Part IV, we discuss defenses to an allegation an interrogation method might violate the statute.  We conclude that, under the current circumstance, necessity or self-defense may justify interrogation methods that might violate Section 2340A.

So, basically, the memo also says that even IF these interrogation methods should violate the statute in question, the statute may not apply anyway.  Sort of an “out clause.” Before some of you jump down that argument’s throat, keep in mind that one, he says “may” several time, and two, it is a complicated legal issue (whether or not the statute would even apply in these circumstances) and I can almost guarantee that the US Supreme Court would be split on an issue like that, so it is definitely NOT clear-cut one way or another.

The more I re-read this memo, while it is definitely not objective and definitely slanted towards the administration wants, it is wholly reasonable and I will stick to and repeat my original proposition that whether you like it or not, the idea that the memo is an impeachable offense is completely preposterous…

Paul, right, anyone he wants.

If we consider to continuums, one of the x-scale and another on the y-scale.

x: from perfectly innocent people to suspected criminals to guilty terrorists

y: no abuse to abuse to rape to torture

The Bybee memo addresses the square where suspected terrorists and torture intersects.  And for that square, he says that the techniques being discussed do not amount to torture.

But, do the techniques discussed amount to rape?  To abuse?  To something other than a walk in the park?

And, does it matter if those techniques apply to suspected criminals (but not terrorists)?

As it stands, the discussion of torture or no-torture is really irrelevant, because that only established the degree of crime: how bad a crime was it. 

Anything that crosses the line of abuse on the y-axis is automatically a crime, regardless of where you are on the x-axis.Is this statement true?

Is this statement true?

Not 100% sure what you are asking, but the answer is no.  The regular criminal statutes do not apply for detainees.  At least with regard to interrogation tactics.  I’m sure some “regular” statutes apply.  You can’t just beat the crap out of a detainee for no reason.  Again, the memo only addresses harsh interrogation techniques with regard to that particular “anti-torture” federal statute.  Presumably no other American (federal or state) statute would apply to government detainees being interrogated, although Bybee does address the possibility of a civil action (lawsuit) by a detainee.

Yes, it matters whether you are talking about suspected criminals or suspected terrorists.  You cannot harm a suspected criminal in any way shape or form.  Not to mention the fact that once a person invokes their Miranda right to remain silent while in custody, you are not supposed to even question anyone anymore, or at least if you do, any responses (theoretically) can’t be used in prosecuting that person or even furthering your investigation.

Are we really debating whether rape causes “severe pain or suffering, whether physical or mental”?

Can someone find a rape victim who doesn’t think they experienced severe pain or suffering?

"Presumably no other American (federal or state) statute would apply to government detainees being interrogated, although Bybee does address the possibility of a civil action (lawsuit) by a detainee.”

I am not sure why you think this is true.  There is not, to my knowledge, a generic federal statute that declares that “the general laws of the United States and of any State are not applicable in the case of a detainee undergoing interrogation.” That said, the general laws of the United States or of any State could never apply at the same time as 18USC2340, since by it’s provisions it applies only when an act in question takes place outside the United States.  But your general proposition, that laws “don’t apply” during the interrogation of detainees is simply not correct.  They all apply and if a government wished to do something counter to those laws to a detainee under interrogation it would require a specific enabling statute.  that is the reason there was debate (regarding a the time hebeus corpus) as to whether Gitmo was “under the control” of the United States.  That is also why detainees being held for purported interrogation were always held outside the territory of the United States (because, not being designated “prisoner’s of war” (an inconvenient designation for an administration desiring to use “special interrogation techniques") meant they would be subject to all of the laws regarding confinement in the United States) if held in the United States all of the constitutional.

None of the things being done to these detainees would have been legal inside the United States.  For most of the prisoners, even there very confinement would have been illegal in the United States.  That is why Bush didn’t keep them here; that is why almost all of them are now being processed for release; and that is why Bybee wrote his white-wash memo of a statue defining the illegality of the torture of detainees outside the United States.

My post #37 makes me long for an edit button.  I should not be typing before coffee.  The short version of the above, in a more readable format is:

1. All laws of a jurisdiction apply, even during the interrogation of a detainee, unless there is a specific statute saying they don’t.

2. 18 USC 2340 (the statute being “interpreted” by Bybee in his sham of a memo) would never intersect with the laws of the United States or of any State, since by it’s terms it only applies “outside of the United States.” It’s very purpose is being turned on its head here (and in many other places).  18 USC 2340 is not some generic law that tells you what you can and cannot do to a detainee.  It is a criminal statute that applies when other U.S. laws do not apply (because of lack of jurisdiction) and is intended to prevent the very thing that Bybee suggests is ok for bush to do - namely detain people outside of the jurisdiction of the United States and torture them.

3. To be very clear - none of the things done to the detainees would have been legal *inside* the United States.  For the most part, the very detention of these people inside the United States would have been illegal.  The only reason we are having this conversation is because Bush set up extra-jurisdictional torture camps and got Bybee to draft a white-wash memo telling him everything was ok.

Pronk, if you read the Bybee memo, you can definitely interpret rape as not being torture.

Paul, cool.  (I understood the pre-coffee post as well!)

Ok, so the issue here is only for those persons detained outside the USA.  Limited to those persons, I will presume there is no statute that prevents the president from raping any of those detained persons outside the USA?  According to Bybee’s interpretation anyway?

(Notwithstanding the fact that the US personnel doing the interrogations would still be subject to the laws of those countries they happen to be doing this.)

I understand that the statute is somewhat ambiguous. It doesn’t list 100 specific acts that are “torture” and 100 specific acts that aren’t. So, there’s a fuzzy line somewhere on the continuum of pain-inducing acts. Certainly, some acts would fall in a category where there’s a good faith disagreement over the definition of “severe pain or suffering.” But, that doesn’t mean that there’s a good faith disagreement over every possible act.

Laws are generally written with words, not numbers. You’re never going to have the same certainty over what “severe” means as you would with something that can be mathematically computed. But, words of the English language do have meaning.

It’s like the famous Justice Stewart quote about pornography - “I know it when I see it.” We know what pornography is and we know what torture is. Just because there’s some area of disagreement over the categorization doesn’t mean that any categorization is reasonable.

I think a survey of 1000 people who had been raped would give a pretty clear signal as to whether they considered it to result in “severe pain or suffering.” And I think a survey of people who had been waterboarded would produce similar results.

"I will presume there is no statute that prevents the president from raping any of those detained persons outside the USA?”

There are a few, but they rely on designation.  Among the various crimes against our sensibility over the last several decades (it did not start with Bush II and won’t likely end in our lifetime) is the concept of “War on X” (Drugs, Terror, etc.).  Bybee even refers to this in his memo in a manner that completes the bastardization of this language.  He actually suggests that 18 USC 2340 might be an unconstitutional restraint on the POTUS’s ability to fight a war - implying we were, in fact, actually at war.  The thing is, we weren’t.  Only congress can declare war, and the cowards wouldn’t even do that when we, with their (including almost all of the Democrats - including our current SoS) permission, invaded Iraq.  If we were actually at war with another nation state, various international treaties would apply (in addition to 18 USC 2340), all of which, being ratified by congress ultimately take the form of U.S. law.  The treaty known as the Geneva Convention, as codified in the United States, places considerable limitations on what can be done with those persons designated “prisoners of war.” The POTUS could not, among many other things, rape them.

This situation is ultimately a travesty of accountability and a good representation of what happens when States engage in essentially illegal activities.  The reason all of this was accomplished by the Bush Administration is because the U.S. was very much acting outside of the legally defined area in which we have historically acted.

You can’t arrest someone inside the United States without probable cause and you can’t detain them for very long (it varies by jurisdiction) with charging them with a crime and providing them all the rights the accrue thereto.

There are a whole host of things you cannot do to a “prisoner of war.” You can detain them until the end of the war.  If you choose to do so, you must treat them humanely and they are afforded a host of rights under international law.

If, however, you just use your military in a manner contrary to international law and against persons, rather than nations, you will end up with what we have here.  Persons captured by our military who are not designated “prisoners of war” held indefinitely (out-side of the United States, but under the control of the United States) substantially without any rights.

"I think a survey of 1000 people who had been raped would give a pretty clear signal as to whether they considered it to result in “severe pain or suffering.” And I think a survey of people who had been waterboarded would produce similar results. “

To the contrary, it is very unlikely that such a survey would be helpful.  “Severe pain or suffering” is a legal term of art in the context of the statute.  It is unlikely that the common understanding of that phrase by victims of crimes would be instructive.

Right, as I read the Bybee memo, it seems very clear to me that rape in no way approaches the definition of torture.

Indeed, having someone’s tonsils removed, one of his kidneys, and other forms of unnecessary surgery would not be torture under the Bybee guidelines, because it fails to satisfy all his conditions for what constitutes torture.

Yes, the reason “normal” US laws do not apply is largely due to the jurisdictional issues.  However, there are ways that crimes committed outside of the US can be prosecuted.  For one thing, if any part of a crime, including the planning, etc., was done inside the US, it can be prosecuted inside the US.  Two, we have various federal laws that apply to crimes committed by US citizens or on US citizens outside of the US, including those in the military code.  So I don’t think the only reason that regular criminal statutes do not apply is because these interrogations occur outside of the US, although as Paul says, the US code in question specifically refers to acts committed outside of the US.

Paul, while you are clearly quite knowledgeable in law, you have your mind made up that this memo was a sham and you are being wholly unreasonable, especially for a lawyer, in analyzing it from a legal perspective.  You would have written exactly the same thing if you worked for the White House.  Obviously I don’t know you, and my guess is that you would not have worked for Bush, but I say that because any lawyer would have done the same thing.  It is a reasonable memo given the circumstances.

I am a little shocked that reasonable, intelligent people, including a very knowledgeable lawyer, keep coming back to the, “I don’t like what they did, therefore Bybee’s legal interpretation must be wrong” argument.

And with all due respect to Tango and others, I don’t think anyone without some legal training can have a credible opinion on the memo…

Well, it seems pretty clear to me that rape would constitute torture under Bybee’s interpretation of s 2340, given what we know of the “prolonged mental harm” suffered by rape victims.  Even if a rape victim isn’t in fear of severe physcial pain or suffering (subsection (A)) or imminent death (subsection (C)), it would still be a procedure calculated to disrupt profound the senses or the personality (subsection (B)).

Anyways, I think we should realize that Bybee had a difficult task here--basically it boils down to “how do you define ‘severe’?” That’s it.  Infliction of non-severe pain or suffering is not prohibited.  He’s not addressing whether any specific procedure is moral or useful or a good idea; in the original memo linked by MGL he’s not even addressing whether specific procedures are prohibited by s 2340.

So, how do you define “severe physical or mental pain or suffering”?  If it really is a term of art, then we should see how it is used in other legal contexts.  I can see how citing a statute relating to emergency procedures may be inappropriate, but what else is out there?nterpretations.

Hiz/46: I don’t want to bother re-reading the memo, but didn’t Bybee say that all the tests must be met in order for torture to exist?  I remember reading the memo and thinking “well, some unnecessary surgeries and rape don’t count as torture according to this”.

MGL: I disagree that you need legal training to have a credible opinion.  After all, legal training is what allowed Bybee and John Yoo to create such memos in the first place.  Your argument is similar to what pro baseball people say about saberists.

If the lawyers would actually stand up and denounce their bretheren, we wouldn’t need amateurs like me pointing out the b.s. of the memos in the first place.

***

And in no way would others have written what Bybee did.  First, he didn’t work for the White House, but the OLC, a division of the Justice Department. 

Secondly, there were brave souls at the OLC that condemned their practices.  I’ve heard several in the OLC (or actually formerly of the OLC) speak out over the last few years as to what the OLC did.

There are some people who would have written what Bybee and Yoo wrote.  There are others who would not.

I think Hizouse is the only one being reasonable here.  Let’s get one thing clear, as Hizouse points out. 2340 makes it perfectly clear that really bad things are allowable in these interrogations (outside of the US).  If you don’t like that law, that is a different discussion.

Paul, what would you have concluded if you had to write a memo like that?  Punching someone in the stomach is probably OK, maybe even punching them really hard is OK, but punching them really, really, really hard is not OK?  I mean, come on.  Bybee had an impossible task in trying to interpret a vague law which has never been prosecuted before.  He clearly was slanted and was told, either explicitly or implicitly to, “Find a way to make sure that what we are doing is lawful.”

Where is the “sham?” Again, you may disagree with his interpretation, but how does that make it a “sham?” As I said a few posts ago above, by that standard half of the briefs, prosecutions, and legal defenses in lawsuits by DA’s and AG’s are “shams”.

And yes, rape may have been allowed under this statute, depending on your interpretation.  While I think that that would “shock the conscious” enough such that it likely would NOT be allowable, let’s not get all bent out of shape about that. It is already a given that “really bad things” are going to be allowed, according to the statute.  Personally I would rather be raped than have the shit beat out of me.  I think.

There are some people who would have written what Bybee and Yoo wrote.  There are others who would not.

I agree with that.  In fact, just that fact alone (that there are plenty of lawyers who would have done either one) suggests that this is not even close to an impeachable offense. An impeachable offense, almost by definition, means that there is almost no one who would do the same thing in good faith.

Tango, what branch of government do you think the Justice Department is part of?  Who do you think heads the Executive Branch?  IOW, who do you think is the AG’s boss (Bybee’s boss was the AG)?

"You would have written exactly the same thing if you worked for the White House.  Obviously I don’t know you, and my guess is that you would not have worked for Bush, but I say that because any lawyer would have done the same thing.  It is a reasonable memo given the circumstances.”

1. I have worked for people with whom I have disagreed.  I would have gladly served in the DoJ during Bush’s (or any other POTUS) administration.

2. No, I would not have signed my name to that memo.  I might (probably not, but it’s possible) have signed my name to a memo that came to the same conclusions.  Again, this seems unlikely, but I won’t eliminate it as a possibility.  But I would most certainly not have signed my name to that memo.

3. If (and there is no way to know for sure this is what happened) Bush/AJ came to me and said “I want you to draft a memo that favorably reviews my proposed extra-territorial interrogation techniques under 18 USC 2340.  The memo needs to find that my intentions are lawful.” I would not have done so.  If it meant resigning, then so be it.  I have left jobs before because I felt it was the right thing to do.  This would be no different.

4. It is not a “reasonable memo.” But that is not because of its conclusions, it is because of its methodology.  While I find it unlikely that its conclusions represent the best interpretation of the law, I hold it out as possible that the ultimate interpretations may be reasonable (with the exception of the conclusion that the statute might be unconstitutional as applied to the POTUS because it interferes with the executives ability to conduct a war - that conclusion, on these facts, is clearly wrong).  It none-the-less is not a “reasonable memo” because to be a “reasonable memo” it must actually analyze the law.  To do that means posing a question to an issue and addressing all reasonably strong arguments then reaching a conclusion and supporting that conclusion with reasoning and citation.  This “memo” is a sham, as I stated in my very first post on this matter, because it makes no attempt at legal analysis.  It starts with its conclusion in mind and sets forth only those arguments and references which support that conclusion.

As I also said before, impeachment (though not reviewable under the political question and separation of powers doctrines) does require far more than a showing that someone was incompetent at a prior job.  So, I’ll ultimately end up agreeing with you if the only thing that can be proved is that Bybee was a Bush zealot that did a crappy job when asked to provide an analysis of 18 USC 2340, then yes, he should not be convicted in an impeachment trial.  I don’t agree with you that legitimate grounds for impeachment are not cognizable.

"He clearly was slanted and was told, either explicitly or implicitly to, “Find a way to make sure that what we are doing is lawful.” “

MGL - if you actually believe this - meaning not that you believe it is possible (I do as well) but believe that this is what actually happened, then I do not see how you can find grounds for impeachment to be absurd.  What you have stated is very close to being a participant in a conspiracy to commit a crime.  The crime, in this case, being to torture detainees held under questionable legality in extra-territorial detention centers.

If you believe what you said above and if you concede it is a possible, reasonable conclusion that the Bush policy was illegal, then I cannot understand how you could find even bringing an impeachment hearing against Bybee to be preposterous.

Guy’s post #5 made a very good point, which no one seems to be addressing. Bringing impeachment or criminal charges against Bybee needs to involve not just this memo, but the rest of the info the DOJ gathered about all of the machinations that went into the production of this memo, including most importantly whether or not Bybee’s legal opinion was compromised by his involvement in what basically amounts to a conspiracy to conduct torture and obstruct justice. As Guy noted, the DOJ’s investigation apparently uncovered some serious concerns that this is exactly what was going on.

Focusing on the memo is kind of misleading. Whether or not it’s terrible (which it is) is really only a question of incompetence. The real crime is it’s part in the executive branch’s attempt to legitimate the torture it was authorizing, which amounts, again, to conspiracy.

Obviously, to know the truth about any of this, we’d need to bring charges (which there’s certainly enough evidence to warrant) and subpeonas against not only Bybee and Yoo, but also GWB, Cheney, Rumsfeld, etc. I guess you could go the route of a truth-finding commission with subpeona power, too, though the seriousness of the crime and its evidence really warrants criminal charges. Until a public investigation along those lines occurs, all any of us can do is speculate about whether Bybee and Yoo committed crimes or impeachable offenses or what have you.

#52 - I am fairly certain I have addressed that every time I discussed impeachment on this thread.  But, yes, as to impeachment that is the issue - the extent to which Bybee may have participated in a conspiracy to commit a crime.  The memo is part of that, but cannot stand on its own.

Just because the Justice Department is under the White House doesn’t mean that the OLC works for the White House.  The OLC reports to the AG, and are charged to provide authoritative legal advice to the White House. 

In fact, just that fact alone (that there are plenty of lawyers who would have done either one) suggests that this is not even close to an impeachable offense.

All this fact shows is that there’s a huge segment of lawyers that don’t take their jobs seriously enough.  Above all else, they have sworn to uphold the law, not to circumvent it.

Sorry, Paul, if I was missing part of your assessment. It just seemed to me that, in general, arguments about the memo itself were obscuring the larger and more important question, which is whether the memo was written as part of a conspiracy, tacit on Bybee’s part or not, to torture.

That said, I don’t see how anyone can want less than to see Bybee, Yoo, Bush, etc. etc. subpeonaed in criminal proceedings. We don’t have enough information to say that Bybee is guilty of impeachable offenses (whether he’s corrupt or just incompetent), sure, but there’s certainly enough evidence to press criminal charges against the former administration and subpeona Bybee as part of the investigation.

I just don’t see it that way.  I really don’t.  I guess reasonable minds can disagree on this.  We are certainly not the only ones who disagree.

MGL:  it occurs to me that your surprise at the uproar over Bybee might mean that you haven’t seen the other Aug. 1 2002 memo, in which he approves the torture—sorry, enhanced interrogation—of Zubaydah.  You can find it here: http://luxmedia.vo.llnwd.net/o10/clients/aclu/olc_08012002_bybee.pdf.  I believe it is this memo that has produced much of the recent outrage, although the memo you link to has also been widely criticized.  Many of the factual claims made in this memo apparently are untrue—in terms of what the detainee knew, and how much he had divulged under convential interrogation— though we of course don’t know what Bybee himself knew at the time.

As for the other memo, you feel that it provides a legal opinion that a number of fair-minded attorneys might deliver (though surely not the only plausible opinion), and so it cannot possibly be a crime.  But the memo was later strongly repudiated by the Bush administration itself, by attorneys not known to have a narrow view of executive power nor a “soft on terrorism” outlook.  See here:  http://www.usdoj.gov/opa/documents/memostatusolcopinions01152009.pdf.  In fact, I’m not sure anyone from the Bush administration, except Yoo (the co-author) currently stands behind Bybee’s memo.  Can you cite any prominent legal scholars, who aren’t obvious GOP partisans, who defend the legal reasoning of the Bybee memo?  (Not a rhetorical question—there may be, I don’t know.)

Also, John Dean has an interesting set of criticisms of the Bybee memo here you might want to read:  http://writ.news.findlaw.com/dean/20050114.html.

Read page 16 of the first link in Guy/57, under “specific intent”:

To violate the statute, an individual must have the specific intent to inflict severe pain or suffering.  Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture.

How convenient.  It’s like the drunk driver defense.

***

The last link in Guy’s post:

At the time, Bybee was Assistant Attorney General for the Office of Legal Counsel (OLC) - an office once called the conscience of the Justice Department.

In baseball-ese, the OLC is/was the commissioner working in the best interests of baseball, and not the owners.

***

Finally, the memo asserts that the criminal law prohibiting torture “may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President’s Commander-in-Chief powers.”

In short, the memo advises that when acting as commander-in-chief, the president can go beyond the law.

***

Again with the last link on Guy’s post:

...Harold Koh, a former Assistant Secretary for Human Rights, who worked in the Office of Legal Counsel during the Reagan Administration. Koh, an expert in international human rights, is now the Dean of Yale Law School.

Both of these witnesses decimated Bybee’s legal interpretations. For example, Dean Koh minced no words when he stated, “in my professional opinion as a law professor and a law dean, the Bybee memorandum is perhaps the most clearly legally erroneous opinion I have ever read.” And he proceeded to spell out no less than “five obvious failures” within the memo.

According to Dean Koh...it would tolerate “the things that Saddam Hussein’s forces did” such as “beating, pulling out a fingernail, burning with hot irons, suspension from ceiling fans” to name a few

Exactly what I said, me, a layperson.  Pulling fingernails is not torture.  And if Dean Koh would have asked me, I would have told him about unnecessary surgeries, like removing one’s tonsils, kidney, or appendix, and he’d have agreed with me.

...the president could “order genocide or other kinds of acts” and neither Congress nor the courts could stop him.

Or rape, as I said.

...the same I-was-following-orders “defense which was rejected in Nuremberg and is at the very basis of our international criminal law.”

Good point.  Obama was wrong here to publicly say they wouldn’t go after the interrogators because they were following orders.

...Finally, Koh noted, Bybee’s memo tolerates “cruel, inhuman or degrading treatment,” which is contrary to the existing law.

Which was my point about the continuum, that just because something is not torture doesn’t mean no crime exists.  At the very least, we have harsh abuse.

Next time I want to make a point that took me 20 posts to make, I’ll ask Dean Koh to do it for me in one paragraph.  This guy seems like a real smart cookie.  With a conscience.

***

Experts in the law of war say his memo is evidence suggesting he participated in a war crime. In light of these facts, why does Bybee remain on the federal bench?

FYI:  Obama has nominated Koh to be legal advisor at the State Department.  This has been met with an outcry from folks like Glen Beck and Karl Rove, but Koh is being supported by a number of prominent Republicans like Ted Olsen and Ken Starr (!).  This is quite an intramural squabble between the populist and establishment Republicans. 

It seems more than a tad ironic that those who believe the president has virtually unlimited power to wage war, detain “combatants,” and use extreme interrogation methods without Congressional or judicial review, also believe that the Senate can and should prevent the president from having a highly qualified legal advisor of his choosing.  Perhaps the unitary executive is only for Republican presidents?

Another interesting article in the NYT today:

http://www.nytimes.com/2009/04/29/us/politics/29bybee.html?_r=3&partner=rss&emc=rss

This article points out that Bybee’s memo neglected to reference important domestic precedents related to waterboarding, including the Reagan Justice Dept’s successful prosecution of a Texas sheriff for waterboarding a suspect:  http://www.truthout.org/042709J.  That case took place prior to the Convention Against Torture, which Bybee was specifically addressing.  But at least some legal experts feel it is clearly incompetent (or more likely, deliberately dishonest) to ignore such precedents in this kind of memo.  I’d be interested in hearing the view of MGL, Paul, or other lawyers lurking here on this issue.

* *

At this point, Bybee has no choice but to defend his memo, as he does in the NYT article.  But it’s clear from quotes here and in the prior WaPo article that Bybee has said things to a lot of friends and colleagues indicating he has far from a clear conscience.

I would have to read the Texas case, but a criminal suspect in custody in the U.S has no bearing whatsoever on this statute and the issue in question.  Any kind of abuse in custody in the U.S. is unlawful.

I have read literally a hundred or more legal opinions in law school written by judges, lawyers, Supreme Court Justices, et al., that were awful and were thought of an incompetent by someone, sometimes even by almost everyone.

I sound like a broken record, but you cannot impeach someone for writing a bad memo or a bad opinion in a court case (or a bad brief)!

Do you think that Dred Scott or Korematsu (I wrote Wakamatsu initially), which is the Japanese internment SC case, are any better than this memo?  No! Not even close. Those were horrible legal decisions. Were those SC Justices impeached for those decisions?

There are bad memos and bad briefs and bad opinions in important court cases all the time - every day of the week.  If they were grounds for impeachment, everyone would sooner or later be impeached.

That is my only point here. You can criticize the memo all you want. Apparently there is a legitimate argument as to whether the memo was reasonable or not, which the weight of opinion favoring that it was not, I think (although that has a lot to do with which way the wind is blowing - I guarantee you that).  But calling for Bybee’s impeachment?  No way. Not even close.  Stupid and reactionary…

I’m in agreement with mgl. Impeachment is for high crimes and misdemeanors, not for doing your job poorly. I concede it’s unfortunate that the memos were not available for Bybee’s confirmation hearings, as that was the best place to discuss the quality of his past work.

Tango/58 - re specific intent, the law, as quoted in the memo, says “an act...specifically intended to inflict severe physical or mental pain” - so how is that “how convenient?” It’s how Congress wrote the law.

As for a “conspiracy to commit a crime” - first, let’s establish if any crimes have been committed in the interrogations. If so, then see if there was a conspiracy to do things that they knew were crimes.

I know many people have strong feelings about this subject, and I am deliberately not addressing whether or not the interrogations were legal - I believe what mgl was pointing out was the correct process of offering legal counsel, and also of removing a judge. As a die-hard conservative, there are many liberal judges who hand down rulings I think are ridiculous, but I don’t ask for their impeachment, because I know that’s not how the process works.

Yes, there is no “how convenient.” Most crimes require specific intent or at the very least a reckless act. You cannot be convicted of assault or battery unless you intended to hurt someone. There may be other charges you can be convicted of if you do in fact hurt someone and you were reckless or negligent, even if you did not intend to hurt them.

You also cannot be guilty of “criminal conspiracy” if you write a memo in which you assert that you think an act is legal and it turns out it is not.  I even doubt that you could be convicted of conspiracy if you deliberately told someone that something was legal and you knew that it was not.  You might be able to be convicted of something else, if your job was to advise them on the legality of an act or acts, but I doubt that the charge would be conspiracy.  Do you think ANYONE would write a legal memo if they could be criminally liable if they got that memo wrong?

Again, we have lots of irrational or at least factually incorrect statements and interpretations floating around on this thread from people who are not versed in the legal process. Which is one of the problems with this sort of thing and is why I still assert that no one without legal training can have a credible opinion in this memo.  I am certain about that.  And that is not an arrogant or elitist statement. How in the world could I possibly have an opinion about a journal article on the safety of a certain wing design if I don’t know anything about airplane design and aerodynamics? I can’t.

MGL:  I’m sure we all agree that, under normal circumstances, writing a bad or incorrect legal opinion is not a crime or an impeachable offense.  These are not normal circumstances.  The issue being raised is whether Bybee conspired with others to authorize acts which were illegal, and which he knew or should have known were illegal.  To reach an informed conclusion on that (I haven’t), you would need information that you don’t possess.  For example, suppose that the Justice Dept investigation reveals that Bybee wrote earlier drafts which would have ruled out many of the interrogation methods the administration wanted to employ, but then changed the memo after being pressured by Addington or Cheney.  Or suppose we learned that Bybee knew that some of the facts stipulated in the Zubaydah memo were false?  Wouldn’t that considerably change your view of this?  You simply don’t have enough information to conclude “it’s not even close.”

An important issue is whether it’s plausible that the memo actually represents Bybee’s considered legal judgement.  So I repeat my question:  are there respected legal scholars who defend the memo?

We have evidence that people were tortured. We know that torture is illegal, and despite the claims of the Bush administration, many legal scholars have denounced the interrogations authorized by that administration as illegal. We further know that high-ranking White House and DOJ officials under the Bush administration authorized and approved the torture. It absolutely does not take a legal scholar to look at this information and claim that a criminal case, or at least an independent investigation, is warranted. To suggest otherwise is not only elitist, but kind of fascist.

No one is claiming that lawyers should be legally disciplined for writing poor memos. Some people are claiming that the memo was terrible, which it was - a statement that many legal scholars agree on. I believe Tango quoted the damn dean of Yale Law School on it earlier, as a matter of fact, which makes your statement, MGL - that we uneducated folks who share that opinion aren’t credible - not only elitist and kind of fascist, but extremely disingenuous as well.

There are also people claiming that the evidence suggests that some serious crimes went on during the Bush administration, that Bybee was complicit in these crimes - whether completely innocently on his part or not - and that those two facts together suggest that some disciplinary action should take place, preferably in the form of criminal charges being brought. Maybe Bybee’s case never makes it past a grand jury. Maybe the charges against him end up being criminal negligence instead of conspiracy. Who knows? But he definitely had a hand in this and his case should be tried. Notice that this opinion does not rest on the presumption that the memos Bybee wrote were poorly written or legally incorrect. It rests merely on the fact that the memos he wrote were part of a whole fabric of events and opinions that led America to commit heinous crimes.

It honestly doesn’t take a lawyer to know that when crimes are committed they should be prosecuted, and that anyone who had a hand in the crime should be investigated and the evidence against them presented to a grand jury.

When a judge writes his judgement, there is always a higher court to appeal to.

What we have here is the OLC, the “conscience” of the government.  The one group that is required to speak with authority on the subject of the law.  They have no choice, none at all, but to present both sides of the argument.  That’s their job, and the only way they can show they are an authority.

Those memos do not speak with legal authority, rather it’s wishful thinking.

As epoc said, the damn dean of Yale Law is cited here.  He agrees that under Bybee, pulling out fingernails is not torture.  He would agree that removing ones kidneys or tonsils or appendix is not torture.

I have to have legal training for what I said to have value?  Legal training is what Bybee and John Yoo have.  If that’s what I needed, no thanks.  Legal training + clouded judgement is worse than reasoned thinking with no legal training.

John Yoo could have well acted as adviser to Saddam or any other dictator.

I’m not comfortable with epoc throwing the “fascist” label at MGL’s argument, and would hope he would withdraw it.  There are issues where a certain level of expertise is required before you are entitled to have an opinion (or rather, entitled to have anyone listen to your opinion).  Personally, I’m not competent to evaluate Bybee’s reading of the statutes. 

However, if a lot of legal scholars conclude the memo is so incompetent that it must reflect an effort to give the administration what it wanted (given Bybee’s obvious talent and knowledge), and virtually no objective expert offers a convincing rebuttal, then I feel I have the right as a layman to form an opinion on the issue.  So once again, I ask who—other than Yoo and MGL --thinks Bybee’s memo represents a good faith legal interpretation?  And who thinks it’s legally correct?

And while expertise should be respected, I would also note that MGL began this thread by asserting that even criticizing Bybee was “outrageous”—a position I think he’s now abandoned—and his early posts clearly show that he (MGL) fundamentally misunderstood the proper role of the OLC.  So perhaps legal training is necessary to have a “credible opinion” on this issue, but MGL has proven that it isn’t sufficient.

I’m sorry Tango (and others) but you are still missing the point.  Pulling out fingernails or removing a kidney may in fact have been lawful under the statute in question.  If you or anyone else have a problem with that, then you need to work towards changing the statute to clarify it.  It was not Bybee’s job to pass judgment on either the statute or the morality of the techniques that may or may not have been lawful under that statute.  You are conflating those two issues. What did you want Bybee to write, “I think that such and such techniques may be legal given the wording of the statute, but I think it is just terrible that we are considering using them...”

"Pulling out fingernails or removing a kidney may in fact have been lawful under the statute in question.”

Says who?  No disrespect, but if that’s the opinion of Bybee, Yoo and you—and nobody else—then I would conclude that these acts would not be lawful.

Let’s say that taking out someone’s kidneys is lawful under the statute in question.  Isn’t it likely that it is unlawful in some other statute, whichever one would deal with abuse?

Are we saying that an authority like the OLC will not alert the president that while he may be performing lawful tasks under 2380, that maybe he will be breaking the law based on other statutes?

Tom: “I want to pull someone’s kidneys out.  What does 2380 say about that?”

OLC: “2380 does not deem it unlawful”

Tom: “So, it is lawful?”

OLC: “No.  It simply is not unlawful under 2380.”

Tom: “I see.  So, I will guess it is definitely unlawful under some other statute, but I’m not going to ask you about that statute.”

OLC: “Ok.  Happy kidney-hunting!”

A particularly good piece on this issue by Jonathan Chait: 
http://www.tnr.com/politics/story.html?id=db244f73-129d-444d-a090-2bf39c026d1d.

I’m sorry I can’t read anything which starts out with the premise that the administration engaged in “illegal torture.” How the hell does he know it is illegal?  No one knows whether it is or isn’t.  That was the whole point of the memo, right or wrong.

Somehow in the media and in the public eye we seemed to have made the leap from, “These memos may not have been written in good faith” to, “We know that what the admin did or contemplated doing is and was illegal and Bybee, Yoo, and the other guy knowingly and illegally wrote false memos.”

That is B.S.

Yesterday I heard on the radio news about a new Supreme Court decision that illegal aliens who used fake Social Security numbers could not be prosecuted under a federal law for identity theft unless the accused new that there was a real person who had that specific number. My first reaction was to scream at the radio “WTF! They knew it wasn’t theirs!” After I composed myself, I realized that before I could pass my own judgement on the Justices, I would have to read the federal law in question, because it’s quite possible that’s the way some dumb-ass in Congress wrote it.

Today, after the announcement of Justice David Souter’s retirement, I read Pres. Obama’s statement “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook...It’s also about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”
http://www.latimes.com/news/nationworld/nation/la-na-court-souter2-2009may02,0,2486011.story

Now this scares me...if you want empathy in the law, write your Congressman. The Supreme Court is about how the law is written, not about how the Justices feel about the plaintiff.

I consider myself a well-informed citizen, who takes an interest in current events, politics, and the law. I am not a lawyer, although I have occasionly played one in court, representing myself.

In one case, I had a citation from the city Animal Control Officer for having too many animals in my house, under a provision prohibiting kennels. It said a resident may not keep “more than x dogs OR y cats”, but my citation was for having more than x PLUS y. I showed the judge where to look in the City Code, and it tok about 30 seconds for him to dismiss the charges. The definitin of little words like OR do make a difference.

In another case, my auto insurance had been cancelled, I kept driving, and the DOT wanted to suspend my tags. I had a good story, it was a paperwork nightmare between NC, PA and my insurance company. The judge showed empathy for my situation, but, I had violated the law. He said he wanted to do what he could to help me, but he the law was specific. However, DOT intended to suspend all three vehicles, but didn’t cite the 2nd and forgot to bring the paperwork for the 3rd. Their bad, I only got hit for the one.

MGL:  Are you now saying that you will not listen to anything said by someone who believes the conduct was illegal?  That rules out an awful lot of people, including the Bush Justice Department.  I’m not even sure what you mean by the claim that “no one knows whether it’s illegal”—are you saying knowledgable people aren’t entitled to have an opinion on the legality of the interrogation methods until some court issues a ruling?  So Obama, Holder, legal scholars, etc. have no standing in your view to assert that waterboarding was torture?  What an odd view.  And I’m still waiting for you to find a legal expert (who isn’t a complete GOP hack) to defend the memo. 

It sounds like the OLC report will recommend disciplinary action, such as possible disbarment, against Bybee and Yoo.  Perhaps their evidence will change your view....

This columnist, or anyone else, can have their opinions on whether the conduct was illegal, but the opinion pieces says “illegal acts” as though that’s confirmed fact, and it’s not. He starts off the column by claiming conservatives maneuvered Clinton into a choice between perjury or embarassment, as though those are equal sins, and that Clinton did nothing to put himself in that position.

I’m assuming mgl has his law degree, and he contributed the maximum to Obama’s campaign, amd does appear to defend the memo. Yes, I’d like to see what the current OLC has to say.

Yes, Brian is correct.  Anyone can have an opinion on whether a court would rule that the acts in question are lawful or not, according to the appropriate statute or statutes, but only a court can determine whether in fact they are legal or not.  To flat out call them “illegal acts” is nonsense.

As far as the identity-theft decision, it is one of those cases that can go either way, as evidenced by the “Circuit Split” (different Federal Circuit Courts have ruled differently from one another) prior to the SC decision.

Basically the law in question states that a person must knowingly use someone else’s ID to be guilty of “aggravated identity theft.”

The question is whether a person who randomly chooses a phony SS# which happens to belong to someone else can be guilty under this statute.  The Court ruled no and I think that is a reasonable decision, although I have not read it (I don’t think it is available yet online).

There are many decisions the SC makes that are reasonable either way.  There are just some things that have no clear-cut answer regardless of what your “heart” or “mind” tells you.

I didn’t go looking for any, but I’m pretty sure that if I did, I could find many more.  The statement that someone made several times above that, “No legal scholar has defended these memos” is pure rubbish.  As you would expect from something that is not as clear-cut as some people in the government and the media and on this thread would like you to believe.

John Eastman, dean of the Chapman law school, defended the memos.

“He wrote a comprehensive legal analysis of a gray area of the law,” Eastman said. “I think John’s legal analysis taps into the founders’ understanding of the executive.”

Brian, frankly I don’t see how anyone could call that identity theft, knowing that there is a significant distinction between identity theft and fraud in general. Identity theft is a subset of fraud; it seems that you are just angry that “illegal aliens” committed fraud. I suggest you write your CongressMan and demand that Congress issue social security numbers to non-citizens to prevent any future incidents of such fraud.

“if you want empathy in the law, write your congressman.” This is an absurd response to a President citing that empathy is an important judicial technique. I’m pretty sure that Obama has indeed written congresspeople about changing laws, for the record, and he’s even written to females in congress.

On what analysis of US law or legal culture can you base the rejection of empathy as a meaningful technique for adjudication? Empathy is a value of the US legal system on every level - the notion that plaintiff and defendant are each afforded the opportunity to defend their case from their perspective is fundamental in US law. Can you define empathy before arguing it should not be part of the process?

If the role of the Supreme Court was to determine whether, in individual and standard cases, the law meant that one party was in the right and the other party in the wrong, then I understand the desire for such a court to offer the simplest interpretation of a statute and move to the next case. However, the role of the Supreme Court is to CHOOSE exceptional cases by granting them cert, and then rule on how CONFLICTING laws, statutes, and constitutional provisions interact. These laws, statutes, and constitutions were all written by human beings and not a divinely-ordained monarchy - why should the role of the court be to establish the Truth without regard to the human lives in question?

Were the justices in Plessy v. Ferguson ‘correct’ in ruling that “separate but equal” was a valid approach to social services? Was it correct to not empathize with the people whose schools were funded and administered by racist white functionaries and see that, from their perspective, separation, regardless of funding levels, was a means to subordinate? Was it correct to not empathize with people who, once the standard of separate but equal was established, would inevitably be faced with separate but unequal realities without the capital to fight legal battles to guarantee equal funding? Was it right that the justices DID show empathy for the whites who used “Science” and the slavemaster’s honorific discourse to establish the need for segregated schools?

The point is that empathy is a necessary and foundational technique for evaluating legal arguments. Laws are not ****ing words, they are a human technology. And frankly, the laws in this country are WRITTEN to show an unmistakable empathy for powerful people and a systemic lack of it for many other types of people. The problem with writing my congressperson and asking for more empathy is that Ms. Pelosi and her largest benefactors are already given nearly all the legal empathy in the world, and they systemically deny claims for empathy targeted elsewhere. And the problem with writing my CongressMan is much more difficult…

Maybe all the sound and fury from Brian and the MSM over “empathy” just signifies that they acknowledge that the status quo shows little or no empathy for many people and they would prefer it that way since they know the status quo was built on empathy for certain other people.

fifth of, well said!

On a related note, Arlen Specter, the Senator who recently switched parties, said something like, “Maybe the President needs to consider a non-lawyer for the Supreme Court.”

Wow!

And how about he consider a person with no military or intelligence training for Secretary of Defense and an accountant for Surgeon General?

I’ll probably get attacked here for sounding elitist, but with a statement like that, I am not sure I want this guy in my party…

I said my initial reaction to the identity theft ruling was “they knew it wasn’t their’s” but I also said that after I had a minute to think about it I reacted less emotionally, and it did not have anything to do with the plaintiff being an illegal alien - it would apply to anyone. I did say it would depend on how the law was written, and yes, it is more likely a case of fraud.

My interpretation of the court system is that appeals courts, including the Supreme Court, are not ruling on whether the law was followed in rulings of lower courts. It’s not their job to rule on whether a particular law is good or not, but rather whether it is constitutional. Basing their rulings on their personal feelings of merit would be usurping the role of the legislature.

http://www.nytimes.com/2000/03/22/us/high-court-holds-fda-can-t-impose-rules-on-tobacco.html

Justice Sandra Day O’Connor, who said in her majority opinion that the food and drug agency had ‘’amply demonstrated’’ that tobocco use was ‘’perhaps the single most significant threat to public health in the United States,’’ sounded at times almost apologetic for her conclusion that the Food, Drug and Cosmetic Act, which the agency used to assert jurisdiction, could not be stretched far enough to accommodate the regulations.

In the dissenting opinion, Justice Stephen G. Breyer said that given nicotine’s highly addictive nature and the ‘’life-threatening harms’’ of smoking, the Food and Drug Administration’s authority should be interpreted in light of ‘’its basic purpose—the overall protection of public health.’’ He said the court should avoid an ‘’overly rigid’’ interpretation of the Food, Drug and Cosmetic Act ‘’that is divorced from the statute’s overall health-protecting purposes.’’ [Excerpts, Page A22.]

The majority today applied a settled principle of administrative law: if Congress has spoken clearly on a question of an agency’s jurisdiction, or lack of jurisdiction, Congress has the last word. ‘’The F.D.A.’s claim to jurisdiction contravenes the clear intent of Congress,’’ Justice O’Connor said. The dispute between the majority and dissent was over the clarity of Congress’s intent, which the dissent found to be much less evident.

MODI has a good piece on baseball and Supreme Court / Sotomayor: http://sportsonmymind.com/2009/05/28/diversity4dummies-sonia-sotomayor-and-baseball/

“It’s not that diversity ensures good law, it’s that lack of diversity ensures bad law.

... And by the way, EVERY statement here can be applied directly to the well-documented monolithically-white mainstream sports media. Because there is no way — and I mean no way — that the death of Mike Tyson’s daughter this week would have been reported in the same disgusting fashion if there were more African-American editors in news rooms across the land.”

How do you mean “disgusting fashion?” I didn’t get that impression while reading the news accounts of this tragedy, but I might just have not noticed.

I see you were quoting the article.  Is is a very good article.  The basic premise (that diversity is not only good, but necessary, in a rule-making body) is spot on! 

While I agree that listing Tyson’s “rap sheet” is not particularly appropriate in an article reporting the death of his young daughter, I am not sure it is “racist.” We would have to look at similar-type articles that involve white people. I am not sure that an article involving a “rogue” white person wouldn’t contain the same information.

Here’s a lovely opinion (dissent) by Judge Bybee, concluding that good samaritans who left bottled water in the desert for immigrants were guilty of “littering”:  http://harpers.org/archive/2010/09/hbc-90007576.  As the article notes:  “while Bybee concludes that simulated drowning of prisoners was perfectly lawful (a position repudiated even by the Bush Justice Department before it left), he concludes that leaving a bottle of water for a person stranded in a desert so as to forestall death is a crime.”

Maybe he’s changed since you knew him, MGL?

Interesting. I’d have to read the opinion to have an opinion on it.  Sometimes a good justice (in an appeal) is forced to interpret a statute literally, as opposed to do what he thinks is “right.” Judges who don’t do that are considered “activist” right?