POLITICS MAY 20, 2009
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BARACK OBAMA is trying to split the difference on torture. He wants to move forward—no messy dwelling on the Bush-Cheney era—except that he’ll look backward if forced. There will be no independent commission to hold top-ranking officials politically accountable. But, if Attorney General Eric Holder wants to prosecute the Bush lawyers who defended the legality of waterboarding—John Yoo, Jay Bybee, and Steven Bradbury—well, the president won’t stand in the way.
What does Obama gain by this approach? For starters, he has delegated the hard choice to his subordinate—and has left himself room to maneuver once more if the political winds shift further. But, unfortunately, in the process of punting, he has gotten the policy wrong.
THE TORTURE MEMOS offend many people’s moral sensibilities. They also offend standards for competent legal advice at the highest levels of government and were filled with contortions and shoddy logic. In his important book, The Terror Presidency, the dissident head of Bush’s Office of Legal Counsel Jack Goldsmith has described the memos as tendentious, overly broad, and deeply flawed. But should bad legal advice be grounds for prosecution—even when it justifies bad policy? Or, more to the point, should government lawyers ever be prosecuted for dispensing advice?
To prosecute the lawyers for violating the federal anti-torture statute passed in 1994 to criminalize violations of the U.N. convention against torture, a prosecutor would have to prove that Bradbury, Bybee, and Yoo knew that the law clearly forbade waterboarding detainees and twisted the definition as part of a conspiracy to justify torture. In other words, you would have to prove that they knew they were giving incorrect legal advice but gave it anyway in bad faith.
This would be a very hard thing to prove in court—requiring smoking gun evidence that's unlikely to exist. And there are other complications. When Yoo and Bybee wrote their memos, the anti-torture statute didn't unambiguously cover waterboarding. (This led to their contortions about the meaning of the phrase “intent to inflict severe physical pain or suffering.”) It was subsequently clarified by Congress in the Detainee Treatment Act of 2005, which prohibited inhumane treatment of prisoners but also immunized officials who relied in good faith on earlier legal opinions about the legality of torture. Congress didn’t believe that the leaked Bush memos were so far beyond the pale that no reasonable officials could have relied on them.
What's more, there’s the “unitary executive” defense that the Bush lawyers could plausibly mount. The unitary executive is the doctrine that they claimed allowed the president to override laws that constrained his discretion to do what he considered necessary in the war on terror. Since John Yoo, in particular, expressed his extreme views about unitary executive power before joining government, and, in many speeches, after he left government, it would be hard to prove that he didn't believe the memos he wrote.
As for Bybee and Bradbury, their poor legal advice may have been motivated by ambition, but not criminal intent. Bybee, a weak and ineffectual head of the Office of Legal Counsel, delegated too much unsupervised power to John Yoo at a time when he hoped to be promoted to a federal judgeship. The least sympathetic of the three is the hackish Bradbury, writing in 2005, when the terror threat alerts had cooled and he hoped to be elevated from acting to permanent head of the OLC. But, to prove that Bybee and Bradbury didn't believe their own arguments, you would need evidence of e-mails, for example, where they ridiculed the unitary executive theory but said they would defend it anyway in order to curry favor with Dick Cheney.
You may find these defenses maddening. But they point to the danger of prosecuting government lawyers for their legal opinions (disciplining lawyers for malpractice, such as misstating the law through gross incompetence, is another matter). Alas, history is full of examples of White House and Justice Department lawyers offering dubious legal advice for political reasons, which didn’t result in prosecutions. As FDR’s Attorney General, for example, the future Supreme Court Justice Robert Jackson implausibly attempted to defend the legality of FDR’s destroyers-for-bases exchange with Britain in 1940. More recently, when the Kosovo war lasted more than 60 days, Randy Moss, head of the Office of Legal Counsel under Bill Clinton, advised the White House that it could ignore the deadline in the War Powers Resolution, despite governing law to the contrary.
And it was wise for the government to never prosecute these cases—or even to disbar these lawyers, as the Justice Department's Office of Professional Responsibility might recommend for the Bush trio. That's because the threat of prosecution can easily be used to punish legitimate legal disagreement. Take the case of Monroe Freedman, former dean of Hofstra Law School and a prominent liberal legal ethicist. In 1966, he gave a lecture on the “Three Hardest Questions” for criminal-defense lawyers. Raising the possibility of an indigent client who perjured himself to his court-appointed lawyer, he said the lawyer might be justified in lying to a court to preserve the privilege against self-incrimination in addition to lawyerclient confidentiality. The suggestion was so explosive that Warren Burger, the future chief justice, tried unsuccessfully to have Freedman disbarred and fired from his faculty job. Freedman told me that, when lawyers are threatened with prosecutions for giving politically controversial opinions, witch hunts inevitably result that can deter the sharing of candid legal advice in the first place.
At the same time that Obama opened the door to prosecutions, he rejected the creation of an investigatory commission. The motivation here is clear: Obama believes that looking backward could create a political distraction that would harm the administration’s efforts on health care and the economy.
But the fact that an independent commission would be politically distracting isn’t a good argument for resisting it. The Bush torture policies are the most serious violation of American values since the World War II internment of Japanese-Americans. A closed Senate intelligence committee investigation would be inconsistent with the transparency Obama demanded when he released the memos in the first place. At this point, only a full truth commission-style investigation can allow the Bush lawyers to make clear that they didn't conspire to break the law while focusing public opprobrium on the real architects and abettors of Bush’s torture policies: namely, the policymakers—from Bush and Cheney themselves to George Tenet, John Ashcroft, and Condoleezza Rice, not to mention the top leadership in Congress.
Previous Washington investigations—such as Lewinsky-gate and Iran-Contra—foundered when, for political reasons, they became legalized, devolving into perjury traps and the search for dubious and novel legal infractions. An independent commission would indeed be politically embarrassing—the CIA would go ballistic; Democrats and Republicans would blame each other for having signed off on torture; and the country would be distracted from the economy and Iraq. But at least an independent commission would provide the accountability that the nation deserves, focusing blame not on legal scapegoats but on the politicians who devised the torture policy in the first place. That’s an approach to scandal we can believe in.
Jeffrey Rosen is the editor of legal affairs at The New Republic. This article appeared in the May 20, 2009 issue of the magazine.
23 comments
Really good analysis of the problems with trying to go after the lawyers.
- itzik basman
May 1, 2009 at 10:19pm
Except that they did know what torture was and is. This isn't something unknown. They did know that waterboarding was torture. But I get the point about going after the lawyers only. I think they should prosecute all of them. But then I'm not one who believes in having a two tier legal system where people can be thrown in prison for years for an ounce of cocaine, while politicians authorizing war crimes can suddenly discover that no one knows what the Geneva Conventions mean--that's the biggest lie of all here, designed to throw up the smokescreen that everything was legal. Nonsense. The weirdest thing about this is that everyone knows that the Geneva Conventions were not contested or ambiguous in the way they claimed. They knew it too.
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May 7, 2009 at 8:00pm
So the reason not to investigate is that the individuals that are being investigated might ultimately have a successful defense? Is that what I am hearing? We don't know if the acted in good faith or not. That is the question that perhaps, just perhaps, might be answered through an investigation (emails are such interesting little things now aren't they). Everyone want to put the cart before the horse and come to a conclusion without an investigation. That seems rather strange..
- Slide
May 8, 2009 at 6:27am
Treason is giving aid and comfort to the enemy in wartime. Rosen's outrageous lies amount to just that.
- bulbman1066
May 15, 2009 at 1:40am
Many of the good readers of TNR believe that torture is whatever makes a detainee feel uncomfortable. This whole process of subjectifying torture is dangerous but I think I could learn to like it. I am tortured when I hear the Botox tortured face of our Speaker of the House tell lie after lie about what she knew and when she knew it. I am brutalized when she has the audacity to call the CIA liars as she tells her own whoppers. I demand justice for my torture. Look, it's one thing to say that our policy is now to be squeamish about waterboarding. It's another thing to torture the Constitution by retro-actively criminalizing policy decisions and legal advice. Where does it end? Will the Republican administration in 2013 prosecute Obama officials for their policy decisions?
- Mark
May 15, 2009 at 9:04am
The warrantless wiretapping political dismissal of career U.S. Attorneys were clear violations of U.S. law (among so many others) and maybe someday W and some of his minions can face prosecution for that. That would be good, but it is not known whether or not W and Dick and Company would actually receive blind justice from judges that may owe them. However, the rendering and torture is a violation of international law. O should sign the International Criminal Court accords and he should give immunity to the CIA grunts who actually did the torturing, abduction and rendering but order them to testify as to what they did and who ordered them to do it WITH lawyers from the ICC present. Then when the ICC indicts Bush and Cheney and Gonzales and Rumsfeld and Wolfowitz, then O and Holder should have them all simultaneously arrested and quickly shipped off to The Hague where W has no judges beholden to him. Maybe then we might see some justice (but it seems to take the ICC forever to do it).
- r b-j
May 15, 2009 at 10:11am
Once again, the core of a political scandal rests in behavior that's actually legal. George Will got it right on one of the talking heads TV programs when he noted that making tendentious lawyering a criminal offense would strike at the very heart of the American legal system. It's SUPPOSED to be a cesspool, and the bigger chunks are expected to rise to the top. Americans should be forced to acknowledge that before they receive their high school diplomas. The next time you hear a lawyer speak on an important issue (or hear him order a pizza, for that matter) keep this episode in mind.
- March Hare
May 15, 2009 at 12:27pm
Rosen sucks out loud on this issue. Ditto bulbman. Obama is playing this exactly right. Pelosi should be expelled to the outer darkness, the CIA should be disbanded and/or absorbed into grown-up, which is to say institutionally supervised, military intelligence, and then we should get on with the real business at hand--economic recovery, a regulated relationship with Pakistan, UN reform, and etc.
- Robert Powell
May 15, 2009 at 3:35pm
After Watergate and Nixon's resignation,the cry went up to "leave this behind us", to move on so as to avoid being further bogged down or distracted.Ford pardoned Nixon and we moved on. This allowed for that Nixon retread, Cheney, to revive "the Imperial Presidency" under a new guise, "the Unitary Presidency". I think a more accurate moniker for this theory would be "the Uni-Tyranny Presidency".Beneath the specious legalese,it simply posits that the President is above the law because he IS the law.Tyranny is a government of men, not law."Trust me to do the right thing, but I have to keep it secret for the good of the nation".Its a theory that would warm Hugo Chavez's heart.Let's finally discredit this unconstitutional accretion of power to the executive branch for once and for all.If we don't, we will continue to drift towards tyranny at the first sign of trouble.Fear has always been used as the Bush administration did to gather power to the "Savior of the Nation" be it Stalin, Hitler, Napoleon, or Ceasar. Torture is not legal just because the President says it is. Disbarment, prosecution,commission, Congressional investigation; whatever it takes to re-establish rule of law is not too much trouble.The pain and discomfort of dealing with it is less than than the potential pain of losing our Constitution. Torture: deliberately physically and mentally abusing someone held in custody,is the quintessential antithesis of freedom.To torture in order to defend freedom is psychopathological. It grieves me to hear Americans,who think of themselves as patriotic, defend this most un-American practice. Cheney claims its good because it got results."The ends justify the means." He must have studied ethics with Comrade Lenin!(Is torture the means used to obtain our intelligence on Iraq's weapons of mass destruction?)The fact that a minority of our citizens accept his arguments is a sign of failure in our education in ethics and our nation's founding principles. It also grieves me to hear opponents of torture use as their principle argument the damage caused to our image in the world, even though that's true. This is more serious than a public relations problem, its a moral problem."Image" puts the cart before the horse; if we do the right thing we needn't worry about image, it will take care of itself. Let's get it straight: WE DON'T TORTURE BECAUSE IT'S WRONG....WRONG,WRONG,WRONG! The Bush administration, by engaging in the cowardly practice of torture, has dishonored our flag,our armed forces,our Constitution,our principles and our humanity! Only an accounting before the bar of justice can restore our honor!
- John Moran
May 15, 2009 at 3:47pm
After Watergate and Nixon's resignation,the cry went up to "leave this behind us", to move on so as to avoid being further bogged down or distracted.Ford pardoned Nixon and we moved on. This allowed for that Nixon retread, Cheney, to revive "the Imperial Presidency" under a new guise, "the Unitary Presidency". I think a more accurate moniker for this theory would be "the Uni-Tyranny Presidency".Beneath the specious legalese,it simply posits that the President is above the law because he IS the law.Tyranny is a government of men, not law."Trust me to do the right thing, but I have to keep it secret for the good of the nation".Its a theory that would warm Hugo Chavez's heart.Let's finally discredit this unconstitutional accretion of power to the executive branch for once and for all.If we don't, we will continue to drift towards tyranny at the first sign of trouble.Fear has always been used as the Bush administration did to gather power to the "Savior of the Nation" be it Stalin, Hitler, Napoleon, or Ceasar. Torture is not legal just because the President says it is. Disbarment, prosecution,commission, Congressional investigation; whatever it takes to re-establish rule of law is not too much trouble.The pain and discomfort of dealing with it is less than than the potential pain of losing our Constitution. Torture: deliberately physically and mentally abusing someone held in custody,is the quintessential antithesis of freedom.To torture in order to defend freedom is psychopathological. It grieves me to hear Americans,who think of themselves as patriotic, defend this most un-American practice. Cheney claims its good because it got results."The ends justify the means." He must have studied ethics with Comrade Lenin!(Is torture the means used to obtain our intelligence on Iraq's weapons of mass destruction?)The fact that a minority of our citizens accept his arguments is a sign of failure in our education in ethics and our nation's founding principles. It also grieves me to hear opponents of torture use as their principle argument the damage caused to our image in the world, even though that's true. This is more serious than a public relations problem, its a moral problem."Image" puts the cart before the horse; if we do the right thing we needn't worry about image, it will take care of itself. Let's get it straight: WE DON'T TORTURE BECAUSE IT'S WRONG....WRONG,WRONG,WRONG! The Bush administration, by engaging in the cowardly practice of torture, has dishonored our flag,our armed forces,our Constitution,our principles and our humanity! Only an accounting before the bar of justice can restore our honor!
- John Moran
May 15, 2009 at 4:01pm
Mark: "Many of the good readers of TNR believe that torture is whatever makes a detainee feel uncomfortable." Who? Got a quote or a link? "..I hear the Botox tortured face.." You do realise that nothing else you say after this snide little comment this can be taken seriously right?
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May 15, 2009 at 4:50pm
I don't see unitary executive theory as a viable defense, nor do I see arguments advanced by an advocate in an adjudicated proceeding as a solid analogy. Unitary executive theory is essentially a reading of the Vesting Clause of Article II, whereas the OLC function stems primarily from the Take Care Clause, although the two should be read together. The president must take care that the laws be faithfully executed, but this requires that the Office of Legal Counsel not simply tell the president what plausible readings of the law best flatter his policies preferences but provide candid advice that anticipates challenges that may be raised in litigation or as political questions in dealings with the other branches. Unitary executive theory essentially argues that appointees and civil servants do not have independent executive authority that allows them to disregard the president's political decisions, but that doesn't mean that OLC is somehow freed from an obligation to inform the president where and how those decisions are in any way in conflict with or subject to the law (for clarity's sake let us say as matters of settled law or precisely because there is no settled interpretation), as that would manifestly contradict the take care clause. This might have more manifest bearing if the president clearly directed OLC in their findings, but no matter how much Yoo and Bybee might have wanted to curry favour with Bush, the likelihood is that they did this by heeding what David Addington thought they should say, which is a bit more schizophrenic than unitary theory. All of this is serving as a legal advisor to the president, and some basic distinctions should be made in making comparisons to legal officers appearing before courts as advocates for the president. It's not that advocates are freed from responsibility to the same clauses (or from their obligations as officers of the court), but an adversarial proceeding does provide far greater latitude to argue the plausible interpretation that supports the president's policy preference rather than to claim to act as a faithful and authoritative interpreter of the law for the Executive Branch.
- buffyg
May 15, 2009 at 5:54pm
There are two alternatives. Liberals really are stupid enough to believe that the leaders of Al Qaeda and the other jihadist organizations are ordinary criminals who deserve Miranda rights. The other possibility is that liberals are traitors who should be regarded as enemies of this country. Stupid or criminal. Look at Nancy Pelosi’s face and try to decide which she is. I would check the box “all of the above”.
- bulbman1066
May 16, 2009 at 12:44am
It's a question of which side you are on. See above. Mark is on the side of this country and of its right to defend itself against Islamofascist slime. r b- is on the side of the slime. Suppose that after 9-11 instead of Bush and Cheney and Gonzales and Wolfowitz we had had a bunch of gutless liberal airheads in charge. Instead of one terrorist massacre on US soil there would have been many. Liberals “make mock of heroes who guard them while they sleep”.
- bulbman1066
May 16, 2009 at 3:42am
Isn't Cheney's chief argument against the application of the Geneva Conventions this: al Qaida doesn't have military uniforms. A "Fundamentalist" reading/comprehension if ever I saw one.
- Bukharin
May 16, 2009 at 1:20pm
Why would Jeffrey Rosen, a Jew, side with people who want to finish what Adolf Hitler started is a mystery. Mr. Rosen, if you have the courage, please explain. In the context of what this country, and indeed all of civilization, is dealing with, the idea that waterboarding the leaders of Al Qaeda is criminal torture doesn't go beyond Hollywood liberalism at its most inane. The question keeps arising: are liberals traitors, or are they are merely stupid? If there is another 9-ll style attack their political lives, and maybe even their physical lives, may depend on the answer to that question.
- bulbman1066
May 17, 2009 at 1:23am
" The Bush torture policies are the most serious violation of American values since the World War II internment of Japanese-Americans." Oh, come one. It is obvious that Barrack Obama, as President of the United States, now has definite access to the effectiveness of torture. And guess what, he is seeing crystal clear evidence that Dick Cheyney knows what he is talking about. "Torture the bastards, and they will give you valuable information." Whoops...... that's not politically correct. So far our President understands the real value of torture. Go for it. If it works, you do it. If it does not work, you don't. I would far prefer that Barrack Obama torture someone to death to save a million people's lives than be poltie and watch a million innocents die. So far, the man has good judgment.
- BFichthorn
May 17, 2009 at 1:30am
I agree that torture should hold responsible parties accountable. But I do not think this focus is as significant as the focus on resolving the wars. Implementing obvious and available peaceful resolutions could end the wars and help the economy. The fact that we are, for the first time in our history, even disclosing this and many stories, is darn good progress and proves good faith. Because without that disclosure America would not be naming names who the public may then target. The tightrope to undoing the damage done by bank owned politicians, corporations, and their greed, places this journey of a thousand miles on a tightrope, for any President! But for God's sakes anybody following what Obama has done and is managing to do, needs to give him a lot more credit than is rendered here! He has definitely brought the proverbial horse (America) to the water - 1. by virtue of our being his constituency 2. by teaching us the public about law everytime he opens his mouth - and now we don't even click the petitions and letters to Congress that would most effectively register our voice and / or expose the bank owned representatives! That's the key to justice for the torture issue and everything else!
- Steward B. Clinton
May 17, 2009 at 5:17am
Agressive intelligence gathering saves lives and wins wars...no question. It's torture reading the unAmerican hatred on this web site: guess you surrendaCrats want to lose the war and continue the Banana republic ObamaNations. Fat chance. You'd better leave now.
- father_moray
May 17, 2009 at 7:52am
Mark, you are stunningly uninformed and/or dimwitted: WASHINGTON — The Army general who led the investigation into prisoner abuse at Iraq's Abu Ghraib prison accused the Bush administration Wednesday of committing "war crimes" and called for those responsible to be held to account. The remarks by Maj. Gen. Antonio Taguba, who's now retired, came in a new report that found that U.S. personnel tortured and abused detainees in Iraq, Afghanistan and Guantanamo Bay, Cuba, using beatings, electrical shocks, sexual humiliation and other cruel practices. "After years of disclosures by government investigations, media accounts and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes," Taguba wrote. "The only question that remains to be answered is whether those who ordered the use of torture will be held to account." Taguba, whose 2004 investigation documented chilling abuses at Abu Ghraib, is thought to be the most senior official to have accused the administration of war crimes. "The commander in chief and those under him authorized a systematic regime of torture," he wrote.
- Sparky
May 17, 2009 at 3:03pm
Makes good sense. Let us first know what really happened in an investigation shorn of partisan posturings. At that time, let the lawyers decide whether or not to prosecute and who. If the guilty can not be sent to jail, at least let them face shame!
- Jun F
May 18, 2009 at 4:03am
To prosecute is not to look backward. It would deter future law-breaking, and Cheney has made clear that, if he were to regain power, he would torture again. If he and Bush were in prison, it would be less likely that a future President would order torture. And torture supporters could regain power, as early as 2012; consider the possibility that, under Obama, there is a 9/11-type attack, and Cheney is able to persuade enough people that it wouldn't have occurred if Obama hadn't prohibited torture.
- Henry
May 18, 2009 at 8:01am
I respectfully disagree with Jeff. As others on this blog have noted, we don't have all the facts to make the judgment about who, if anyone, should be prosecuted and under what statute. If the facts turn out to be that someone in the White House said "this is what we are going to do, so get those boys over at OLC to give us a CYA opinion," and the OLC plus lawyers understood that as an order and chose to comply by writing and advocacy masked as an idependent and object answer posed in the letters, then the lawyers should have a tough time extricating themselves from the tragedy they caused. The above scenario is not an objectively good faith judgment on the part of the lawyers. It is also quite likely that thorough electronic discovery will unearth something that either reflects unwarranted complicity in a CYA letter, or the obverse - that they really were struggling to "get it right." The point is that it is premature for the public to be making judgments on this matter until it has sufficient facts to call it one way or the other. craig
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May 18, 2009 at 6:22pm