The Torture Memo Scandal

The Nation: Justice Dept. Looks For Consistency Between Memos And Professional Standards

(The Nation)  This column was written by Stephen Gillers

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The Justice Department is investigating the lawyers whose memos gave the Bush Administration the legal support it needed for waterboarding and other brutal interrogation techniques. We are "examining whether the legal advice in these memoranda was consistent with the professional standards that apply to Department of Justice attorneys," H. Marshall Jarrett, counsel for the Justice Department's Office of Professional Responsibility, wrote to two Democratic senators in February.

The torture memos from 2002 were mainly the work of Jay Bybee, then head of the Office of Legal Counsel (OLC) and now a federal appellate judge in San Francisco, and Bybee's deputy, John Yoo, who has since returned to teaching law at the University of California, Berkeley. This month the Pentagon released a long-rumored torture memo from 2003 written solely by Yoo, which is even more adamant in its embrace of unfettered presidential power.

The memos are an abysmal piece of work, but they had great value to the President. Dismissing the Geneva Conventions and other law, they used the veneer of serious legal scholarship (abundant footnotes, many citations, long dense paragraphs) to create an aura of legitimacy for near-death interrogation tactics and unrestrained executive power. The memos had high credibility because they came from the OLC, the legal brain trust for the executive branch and (until then) the gold standard for legal acumen.

The press tends to overlook the lawyers when scandal breaks, focusing instead on their clients. That's understandable, but in public and commercial life no serious move is possible (no corporate maneuver, no new financial instrument, no war, no severe interrogation tactic) without legal approval. Even if the advice proves wrong, the client, if sued or indicted, can claim reliance on counsel.

When lawyers in private practice mess up, they face serious jeopardy. They can be fired, sued for malpractice, disbarred or prosecuted. Yoo and Bybee face no such risks. The President won't protest. He got what he wanted. And while a state disciplinary body can investigate, that is unlikely without Justice Department help.

The Justice Department recognized the incompetence of the torture memorandums when Bybee's successor, Jack Goldsmith, retracted an August 2002 memo that had construed the Convention Against Torture and the federal statute forbidding torture to permit interrogation tactics just shy of homicide. And that memo was actually an improvement on the OLC's earlier work, which, in advising on "the effect of international treaties and federal laws on the treatment" of detainees from Afghanistan, entirely overlooked the torture convention and statute.

In his book, The Terror Presidency, Goldsmith, now a Harvard law professor, writes that the torture memos had "no foundation" in any "source of law" and rested on "one-sided legal arguments." They were valuable to the Administration nonetheless, Goldsmith says, because the CIA saw one of them as a "golden shield" against criminal prosecution of agents who had used harsh interrogation techniques.

Well, anyone can make a mistake, right? And don't lawyers disagree all the time? Of course, but that's not the point. The present criticism cites the utter shoddiness of the work. Take another example. Although the OLC memos broadly construed presidential power in foreign affairs, they ignored the Supreme Court's landmark 1952 "steel seizure case," which greatly restricts that power and contradicts the OLC's expansive claims. It would be like advising a client on school desegregation law and ignoring Brown v. Board of Education. Yale law dean Harold Hongju Koh called this omission "a stunning failure of lawyerly craft" and "a stain upon our law and our national reputation."

How could two really smart guys authorize torture using "one-sided legal arguments" that have "no foundation" in law? How could they be guilty of a "stunning failure of lawyerly craft"? The sad answer seems to be that they knew what the President wanted and delivered: torture is OK if you call it something else. Detainees are outside the protection of due process and civilized law. The President's authority is close to absolute. Anyway, no court can review him. (On this last point, the Supreme Court disagreed.)

This incompetence is especially serious because of the conduct it enabled. If a private lawyer gave such a lopsided and wrongheaded analysis to a business client, he'd be history. Lawyers advising private clients about to make important decisions (a "bet the company" kind of decision) meticulously analyze all sides of a question so the clients can assess risk and choose wisely.

The client deserved better, and that raises another issue, the most troubling. Who was the client? The lawyers told the President what he wanted to hear, but the nation was their client, and its sole interest was in thorough and independent legal analysis. Neither the President's political agenda nor the authors' views of what the law should say can be allowed to slant the OLC's work.

So maybe the best and brightest lawyers got it so wrong because they forgot whom they served. Maybe they acted politically, not professionally. If so, we are dealing with a perversion of law and legal duty, a betrayal of the client and professional norms, not mere incompetence, which would be bad enough. Whatever the reason, Jarrett should find that this work is not "consistent with the professional standards that apply to Department of Justice attorneys." Jarrett must hold the lawyers accountable if he means to restore OLC's reputation and vindicate the rule of law.

[kansas1946]

The Bush administration is evil. Satan stands up and cheers everytime Bush opens his mouth.

[walt1944-2009]

When the Nazis held power in Germany from 1933 to 1945, they wrote volumes of garbage to justify the measures they took from torture of prisoners to the death camps, from the disregard of the right of nations to exist, to the extermination of Jews, Slavs, gypsies, and other "non Aryan" races, to the total disregard of the Geneva Convention regarding POWs.

The documents being brought to light now about the crimes committed by the administration of the Great Emperor Bush II are just the tip of a mountain of evidence, which, when finally dug out of the Great Emperor George W. Bush Library in Dallas, will be enough to hang all those who felt they can live above the law for the past 8 years!

We could be, and hopefully will be, looking at another "Nuremberg" here, since our Congress refuses to do anything about it!

SIG HEIL, BUSH!!!!
sig heil, (more of the same) McCain!!!!

[jjp735i]

Another shocker. Things are being down the way Bush & Friends want it done, no matter what the law states. Is anyone in Congress even paying a little bit of attention? Why is that man still in office?

[idnnsg]

"maybe the best and brightest lawyers got it so wrong because they forgot whom they served."

Torture is EVIL. Anyone who causes, condones, supports, or encourages torture of another human being is EVIL. There simply is no other word for it.

So they KNEW who their master was: Satan!

[ranger1948]

irliberal
Myself and others have reported to intelligence agencies that ben laden is living in southern Philippines. Bush knows where he is at. I think maybe he is waiting till just before the election to go get him to try to make the republican party look good. I think the Democratic party should beat him to th punch and go get him.

[p-syrus]

Disbar Yoo & chuck him out of Boalt.

[cyberus-2009]

Don''t pay any attention to the torture memos behind the curtain

[perceptions5]

Maybe this or maybe that.........and don''t forget he said then I said then they said.

Ah The Jewish Nation at it again.

What a truely sad and extreme magazine.

[irliberal]

WHERE IS BIN LADEN? That has really been the only relevant question that needs asking since the invasion of Afghanistan.

Seven years of war. Civil rights breached by our commander in chief. Internationally recognized torture sanctioned by the White House. Two invaded and currently occupied countries. Hundreds of thousands dead, including 4000 American soldiers. Billions of our tax dollars spent, and yes, are still being spent to this very moment.

Iraq, which had NOTHING to do with 9/11, is now an occupied country which will implode when we get out of it, whether that happens one, two, ten or five hundred years from now. A society that CHOOSES to be ruled by religion cannot become a democracy; it can only be a theocracy with voting cards.

Bin Laden still lives. The mastermind of 9/11 still walks free.

The one, simple word for this is: failure. No amount of deception, indignation or wailing by republicons can change these facts.

Failure of Bush. Failure of Cheney. Failure of the republicans.

Time for a change.

[inventagod]

The Justice Department (pack o thugs)

Investigating

White House Lawyers(pack o liars)

High level circle jerk...

[jimbo554]

Pardon my cynicism, but I think we all know nothing will come of this. This story will pass like the morning dew.

[inventagod]

Business as usual for this extremist far-right wing administration...
Hey, did ya hear Britney rear-ended some cars in LA???