The Torture Apologists Will Not Back Down Easily
It’s funny that keeping the lid on torture becomes the priority number one of the party that many regard as the natural vehicle for the pro-life movement:
“Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.”
Let’s hope Obama does not give in, though I’m not optimistic. But this must see the light of day.
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I do find it odd that people who claim these techniques to be perfectly okay want to hide them. I think there’s a passage somewhere about people preferring darkness over light…
I was unclear about what the memos were supposed to contain that would be new. The article you linked to suggested they were legal memos discussing the legality of such practices. While embarrassing for the authors, is this new information?
I guess what I’m asking is what are they trying to hide?
Moreover, if Obama is so opposed to torture and to upholding the dignity of human life, as yourself and others have claimed, then why is he letting a puny thing as a nomination stand in his way?
I think Obama is inclined to end torture, but not to go after the perpetrators of torture. He’s far too pragmagic to open up those wounds. I think he’s wrong. John Woo needs to face the consequences of his arguments.
MM-
As you know, I oppose torture. Nevertheless, I am not quite sure why John Yoo should be prosecuted for merely providing legal advice–which is what I assume you mean by facing “the consequences of his arguments.” If we’re going to prosecute people for sanctioning torture, shouldn’t it be the individuals who actually ordered torture to be performed. It strikes me as an awful bad precedent to prosecute someone for merely offering legal advice (no matter how bad we think it might have been).
*None of this it to say that I endorse the advice Yoo gave or his job performance at OLC.
MM: As you know, we tend to agree in our political sympathies, but I think that using language like “The Torture Apologists” is rhetorically analogous to those who call Vox-Nova “The Pro-Aborts.”
In some way this resembles the issue Katerina raised on tone of discourse here and elsewhere, but, I raise it here because I think that however true and outrageous violations of life are in the flesh of the matter, they are too often parsed out in all-too-neat categories that can become totalizing and, in some cases, cause us to forget the actual life at stake and turn our attention to those damn torture apologists, pro-aborts, liberals, conservatives, and the Yankees.
Feddie,
I actually agree — I think these memos (whatever they are hiding) should be published to shame Yoo, not to slam him in jail. But I do think the perpetrators of torture should be tried for it.
If we’re going to prosecute people for sanctioning torture, shouldn’t it be the individuals who actually ordered torture to be performed. It strikes me as an awful bad precedent to prosecute someone for merely offering legal advice (no matter how bad we think it might have been).
feddie,
I think you have it exactly backwards. Those who ordered and actually carried out torture were doing so based on the Justice Department telling them it was legal. When you are not a high-level official, and you are told to do something with the assurance the Justice Department says it’s legal, what are you supposed to do? Get a second opinion? From whom?
It was those who wrote the “torture memos” who made it possible for torture to take place. They were not merely giving their legal opinions. They were twisting the law to “prove” that it was legal to torture, when it was not. If you can go to your lawyers and say, “We want to do X. Please provide us with an opinion that X is legal,” then you can get away with anything.
Note this passage from an article in The New York Review of Books titled What to Do About the Torturers?:
MM-
Fair enough. Thanks for the clarification.
For what it is worth, I do have some reservations about disclosing privileged legal memoranda to the public. My fear is that doing so will have a chilling effect on full and frank internal discussions on difficult legal issues. This issue has come up in the judicial-nomination context, and it concerns me here as well. If President Obama refuses to disclose the memos in question, I suspect this will be his reason for doing so.
But I do think the perpetrators of torture should be tried for it.
MM,
They can’t be, and they are probably the least guilty of anyone involved. They were following orders they had reason to believe were legal. Besides, the are let off the hook by the Military Commissions Act of 2006.
I am sure John Woo will proudly stand behind every word he wrote, and he will have plenty of defenders. I don’t believe he can be shamed.
David-
Three points.
First, you are assuming that Yoo did not actually believe that his understanding of the law was correct. I have no reason to believe that is indeed the case. Yoo may be wrong, but I think he is entitled to a presumption that his legal opinion were offered in good faith.
Second, I don’t think you really want to go down this road. You want to criminalize someone for offering legal advice. Just who do you think is going to be willing to work at Justice–for lower pay than the private sector–if he/she believes that the next administration is going to prosecute former government lawyers for offering legal advice with which its strongly disagrees. That’s a really bad plan.
Third, just because something is arguably legal does not mean that the executive branch should do it. At the end of the day, those who gave the green light to torture folks are the ones responsible for their actions; not the lawyers who said that doing so was legally permissible.
As a law school applicant, I agree with feddie on this one. Determining what the law states is a different discussion from whether it is just or appropriate or wise to enact a course of action.
Those who performed the action, whether they believed it legal or not, are the ones who should be held criminally liable.
That said, Woo will ultimately be responsible to God for his memos, and I think for the sake of the legal profession we should leave it at that.
Those who performed the action, whether they believed it legal or not, are the ones who should be held criminally liable.
Michael,
Here is the ACLUon the “advice of counsel” defense:
It sounds to me very much like if those who tortured followed the advice of the Office of Legal Council in good faith, believing that what they were doing was lawful, they are off the hook. If they had cause to believe the Justice Department was giving them bad information, or if they were not relying on the Justice Department at all, then they may be in trouble.
Feddie asks if it would be wise to prosecute someone for giving bad legal advice. Apparently there is little precedent for it, although what we are talking about here are potential war crimes, and Hitler’s lawyers were held accountable at Nuremberg. But the other question you have to raises is whether those in government who need legal opinions should be expected to know the law better than the Justice Department, or should henceforth seek advice from the Justice Department but also seek a second opinion from some other source. It seems to me that the torturers are not criminally liable if they believed what they were doing was legal, and I can’t imagine a jury coming to the conclusion that the lawyers who said torture was legal were acting in good faith and should suffer no consequences, but those who believed them should have known better.
Feddies points make sense – as much as I would love that not being the case but Michael – sure if I where a law school applicant I would prefer to have the position you and the law profession take. Isn’t it ever so convenient to be able in essence to write up and recommend “whatever” in this case to declare “shit” to be legally actually rather ‘clean’ but once the ‘clean’ shit hits the fan and turns out to be be smelly after all to blame the mess squarely on the fan.
In some ways this is additionally a particular cynical ploy in light of the fact that a significant sector of the legal profession actually makes a rather nice living facilitating law suits against the results of other professionals errors in ‘judgement’.
Other than venting some verbal anger in the end Feddie is probably correct and we have to let this one go.
Other than venting some verbal anger in the end Feddie is probably correct and we have to let this one go.
My own opinion would be that everything should be thoroughly investigated and made public, but prosecutions are probably either a bad idea, impossible, or both. However, it still seems to me the architects of the torture policy, and high-level officials such as Bush and Cheney, are much more guilty of wrongdoing than the people who did the authorized, hands-on torturing.
I think Bush and Cheney were about as bad as we’ve had, but I can see why Obama doesn’t want to investigate and prosecute the previous administration.
You folks writing here may not be aware of it, but Nazi lawyers who okayed torture and genocide based on German law WERE tried as war criminals after World War II.
Be assured that the mood here in Europe IS to indict, apprehend and try Yoo, Addison, Cheney, Rumsfeld, et. al. If they’re smart, they will remain inside the continental United States for some time to come, and, if they don’t, and come here, they will face the same consequences that Pinochet did.
Also, you folks may not remember it, but some time right before the election in America, Rumsfeld was in Paris when a French magistrate began to entertain a French citizen’s petition that he be arrested on French soil for “war crimes.” The American Secret Service took the threat so seriously that Rumsfeld was quickly bundled over the border to Germany, and then quickly flown back to America.
I don’t think Yoo or Addison or Cheney will be coming to Europe any time soon. In fact, they better not dare to!
Evidence that the Europeans are very, very serious about trying the American LAWYERS who okayed the torture:
http://www.newyorker.com/talk/2009/04/13/090413ta_talk_mayer?ref=fp5
And it is the United States itself which established the precedent by which these lawyerly war crimes criminals will be tried and (if in Europe) convicted:
In 1946, the United States prosecuted two [Nazi German] Justice Department lawyers for a peculiar crime. They had written memoranda which, in disregard of international law, facilitated the torture and abuse of prisoners. They were sentenced to ten years in prison, less time served. That was in the days when the Justice Department lived up to its name. The case is called United States v. Altstoetter. It would be a good case for Michael Mukasey to read; his underlings could benefit from a reading, too, since the time is approaching when it’s going to have some direct impact in their own lives.
http://harpers.org/archive/2007/12/hbc-90002025
The “Justice Case” (United States v. Josef Altstoetter et al)
The 16 defendants in this case held responsibilities associated with the administration of law in the Third Reich. Those who held primary responsibilities in this sphere were already dead. Franz Guertner, Minister of Justice in Hitler’s first Cabinet died in 1941. Georg Thierack, Minister of Justice from 1942 until May 1945, committed suicide in 1946. The President of the People’s Court since 1942, Roland Freisler, was killed in 1945. The defendants in this trial had been judges, prosecutors or Ministry of Justice officials.
The nub of the prosecution’s charge was that the defendants were guilty of “judicial murder and other atrocities, which they committed by destroying law and justice in Germany, and then utilizing the emptied forms of legal process for persecution, enslavement, and extermination on a vast scale.” The indictment charged that the defendants in the Ministry of Justice had participated in drafting and enacting unlawful orders and decrees, such as those which discriminated against Poles, Jews, and others in occupied territory, and the notorious “Nacht und Nebel” (Night and Fog) decree under which civilians in the occupied territories were spirited away to Germany for secret trial before special “courts.” The defendants were also charged with imprisoning and killing Jews, and other members of groups to which the Nazis were hostile, by trials that were a flagrant travesty of the judicial process, and divers other offenses…
[As the tribunal concluded:] The charge, in brief, is that of conscious participation in a nationwide governmentally organized system of cruelty and injustice, in violation of the laws of war and of humanity, and perpetrated in the name of law by the authority of the Ministry of Justice, and through the instrumentality of the courts…
Four defendants were sentenced to life imprisonment, four to ten years imprisonment, one was sentenced to a term of seven years imprisonment, one to five years, and four were acquitted.
http://www.ess.uwe.ac.uk/genocide/cntrl10_trials.htm
The [Nazi]Justice Department lawyers justified these acts as steps available to an occupying power in order to protect its troops against terrorist acts or insurgency. Further, the occupied territories could be divided, roughly, into three categories: (i) areas directly incorporated into the German State (for instance, Austria, Alsace-Lorraine, the Eupen-Malmédy region of Belgium, Danzig and portions of Poland); (ii) areas under German occupation and direct administration (such as Bohemia and Moravia); and (iii) areas under puppet régimes (such as Hungary and Slovakia). As for the first, they asserted the right to treat persons found within those territories under German law. As to the second, they claimed the right as occupier to promulgate new rules and orders, and to derive them from Germany. As to the third, they relied on the acquiescence of régimes like Vichy France and Hungary. Their positions on these points were at least colorable from a legal perspective.
The [Nazi German] Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, “not farmers or factory workers,” they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were “recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war.” That is to say, they were customary international law. Further, the United States charged, this decree “would probably cause the death of human beings,” grounding a charge of homicidal intent.
After trial, the two principal [Nazi German] Justice Department lawyers, one a deputy chief of the criminal division, were convicted and sentenced to ten years’ imprisonment, less time served. This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.
http://beggarsblog-ctuttle.blogspot.com/2007/12/little-history.html
David:
That quote you cite at the stop read: OLC Opinions Could Be Part of a Defense to Certain Criminal Charges, But Do Not Provide Immunity: There has been a tremendous misunderstanding in the press, in Congress, and among some members of the Executive Branch on whether the OLC opinions provide immunity against prosecutions for torture or abuse. They do not. At most, the statutory defense included in the Detainee Treatment Act and Military Commissions Act could result in the OLC opinions being part of a defense to certain criminal charges. But the OLC opinions are not a so-called “golden shield,” do not provide immunity, will likely not be an effective defense for many potential defendants, and should not bar any criminal investigation.
I think that’s important. Lawyers for people who relied on legal opinions are able to use those opinions for the defense, in order to lessen culpability in the minds of a jury or to argue that what their clients did was not against the law. However, the famous saying is “ignorance of the law is no defense” and ultimately, as the quote you cite states, will probably not save any defendants in the long run.
However, the famous saying is “ignorance of the law is no defense” and ultimately, as the quote you cite states, will probably not save any defendants in the long run.
Michael,
But remember, in this case, it would be the Justice Department attempting to prosecute people for relying on the legal advice of the Justice Department. Do you really think they want to be in that position?
As a government employee, would you like the precedent to be set that you could be prosecuted for following the legal advice of the Justice Department on the grounds that you should have known better? Especially when what is being argued is the you should have known better, but the Justice Department lawyers who gave you the legal opinion you ought to have distrusted are not prosecuted?
This would be the Justice Department arguing, “Ladies and gentlemen of the jury, we the Justice Department seek to convince you that these individuals are guilty because they followed the advice of the Justice Department.”
David Nichol, I hope you understand that the line of logic that you are pursuing here fully vindicates Goering’s claim, in the dock at Nuremberg, that the war crimes trials were nothing more than “victor’s justice.” It means that America can refuse to prosecute her own for what she prosecuted others for doing.
digby,
While I don’t want to minimize what Bush and Cheney and their Justice Department did, it was not the Holocaust.
While I think the Obama administration needs to do something other than say, “We want to look forward, not backward,” I don’t believe having the current Justice Department prosecute people the government or in the military for accepting the legal advice of the Justice Department. I think a full investigation that stopped just short of prosecution would be fine. Also, if we ever have anything that approaches the Holocaust in moral depravity and magnitude, obviously the wrongdoers should be prosecuted. But destructive as this was to the United States, I just don’t see any benefit for the Obama administration to attempt to prosecute the Bush administration. Whatever is done should be as far removed from politics as possible. Loathsome as John Yoo is, he doesn’t compare with Nazi lawyers. And if he isn’t going to be prosecuted, I don’t see how anyone who took his legal advice could be prosecuted (unless they were his superiors or “deciders” like Bush and Cheney).
When this thread started, I was leaning toward the position that Yoo should be prosecuted. But for one thing, I just don’t think it will happen, and I don’t see how it could do anything but stir up a really nasty partisan battle.
Actually, David, by refusing to do anything about it INSIDE the United States, you are assuring that it WILL happen over here in Europe, because one of the provisions that governs the EU’s statutes regarding prosecution of crimes against humanity explicitly states that the prosecutions MUST take place if there’s little or no likelihood that the criminals will be punished in their own country. Even the most minimal investigations in the United States might protect Yoo et. al. from prosecution here, but if NOTHING is done over there, the whole sorry bunch will HAVE to be prosecuted here, and God help them if they’re unindicted in the U.S. and if they then have the unmitigated gall to travel here; they’ll then be thrown under a German, French, Spanish or British jail in a heartbeat–the loathing of them and their masters is that great.
Oh, and one more thing, David: If you know anything about lawyerly behaviour and thinking, you know that almost EVERYTHING is a “precedent”; what Yoo, Addington, Cheney, et. al. did may not be “the Holocaust,” but, if it goes unpunished, it certainly WILL stand as a justification for the next act of racist, colonialist impunity in the “spreading of democracy” by some future American Caesar.
Defining “torture” is above my pay grade.
Here you go, folks, just as I predicted:
http://www.spectator.co.uk/alexmassie/3536541/the-wages-of-torture-and-their-repurcussions.thtml