A Failure of Legal Scholarship
The smart legal types in the blogosphere have weighed in on whether or not OPR’s investigation of two OLC opinions (the rationale for warrantless wiretapping and the rationale for torture) can accomplish anything. Marty Lederman writes,
I have previously questioned whether such an ethics-based investigation makes any sense. My colleague David Luban has argued, alternatively, that it does. Whatever the merits of that particular argument might be, there is something else a bit odd about the OPR investigation: The new Attorney General has effectively adopted and ratified the post-Yoo OLC opinions as reflecting current, official DOJ views. How could OPR, which is subordinate to the AG, promulgate the conclusion that the legal advice the AG has embraced is not "consistent with the professional standards that apply to Department of Justice attorneys"? As Emily Bazelon points out in an excellent recent column, OPR does not appear to have the independent authority to overrule the AG in that respect.
[snip]
Myself, I remain a bit skeptical of what could come from such an investigation, by either OPR or the IG. If either of them "found" that OLC’s advice was wrong, or even egregiously wrong, it would remain the case that OLC, the AG and the President disagree.
In an op-ed in the National Law Journal, Sheldon Whitehouse (who pushed OPR to conduct the torture-related of these two investigations) elucidates what he thinks the OPR is likely to to find.
This substantial body of precedent [finding waterboarding illegal] has been documented by Evan Wallach in the Columbia Journal of Trans- national Law. Most notably, Wallach details incidents of waterboarding prosecuted by DOJ itself: the 1983 federal prosecution of a Texas county sheriff who waterboarded prisoners. The indictment asserted that the defendants conspired to "subject prisoners to a suffocating ‘water torture’ ordeal in order to coerce confessions." The sheriff and his deputies were all convicted. The 5th U.S. Court of Appeals affirmed. U.S. v. Lee, 744 F.2d 1124 (1983). At sentencing, U.S. District Judge James DeAnda admonished the former sheriff, "The operation down there would embarrass the dictator of a country."
How is it that the OLC, the elite legal conscience of DOJ, completely missed a U.S. Court of Appeals case on point, a case in which DOJ itself had brought the charges, and a case whose prosecuting assistant U.S. attorney is still in the department? Is this a failure of legal analysis, or something much, much worse?
The torture memo is part of a disquieting pattern at the OLC. As a member of the Senate Intelligence Committee, I have been able to review secret OLC opinions on the warrantless wiretapping program. Those opinions contained several deeply troubling legal theories, which I was eventually able to have declassified. Simply put, those theories are: The president is not obliged to follow executive orders; Article II of the Constitution gives the president the authority to determine what his Article II powers are; and DOJ is bound by the president’s legal determinations. These theories, issued in secret, are breathtaking in scope. They argue for an executive outside the checks and balances of the law. They erode the balance of powers on which our system of government was founded, defying its very underpinnings.
In the hothouse of ideology that the OLC appears to have become, conditions were ripe for abuse. OLC opinions were written in secret, protected from public scrutiny, peer review and critical analysis. The appointees were ideological. The results have been devastating. And the failure of scholarship in the OLC’s analysis of torture suggests that the answer was preordained. By whom, one wonders. The investigation now under way by the Office of Professional Responsibility should help us better understand what the OLC has become, and what now must be done to reclaim this great institution. [my emphasis]
That is, Whitehouse suggests that the OLC failed to do the most basic thing–look for precedents relating to waterboarding. Instead, Whitehouse points out, Yoo based his argument for the Bybee memo on a precedent pertaining to health care reimbursement law.
So Whitehouse suggests that the OPR investigation should point out that OLC ignored precedents. He calls this both a "failure of legal analysis" and a "failure of scholarship," even while he suggests it may be something much worse.
But even if OLC agrees that the smarties running OLC ignored obvious legal precedent, then what happens? Does that get you all the way–as Whitehouse suggests–to arguing the results of the analysis were preordained? And if OPR’s mandate is restricted to the legal ethics of lawyers within DOJ, how would it weigh in properly on the question we all know the answer to: "by whom, one wonders"?
Wow, welcome to the Fourth Reich.
still talking about it. doing nothing. wasting time. wasting lives. pumping gas.
when in the course of human events……
Wow. The OPR (Office of Professional Responsibility) seems almost like a Soviet-style entity where professional responsibility is equated with supporting the wishes of the Leader. There’s got to be a bureaucrat somewhere in that agency who knows the story of why U.S. v. Lee got the treatment it did.
They didn’t miss it, they consciously ignored it.
Well, I can’t speak for others, but this one here doesn’t wonder at all; it was Cheney and his boy Bush, voicing their will through Addington. One does, however, have to ask why does Lederman continue to struggle with the OPR concept? The answer is crystal clear, and has been all along, if you ask me. As the hierarchy is constructed, and especially manned with the current crew, OPR is not going to accomplish anything with the possible exception of stringing out the process and giving a watered down finding that has just enough showing of fault to let the main ills and crimes go free.
Well, when I said this:
I was thinking of Cheney and Addington. But I didn’t think it needed to be said.
It didn’t. I just jabber a lot…. And I was pricking Whitehouse, not you; but I thought that went without saying….
Jonathon Turley recently made a distinction between opinions that were errant and those that are deliberately wrong. I can’t recall his exact terms right now and hiss website is down right now.
It’s pretty clear that this oversight of the 1983 DOJ prosecution for waterboarding in Texas could not be anything but deliberate. Therefore, Yoo, Delahunty et al. need to go to jail too. I’m working to make it happen!
but only after a fair trial. *g*
EW, BTW. Did you happen to catch The Daily Show last night? During the interview John Stewart said something like, “The Patriot act hasn’t caught Osama Bin Laden. But it did catch Elliot Spitzer. And that’s what it is designed for anyway.”
Clinton’s OLC wasn’t clean either. Lederman worked there. Simple CYA.
Thanks bmaz; I was just about to ask why Whitehouse and EW were skirting the issue as if it is too sensitive and may offend someone. If we’re not past that shit by now we oughta be. I was about to ask just what is this “much much worse?” I suppose Whitehouse was referring to violation of some specific statute that he couldn’t/wouldn’t mention, but I will speak out of turn here and call it what it is, a poorly masked plan to destroy our govt. Could that be called treason? I personally am sure it is. Lawyers can correct me on this of course.
Nowhere, man. With acknowledgements to The Beatles and bmaz.
Your overview isn’t complete without Horton’s pithy look from the 11th at the Wide World of Weasles – aka the various departments at DOJ including PIN, OLC and OPR.
The one place that (IMO and based on my speculation) there could have been a different result is the investigation where they were shut down. I’m still, in my own mind (which can be a pretty uninteresting or scarey place, depending) convinced that all the uproar over the TSP when Comey and Goldsmith actually took action stemmed for FISC orders regarding firewalls and the DOJ’s violation of those orders. I think that any reauthorization of the program without fixing the parts that resulted in blatant violations of the court’s orders (all likely screening type issues – which also make me wonder if McConnell’s firm got an oversight gig the way it did with SWIFT) is something that would get most lawyers subject to contempt.
However, the FISC and Federal Dist cts in general, on both the TSP and a slew of other issues, like the tape destruction and failures to send out preservation notices and misrepresentations to the court, etc. have indicated a willingness to, instead of issuing contempt or making direct referrals to the bar (presumably bc of the classified nature of the proceedings) allow OPR to investigate since OPR does have the power to refer lawyers within the Exec branch for action by their bar associations.
Knowingly advising your client (the President) to disregard the FISC rulings, knowingly proceeding with authorizing a plan in violation of FISC rulings, etc. – those are things that are not just “bad advice – bad research – not smart enough” but are instead the kind of clear violations that subject you – well, if you aren’t the DOJ crew at least – to being disbarred. IMO, that’s has to be a big part of the reason why the OPR investigation into Gonzales was shut down. Even if they were going to keep their findings classified and secret – – which you know they will do if there is anything the President doesn’t want made public (after all, OLC and Bradbury still have the power to tell OPR that they have to follow Bush’s final word on things like that) – – on violating a court’s order and sending the referral to the bar association, well, Bush can’t really tell a bar association (not even the Tex. bar, although what it is like I have no idea) what to do. They generally – even when peopled by partisans – frown on covert violations of court orders.
I also go back to wishing someone would nail down what happened in the August debacle, where after so very very very long, finally Gonzales starts the emergency “no warrant” surveillance procedures – what did happen when at the end of the period he was before the FISC? I have to wonder if the FISC, fed up, ruled that his request was made in bad faith and his search was in violation of prior court rulings on what could and could not be done and what did or did not support probable cause. And if – after some period – the court took some kind of retaliatory action. And if that wasn’t the real impetus behind Gonzales leaving. Perhaps he was about to be barred from making further filings? The court did do that before. Or perhaps the court was going to make its own referral for his bar to take action? I guess a lot of that is far fetched, but I would like to have seen someone nail down what happened about the order at the end of the “emergency surveillance”
Okay — I do NOT want what I am
about to type to be misinterpreted,
so, for the record — this whole
thing is deplorable. It stinks to
high heaven — Yoo (and Bybee before
him) pretty-clearly chose to ignore
relevant precedents.
That said, I suspect Yoo and Bybee
would now, after the fact, assert that
U.S. Citizens, in State custody, in U.S.
jurisdiction (Texas is still part of the
U.S., right?) have additional (8th Amendment,
and 6th Amendment) rights — rights Yoo and
Bybee would assert, do not obtain at Gitmo,
or in Central Europe, and do not apply to
non-U.S. Citizens.
What truly-smells about this, though, it that
the correct — read: ethical — way to handle
U.S. v. Lee, and similar precedents (the Teddy
Roosevelt case, from 1904 — cashiering a U.S. gen-
eral for allowing water torture) is to CLEARLY
point the countervailing cases out, then
artfully DISTINGUISH one’s own facts from
those at play in U.S. v. Lee.
Lee is distinguishable on the above grounds, at
least enough so to make a colorable legal argument.
As to the Roosevelt case(s) — I am pretty sure
Yoo and Bybee, even now, couldn’t get there — couldn’t
find a colorable way to distinguish the them. Thus, it
seems, they simply pretended that line of authority
didn’t exist — in that respect, at least, these
memos are quite-like Cheney’s pixie dust, eh?
p e a c e
4 –
This is why the opinion was never made public too. They didn’t want to have anyone correct them on it.
It’s a horrible idea, imo, to EVER have OLC opinions where the legal reasoning is kept secret. Secret laws and dispensations, known and available only to some closeted elite, are directly antithetical to a democracy, or as Judge Keith said, Democracy dies behind closed doors.
The failure of our political elites to raise a stink about the notion of secret OLC opinions was the one of the most significant events that no one noticed. It was the tool that this regime used to implement their instruments of tyranny. Torture, executive lawlessness, spying, and all the other accoutrements of the petty dictator have been justified and implemented under the guise of secret laws.
Finally, also likely in-play here is the
odd-ball D.C. Code of Ethics “super-duper“
client confidences rules — a rule-set only
followed by — yep — Nevada (think organ-
ized crime — well, not quite as organized,
apparently, as that now underway in D.C.!). . .
I think bmaz is right — this has Addington’s
fingerprints smeared all over it — lousy with
‘em, in fact. . .
More on the minority rule in DC, and how
it comes into play here, in a moment — I
want to read bmaz’s, and mary’s carefully, first.
p e a c e
Following up – then it is to be assumed that Chaynay & Dr.Adder have (given themselves) the power to commit treason. In secret of course. Everyone stands around dumfounded. For years.
Sorry for the long comment, but I wanted to explain in some detail why this is a whitewash.
Here’s the fundamental problem – the proverbial elephant in the room – that no one is looking at when they think about an “attorney ethics” approach to the OPR Torture opinions.
This is not an honest, bona fide investigation.
This is, rather, a deliberate attempt to thwart any future ethics prosecution (i.e., disbarment proceeding) against any of the attorneys involved in the Torture memoranda.
Here’s how it works.
Law School 101: There are three basic burdens of evidential proof which can apply in a case. These are “a preponderance of the evidence”, “clear and convincing evidence” and “evidence beyond a reasonable doubt”.
A “preponderance” is the lowest standard. It means, basically, 50 percent plus one hair. “Beyond a reasonable doubt”, you’re all likely familiar with from talking about and reading about criminal trials.
The one we’re interested in here, though, is “clear and convincing evidence.” This one lies in between and has many definitions. The definition I like is
I know, it’s a little circular. Just like saying something is “arbitrary, capricious and unreasonable” is the same as saying it’s “arbitrary, arbitrary and arbitrary”. (Check your synonym dictionary if you doubt.)
Here’s the elephant. In just about any state I can think of, the standard of proof for an attorney ethics (disbarment) proceeding is that the allegations of unethical conduct must be proven by clear and convincing evidence. This is because, after all, we’re talking about deciding whether an attorney loses his or her license – in some states, disbarment is for life. And don’t even bother re-applying, either. Serious business. And experience teaches that it really has to be that high because disgruntled litigants (also known as “losers”) sometimes do not go away but instead come back and chase after either their former attorney (who lost their case) or, somewhat less often, their adversary’s attorney (who kicked their butt). So, to keep attorneys who represent clients whose expecatations may not be fulfilled (in court, there’s always a loser at some point) from having to risk their livelihood every time they take a new case, the burden is set high – “clear and convincing evidence”.
By way of example, I worked one case where my client-attorney’s former clients waited three years, then came back and filed an ethics proceeding. After that one was dismissed as meritless, they came back and filed another one over the same charges (which they lost more quickly). And this was in addition to the legal malpractice cases they filed against my client (and lost, too). Still it cost my client (a friend for whom I took the defense at about 1/4 my usual rate) over $5000, not to mention the time, aggravation and embarrassment.
Back to the elephant. Assume, for a second, that the OPR report comes back and says “as to issue A, B, C and D, reasonable people could disagree as to whether it met professional standards.” And, it will.
Legal analysis is highly subjective – while precedents #1, #2, #3 and so on may all say certain things, and their holdings might all be models of crystalline clarity, the interplay of those holdings is another story. Predicting how a court might decide whether certain conduct is lawful or unlawful – well, that’s fraught with problems.
Now, add into that calculus three angles unique to the OPR Torture Memos. First, that this is an area with not a lot of precedent in it. Second, there is a “respectable” school of legal thought that says the Preznit really is King. This school is made “respectable” because it is supported by all those law review articles written by wingnut professors while the neocons were out of government in the 90s, when those professors were working to get some notice and line up a job in government for when the neocons did take over. Third, the Geneva Conventions were written to be vague – and this was quite deliberate – so as to leave a broad area into which people who would seek to find a way to do the things Geneva forbade, would be dissuaded from treading.
Missing a precedential case – that 5th Circuit water torture case – is explainable (and therefore excusable) as negligent. It’s almost impossible to get disbarred for one act of negligence; it’s got to be an ongoing pattern and habit of carelessness and sheer stupidity before the authorities will get involved.
Prosecuting an ethics complaint about bad legal analysis is one of the most subjective and therefore difficult ways to approach an ethics case – it’s almost guaranteed that the defendant attorney will win on that case. IF the ethics authorities (I call them the “Ethics Police”) even decide to prosecute. The Ethics Police in any state would much rather bring cases against attorneys who are doing egregious, easily proven things – like stealing from clients’ funds, blowing statutes of limitation, and such. Nice, objective cases, where clear and convincing evidence can be found in the escrow account records or the calendar.
The very vagueness of the Geneva Conventions, when coupled with the presence of “respectable” legal scholarship and lack of precedent in the “how far may the Executive go”, makes for a devils’ brew of difficult subjective issues for any ethics prosecution. There is little doubt in my mind that the OPR review now underway will find reasonable people might be able to disagree as to one or more points of the enalysis.
If reasonable people could disagree, then the evidence is not “clear and convincing.” Period. I know. I’ve defended those cases.
And, if the evidence is not clear and convincing, the ethics complaint fails.
QED – this is Mukasey, Bradbury and Addington sending love letter to all their loyal friends in DoJ, headed “Just Wanted You to Know – We’ve Got Your Licenses’ Backs. Thanks for Letting Us Torture.”
11 – I don’t think that is just an “after the fact” rational from them – I think they have made that argument in part all along. It was a part of the rationale of GITMO and blacksites – i.e., that they could be outside the law there, outside of courts’ jurisditions. It was pretty much the Rasul case.
Then they have made the argument, also pretty much from the beginning, that while courts can interpret the Constitution and the 8th, etc., vis a vis American citizens, when it comes to treaties with no enabling legislation (like the Geneva Conventions and kind of the Torture Conventions – although they pretty much have ignored the War Crimes Act and Torture Victims Act on that front, which is why they’ve relied on state secrets in the TVA instead of arguments) then the President has the sole and unfettered ability to decide what the words in the Conventions mean.
What left them whining was Hamdan’s ruling that the Court could and would decide not only to whom general article III of the GCs would apply, but also, while giving loads of deference, would also apply to determine if the interpretation of the treaties made sense. Apparently Yoo and others are still arguing that ” the Court is wrong” on that one, and that if Congress doesn’t add in enabling legislation, then it is up to the Exeuctive to decide.
That’s also the horrors of the DTA and MCA. Congress whored itself out to be a part of the Emperor’s club. Now we have a truly horrible situation.
Thanks Carl Levin and Harry Reid and Chuck Schumer.
Right, mary — they did.
I guess my point was that now, in order to avoid being disbarred, they would have some rationales open to them — except as to the Roosevelt precedent. That one they likely cannot skirt.
That was my point — not that they wrote the opinions “after the fact”.
Sorry for being so opaque.
p e a c e
17 – yep,and the 5/4 Sup Ct decisions don’t help much either, although at least we have a stronger (pre-Roberts and Alito though) showing about what can be done to American citizens. Good thing for Ashcroft and his boys and girls that they coerced a release of his torture claims from Lindh before they locked him up.
Okay — in DC, client confidences and client
secrets receive, under both the pre-2.1.07 re-
visions, and post-2.1.07, as amended, ethics rules,
extremely wide, and deep, protection. The DC model
is followed only in Nevada, as I noted above.
Here is commentary from the Confidences rule in DC:
Here is the relevant portion of the Rule, itself:
Crap — I am out of time, here, but let me just say that getting these jokers — Yoo, Bybee or Addington, to ever use the “permissive disclosure” standard would be fruitless.
In other almost ALL other jurisdictions, the Rule 1.6(c) standard — the to prevent “death or serious bodily injury” disclosure is MANDATORY.
So too, other parts of the above DC “permissive” disclosures rules would be mandatory — required by the lawyer — in most other jurisdictions.
So we now live with a culture — a dark culture of back-room dealings, that has grown-up particularly in DC (and Nevada) — a culture that does not have reason to fear that its lawyers (if carefully-chosen to be um. . . pliable) will “dime it out” — EVEN if a CREDIBLE intent to commit murder, or torture, is disclosed by the client.
That culture could not flourish with the aid of after-the-fact, exonerating written legal opinions, at least, in New York, California, Illinois, Michigan or almost anywhere else you can imagine. It ain’t pretty, but it is true. . .
Back later.
p e a c e
By way of example, here is the
Illinois version of Rule 1.6.
It embodies the majority view:
This whole thing can, in part, be traced back to the impunity lawyers, carefully-chosen, in DC, are able to pro-offer to their nefarious clients.
Sickening.
I guess under that ethics rule, AG Mukasey’s take is that no one needs to reveal information to prevent hypothermia (which did result in a death) and kidnapping and waterboarding and beatings etc. contemplated by their client – if the lawyers are DOJ and the client is the Whim of the Executive Branch.
Mary — that is exactly right.
Even clearly UNLAWFUL
planned courses of [mis-]conduct,
conduct which will result in deaths,
are NOT REQUIRED to be disclosed by
the lawyer in DC. But in (essentially)
every other jurisdiction in the US,
the lawyer would be REQUIRED to disclose,
to prevent the death or serious bodily
injury planned by the “client” (see
contrasting Illinois version, above).
Sickening — just as I said.
p e a c e
You got to hand it to a guy who does the analysis and feels confident enough in his work to come out and state a conclusion about the conditions that produced the result.
It’s for the record now. It’s important to leave a record especially if there will be no consequences.
Exactly. We must impeach even with no jail time or fines or any satisfying consequences for the law breakers.
We must put it on the record so that no subsequent president of any party, even parties that may not yet exist, shall continue in this line of thinking. The unitary executive must be killed. Our very democracy depends on it. It must die a swift death before the next president is inaugarated.
They have left us no other choice but to watch our democracy disappear. We can’t let that happen.
My motto this election season! Vote Dem! It’s the supreme court, stupid!
White House Used Twisted Health Language to Justify Torture
By Jason Leopold, Consortium News
Posted on February 19, 2008, Printed on March 13, 2008
http://www.alternet.org/story/77342/
John Yoo, the author of the infamous Aug. 1, 2002, “torture memo” that formed the legal basis for so-called “enhanced” interrogation techniques against high-level terrorist detainees, used a statute governing health benefits when he provided the White House with a legal opinion defining torture, according to a former Justice Department official.
Yoo’s legal opinion stated that unless the amount of pain administered to a detainee results in injury “such as death, organ failure, or serious impairment of body functions” than the interrogation technique could not be defined as torture.
Waterboarding, a brutal and painful technique in which a prisoner believes he is drowning, therefore was not considered to be torture.
Jack Goldsmith, the former head of the Department of Justice’s Office of Legal Counsel, said that Yoo, a former OLC attorney who now teaches at the University of California at Berkeley, arrived at that definition by relying on statute written in 2000 related to health benefits.
“That statute defined an ‘emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function,” Goldsmith wrote in his book, The Terror Presidency.
“The health benefits statute’s use of ’severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ’severe pain.’ Rather it used the term ’severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like … OLC’s clumsily definitional arbitrage didn’t seem even in the ballpark.”