[Ppnews] 'The Torture Memo'

[Political Prisoner News]

The Torture Memo
by Stephen Gillers


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 "o 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 "o 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. Stephen
Gillers



This article can be found on the web at:

http://www.thenation.com/doc/20080428/gillers





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