Though legally iffy, not unprofessional
February 20, 2010, 11:39 am
Posted by Margaret O'Brien Steinfels
One of the tasks of professional ethics is to cover for miscreant members of the profession–or so it seems, once again.
“WASHINGTON — After five years of often bitter internal debate, the Justice Department concluded in a report released Friday that the lawyers who gave legal justification to the Bush administration’s brutal interrogation tactics for terrorism suspects used flawed legal reasoning but were not guilty of professional misconduct.”
http://www.nytimes.com/2010/02/20/us/politics/20justice.html?hp
From a profesional standpoint, I think deeply disappointing – bu tfrom a poltical standpoint that probably drove it -
So in other words, “mistakes were made”.
Well, we obviously need to file an ethics complaint against the Obama official who refused to file an ethics complaint against the Bush officials.
I am wondering if legally, members of Al Queda and the Taliban, etc., have to be considered prisoners of war to be protected by the Geneva Convention. I do consider brutal interrogation tactics to be torture.
“Well, we obviously need to file an ethics complaint against the Obama official who refused to file an ethics complaint against the Bush officials.”
I absolutely love it when the Defenders of Conservative Morality defend themselves from the Left by saying “see, you’re just as bad as we are!”
Scott Horton posted about this when the news of the upcoming decision came out a few weeks back. He helpfully filled in some background on David Margolis, the DoJ official who downgraded the verdict in the report. Downplaying or hiding serious allegations of misconduct is apparently a common MO for him.
Creating scandal by hiding evidence of wrongdoing in the hopes of preventing scandal? That sounds familiar!
“I am wondering if legally, members of Al Queda and the Taliban, etc., have to be considered prisoners of war to be protected by the Geneva Convention.”
The answer is “No.”
“I absolutely love it when the Defenders of Conservative Morality defend themselves from the Left by saying “see, you’re just as bad as we are!””
I love it too! My favorite is when those Defenders wonder why the Left is so enamored of the President’s ongoing extrajudicial assassination of civilians. I think the Left especially loves it when the President tries to assassinate one civilian and accidentally assassinates another innocent civilian instead. Don’t you think?
http://news.yahoo.com/s/ap/20100219/ap_on_re_as/as_afghan_taliban
Conservatives are so silly about that whole Fifth Commandment thing. Thank goodness Notre Dame set us straight on that one.
If I have this right, Lawyer A said he had a different conclusion than Lawyer B. Then Lawyer C said, no, Lawyer B’s original conclusion was fine. Yawn.
I think the Left especially loves it when the President tries to assassinate one civilian and accidentally assassinates another innocent civilian instead.
MAT,
Do you really consider Siraj Haqqani — a member of the Taliban and the leader of “one of the most aggressive insurgent groups in Afghanistan” — to be a civilian?
Do you object to the targeting of al Qaeda and Taliban leaders in Pakistan?
Thank goodness Notre Dame set us straight on that one.
You’ll never get of it, will you?
If I have this right, Lawyer A said he had a different conclusion than Lawyer B. Then Lawyer C said, no, Lawyer B’s original conclusion was fine. Yawn.
Mark,
No, you don’t have it right.
Lawyers the Office of Professional Responsibility said Yoo and Bybee’s legal advice was so flawed it amounted to professional misconduct. David Margolis said, “While I have declined to adopt O.P.R.’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client.” Nobody said the legal work of Yoo and Bybee was “fine.”
“You’ll never get of it, will you?”
Should have been . . .
You’ll never get over it, will you?”
Mollie’s notice of Scott Horton’s observations is definitely worth a look. This decision is not only questioning Eric Holder’s hold on the Justice Department, it’s raising questions among European allies looking into the conditions of their own nationals at Guantanamo.
This gem: “However, in the current age, it is the Department’s failure to discipline itself that has raised the far greater worry. At a remarkable conference recently held at Arizona State University, a group of Bush-era U.S. attorneys discussed the current malaise at the Department. Carol Lam, the former U.S. attorney in San Diego and now general counsel of Qualcomm, said that the Bush Justice Department essentially rid itself of people who behaved professionally and were determined simply to do the right thing. It was instead dominated by those who were motivated by politics and oblivious to ethics. David Margolis was supposed to have been a watchdog against this process. Instead, he facilitated it. The failings he seeks to cover up in the OPR report were made possible by the ethics-free culture that he promoted at the Justice Department.”
http://harpers.org/archive/2010/02/hbc-90006456
I think that it is a mistake to view the justice department, or even the Supreme Court, as ultimate arbiter of what is ethical as far as governance or application of justice.
In the parliamentary system, it is parliament that ultimately make judgements and is empowered to set aside legal judgements (e.g. the “nothwithstanding” clause of the Canadian constitution). This, I believe, is appropriate as politics is the art of practical reason.
I am against torture, as is Catholic doctrine. However, I also understand that in the nitty gritty of governance what constitutes “torture” does need to be defined.Certainly, we all need information and reflection from a variety of sources to arrive at a prudent and reasonable decision.
Besides, a legal scholar who has a reputation as a civil libertarian, Alan Dershowitz, argued that the courts should be permitted to issue “torture warrants”. His argument was that the state will obviously engage in “enhanced” techniques of interrogation and having a branch independently review the basis and content of the interrogation method is appropriate.
If as Catholics we cannot agree on abortion in some circumstances, I doubt that “torture” will be any easier.
To be clear, I find both morally repugnant and should be discouraged. In both instances everything that can be done to avoid these should be. But somebody has to make decisions in the margins and they do require advice. Obviously, everybody will appoint advisors and lawyers who generally share their particular weltanschauung. Sartre discussed how people generally never seek advice unless they have a basic idea in advance of what that advice is going to be.
George D: “In the parliamentary system, it is parliament that ultimately make judgements and is empowered to set aside legal judgements (e.g. the “nothwithstanding” clause of the Canadian constitution). This, I believe, is appropriate as politics is the art of practical reason.”
Whatever the virtues of the Canadian (or any other) parliamentary system, few Americans would have any confidence in our current legislative bodies making these decisions. And as the NYT’s report suggests, we should not have much confidence in the Department of Justice making them either.
George D: “Besides, a legal scholar who has a reputation as a civil libertarian, Alan Dershowitz, argued that the courts should be permitted to issue “torture warrants”. His argument was that the state will obviously engage in “enhanced” techniques of interrogation and having a branch independently review the basis and content of the interrogation method is appropriate.”
It is more than generous of you to refer to Alan Dershowitz as a civil libertarian, in fact, it may be a category mistake. Mr. Dershowitz, both in his Israel connection and in his U.S. connections does not really expect an “independent” branch (whatever that may be to) to render a decision independent of the state and “les raisons d’etat.” In his notions, we will have departed from any independent standard of ethics.
“I think the Left especially loves it when the President tries to assassinate one civilian and accidentally assassinates another innocent civilian instead. Don’t you think?”
From the AP report:
Mohammed Haqqani climbed aboard two missiles struck the vehicle, killing him and three other militants, Pakistani and Taliban officials said Friday
…
Little is known about Mohammed Haqqani, but he was considered to be more junior than his brother. The group is alleged to make its money through kidnappings, extortion and other crimes in at least three eastern Afghan provinces.
Am I missing the irony here? Who are the innocent civilians supposed to be?
“Am I missing the irony here? Who are the innocent civilians supposed to be?”
I think you are. Could you send the link to the trial at which Mr. Haqqani was convicted of a crime with due process? I think that would answer your question.
“Do you really consider Siraj Haqqani — a member of the Taliban and the leader of “one of the most aggressive insurgent groups in Afghanistan” — to be a civilian?”
Yes, I agree with the international community, the Left, and the President in that regard. Are you of the opinion that civilians cannot be accused of being bad people?
“Do you object to the targeting of al Qaeda and Taliban leaders in Pakistan?”
I am not sure if you are being facetious or not, so I will assume you are not and say that given that these are ongoing war crimes being committed by the President, I imagine it would not be unreasonable for one to object to the practice.
Unagidon
I don’t think it’s a question of “see, you’re just as bad as we are.” It just seems that the coverage and some of the comments treat the lawyers who are conservatives as criminals and political hacks and the ones who are liberals as objective observers and uphoalders of the law. A lot of people on both sides politicized something that should have been treated differently.
For example, Carol Lam thinks the Bush DoJ is unprofessional – well there’s an objective viewpoint. She is entitled to it, but an honest writer might have said she is a liberal democrat that was fired by Bush. But no, she is just a former DoJ official and general counsel at Qualcomm. So too with the the various lawyers and professors mentioned in the report, and the congressman that filed the complaint. Almost all are liberals. Finding a hundred law professors to criticize the Bush administration about anything is like finding a hundred Red Sox fans who like beer. The whole thing on both sides is so politicized it should never have gotten to this point.
Had this gone the other way it would have been a disaster for government lawyers.
Margaret:
few Americans would have any confidence in our current legislative bodies making these decisions.
In the American system the president is also the commander and chief of the military. Questions of what is permitted under military law and interrogation rests with him or her.
Manuals that guide interrogators need to be updated. It might be distasteful but we have to define what is and is not acceptable in certain circumstances. For example, is punching ok, sleep deprivation, drugs, blackmail. In this situation the government, for its national security wanted information quickly. I don’t believe in the lowest common denominator. As Churchill said, “let them do their worst we will do our best”. Still decisions need to be made and decision makers need advice.
This is a very sensitive topic and I am certainly not supporting the Department lawyers of the Bush era. Still they arrived at different interpretations of law. The ultimate responsibility rests with the President.
The bottom line is that the decision of the justice department was correct. The US has a remarkable ability to self correct through the democratic and political process.
I mean the decision not pursue by the current department not to pursue any action. But it was politically foolish to open up investigations to begin with. Obama should have just came to a decision to say time to start looking forward and not back. My guess is he knew the answer before asking the question as any good lawyer should.
I am not sure if you are being facetious or not, so I will assume you are not and say that given that these are ongoing war crimes being committed by the President, I imagine it would not be unreasonable for one to object to the practice.
MAT,
I would be interested to hear your opinion, but saying “I imagine it would not be unreasonable for one to object to the practice” doesn’t tell me much. Why are you being so circumspect? Are you saying that the killing of known (or even suspected) Taliban and al Qaeda leaders in Pakistan as an extension of the war in Afghanistan is a war crime?
Had this gone the other way it would have been a disaster for government lawyers.
Sean,
I actually agree here, but I don’t think Yoo and Bybee left the Justice Department a better place than when they entered it. Are you saying that in a highly politicized climate, one government lawyer’s interpretation is just as good as another? Or do you agree that Yoo and Bybee’s legal interpretations were distorted by the personal opinions and their politics?
I am saying that different lawyers have different interpretations and often these interpretations are influenced by any number of factors, including the need of the client.
Also, the analysis that many of the critics use begs a number of questions, not the least of which is what is torture? I haven’t read the entire report, but that is a key issue over which reasonable people can differ. The so-called torture memos weren’t considered torture memos by the people who wrote them. By assuming that the practices involved are torture, of course the memos are unreasonable, but that was the whole point.
I have been on the wrong side of a Monday morning quarterback investigation more than once, and it is often easy for those who were not involved to misunderstand the context in which advice was given and the state of the facts known at the time.
David, perhaps you missed this, but immediately after Obama was elected, MAT began voicing a great deal of concern about these issues.
“Are you saying that the killing of known (or even suspected) Taliban and al Qaeda leaders in Pakistan as an extension of the war in Afghanistan is a war crime?”
Don’t forget about Yemen. But yes, the premeditated killing of civilians without due process is generally considered a grave breach of the body of international law regarding armed conflict, in particular the Hague Convention IV of 1907 and the Geneva Conventions. Such grave breaches are also generally referred to as “war crimes”. I imagine the experts here, of which I am obviously not one, could point you to the UN Commission on Human Rights’ resolution on 24 March 2004 or the comments of Jack Straw and Kofi Annan from 22 March 2004.
“David, perhaps you missed this, but immediately after Obama was elected, MAT began voicing a great deal of concern about these issues.”
I think it was on or around 12 or 13 June 2008 actually.
Let me enter two observations here that came from reading the Times’s story (factoids that may or may not be accurate, but which were stated as if they were).
1. The CIA wanted cover for its agents vis a vis the interrogation of terror suspects. Does cover here mean carte blanche? Does it mean post facto exoneration for illegal interrogations that had already occurred? Does it mean a plea for clear legal guidelines about what could be done and what could not be done? It appears that the Yoo memos provided carte blanche; in any case, they were taken to mean that by the CIA.
2. The DOJ report itself finding unprofessional behavior was overruled by David Margulies who seems to be in the business of protecting government lawyers in administrations of both political parties. You may claim this is good for government lawyers (Sean Hannaway), but it isn’t good for the rule of law. And in the long run, it is not good for lawyers; the only profession in the U.S. that regulates itself as well as the bodies of government that they ought to be subject too, namely the DOJ, the courts, and relevant offices in the executive and legislative branches of government.
But yes, the premeditated killing of civilians without due process is generally considered a grave breach of the body of international law regarding armed . . .
MAT,
If you definition of “civilian” is broad enough to cover Baitullah Mehsud or Jamal Saeed Abdul Rahim (or Osama bin Laden), then you might have a case. I am by no means an expert, but a bit of Googling indicates that a distinction is made between “assassinations” and “targeted killings” during wartime, with the former forbidden and the latter permitted. There is so much partisan political sniping in the stuff I find by Google that it is difficult to find objective opinions, but it seems to me that targeted killings by the military of Taliban and al Qaeda leaders in Pakistan by drone attacks are not in and of themselves prohibited by international law. (Attacks into Pakistan if Pakistan truly objects are violations of Pakistan’s sovereignty, but that is a different issue as to whether the targeted killings themselves are illegal.)
You may claim this is good for government lawyers (Sean Hannaway), but it isn’t good for the rule of law. And in the long run, it is not good for lawyers . . .
Margaret,
Sean said, “Had this gone the other way it would have been a disaster for government lawyers,” and I agreed, but I want to make a clarification. It is not so much government lawyers that would have been undermined, but the people in the government who take the advice of government lawyers. As someone who works for a large corporation, if I can’t go by the legal advice of our corporate lawyers, what am I supposed to do? Hire my own lawyers? And if that sounds impractical in the corporate world, it seems far worse to me in government
Setting a precedent that government employees are not safe in taking legal advice from lawyers in the DOJ seems to me a very serious thing indeed. Even if it were wholly justified in this case to discipline lawyers from the Bush DOJ for their legal advice, it seems to me it would set a precedent for the next Republican administration to do the same to the Obama administration, justified or unjustified.
For a new administration to go after people in a previous administration seems very unwise to me, and if it is absolutely necessary, it ought to be done in such a way that some independent body, not the new administration, takes on the task.
if I can’t go by the legal advice of our corporate lawyers, what am I supposed to do? Hire my own lawyers? And if that sounds impractical in the corporate world, it seems far worse to me in government
Precisely. And in your corporate culture, I am sure that the responsibility rests ultimately with the CEO. Legal advice provides a basis for people to be able to ensure that due diligence was practiced, that they tried to ensure that they were acting within what they understood as the bounds of what was legally permissible. It is not a guarantor of infallibility.
Jack Balkin parses of the decision over at http://balkin.blogspot.com/2010/02/justice-department-will-not-punish-yoo.html
He points out that the issue was whether or not the conduct of Yoo and Bybee warranted referring the matter to state and local bar associations for adjudication. He concludes that given the standards that apply in such cases, the decision not to refer was defensible.
Point of information: Is it possible that the people covered by the Yoo/Bybee memos could defend themselves by arguing that they acted on official legal advice and therefore are not subject to disciplinary actions or prosecution? If so, then government lawyers, CIA agents, and others are protected by the memos. How are Yoo and Bybee protected by this argument?
[Legal advice] is not a guarantor of infallibility Nor is it a grant of immunity.
Antonio Manetti, thank you for the cite to Jack Balkin. Read it everyone.
It has the catchy headline: “Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway,” illustrating the standard to which lawyers are held at least in some juridictions (extremely low standard). http://balkin.blogspot.com/2010/02/justice-department-will-not-punish-yoo.html
Point of information: Is it possible that the people covered by the Yoo/Bybee memos could defend themselves by arguing that they acted on official legal advice and therefore are not subject to disciplinary actions or prosecution? If so, then government lawyers, CIA agents, and others are protected by the memos. How are Yoo and Bybee protected by this argument?
I don’t believe Yoo and Bybee are protected by this argument. They are protected (if that is the right term) by the decision that their conduct doesn’t meet the standard for professional disciplinary action. (Perhaps Cathy Kaveny can enlighten us on this issue.)
“If you definition of “civilian” is broad enough to cover Baitullah Mehsud or Jamal Saeed Abdul Rahim (or Osama bin Laden), then you might have a case.”
I define “civilian” the way Kofi Annon, Jack Straw, the UN Commission on Human Rights, the Supreme Court of these US, and the President of these US define it. That definition of course covers Messrs. Mehsud and Rahim. It’s not about making a case; unless I was talking to Dick Cheney, it is patently clear. It is black-letter law that assassinations of suspected al Qaeda members is illegal. That fact that you are not convinced of that is puzzling. But that is not the point. It is indisputably illegal. My only point is that at some point, a Democrat is not going to be the President and then, at that point, when the Left decides that criticizing the intentional killing of suspected members of international criminal enterprises is in their interest, nobody is going to listen.
MAT:
when the Left decides that criticizing the intentional killing of suspected members of international criminal enterprises is in their interest.
Except that Al Qaeda is arguably not a criminal enterprise, it is a political movement.
According to the US Naval Institute who have studied the aims and objectives of al Quaida extensively, ”Al Qaeda’s global goal is to reestablish the Caliphate, a unified Islamic state where a single ruler, the Caliph, successor to Mohammed, has both civil and religious power. Such a society existed, at least in theory, during the early days of Islam.”
Terrorism is a criminal activity. But terrorism is a political tactic of this group and not their objective. I think that this politicalmovement is disastrous for human rights in the world. While I am opposed to global Western homogeneity, I do think we owe it to the Muslim world to assist them in eradicating this particular strain of religio-poltical ideology not only because it threatens Western interest but because the movement undermines human rights as enunciated in the Universal Declaration of Human Rights. Again according to the US Naval Institute, several clues can be observed when the movement gains power in particular provinces – there are no girls in schools, all men have to wear beards and several other egregious violations of human rights occur.
Simply in the interest of offering an alternative interpretation, here are the Wall Street Journal’s editors on this matter. headling: “Vindicating John Yoo”.
http://online.wsj.com/article/SB10001424052748704757904575078182303405948.html
Thanks for the citation, Jim. I read it and would guess there is a certain “editorializing” of the facts in the WSJ’s editorial…
The bigger question I raise at this point is that if Yoo’s and Bybee’s memos were ethical (and possibly legal) what is to keep the United States from doing this again?
“The bigger question I raise at this point is that if Yoo’s and Bybee’s memos were ethical (and possibly legal) what is to keep the United States from doing this again?”
Of course most of us here want the US to stop doing this if it is still doing it, and if it has stopped doing it, to never do it again.
If what Yoo and Bybee did was legal, then it might be worth reminding ourselves that laws can be changed.
The WSJ suggests that it is beyond the scope of the Yoos and Bybees to determine what is ethical – that is the province of policymakers. If that is true, then the culpability flows downstream, to those who used the legal opinions as a moral justification for committing grave wrongs.
The Columbia Journalism Review compared and critiqued various newspapers’ attempts to explain the news — including the one from the NYT quoted in this post. Interesting reading. Only the WSJ passed muster! (The editorial page is a different story: it is completely wrong and totally misleading to suggest that Margolis’s memo “vindicated” Yoo.)