Notes from All Over to April 19 – Comments

April 20, 2009 | 43 comments
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Here’s the place to make your comments on our ‘Notes from All Over’ for last week.

43 Responses to Notes from All Over to April 19 – Comments

  1. Kaimi Wenger on April 20, 2009 at 4:22 pm

    The impeachment issue will be really interesting to watch. I don’t know if it will happen, but the pressure for impeachment seems to be building.

  2. Kent Larsen on April 20, 2009 at 10:19 pm

    I agree. My take on the situation is that Bybee gave into pressure from Yoo and from higher ups in the administration (I assume including Timothy Flanigan, who is also a BYU grad and who was Bybee’s superior at Justice — an unexplored area, from what I can tell.)

    But its still hard to see much of a justification for Bybee signing the memos.

  3. Dan on April 21, 2009 at 8:40 am

    1. Jay Bybee needs to be impeached. He is unworthy of being on the bench. He knows better.

    2. On David Buckner, I spoke to him this past Sunday when he was in our ward. He is fine. He had a stomach virus that day and it just happened to have hit him at the wrong time.

    3. On NY state pushing for same sex marriage, two points. 1. Steve Schmidt (McCain’s advisor last year), said the Republican party should give in and accept the fact that same sex marriage is going to happen, and to survive as a party, they should embrace it. 2. I wonder if we will see the church press against this in New York as they did in California…

  4. Kent Larsen on April 21, 2009 at 9:40 am

    Dan (3):
    1. I’m a little more charitable toward Bybee than you are, I think. I’d be more inclined toward thinking he should be impeached with a refutation of the memos point-by-point on a constitutional basis. I’m not a lawyer, let alone a constitutional scholar, so I don’t know if the argument that torture is constitutional, even if it is reprehensible, holds any water. Bybee is more of a lawyer and constitutional expert than I, so I need to see that someone has actually looked carefully at the arguments in the memos and refuted them from a reasonable, moderate viewpoint.

    2. I wish I’d been in Church to talk with President Buckner about what happened. I still think it was Beck who made him ill. I know I get ill every time I hear him!!

    3. Good questions.

    Kent

  5. Marc Bohn on April 21, 2009 at 10:13 am

    There’s no way Bybee’s getting impeached. The bar for impeaching federal judges is ““treason, bribery, or high crimes or misdemeanors” and there isn’t any way Bybee is getting convicted of any crime for stating these legal conclusions, no matter how bad they might have been. It’s possible he could feel that he’s become enough of a distraction that he decides to step down, but my guess is that he stays put and tries to weather the storm.

    Another thing, while I certainly don’t agree with the legal conclusions put forward by the OLC under the Bush administration on all of these issues, I still think they need to be viewed in context. The United States had just been hit by the worst attack on its homeland in its history and there were real and legitimate fears that more attacks could be coming. The pressure Bybee and others were under to ensure one didn’t happen must have felt enormous. It doesn’t excuse the excesses, but it should be enough to call off the lynch mob as I think many of us might have had similar lapses in judgment in similar circumstances. I do think sunlight here is good, because it helps dissuade excesses by those who might find themselves in similar positions in the future, but we shouldn’t let this become a partisan circus.

  6. Rob Perkins on April 21, 2009 at 10:22 am

    On NY State and same-sex marriage, I wonder if the Church has any leverage there. If the Church is too small there (and it is very, very small) it might not have the leverage to lobby in Albany.

    And let’s face it: It’s happening through the legislature, which conservatives have always insisted is a more legitimate way to do activism than through a judicial fiat.

    Two Temples are in New York; it could be an interesting place to see whether the legal inevitabilities SSM opponents have insisted exist actually exist.

  7. Dan on April 21, 2009 at 10:29 am

    Marc, Kent,

    I don’t know how much we want to get into the issue of torture here, but I have a few things to say.

    1. These techniques were not new. They were not secret. They were not never seen before. These techniques were used by the Chinese on our American soldiers in the Korean War. It shocked America’s military so much, they decided to start experimenting with these techniques. Thus we get SERE, which many soldiers have to go through. SERE is where soldiers are trained to resist torture done by other countries. Torture. Acts that would otherwise be considered illegal under American law. The techniques our soldiers train against in SERE are illegal. Their use for training is exempt, but to use them against prisoners is against the law.

    2. The purpose of the OLC memos was not to guide future programs, but to find a way around the law for acts already committed! In other words, they waterboarded Zubaydah and then went to the lawyers and said, “Find a way to make sure our CIA operatives are not going to be punished by the law for using an illegal technique on a detainee.”

    3. The lawyers thusly had a choice to make. They knew the techniques were illegal. There is no doubt on what the Geneva Conventions and the UN Convention on Torture state. Both are ratified treaties, making them the Law of the Land in the United States, according to the Constitution. Thus, the lawyers had to write very poorly argued memos that took the burden of getting in trouble off the CIA agents and essentially put it on themselves. Why they would do that, you can only ask them. Bybee should have realized this. He’s a lawyer. He knows how burdens work. He knows that if a lawyer tries to play with words, he usually gets burned. And Bybee will get burned by this, if not with a loss of his judgeship, then at least in reputation.

    4. The techniques used separately (say waterboarding) aren’t effective at causing lasting pain and suffering. That’s the argument Bybee makes. He is right. But he fails to mention to the CIA operatives in his memo that if combining techniques, say waterboarding and sleep deprivation, you induce long term suffering and pain on an individual, because you chance the circumstance and environment that the body goes through. That additional stress becomes too great for the body, and it reacts defensively, creating irreparable psychological harm, thus fitting the definition of torture. When you sleep deprive someone, you create a weakened condition in that person. On its own, there isn’t much of a problem. A few hours of sleep, and the body becomes better. This is what Bybee writes in his memo. But he fails to note that if you sleep deprive someone and THEN waterboard that person, you induce a state of pain and suffering far beyond where the line is drawn on whether you call something torture or not.

    That cocktail of techniques destroys the psychology of the body that goes through it. That’s the purpose. But what the Americans forgot, when they learned these things from the Chinese, is that the Chinese used these to EXTRACT FALSE CONFESSIONS! that’s the point of torture! To force someone to say something against their will they will not normally state!

    How then can any lawyer argue that these techniques work to extract correct information, and thus not constitute torture when that simply is not the case at all? John Yoo, Jay Bybee, and Stephen Bradbury, the lawyers who approved this stuff, must be punished. But really, they’re the small fry. The real criminals here are George W. Bush and Dick Cheney. They are the ones who ultimately approved these techniques, and who the lawyers will use as defense for their poorly written memos. The real criminals are the former President of the United States and his vice president. They are the ones who should be charged with war crimes.

  8. Dan on April 21, 2009 at 10:31 am

    And let me just add, they waterboarded KSM 183 times in March 2003 alone. How effective is it as a tool if they had to waterboard him 183 times!!! That’s 5.9 times a day! Waterboarding really sucks as a tool.

  9. Marc Bohn on April 21, 2009 at 10:49 am

    Dan – Did you even read my comment? Or do you just use these comments to get on a soapbox and tout your political views? I wasn’t talking here about the ethics of torture, the merits of these techniques or the quality of the legal memos. I was addressing the prospect of impeachment for Bybee, and, simply put, it’s not going to happen. You and others may want it to happen or feel it’s justified — a lot of people thought Bush should have been impeached too — but there is no conceivable way a bill of impeachment gets pushed through on Bybee. Beyond that, I simply stated that I think that regardless of whether we agree with the conclusions Bybee put forward or not (I doubt, in hindsight, he does), that we ought to view the issue in context. Some might feel that Bybee’s work at the OLC makes him unfit for the federal bench, but even if one is making such arguments I think it prudent to recognize that good people make mistakes. I’ve seen some media reports that rise to the level of full-scale character assassination, and I don’t think that gets us anywhere.

  10. Dan on April 21, 2009 at 10:55 am

    Marc,

    I did read your comment, and I disagree with the notion that in 2002, or 2003, times were “different” that justified different thinking. If we are supposedly in a fight to defend “our way of life,” then changing that “way of life” to include things not normally found in it (i.e. torture), then we’ve lost that battle. The context of the time did NOT warrant torture!

    Secondly, the only way to get someone like Jay Bybee impeached is to actually try and impeach him, whether or not it is likely. There are enough Republican senators (and sadly enough Democratic senators) who will go on record in support of torture. But the more public outcry against Bybee and others like him, the better the prospects.

    This was no mistake, Marc. This was purposeful and willful. Jay Bybee did not make a mistake here. He did what he was ordered to do: provide legal cover for otherwise illegal acts. That was no mistake.

  11. Kaimi Wenger on April 21, 2009 at 11:08 am

    Rob Perkins writes,

    “Two Temples are in New York; it could be an interesting place to see whether the legal inevitabilities SSM opponents have insisted exist actually exist.”

    Or you could just look at Massachusetts, where there’s an active temple, and where gay marriage has been on the books for five years and running.

    Number of gay couples married (forcibly or otherwise) in the Boston Temple: Zero.

    Number of times the church has been sued in Massachusetts for failing to marry gay couples in the Boston Temple: Zero.

  12. Kaimi Wenger on April 21, 2009 at 11:15 am

    Questions on impeachment (I don’t know the answers to these):

    1. Can you be impeached for pre-appointment behavior? Do the impeachment offenses have to happen while a judge?

    If impeachment is limited to post-appointment actions, then there’s no case here.

    2. Are you sure it’s just crimes / misdemeanors? I could have sworn I’ve read about judges being impeached for being habitual drunkards — isn’t there a “general fitness for being a judge” ground for impeachment?

    3. If Bybee lied during the appointment process, then is there a potential perjury action there (which would then qualify as a crime)?

    4. Is there any precedent for impeaching based on legal conclusions? I mean, no one is suggesting that Bybee himself was dunking Khalid. Instead, this is about a memo he wrote. Are there prior cases where a judge has been impeached based on the content of a legal memo? (I’m not sure.)

  13. Marc Bohn on April 21, 2009 at 11:18 am

    “justified different thinking”

    You clearly did NOT read my comments. I’m not arguing they were or weren’t right. In fact, on the merits we probably agree on a few things here, my point is that context and nuance count. While Bybee may have been dead wrong on the memos, I don’t think he’s soulless. My personal view is that he got caught up in a moment, amid gale force pressures within the Administration, and ended up making some critical mistakes. This isn’t to say one can’t credibly argue for impeachment, but there’s no way in hell it’s ever going to happen. What I would argue strongly against is caricaturing someone like Jay Bybee, and indicting all of his motives and intents. I don’t think it’s fair nor can it be justified. Both the right and the left in politics jump on this sort of character assassination (take the right’s reduction of Reverend Jeremiah Wright to a 30-second anti-American-venom-spewing Youtube clip), but I don’t think it leaves us any better nor does it bring us closer to the ‘truth.’ All it does is cloud our understanding.

  14. Marc Bohn on April 21, 2009 at 11:29 am

    1. Can you be impeached for pre-appointment behavior? Do the impeachment offenses have to happen while a judge?

    I’m almost certain you could be, but the bar is going to be much higher.

    2. Are you sure it’s just crimes / misdemeanors? I could have sworn I’ve read about judges being impeached for being habitual drunkards — isn’t there a “general fitness for being a judge” ground for impeachment?

    Are you talking state or federal judges here? The bar for the impeachment of federal judges is much higher. It’s very rare and usually involves a serious crime for which the judge is being prosecuted or has been convicted. John Dean talks about it some here.

    3. If Bybee lied during the appointment process, then is there a potential perjury action there (which would then qualify as a crime)?

    Okay. Err… do you have any evidence at all suggesting that he did? This issue wasn’t even on the map during his hearings.

    4. Is there any precedent for impeaching based on legal conclusions? I mean, no one is suggesting that Bybee himself was dunking Khalid. Instead, this is about a memo he wrote. Are there prior cases where a judge has been impeached based on the content of a legal memo? (I’m not sure.)

    No federal judge has ever been impeached for his or her legal opinions from the bench. As for legal memos, I highly doubt it.

  15. Kaimi Wenger on April 21, 2009 at 11:36 am

    Found it.

    John Pickering. Impeached. Main charge against him was that he was a drunkard. Also challenged on whether his rulings were lawful.

    So, unless shown otherwise, I’m going to stick with the idea that judges can be impeached for general unfitness, even if they aren’t committing a crime.

    And really, that seems sensible. The bar *should* be lower than just, not-committing-a-crime. I don’t *want* a drunkard judge, even though drinking is perfectly legal.

  16. Rob Perkins on April 21, 2009 at 11:37 am

    Kaimi, I know about Massachusetts, of course, but I’m thinking much longer term than five years. The interest is in what happens over the next 30 years.

    [grumble] People are being so freakin’ short-sighted about SSM, from all sides.

  17. Kaimi Wenger on April 21, 2009 at 11:41 am

    There were also apparently some credible allegations that Pickering was insane.

    Also, Samuel Chase was also impeached (but not convicted) for alleged procedural errors and inflammatory comments made during a trial.

    So, yeah, it looks like historically the impeachment language has been read a lot more broadly. If it can reach insanity, drunkenness, and inflammatory comments at trial, then I think it can certainly reach a memo produced at the OLC.

  18. Dan on April 21, 2009 at 11:50 am

    Marc,

    I understand that context, and maybe the problem was that the wrong people were in power in America in 2002 (i.e. the Bush administration) that allowed such ideas to even take fruit. It still does not excuse Bybee, who should have known better, if anything from his religious upbringing. Or maybe I don’t understand the Gospel at all.

    Remember, my attacks on Bybee aren’t related solely to this one memo just released. He also is the author of the infamous Bybee Memo that was released in 2004 (written in August 2002), which tried to narrow the definition of torture to “organ failure” etc.

    I apologize for my passion. This is the number one issue I care most about when it comes to my country right now. We must hold those who advocated or approved of torture in this country accountable. We must show that such action is not an American value, nor a value any other country trying to emulate us must follow. We lost a great amount of power and influence when it became clear we tortured our prisoners. We had to stay silent when it came time to hold another nation accountable (I can’t remember the detail, but I remember the incident), because we ourselves were guilty. We can’t use human rights as leverage against China anymore, nor against any other country. They’ll spit our torture right back in our face.

    That’s all I’ll say on the matter here. I’m glad Obama has released the memos and I hope he releases more of them. Shine a light in that nasty darkness. Force all the cockroaches to flee.

  19. Kaimi Wenger on April 21, 2009 at 12:27 pm

    Dan,

    Is it a crime to write a legal paper about the meaning of the torture statute? If the statute says, “no torture,” and one writes an article saying, “under legal definitions, actions X and Y are probably not torture” — is that allowed?

  20. camay on April 21, 2009 at 1:32 pm

    I don’t know what is allowed, but writing memos that support torturing another human being seems not only Un-American but Un-Christian.

  21. Rob Perkins on April 21, 2009 at 1:51 pm

    Isn’t it just as un-American and un-Christian to revoke the livelihoods of people who offer opinions?

  22. aloysiusmiller on April 21, 2009 at 2:42 pm

    I am a Christian. If I learned that someone had kidnapped my granddaughter and that she had been buried alive with a limited supply of oxygen I would torture the man as brutally as it took to reveal her location. To do otherwise would make me a heartless beast with no affection for my granddaughter or the rights of the innocent.

  23. Kaimi Wenger on April 21, 2009 at 2:53 pm

    That’s quite possible, camay. We’ve had some very interesting discussions about that on this blog before, such as at http://timesandseasons.org/index.php/2004/06/hanging-by-a-thread/

    On the narrower issue of impeachability, I’m not aware of any provision for impeaching based on un-American-ness. And I’m not aware of — and would be very opposed to — any provision for impeachment based on un-Christian-ness. (For one thing, that rule would be awfully hard to apply to a Jewish judge, wouldn’t it?)

  24. DavidH on April 21, 2009 at 4:22 pm

    Comment 2. Tim Flanigan was not Jay’s boss at Justice; Tim was, however, deputy White House counsel and supportive of the “enhanced” interrogation programs. Flanigan was later nominated to be Deputy Attorney General, but that nomination was withdrawn in part because of Tim’s role in the torture issues. http://www.talkleft.com/story/2005/10/07/469/78255

    Comment 7. The SERE program was developed largely by two devout LDS psychologists, James Mitchell and Bruce Jessen. http://www.healthline.com/blogs/healthline_connects/labels/APA.html

    I am not aware of any Latter-day Saints in the Bush administration who opposed the enhanced interrogation/torture methods; I may be wrong, of course–there might have been some.

    One LDS soldier is reported to have committed suicide after refusing to participate in the enhanced interrogation/torture techniques. http://www.alternet.org/blogs/peek/43820/cover_up_of_soldier_who_committed_suicide_rather_than_torture_detainees_%5Baudio%5D/

    While the LDS Church did not, in 2005, join a number of other churches in condemning torture of prisoners, it did issue a statement that the Church “condemns inhumane treatment of any person under any circumstances.” http://www.deseretnews.com/article/1,5143,635163735,00.html

    Outside of the bloggernacle, I have not heard much criticism, if any at all, by active LDS of the enhanced interrogation techniques. By way of a scientific survey, on Meridian (which I think represents the political midpoint of the U.S. LDS Church) I ran a search for the word “torture”, and did not find any “torture” articles relating to the war on terror (of course, there may be other ways to search for such articles).

  25. Kent Larsen on April 21, 2009 at 4:23 pm

    Dan (7 and later):

    I agree with Marc that you are taking what we are saying a bit too far. I do not disagree with your points about the morality of torture or its illegal nature.

    BUT, what was Bybee asked to do? My only point followed the information in the profile of Bybee posted last week — the one that began by mentioning his mission to Chile in 1973. That profile suggested that Bybee was simply addressing issues of legality and constitutionality, NOT what policy should be. It suggested that Bybee was likely opposed to the techniques mentioned in the memo, but his opinion about whether they should be used or not wasn’t asked. What was asked is whether the techniques were legal and constitutional or not.

    I still haven’t seen anyone address this on a point-by-point basis. ARE these techniques unconstitutional? How? ARE they illegal? (apparently a lot of people believe they are) If so, under what law? Are Bybee’s arguments so blatantly bad or onesided that they constitute malpractice? Could they be used in court as a defense for using these techniques without appearing silly?

    Again, I AM NOT A LAWYER. What troubles me about the assumption that Bybee did something wrong is that I doubt that he is incompetent. I can’t imagine him signing off on a legal memo that doesn’t have enough logic behind it to be at least minimally credible. And if it wasn’t minimally credible, he would be doing his clients (the government) a disservice, since the argument would fail in court.

    So, until someone shows me how Bybee’s arguments weren’t legally credible, I can’t see how you can claim that Bybee did something wrong.

    I faced a similar situation today when I went to a court hearing (Dan, since we’re in the same ward, I think you may know the hearing I’m talking about). The conclusion of the hearing was inevitable. We knew what was going to happen, but I wanted to stand up and yell at the Judge and the prosecutor that the result was immoral. It clearly is immoral, but, of course, I didn’t yell at them. Their hands are tied also. They are implementing an unjust and immoral decision–but one that is required by the law of the land.

    I wouldn’t say that Bybee was quite so tied in making his decision. BUT, I can’t imagine that his argument isn’t based on a reasonable interpretation of the laws and constitution of the U.S., as immoral and reprehensible as the results of that interpretation may be.

    If I am wrong about the reasonableness of his interpretation (and I mean the legal reasonableness–i.e., how well the interpretation would stand up in a court), PLEASE, someone with legal knowledge should show us where I’m wrong.

    Don’t get me wrong. I don’t like the idea of the U.S. torturing people. I find the whole situation reprehensible. BUT if you say that what Bybee signed off on in the memos is clearly illegal or unconstitutional, you are claiming that he is incompetent, and I will have a hard time believing that without some substantial support.

  26. Dan on April 21, 2009 at 6:29 pm

    Kaimi,

    Is it a crime to write a legal paper about the meaning of the torture statute?

    Crime is based on intent, not on the action itself. What is the intent behind writing a legal paper about the meaning of the torture statute? If the intent is to provide specious legal cover for agents to perform illegal acts, then writing that legal paper is a crime (I say this not being familiar with what actually constitutes a crime in the case of lawyers writing memos). If you are writing a piece for a journal with the intent to sway opinion one way or another, as to how we should change our laws to fit our new thinking, that is another thing entirely. However, these memos were not to see the light of day. The intent was to keep them hidden from view forever. Because, exactly, they were intended as legal cover for otherwise illegal acts.

  27. Dan on April 21, 2009 at 6:31 pm

    aloysius,

    If I learned that someone had kidnapped my granddaughter and that she had been buried alive with a limited supply of oxygen I would torture the man as brutally as it took to reveal her location. To do otherwise would make me a heartless beast with no affection for my granddaughter or the rights of the innocent.

    Why not instead pray with all your might that God will reveal where your daughter was hidden? Why not rely on God to help you instead of destroying the life of yet another one of His children? The Christian thing to do is NOT to terrorize the criminal. The criminal needs to be punished for his crimes under the law, and the Christian thing to do would be to forgive him, so that your heart does not carry that hate in it anymore. To rip him apart like an animal is the natural man. It is an enemy to God.

  28. Dan on April 21, 2009 at 6:53 pm

    Kent,

    What was asked is whether the techniques were legal and constitutional or not.

    To begin with, this was not what was asked of Bybee and Yoo and Bradbury. They were asked to create legal mumbo jumbo enough to muddy the otherwise clear waters so that the CIA officers who had previously waterboarded and sleep deprived Zubaydah would not be punished for breaking the law. That is what was asked of Bybee.

    And if you read the memos carefully, you’ll find out that he and Yoo and Bradbury didn’t do enough research into the effects of the techniques, nor how successful they were, nor what other laws and prosecutions were already in the books on the use of waterboarding and the other techniques. For example, if he dug deep enough, he would have learned that the United States prosecuted Japanese soldiers for waterboarding Americans during World War II. That same law was still on the books in 2002.

    The memos were written to narrow the definition of torture to the very bone, so there was no meat left in the definition of torture. Heck, all that was left was to kill a man. Anything short of that or “organ failure” was not considered torture by Bybee. That goes contrary to ALL OTHER WRITINGS on torture previous to the Bybee memo. The SERE training that Americans have to go through, they KNOW they are torturing American soldiers in that training. They don’t pretend it isn’t torture. They say that SERE is what soldiers could possibly experience at the hands of enemies if caught! They are illegal under the Geneva Conventions and under the UN Convention on Torture, which are both ratified treaties, which Constitutionally means they are the Law of the Land. Bush and Cheney knew they were asking the CIA to perform illegal acts. To protect the CIA operatives, Bush and Cheney went to their lawyers and said, “find a way to make what was illegal legal.”

    Bybee should have known better.

    ARE these techniques unconstitutional? How?

    They would be unconstitutional under the Eighth Amendment (I think that’s the one), which specifies against “cruel and unusual punishment.” Waterboarding a detainee 183 times in one month would easily constitute “cruel and unusual punishment.” Sleep deprivation on its own probably won’t be considered “cruel and unusual.” But if you mix it with waterboarding and slapping and walling and dowsing with 41 degree water, you bet it is cruel and unusual. The point of these techniques is to destroy the human mind. If that is not cruel and unusual, nothing is.

    ARE they illegal? (apparently a lot of people believe they are) If so, under what law?

    The Geneva Conventions and the UN Convention on Torture. You can google them. (If I put too many links here, my comment will go to spam). Both conventions are quite clear on how a detainee is to be treated. These techniques are illegal under both.

    Are Bybee’s arguments so blatantly bad or onesided that they constitute malpractice?

    Yes, because he didn’t consider the alternatives in his memo. That was not his job in writing these memos. They were to provide legal cover for illegal acts.

    What troubles me about the assumption that Bybee did something wrong is that I doubt that he is incompetent.

    Maybe he is incompetent. I don’t know that. I do know that these memos are terrible, and the writer of these memos does not deserve to be a judge over anybody.

    I faced a similar situation today when I went to a court hearing (Dan, since we’re in the same ward, I think you may know the hearing I’m talking about).

    Yeah, I’m sorry to hear it turned out that way. It was what I expected though. They’ll be alright. :)

    BUT, I can’t imagine that his argument isn’t based on a reasonable interpretation of the laws and constitution of the U.S., as immoral and reprehensible as the results of that interpretation may be.

    But it isn’t based on a reasonable interpretation of the laws and constitution of the US. It was meant to minimize the definition of torture to its smallest position possible, so that the acts performed on Zubaydah and KSM would not constitute torture. It was purposefully written that way, Kent. That’s the problem.

    Finally, Kent, if you want some excellent analysis of the torture memos, read these from Jack Balkin and his friends at Balkinization. There are a lot of them. They go back to 2001. They haven’t updated that page to include any thoughts of theirs on the newly released memos, but their writings are spot on.

  29. Dan on April 21, 2009 at 7:07 pm

    Kent,

    Brian Tamanaha is better at showing how bad these memos are. For example:

    Here is the circularity in the analysis: Time and again the OLC memos conclude that the use of these interrogation techniques do not amount to the intentional infliction of severe physical or mental suffering (the torture standard) based upon the CIA’s own finding that these techniques don’t cross that line. But that is precisely the legal question the CIA (purportedly) is posing to the OLC: Do the interrogation techniques violate the anti-torture statute?

    Presumably, the OLC cannot answer the legal question by relying upon the CIA’s own determination that these techniques do not violate the torture statute. That is, however, exactly the analysis in the torture memos. This circularity is explicit in the following passage (March 10 memo), opining on the combination of sleep deprivation with other techniques:

    This possibility [that sleep deprivation reduces pain tolerance] suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to place the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you [CIA] have informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute ‘severe physical suffering’ within the meaning of sections 2340-2340A.

    To summarize the above passage: the OLC concluded—as a legal matter—that the CIA’s combination of techniques does not violate the torture statute based upon the CIA’s assurance that it combines the techniques in a way that does not violate the torture statute. It doesn’t get more circular than that.

    All of the recently released memos reason in this circular fashion. As the memos acknowledge, “there is no evidence” about the effect of combining these techniques. (Sleep deprivation studies exist, but, for obvious reasons, no studies examine the combined effects of sleep deprivation with waterboarding.). The OLC lawyers admit: “We don’t have any body of experience, beyond the CIA’s own experience with detainees, on which to base an answer to this question.” (March 10 memo).

    On what grounds, in the final analysis, did OLC lawyers draw their “legal” conclusion that the specified interrogation practices did not violate the torture statute? The assurances of the CIA that 1) their interrogation practices did not inflict “severe suffering;” 2) interrogators were carefully trained and monitored to adhere to the limits (never mind that an IG report revealed that the waterboarding limits were exceeded); and 3) medical personnel were present during the interrogations—that’s the entire the basis for the OLC’s legal approval. When drawing their legal conclusions, rendering their purportedly independent legal assessment of whether the techniques violated the anti-torture statute, the OLC lawyers relied solely upon representations by the CIA.

    He concludes by stating this:

    This was not “good faith” legal analysis by OLC lawyers. It did not even qualify as “legal analysis.”

    The empty circularity of the arguments in the latest batch of torture memos exposes what has long been suspected but can now be confirmed: These memos were rubber stamp approvals for CIA interrogators—get out of jail free cards—issued by an obliging cadre of OLC lawyers.

    In an unintended irony, the most honest statement in the OLC memos, which were addressed to the CIA, was this standard closing line: “Please let us know if we may be of further assistance.”

    That’s exactly what the OLC was there for.

  30. aloysiusmiller on April 21, 2009 at 7:37 pm

    I would pray for help to extract the most information while hurting the SOB only as effectively as necessary but God helps those who helps themselves. Thank goodness Nephi had some moral courage. He had to wield the sword in order to get the brass plates.

  31. Kent Larsen on April 21, 2009 at 8:32 pm

    Dan, you have clearly put a lot more effort into finding out the details of these memos than I have. I appreciate the links to analysis of the situation, and I’ll have a look when I get time.

    In the mean time, I won’t make any claims about how good the memos are. I admit, I don’t really know.

  32. Dan on April 21, 2009 at 9:01 pm

    Kent,

    Let me recommend to you one more read. This is from Philip Zelikow. You would know him from working at State under Condoleezza Rice during the Bush administration. He was one of the more sane people in government during that time. Read what he had to say about what was going on in the background regarding the torture memos. Note this section, particularly:

    At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives.

    Got that? Mr. Zelikow offered a dissenting view, that the memos were not well written, and that there would be major trouble if you followed the reasoning under the Bybee memos. Essentially, under Bybee’s argument, American citizens could be tortured legally. And when Mr. Zelikow sent out this memo, the White House tried to get all copies and burned them. Why would they? Isn’t it right to get a fully formed opinion on the legality of torture? Or could it be that the White House, having received the legal cover from the OLC did what they could to squash any attempt to say otherwise. See, if it came to light that the Bybee memos were specious, that would essentially make George W. Bush, Dick Cheney, and all the CIA agents who tortured criminals under American law.

  33. Dan on April 21, 2009 at 9:13 pm

    hey Kent,

    sorry, last one. Scott Horton writes at Harpers, which is a must read. He’s been on top of the issue of torture.

    The memo-writer and the person soliciting the memo both understood perfectly that their role was to get interrogators out in the field to go ahead and use the techniques against which reservations were being expressed. They understood that, if the memos were issued, individuals would in fact be subjected to the torture techniques they were approving. They also fully understood that it was likely that individuals would be killed or would suffer lasting impairment as a result of their decision to give the greenlight. This satisfies the prerequisites for a criminal charge against the memo writer under section 2340A, conspiracy to torture. The preparation and issuance of these memoranda were criminal acts, and the relevant level of mens rea likely emerges from the dialogue surrounding their issuance.

  34. Dave on April 21, 2009 at 10:02 pm

    Nice of you to visit, Dan. You are only mildly connected to reality here, IMHO. Judge Bybee will not be accused of a crime, because providing legal advice to your client is not a crime. He is not guilty of malpractice because he rendered competent legal services to his client. He may become the target of an impeachment proceeding, because that is a political proceeding, conducted largely by the (Democratic) legislature and apparently supported by the (Democratic) executive that seems to think it needs a political scapegoat. I hope it boomerangs on them. Time will tell.

  35. aloysiusmiller on April 21, 2009 at 10:28 pm

    Impeached? Don’t count on it. Congress approved these extraordinary measures. All we’re seeing now is self righteous huffing and puffing now that the time for courage has passed.

    Follow the links:

    http://pajamasmedia.com/instapundit/77129/

  36. aloysiusmiller on April 21, 2009 at 10:32 pm

    Here is another thoughtful article from a liberal publication:

    http://blogs.tnr.com/tnr/blogs/linker/archive/2009/04/20/thinking-about-torture.aspx

  37. Dan on April 21, 2009 at 11:29 pm

    Dave,

    Dan. You are only mildly connected to reality here, IMHO.

    I ask that you kindly lay off the personal insults. If you don’t like my politics, that’s fine.

  38. Kent Larsen on April 22, 2009 at 4:53 am

    Dave (33), are you sure you think Obama is after a scapegoat in this case? I do see that many Democrats are after a scapegoat, but the sense I have from the actions of the administration is that Obama generally wants to get past old issues and move forward, not prosecute scapegoats.

    That may be a minor distinction, but it could be crucial in a case like Bybee’s. A White House actively using the President’s influence can often accomplish much more in prodding Congress to act than Congress can muster itself.

    To be honest, if the administration isn’t behind and actively pushing for action against former Bush adminsitration officials, i don’t see much happening.

  39. Mark Brown on April 22, 2009 at 8:14 am

    Dear T&S admins,

    In the future when you publish a post on this topic, I suggest you also publish detailed instructions which tell your commenters how to disable the self-parody feature on their keyboards. It is getting difficult to tell the difference between serious comments and ones that were intended to be funny.

    Thank you.

  40. Dave on April 22, 2009 at 4:20 pm

    You’re right, Dan. I should have said, “Your views are only mildly connected to reality here, IMHO.”

  41. DavidH on April 23, 2009 at 5:27 pm

    In a comment that was apparently swallowed up in cyberspace, I wrote that I thought most rank and file Mormons were not troubled by the harsh interrogation techniques. (Not long after the story broke, a few years ago, and before the LDS involvement became known, a couple of LDS friends in my ward seriously commented that they did not think torture should be illegal for the U.S. to use.)

    Our friends over at MADB, commenting on the issue, are largely praising the involvement of LDS psychologists at the CIA in developing the harsh techniques and the involvement of LDS lawyers in Justice and the White House in approving them. http://www.mormonapologetics.org/index.php?showtopic=42940

    I would hope that this level of support for harsh treatment of prisoners would not be representative of LDS mainstream views in the U.S., but I fear that it is representative (perhaps bbell could chime in on his perception of the views of non-bloggernacle members (I say this seriously, because I think he has a pretty good sense of that)).

  42. Dan on April 23, 2009 at 5:41 pm

    Sadly DavidH, I’ve learned that most Mormons (or I should say most conservative Mormons) have absolutely no problem torturing other children of God.

  43. DavidH on April 24, 2009 at 11:36 pm

    An interesting piece suggesting that, in private, Judge Bybee regrets having signed the memorandum. http://www.washingtonpost.com/wp-dyn/content/article/2009/04/24/AR2009042403888_2.html?hpid=topnews&sid=ST2009042403231

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