Another Bush administration legal fiction

The ACLU finally has managed to force the Obama administration to release a less severely redacted version of the May 2004 report on the CIA's abusive treatment of terrorist suspects (PDF). The report was done by the CIA's Inspector General, John Helgerson, and (to judge by what remains unredacted) seems to be fairly critical of those abuses and of their legal underpinnings. There's plenty to say about the contents of this report – for example, the bizarre tortures it catalogues (summarized here).

One thing stood out in the early pages of the document: Bush administration lawyers wrote an undated memo sometime before June 16, 2003 which among other things advanced a flagrantly false interpretation of the UN Convention against Torture.

That memo, "Legal Principles Applicable to CIA Detention and Interrogation of Captured Al Qa'ida Personnel", does not appear to be publicly available yet. It was drafted by lawyers at the Justice Department's Office of Legal Counsel (almost certainly John Yoo) and then finalized by the CIA Office of General Counsel. Here is what the Helgerson report states the memo said about the UN Convention:

The analysis adds that "the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war."

The UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment says no such thing. The OLC/OGC lawyers evidently were insinuating that the Convention drew a very major distinction between the prohibitions against torture on the one hand, and against cruel, inhuman, or degrading treatment on the other. Article 2 of the Convention states explicitly that there are no circumstances that may be used to justify torture:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

It is true that the Convention does not repeat the Article 2 statement when it later discusses "cruel, inhuman, or degrading treatment". However that discussion (in Article 16) is extremely brief and to the point: that governments should prevent 'cruel etc. treatment' as they do torture and should give its victims the same legal recourse as victims of torture. There is no implication whatsoever in the Convention that "exigent circumstances" permit the use of cruel, inhuman, or degrading treatment.

Indeed, the US wrote the following to the UN Committee against Torture ten years ago regarding its implementation of the Convention (Report of the United States to the UN Committee against Torture, October 15, 1999, UN Doc. CAT/C/28/Add.5, February 9, 2000, para. 6):

No exceptional circumstances may be invoked as a justification of torture. US law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension.

So, when do the torture memos written by John Yoo and friends rise beyond the level of bad lawyering and into the much shadier territory of deliberate falsification for the purpose of facilitating, enabling, or encouraging torture? Because at that point I'd think even the timid Eric Holder's Justice Department would be forced to prosecute them.


crossposted at unbossed.com

The Just-Following-Orders defense

Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel under George W. Bush, offers appallingly bad advice about what to do in regard to "the Bush administration's harsh, abusive and illegal interrogation program". His solution: Let whatever investigations now going on run their course and then forget the whole matter. No Congressional hearings, no special commission, no DOJ task force, no special prosecutor. Just wind down the pitiful few investigations that have occurred, publish some of the documents they turn up, but make sure to turn the lights off when you're done.

The main reason that law-breakers should not be prosecuted, in his estimation, is that the people involved won't take it well. They're already quite unhappy at the prospect of being held accountable, you see, given that they were just following orders.

The investigations and public recriminations of the past few years have led many government lawyers to be more risk-averse and politically sensitive than ever. They have also had a harmful effect on the lawyers' clients, especially in the CIA. In response to the many investigations, CIA officials are "lawyered up" and are drawing down their legal liability insurance. None of these officials are likely to go to jail. But the ordeal of answering subpoenas, consulting lawyers, digging up and explaining old documents, and racking one's memory to avoid inadvertent perjury is draining, not to mention distracting, for those we ask to keep the country safe.

And worse, it has spooked the intelligence community. When the CIA was asked to engage in aggressive tactics early in the Bush administration, it knew from bitter experience that the political winds would change and that it might be subject to "retroactive discipline." And so it sought approval from the president and his Cabinet, informed congressional leadership many times about what it was doing and got what it thought were airtight legal opinions from the Justice Department.

But these safeguards failed, and the CIA is once again mired in investigation and controversy. The lesson learned by many at the agency is that politically sensitive counterterrorism actions should be avoided, even if they are deemed legal and even if they have the express approval of political officials. We are going to be living with this skittishness for a long time, to the detriment of our security.

You'd have thought that getting a letter from the Office of Legal Counsel authorizing violations of the laws on torture would be good enough to protect you in the future. But oh, no, you'd be mistaken! You can actually get prosecuted for obeying illegal orders. Or nearly as bad, have to rack your memory in order to tell the truth about those orders. That's practically torture, right there.

The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution.

'Mistakes' must be the terminus technicus at the Office of Legal Counsel for what ordinary civilians call 'crimes'. It's also interesting to learn that the Justice Department considers "reputational losses" to be the most severe penalty, or 'retribution', that can be inflicted on criminals. Once they've achieved that, trials leading to convictions and jail time are pretty much superfluous.

crossposted at unbossed.com