Reality, Hypocrisy & Politicizing Policy Differences

A fine piece of legal research out of Yale Law School answers the questions, how have the laws of torture been interpreted by prior administrations and what interrogation techniques have they viewed as lawful under those interpretations? And in an act far transcending "mere hypocrisy," the Justice Dept. will refer two of the drafters of the Bybee memo to their state bar associations for consideration of discipline up to and including the loss of their right to practice law. Yet even as they do this, the Justice Dept. is arguing in a seperate case that a court adopt the central legal theory espoused by the writers of the 2002 memo. It would be hard to imagine an act of greater hypocrisy.
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Compliments of Powerline, we now are able to access an impressive piece of legal research on the history of our interpretation of the law of torture and the history of our post-WWII interrogation programs. From Powerline:

The Yale Law Journal Note on interrogation law and policy by William Ranney Levi has received considerable attention, plus requests for the link. I understand that the Note has not been published yet, but it can be downloaded from this link. Click on "download." If that doesn't work, click on "SSRN" on the next screen you see.

I would strongly recommend taking a look at this document. It is rather lengthy. Ultimately, the well documented conclusions of the author are that: a) the law of torture sets an unclear line that is subject to a range of possible interpretations, though history shows that in times of need, all prior administrations have taken an expansive view of what was allowable under the law; and 2) the enhanced interrogation techniques used by the Bush Administration do not amount to any significant change from prior types of interrogation techniques deemed legal by past post-WWII administrations.

Indeed, to the extent that we see any break with traditional interpretations of what was deemed allowable under the law, it has come from President Obama and the extreme limits he has now placed on interrogation of terrorists. Powerline has more, here and here.

According to reports released yesterday, the Justice Department's Office of Professional Responsibility is now recommending that two of the authors of the Bybee Memo - Justice Bybee and John Yoo - be referred to their state bar associations for possible discipline. There will be no direct criminal prosecution of any of the OLC lawyers, but this end result still amounts to the criminalization of policy differences. Both Yoo and Bybee are still in danger of losing their livelihoods, it's just that Obama has now kicked the responsibility for doing so to the states. (Apparently Obama does hold some belief in federalism - who knew?) This is not over by any means. And there is still the issue of the Obama Justice Dept. vowing to cooperate with a Spanish Court in that court's criminal investigation of these individuals.

All that said, what takes this to a whole new level is that the Obama Justice Dept. is currently arguing before a court that one of the central legal theories articulated in the Bybee Memo should be adopted as controlling law. This from Powerline:

Meanwhile, far from actually believing that the most notorious "torture memo," written by Jay Bybee and John Yoo in 2002, was a criminal act, the Obama Justice Department has just filed a brief in the Sixth Circuit Court of Appeals in which is adopts and endorses the Bybee/Yoo thesis. Andy McCarthy has the details. Of course, it shouldn't be surprising that DOJ has adopted the Bybee/Yoo analysis as correct, since the same approach was endorsed by the Third Circuit Court of Appeals in Pierre v. Attorney General, on a 10-3 vote. So the "criminal" policy of the Bush Justice Department is also the law as elucidated by the Third Circuit, en banc, and the policy of the current Department of Justice.

What we're witnessing here goes far beyond mere hypocrisy. In three months, Barack Obama and Eric Holder have succeeded in politicizing DOJ and bending it to their partisan ends, to the point of threatening their predecessors with baseless criminal prosecution as a form of political harassment.

Read the entire post. We are well on our way to banana republic status. If Obama has been able to do this much mischief to our nation in the first 100 days, imagine what might be in store in the next 1350 or so?

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Torture, Persecution and Morality

Obama today opened the door for political show trials of those individuals in the Office of Legal Counsel who, when requested by the CIA, rendered a legal opinion that certain proposed methods of interrogation did not constitute torture and were legal under U.S. law and treaties. This is purely and simply the criminalization of political disagreement, far more reminiscent of Stalinist Russia than any period in U.S. history. It highlights the moral cowardice of the left masquerading as moral superiority. It further displays the left's utter disregard for freedom of speech and their intolerance of dissent.
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The left, and Obama in particular, have made a huge show of claiming that the coercive interrogation of al Qaeda prisoners to obtain intelligence - not confessions, mind you, but intelligence to protect thousands of innocents against these psychopaths - was immoral and illegal. According to Obama at his speech to the CIA yesterday, the interrogation methods used by the CIA on at least two suspects, Khalid Sheik Mohammed and Abu Zabaydah, were in violation of the letter of the law and the spirit of American "values" - a term he did not define. And according to Obama today, the door is now open for the prosecution of those attorneys who wrote legal opinions finding that the enhance interrogation techniques were lawful. You can find the legal opinions here.

Let's take the moral issue first since this turns morality on its head. Put yourself in the shoes of the President - the person charged with the defense of our nation. Now, let's assume for a moment the following are true:

1. We have captured Prisoner X, a high ranking member of al Qaeda.

2. Prisoner X undoubtedly has knowledge of plans or people who are planning to kill innocent Americans and who will, if given the opportunity, do so on a massive scale.

3. The information Prisoner X possesses has a reasonably high likelihood of allowing the U.S. to thwart those plans.

4. Prisoner X has not provided any intelligence in response to normal methods of interrogation.

5. Prisoner X may well respond to repeated applications of coercive techniques that cause short term pain of moderate intensity, panic and emotional distress, but which a) causes no long term damage; and b) are sufficiently safe that they are used on our own military in training.

6. If you refuse to push the limits of the interrogation beyond the norm into a this moderately gray area based on your conscience, then you are, in all probability, condemning many innocent Americans to die.

Assuming all of the above are true, which is the truly moral position to take in this case?

Is drawing a bright line at the use of coercive techniques truly the most moral option? Many innocent people whom you are sworn to protect will die if you choose not go beyond normal interrogation tactics. On the other side of the balance sheet, do so and you get to go to sleep feeling morally superior. Plus you maintain popularity with the chattering classes of the far left, here and in Europe.

My question is, then, if you choose the bright line and refuse to engage in coercive interrogation, isn't that really just narcissism and utopianism masquerading as morality? Is it in fact a position of supreme moral cowardice?

Please note that every condition I have described above actually applied to Abu Zabaydah and Khalid Sheikh Mohammed. Numerous CIA officials and, most recently, Dick Cheney have credited the use of those coercive techniques with saving numerous innocent lives. Indeed, there is this today from CNS News:

The Central Intelligence Agency told CNSNews.com today that it stands by the assertion made in a May 30, 2005 Justice Department memo that the use of “enhanced techniques” of interrogation on al Qaeda leader Khalid Sheik Mohammed (KSM) -- including the use of waterboarding -- caused KSM to reveal information that allowed the U.S. government to thwart a planned attack on Los Angeles.

Before he was waterboarded, when KSM was asked about planned attacks on the United States, he ominously told his CIA interrogators, “Soon, you will know.”

According to the previously classified May 30, 2005 Justice Department memo that was released by President Barack Obama last week, the thwarted attack -- which KSM called the “Second Wave”-- planned “ ‘to use East Asian operatives to crash a hijacked airliner into’ a building in Los Angeles.”

So where do you think the moral choice lies?

Having addressed the moral issue, let's take a look at the legal one's as expressed in the recent Justice Dept. memo's released by Obama. For those on the left clamoring to destroy the right by using the police powers of our nation - and to whom Obama today gave a green light - the legal opinions rendered by John Yoo, and others are beyond any question criminal. To listen to these people is to believe that there is no room for honest difference of opinion.

Putting aside the conclusory labels of the far left for a moment, and before delving into the legalese, let's apply some common sense to arrive at a working definition of "torture." Its much harder than it seems as you move away from techniques that are obviously torture.

Let's start with the obvious ones. The al Qaeda field manual for torture, liberated by U.S. troops in an April 2007 raid on an al Qaeda safe house / torture chamber, provides some examples along with helpful illustrations. Here are the first two of those illustrations.



Here is a photo of the back of one man found in the al Qaeda safe house who had been subject to a few of these methods:



I'd say that's evidence of actual torture.

There are many more methods of interrogation / punishment in the book - electrocution, breaking of limbs, beating with sticks, flogging, plucking out of eyes, burning with a blow torch or hot iron, etc. I think we can all agree that those fall under any one's definition of "torture." What makes them so?

One, all of the techniques described above are meant to cause extremes of pain. Further, each will result in serious and long lasting injury, with equally long lasting pain and suffering. Lastly, many run a real risk of being fatal to the victim.

If we take away all of those conditions, is it still possible to call something torture?

If I cause you pain by giving you a paper cut, am I torturing you? Clearly I am acting to cause you pain, but if that is not "torture," then where does torture start?

If I keep you awake beyond your bedtime when your tired, would you define that as torture? Clearly I am causing suffering, but at what point does such suffering become tantamount to "torture."

Real people's lives hang on your answers - so do be intellectually honest. Where would you draw the line? What precise conditions would you set to define the line at which permissible coercive interrogation ends and torture begins? That is the vexing question.

The actual law at issue is no more precise in establishing a bright line than the common sense analysis we just went through, though it does track with that analysis. Chapter 18, Section 2340(1) of the United States Code defines torture as:

. . . an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody of physical control.

I must admit, I had a real belly laugh reading both the hard left and some of their apologists on this issue who paint the answers to the above question as crystal clear and beyond the scope of any legitimate debate. For example, this from, surprisingly, Rick Moran at Rightwing Nuthouse:

As the Bybee memo proves beyond any reasonable doubt, the Administration was seeking a legal fig leaf in order to skirt that law as well as international treaties of which we are a signatory that clearly defines torture.

This is conclusory - and completely ridiculous. I defy Rick or anyone else on the frothing left to come up with the actual precedent showing this "clear" definition of torture. More so, I defy them to show how this clear precedent - which they all seem able to identify with ease on the left - applies to bring waterboarding or, for that matter, any other technique as described in the memos under the legal definition of "torture."

The bottom line, the detailed legal analysis in those memos appears to me to present sound legal arguments. Like all arguments, by very definition it can also be argued the other way. But, based on those memos, the claim that Yoo and the others at OLC provided deliberately false or fatuous arguments - or, for that matter, that they reasoned backwards to justify a conclusion rather than forward to arrive at one - can only be made by people who are utterly biased at the start - ie., the entire far left - or who have wholly put aside their analytical skills on this one.

For example, to recap for those on another planet for the past few years, waterboarding involves strapping a person down on a board inclined slightly beyond 90 degrees, placing a cloth or piece of plastic over the persons nose and mouth, then pouring water on it. It gives the sensation of drowning, though there is no physical danger and no water actually enters the nose or mouth. It is sufficiently benign that it has been done thousands of times on our own soldiers as part of certain specialized training. Mostly, waterboarding induces a momentary panic that lasts for twenty to forty seconds at a time. So the question then is whether that is inflicting "severe physical or mental pain or suffering." Here is a snippet of some of the reasoning on this found in the Bybee Memo:

Section 1340 defines torture as the inf1iction of severe physical or mental pain or suffering. We will consider physical pain and mental pain seperately. See 18 U.S.C. § 2340(1). With respect to physical pain, we previously concluded that "severe pain" within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of such intensity akin to the pain accompanying serious physical injury, See Section 2340A Memorandum at 6. Drawing upon the TVPA {Terror Victims Prevention Act} precedent, we have noted that examples of acts inflicting severe pain that typify torture are, among other things, severe beatings with weapons such as clubs, and the burning of prisoners. See id at 24. We conclude below that none of the proposed techniques inflicts such pain.
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As we understand it, when the waterboard is used, the subject's body responds as the
subject were drowning even though the subject may be well aware that he is in fact not drowning. You have inrormed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. As we explained in the Section 2340A Memorandum, "pain and suffering" as used in Section 2340 is best understood as a single concept, not distinct concepts of "pain" as distinguished from "suffering." See Section 2340A Memorandum at 6 n.3. The waterboard, which inflicts no pain or actual harm whatsoever, does
not, in our view inflict "severe pain or suffering." Even if one were to parse the statute more finely to attempt to treat "suffering" as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to "suffering."

Feel free to pick this apart - so long as you do so without simply stating unsupported conclusions.

At any rate, what the released memos show, in excruciating detail, was a very thorough legal analysis of the language of the statute and existing precedents ending in a not unreasonable conclusion that the proposed actions of the CIA, as set forth in detail, did not fall within the legal definition of torture. It is a colorable argument. So how can it possibly be criminal?

The bottom line - it can't be. And if the far left goes ahead with Obama's blessing and, for the first time in America of which I am aware, criminalizes political differences, then this really will be the start of a civil war.

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Of Terrorists, Torts, & the Far Left

I posted below on the tort case brought by Yale Law School on behalf of convicted terrorist Jose Padilla against former Justice Department member John Yoo. And as I wrote, this case is a backdoor attempt to bypass the executive and legislative branches in order to establish as law that terrorists are criminals and not enemy combatants. This is no mere academic argument. It is a case with very significant ramifications for our national security. And it is another attempt by the far left to do as they have done over the past half century on countless issues, to use our court system to get what they cannot get at the ballot box or in the legislature. Today, the WSJ editorial board weighs in:

. . . Mr. Yoo is the former deputy assistant attorney general who wrote memos laying out some of the legal parameters in the war on terror. Those memos most famously pertained to interrogation techniques, some of which were used against such enemy combatants as Padilla. Mr. Yoo long ago returned to Berkeley, and we are happy to say he sometimes writes for us.

Now, years later, Mr. Yoo is being harassed by a lawsuit claiming he is personally liable for writing those memos as a midlevel government official. "Defendant Yoo subjected Mr. Padilla to illegal conditions of confinement and treatment that shocks the conscience in violation of Mr. Padilla's Fifth Amendment Rights to procedural and substantive due process," the complaint asserts.

But Padilla's rights weren't violated, and certainly not by Mr. Yoo, whose legal arguments at the time were accepted by his superiors, including Attorney General John Ashcroft. The decision to hold Padilla as an enemy combatant was made by President Bush, and defended in court by executive branch lawyers. They won that case in the most senior court in which it was heard, in an opinion written by then-Judge Michael Luttig of the Fourth Circuit. The Bush Administration later transferred Padilla to be tried in the Miami court, and the Supreme Court declined to hear an appeal. Padilla got his day in court -- on both Constitutional and criminal grounds -- and lost.

What we really have here is less a tort claim than a political stunt intended to intimidate government officials. Nothing in the claim will change Padilla's future, and the suit asks for only $1 in damages, plus legal fees. Instead, the suit seeks "a judgment declaring that the acts alleged herein are unlawful and violate the Constitution and laws of the United States." In short, the Yale attorneys are using Padilla as a legal prop in one more attempt to find a judge willing to declare that the Bush Administration's antiterror policies are illegal. And if it can harass Mr. Yoo with bad publicity and legal costs along the way, so much the better.

This is nasty business and would have damaging consequences if it worked. Government officials have broad legal immunity (save for criminal acts) precisely so they can make decisions without worrying about personal liability. If political appointees can be sued years later for advice that was accepted by their superiors, we will soon have a government run not by elected officials but by tort lawyers and judges.

The antiwar left has failed to overturn U.S. policies in Congress, or by directly challenging the government in court. So its latest tactic is suing third parties, such as the telephone companies that cooperated on al Qaeda wiretaps after 9/11. And now it is suing former government officials, hoping to punish them and deter future appointees from offering any advice that the left dislikes.

Which brings us back to Yale. The real litigant here is the National Litigation Project at the Lowenstein International Human Rights Clinic at Yale Law School. That sounds august, but this is really a leftwing bucket shop using Yale's sponsorship to achieve antiwar policy goals via lawsuit. We trust the dean of Yale Law, Harold Koh, is proud of suing an alumnus on behalf of a terrorist, and that Yale's other alumni know how their donations are being used.

Read the entire article. This suit should be dismissed and the Yale lawyers fined for bringing a frivolous law suit.

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Do We Treat Terroroism As A Crime or an Act of War

Whether terrorism is a crime or an act of war is much more than an academic question. It has huge reprucussions for how we are able to address terrorism at home and abroad - as well as implications for future military actions that we may undertake. There is no question that Islamists, aided and abetted by the far left of our society, want to see the war on terror treated as a law enforcement effort.

And there is a civil component to all of this. While the ability to sue an individual for damages does not, by definition, carry with it the threat of incarceration, it nonetheless holds the potential to drastically change how we operate in this county. That is what the Flying Imams law suit is all about. It is what the Nancy Pelosi sponsored End Racial Profiling Act is about. And now, it is what Jose Padilla's recent lawsuit is about. As John Yoo explains today in the WSJ:

. . . Last week, I ([John Yoo]a former Bush administration official) was sued by José Padilla -- a 37-year-old al Qaeda operative convicted last summer of setting up a terrorist cell in Miami. Padilla wants a declaration that his detention by the U.S. government was unconstitutional, $1 in damages, and all of the fees charged by his own attorneys.

The lawsuit by Padilla and his Yale Law School lawyers is an effort to open another front against U.S. anti-terrorism policies. If he succeeds, it won't be long before opponents of the war on terror use the courtroom to reverse the wartime measures needed to defeat those responsible for killing 3,000 Americans on 9/11.

On Thursday, a federal judge moved closer to sentencing Padilla to life in prison. After being recruited by al Qaeda agents in the late 1990s, Padilla left for Egypt in 1998 and reached terrorist training camps in Afghanistan in 2000. American officials stopped him at Chicago O'Hare airport in 2002, based on intelligence gained from captured al Qaeda leaders that he was plotting a dirty bomb attack.

President Bush declared Padilla an enemy combatant and ordered him sent to a naval brig in South Carolina. After a federal appeals court rejected Padilla's plea for release, the government transferred him to Miami for trial for al Qaeda conspiracies unrelated to the dirty bomb plot. Federal prosecutors described Padilla as "a trained al-Qaeda killer," and a jury convicted him of conspiring to commit murder, kidnapping and maiming, and of providing material support to terrorists.

Now Padilla and his lawyers are trying to use our own courts to attack the government officials who stopped him. They claim that the government cannot detain Padilla as an enemy combatant, but instead can only hold and try him as a criminal. Padilla alleges that he was abused in military custody -- based primarily on his claim that he was held in isolation and not allowed to meet with lawyers.

But enemy prisoners in wartime never before received the right to counsel or a civilian trial because, as the Supreme Court observed in 2004, the purpose of detention is not to punish, but to prevent the enemy from returning to the fight.

Under Padilla's theory, the U.S. is not at war, so any citizen killed or captured by the CIA or the military can sue. In November 2002, according to press reports, a Predator drone killed two al Qaeda leaders driving in the Yemen desert. One was an American, Kamal Derwish, who was suspected of leading a terrorist cell near Buffalo. If Padilla's lawsuit were to prevail, Derwish's survivors could sue everyone up the chain of command -- from the agent who pressed the button, personally -- for damages.

Padilla's complaints mirror the left's campaign against the war. To them, the 9/11 attacks did not start a war, but instead were simply a catastrophe, like a crime or even a natural disaster. They would limit the U.S. response only to criminal law enforcement managed by courts, not the military. Every terrorist captured away from the Afghanistan battlefield would have the right to counsel, Miranda warnings, and a criminal trial that could force the government to reveal its vital intelligence secrets.

America used this approach in the 1990s with al Qaeda. It did not work. Both the executive and legislative branches rejected this failed strategy. In the first week after 9/11, Congress passed a law authorizing the use of military force against any person, group or nation connected to the attacks, and recognized the President's constitutional authority "to deter and prevent acts of international terrorism against the United States."

In the spring of 2002, I was a Justice Department lawyer asked about the legality of Padilla's detention. There is ample constitutional precedent to support the detention of a suspected al Qaeda agent, even an American citizen, who plans to carry out terrorist attacks on our soil. During World War II, eight Nazi saboteurs secretly landed in New York to attack factories and plants. Two of them were American citizens.

After their capture, FDR sent them to military detention, where they were tried and most of them executed. In Ex Parte Quirin, the Supreme Court upheld the detention and trial by military authorities of American citizens who "associate" with "the military arm of the enemy" and "enter this country bent on hostile acts." If FDR were president today, Padilla might have fared far worse than he has.

None of that matters to the anti-war left. They failed to beat President Bush in the 2004 elections. Their efforts in Congress to repeal the administration's policies have gone nowhere. They lost their court challenges to Padilla's detention. The American public did not buy their argument that the struggle against al Qaeda is not really a war.

So instead they have turned to the tort system to harass those who served their government in wartime. I am not the only target. The war's critics have sued personally Donald Rumsfeld, John Ashcroft, Robert Gates, Paul Wolfowitz and other top government officials for their decisions in the war on terrorism. Other lawsuits have resorted to the courts to attack the telecommunications companies that helped the government intercept suspected terrorist calls.

It is easy to understand why CIA agents, who are working on the front lines to protect the nation from attack, are so concerned about their legal liability that they have taken out insurance against lawsuits.

Worrying about personal liability will distort the thinking of federal officials, who should be focusing on the costs and benefits of their decisions to the nation as a whole, not to their own pockets. Even in the wake of Watergate, the Supreme Court recognized that government decisions should not be governed by the tort bar.

In a case about warrantless national security wiretaps ordered by Nixon's attorney general, John Mitchell, the court declared that executive branch officials should benefit from qualified immunity. Officials cannot be sued personally unless they had intentionally violated someone's clearly established constitutional rights.

The Padilla case shows that qualified immunity is not enough. Even though Supreme Court precedent clearly permitted Padilla's detention, he and his academic supporters can still file harassing lawsuits that promise high attorneys' fees. The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box. . .

Read the article here.

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