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Tortured Legal Analysis

April 19th, 2009 No comments

Last Thursday’s release of the so-called “torture memos,” written by the Justice Department’s Office of Legal Counsel in the Bush Administration to justify “harsh interrogation techniques,” has brought down a hail of commentary from all points along the political spectrum. I’m reluctant to wade into this mess, mostly because it’s hard to find an angle that’s not been taken.

One point that’s been insufficiently reflected on, though, is the paradox of the “top-drawer”  lawyer. Whenever a client has an extremely complex, embarrassing, or possibly illegal idea, they make every effort to find the very “best” attorneys; those whose legal acumen and skill at minute parsing of argument and language give them the best chance of success.

So it is at the highest levels of government, populated in the main by attorneys churned out by the most elite law schools: Lawyers like John Yoo, Jay Bybee, and Steven Bradbury, each of whom played a substantial role in the creation of the crucial memos (from 2002 and 2005) authorizing the interrogation techniques that have generated the justified outrage that has spewed forth over the last several days.

A little background: The United States is signatory to the UN Convention Against Torture, which these and other attorneys had to gyrate around in order to green-light what the Bush Administration wanted to do to terror suspects. How to justify waterboarding, for example? Well, even though the 2002 memo conceded that the technique “constitutes a threat of imminent death,” it didn’t violate the Convention’s prohibition against the “infliction of severe mental pain or  suffering” because the mental harm wasn’t “prolonged.” Apparently, the drafters “forgot” that, in describing the technique, they stated that “it may then be repeated.” At what point would it add up to “prolonged” mental harm? This just in: 183 times was OK, according to a Times story detailing the detective work of bloggers who managed to read the number in a redacted memo.

That number is (I hope) an outlier, but it showcases what will happen when “top” lawyers are turned loose on a document. Unless they have a moral compass beyond their sere legal knowledge, virtually any reading of a qualitative standard (“severe” or “prolonged”) can be argued for (if not ultimately supported). (Quantitative restrictions are harder to get around: Maybe the Convention should have said: No more than x hours of sleep deprivation; or only y waterboardings are permitted. Let y=0.) This isn’t surprising, really; when I read the memos, I found myself using my own analytical abilities to agree or disagree with various of the conclusions the writers reached.

What is the check on this, other than the probably impossible attempt to predict and then prohibit or quantify every method of cruelty the human mind can devise? I can think of two: James Comey1 and the sheer moral repugnance of enough of those “in the field.”

As Deputy Attorney General under John Ashcroft, Comey is perhaps best known for a bizarre confrontation in 2004 with disgraced White House counsel Alberto Gonzales and Chief of Staff Andrew Card; the two were on their way to the ailing Ashcroft’s hospital bed to try to persuade him to re-authorize a domestic spying program that Justice had just determined was illegal. Comey learned of this maneuver and raced in ahead of these ghoulish opportunists, putting a stop to their plan. But Comey also supported Jack  Goldsmith’s rescission of the 2002 memo, and objected to Bradbury’s 2005 memos. Could he have done more? Frankly, I don’t know. But if more had been as moral and determined as he, perhaps some of this could have been prevented.

Then there are those in the field. As Seth Kreimer, a law professor at Penn, details in his article, “‘Torture Lite,’ ‘Full-Bodied Torture,’ and the Insulation of Legal Conscience,” 2 much of what we’ve learned about the abuses committed in the name of the war on terror came out because of the simple moral outrage of those on the ground level:  “Specialist Joseph Darby, outraged by his discovery of photographs depicting the abuse at Abu Ghraib, was impelled to bring the matter to investigation because ‘it violated everything I personally believed in and everything I was taught about the rules of war.’ Master at Arms William Kimbro, a ‘dog handler,’ as recounted by the dry prose of the Taguba Report, ‘knew his duties and refused to participate in improper interrogation despite significant pressure.’ General Anthony Taguba put his career at risk by actively investigating and accounting for the abuse at Abu Ghraib. Members of the JAG Corps resisted the effort to dilute protections for prisoners, and ultimately they revealed that dilution to the human rights bar.”

Moral outrage indeed. Let me close with the power of one image, selected from among literally thousands, that makes the point that the Bush lawyers’ language sought to occlude:

Agcorpse2

  1. This is odd, because Jim Comey and I shared an apartment in Hoboken for about a year in the mid-1980’s. We lost touch some time after that, and evidently his politics and mine aren’t identical. But I have tremendous respect for him for reasons mentioned above.
  2. 1 J. Nat’l Security L. & Pol’y 187 (2005)