Monday, April 7, 2008

Dark Parallel Universe

It’s all like some dark parallel universe – not the America I thought I grew up in. -- Scott Horton

In This Week's Sift:
This week the election, the war, and the economy take a back seat and we focus on new developments about torture and the law.

The Green Light: In the May issue of Vanity Fair, Phillippe Sands destroys the "a few bad apples" theory of torture, and raises the possibility of future war-crime trials for some high-ranking administration officials. I'm reminded of the reaction Philip Zambardo (of the Stanford prison experiment) had to Abu Ghraib: "President Bush gets on and says 'We're going to get to the bottom of this,' which parenthetically always means 'We're never going to get to the top of this'." But maybe we're starting to.

It Had To Be Yoo: This week a new and far more detailed John Yoo memo got declassified. It turns the Convention Against Torture inside-out, and puts forward a legalistic rationale for the president wielding the powers of a king.

Short Notes: Mugabe holds on in Zimbabwe, out-sourcing government spying, and my April Fools' post on another blog.

The Green Light
The May issue of Vanity Fair contains a very important article: The Green Light by Phillippe Sands. In it, Sands traces "enhanced interrogation techniques" from their conception at the highest levels of the Bush administration to their application at Guantanamo and Abu Ghraib.
The Bush administration has always taken refuge behind a “trickle up” explanation: that is, the decision was generated by military commanders and interrogators on the ground. This explanation is false. The origins lie in actions taken at the very highest levels of the administration -- by some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointees -- lawyers -- who, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. This is the story of how the torture at Guant├ínamo began, and how it spread.
Sands' article ends by considering whether these administration lawyers might be subject to trial for war crimes. The Military Commissions Act -- passed shortly before the 2006 elections took control of Congress away from Republicans -- gives them immunity from prosecution in the United States. But Sands notes that this protection may backfire.
“That is very stupid,” said the [anonymous European] prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene.
Sands concludes that for many administration officials "prudence may well dictate a more cautious approach to international travel."

It Had To Be Yoo
One man who should consider his international travel plans carefully is John Yoo.

Tuesday an ACLU lawsuit succeeded in declassifying a previously secret memo in which then-Bush-administration-lawyer John Yoo justified the president's right to order torture. The blogosphere has been full of commentary ever since -- Marty Lederman over at Balkinization has called it "the full employment memo for bloggers."

Background. In March, 2003, John Yoo was a deputy assistant attorney general working in the Justice Department's Office of Legal Counsel (OLC). Last October (in a review of Jack Goldsmith's book The Terror Presidency) I described the OLC as "probably the most powerful organization that the average American hasn't heard of." In simple terms, the OLC is the executive branch's internal supreme court. Unlike the actual Supreme Court, the OLC makes rulings about what the law will or won't let the government do in the future. Administration officials can't ring up the Supreme Court and ask "What if I did this?" so they call the OLC.

Once the OLC has put something in writing, that becomes the executive branch's official interpretation of the law. From the president down to the lowliest paper-pusher, following an OLC memo creates a presumption that you are making a good-faith attempt to obey the law.

This process works fine as long as the OLC itself operates in good faith -- if, in other words, it seriously tries to figure out what the law says rather than trying to justify the administration doing whatever it wants. But the OLC is part of the executive branch, and (according to the unitary executive theory of the Bush administration) the entire executive branch is simply an extension of the president's will. Carried to its logical conclusion, this creates a hall-of-mirrors situation that Georgetown law professor Jonathan Turley has called Mukasey's Paradox:
Under Mukasey's Paradox, lawyers cannot commit crimes when they act under the orders of a president -- and a president cannot commit a crime when he acts under advice of lawyers. ... Mukasey's Paradox, if adopted, will result in administration officials being effectively beyond the reach of the law.
The Memo. On March 14, 2003, Yoo sent an 81-page memo (innocuously titled "Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States") to William J. Haynes II, the Pentagon's chief lawyer. Presumably, the DoD wanted to know what its interrogators could legally do, and the bureaucratic path to resolve that question was for Haynes to ask the OLC. Yoo's memo was the OLC's reply. It follows up on a far less detailed August, 2002 Yoo memo.

These memos are no longer the official interpretation, because a later head of the OLC, Jack Goldsmith, rescinded them. (Details in the Washington Post.) As he describes at length in The Terror Presidency, this brought Goldsmith into conflict with the superiors Yoo was toadying for, Dick Cheney and Cheney's lawyer David Addington. Neither Goldsmith nor Yoo is currently in the government, but Cheney and Addington are still very much in power, and the thinking behind the Yoo memos is still the animating philosophy of the Bush administration.

In order to understand the memo, you need to grasp the simple torture-is-illegal argument it is trying to get around.
  1. Article VI of the Constitution says: "all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land"
  2. The Senate ratified the United Nations Convention Against Torture (CAT) treaty.
  3. The CAT defines torture as: "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information ..."
  4. The CAT also says: "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."

Instead, Yoo concludes:
Although these [interrogations] might violate CAT, they would still be in service of the more fundamental principle of [national] self-defense that cannot be extinguished by CAT or any other treaty. Further, if the President ordered that conduct, such an order would amount to a suspension or termination of the Convention. In so doing, the President's order and the resulting conduct would not be a violation of international law because the United States would no longer be bound by the treaty.
Yoo's memo twists definitions until torture means only the purposeless, sadistic infliction of pain. Because interrogation has a purpose -- "obtaining from him or a third person information" -- Yoo believes it cannot be torture. Further, as in the quote above, treaty obligations melt away in the face of the president's will. In Yoo's reasoning it is tautological that the president cannot violate a treaty; whether or not he has notified anyone that the U. S. is withdrawing from a treaty, the mere fact that his orders seem to violate the treaty implies that the president has suspended the treaty's provisions.

Deeper Implications. As I said previously, this memo is not currently in effect, so it's main significance is that it illustrates Bush administration thinking, especially the tautological reasoning that has been showing up in arguments for executive power ever since Richard Nixon's 1977 interview with David Frost.
NIXON: Well, when the president does it, that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly.
Bear this in mind the next time someone from the administration claims that it does not torture, or that it does not break the law. In their minds, such statements are true by definition, without reference to any facts.

Presidents and Kings. Personally, I was brought up short when I came to this statement (on page 5 of Yoo's memo), which hasn't gotten much attention yet:

the structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive -- which includes the conduct of warfare and the defense of the nation -- unless expressly assigned to Congress, is vested in the President. Article II, Section I makes this clear by stating that the "executive Power shall be vested in a President of the United States of America." That sweeping grant vests in the President the "executive power" and contrasts with the specific enumeration of the powers -- those "herein"-- granted to Congress in Article I.

Let me unpack that a little. The Constitution was designed to limit the government by listing its powers -- if it's not listed, the government can't do it. That's how Patrick Henry could say "The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government." In Federalist 84, Alexander Hamilton argued that the enumeration of powers made a Bill of Rights unnecessary: "For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"

But here Yoo argues that the Constitution's enumeration limits the powers of Congress, but not those of the president. Beyond the powers listed in the Constitution, Yoo grants the president "any power traditionally understood as pertaining to the executive." When the Constitution was written, the executives of all other nations were kings. So presumably it follows that traditional executive power means kingly power.

Commentary. My favorite blogs for commentary on the Yoo memo are Balkinization and the new Convictions blog on Slate. Both promise more detailed analysis of the Yoo memo in the future, so stay tuned.

Jack Balkin on Balkinization writes: "
If the Supreme Court adopted John Yoo's theory of Presidential dictatorship, it might send us spiraling down toward the end of our two centuries' old constitutional experiment with democracy, a possibility that the framers imagined but tried to forestall through the creation of doctrines like the separation of powers and checks and balances."

Jonathan Hafetz on Convictions: "
The memo has been rightly vilified here and elsewhere for making the president a king and for contributing to a torture culture in America. But even though Yoo’s memo has been repudiated, its discredited ideas live on in the detention system he helped create."

FireDogLake's looseheadprop reports a more emotional reaction to reading Yoo's memo: "
I kept tearing up. My law partner asked me if someone close to me had died." She promises a more detailed rebuttal of the memo's claims later, but does comment on its shoddy workmanship: "The Yoo memo, as you will see in later posts, completely lacks any citation whatsoever for the most sweeping and outrageous claims. Small wonder, since I doubt he could find any law or case that even came close to some of his nuttier propositions."

Balkinization's Marty Lederman also promises a researched critique later, but comments on the bizarre procedures surrounding the memo: "Did John Ashcroft or Jay Bybee sign off on this memo? Did either authorize Yoo to issue it without any review by the AAG or AG? If the answer to both questions is 'no,' then why did John Yoo think he was empowered to issue it? Why did Jim Haynes accept it as the official view of the Office of Legal Counsel? Didn't anyone check with Bybee and/or Ashcroft? If not, why not?"

EmptyWheel quotes Bill Leonard, who until December was the head of the administration's Information Security Oversight Office: "The document in question is purely a legal analysis" containing “nothing which would justify classification." So why was it classified? Harper's Scott Horton explains: "The memorandum would have produced reactions of ridicule and outrage from throughout the professional community—as indeed it has. The author and the classifier knew that. They used classification as a political tool to keep something which is a quintessentially public document out of the reach of the public."

Horton goes on to say, echoing Sands' Vanity Fair article: "The circumstances under which the memoranda were prepared and issued constitute a joint criminal enterprise involving individual actors; the memos were issued as part of an actual plan to induce individuals to commit criminal acts by ensuring that their crimes would never be investigated or prosecuted."

Glenn Greenwald: "Yoo wasn't just a law professor theorizing about the legalization of torture. He was a government official who, in concert with other government officials, set out to enable a brutal and systematic torture regime, and did so. ... That John Yoo is a full professor at one of the country's most prestigious law schools, and a welcomed expert on our newspaper's Op-Ed pages and television news programs, speaks volumes about what our country has become." The same post has an embedded video in which, asked to comment on the legality of the president hypothetically ordering the crushing of a child's testicles, Yoo says: "I think it depends on why the president thinks he needs to do that." [Yoo is probably making the point I described earlier: If the president is just being a purposeless sadist, it's illegal. But crushing children's testicles to protect the nation is not torture, by definition, so it's OK.]

The New York Times quotes former Air Force lawyer Scott Silliman about the impact of Yoo's memos: Because opinions issued by the OLC are binding on the Defense Department, "Mr. Yoo’s opinion effectively sidelined military lawyers who strongly opposed harsh interrogation methods."

The major media for the most part ignored this issue, preferring to keep us informed about Obama's bad bowling. (Glenn Greenwald has the numbers.) But Andrew Sullivan managed to say the words "war crimes" on Chris Matthews' Sunday show.

Jesus' General writes one of his classic spoof letters to Yoo's current boss, the Dean of the Berkeley Law School. He congratulates Berkeley on hiring Yoo, which "allows Berkeley to finally get past its sordid history as the battleground for the expansion of our civil liberties and become the foremost advocate for that 'shining interrogation center upon a hill' so many of us wish our nation to become."

Short Notes
Back in 2003 when we were being told what a monster Saddam was, a lot of us asked "What about Robert Mugabe?" Well, Zimbabwe isn't a major oil producer, so the U.S. could live with Mugabe's monstrous ways. But last week Mugabe's party lost control of parliament for the first time since Zimbabwe stopped being Rhodesia 28 years ago. Mugabe may or may not have also lost the presidential election, whose results haven't been released. Maybe there will be a run-off, and the question of how fair that run-off will be is still being discussed. Time has the details. Today's NYT reports that Mugabe's party is asking for a recount of an election whose results still haven't been announced. So how do they know they lost the first count?

What's worse than being spied on by the government? Being spied on by a profit-making government contractor. Bad publicity is causing the Pentagon to shut down their Counterintelligence Field Activity (CIFA), one major source of such contracts. But Emptywheel doubts the DoD's sincerity, and expects another hydra-head to sprout somewhere else. Emptywheel has been watching CIFA for awhile, as this post from May, 2006 makes clear: "So let me connect the dots here. Republican legislators have set up this nifty scheme, whereby their buddies ply them with golf trips, swank real estate deals, and prostitutes. In exchange for that booty, they give their buddies contracts at Defense or Homeland Security or CIA. Spying contracts. Under those spying contracts, the buddies spy on American citizens, even funny bloggers [like Jesus' General] and peaceniks [like the Quakers]."

A couple April Fools Day posts you might want to look at: Scarecrow on FireDogLake reports that Bush will seek a third term: "The president issued a signing statement announcing that he is not bound by the Constitution's term limits." And on my Free and Responsible Search blog I invent a pioneer of the peace movement in Unsung Hero: Arjuna Bhishma.

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