On April 16, President Obama announced that he was declassifying and releasing to the public four memos from the Department of Justice's Office of Legal Counsel that opined on the legality of various CIA interrogation methods for Al Qaeda detainees believed to have highly valuable information. In the wake of this decision there has been something of a firestorm over the decision to release the memos, the content of the memos, the value of the intelligence the methods produced, and statements by the President and others about different classes of people who may and may not be potentially subject to criminal sanction. In this installment of Originally Speaking, Bart DePalma, Scott Horton, Douglas Kmiec, David Luban, Andrew McCarthy, David Rivkin (in collaboration with Lee Casey), and Stephen Vladeck discuss the various controversies at issue.

The debate has now concluded. Further discussion may continue in the Comments section.

Questions and Answers:

Released Memos

Official Statements on the Release of the Memos

Other Relevant Statements

Andrew McCarthy: President Obama's decision to release the interrogation memos, coupled with the administration's erratic performance in the aftermath and the provocatively misleading manner of the release, has been a boon to America's enemies, a severe setback for the intelligence community ethos required for national security, and an occasion for questioning the administration's competence.

The president was justified in announcing a change in U.S. interrogation policy. Like other dissenters, I disagree with the decision to limit the CIA to the methods in the Army Field Manual, and the rationale behind the decision-viz., that on balance America will be safer, even if we derive less actionable intelligence, because our country will be more admired in the world-is wishful thinking in search of evidence. But the president won the election and it was his prerogative to change the policy. Moreover, there was less to the change than meets the eye: CIA Director Michael Hayden had pulled the plug on enhanced interrogation after the McCain Amendment was enacted almost four years ago (and waterboarding, used on only three detainees, was stopped six years ago). As General Hayden recounts, by 2005, both the legal and informational landscape had changed: there was now no question that the UN Convention Against Torture's "cruel, inhuman and degrading treatment" (CID) provisions applied outside the U.S., and-in part due to enhanced interrogation of top-tier terrorists-our intelligence base about al Qaeda was better by orders of magnitude than it had been right after 9/11. So while President Obama's decision clarified policy, it didn't change ongoing reality. 

Nevertheless, there is a world of difference between changing the policy and revealing the actual methodology. The latter was payment of a political debt to the president's antiwar base; there was no strategic upside to it, and considerable downside-which is why top intelligence professionals pleaded with him not to do it. It renders an organization actively seeking to kill Americans and known to train in counter-interrogation better able to resist allof our questioning methods (both those in use and those that have been shelved). It inevitably magnified the calls for investigations of the interrogators, to whom the message was that even if you have presidential assurance, DOJ guidance, and congressional encouragement, the license we give you today may become an indictment tomorrow, when political power changes hands. When the president moved to assuage the CIA, that led inevitably to the question of prosecuting the government officials who formulated the policy. And when the administration flip-flopped on that question-first assuring that there'd be no prosecutions, then opening the door to them-it demonstrated shallowness, indecisiveness, and insensitivity to the ramifications for our national security and cohesion that would result from criminalizing our politics.

Finally, the president disclosed details of the tactics but suppressed the intelligence that was obtained by using them. By doing so, he undermined his credibility, underscored that he was engaged in politics not truth-seeking, and guaranteed that the controversy would be prolonged.

Douglas Kmiec: Al Qaeda Impact of Disclosure

 The president is unquestionably right to resist congressional calls for additional investigation. I share Andrew McCarthy's distress over the opportunity Al Qaeda now has to use the disclosed means of interrogation as a recruiting tool. That said, I doubt that very much had not already made it into the Al Qaeda training circles.
 
OLC Worst Practice
 
As a former deputy and head of the office of legal counsel, I confess what most depresses me about the current matter is how it solidifies the tarnishing of the reputation of that once great office. It is a needed office for the well functioning of the presidency. While it is not the purpose of this entry to debate the merits of Dawn Johnsen who has been nominated to be the next OLC head, since I have publicly endorsed her nomination--notwithstanding profound differences on some questions of public policy, most notably, abortion--let me just say that it is important for OLC to not have another extended period of acting or transient leaders. Professor Johnsen has given excellent service to the office in the past, demonstrating a capacity to put aside personal preference in favor of objective interpretation in her OLC opinion writing. I would hope that this quality more than her ACS membership or harsh words for President Bush will carry the day in terms of her confirmation.
 
OLC's best practice seems to have been discarded or forgotten in the torture matter, and it did not serve either the president, the CIA, or ultimately the nation well. If the published reports are true, the aggressive forms of interrogation were already deployed for weeks, if not months, before OLC was asked to ratify them. Given that, where is the memo to the President apprising him of the backward, post hoc drafting and cautioning him of the uncertainties of proceeding until review could be completed? So too, failing to obtain the views of the Department of State, and perhaps the Department of Defense, at critical junctures, permitted OLC--it would seem--to just simply write an opinion that could rationalize a predetermined result without addressing substantial objection in each of those Departments.
 
Putting aside any gratuitous speculation or hypothesizing about the extent of presidential power in the memos (a side effect of academic hubris or statements inspired by emergency?), the process by which these memoranda were prepared left much to be desired.
 
Plenty of Investigations Already Being Pursued
 
As for investigations, we seem to have plenty afoot: the armed services committee investigation of yesterday seemingly supplies--again from published report--a great deal of context that was not known before, such as the extent to which OLC attorneys were apprised of the full nature of the techniques being employed. The legal analysis in the memorandum does not always seem to apply law to this detail. That this detail was known, I suppose, may have relevance for those contemplating potential prosecution in order to demonstrate the requisite intent, but I am reasonably confident that the initial vagueness of the law combined with the difficulty of proving any intent on the part of former Professor (now Judge) Bybee or Professor Yoo to do anything other than defend their nation from feared repeat attack would result in conviction.
 
There is little question but that the opinion was written very ham–handedly or at least without comprehension of the severity of the techniques the opinion was describing. While it is conceivable that the office of professional responsibility (OPR) will be particularly hard on the memo writers, I doubt anything in the OPR report will change the prosecutorial assessment. Moreover, given the emergency circumstances the nation was confronting and, again, the vagaries of the law itself, I doubt any type of bar discipline should or will be pursued.
 
Impeachment?
 
Likewise, the notion that Judge Bybee should be removed from his judicial office seems unwarranted. By all accounts, the Judge is well thought of by his colleagues and those who appear before him and he is performing his judicial duties in an up-to-date and responsible fashion. To remove him from public service without first achieving criminal conviction of any type and solely for having resolved wrongly--albeit seriously wrongly and in some respects repulsively--executive obligations seems to me mistaken for several reasons. First, it is not in keeping with the history of impeachment practice vis-à-vis the judiciary. Second, it would be the imposition of a disproportionate penalty upon Judge Bybee when compared to those who may well have misled or intellectually pressured him and who seemingly would walk away from this episode without penalty or censure.
 
Stiff-arming Congress?
 
One caveat about the issues of prosecution and/or removal. There are published reports that OLC was deliberately misleading the Congress in its consideration of adding language on the subject of torture in the context of legislative deliberation over the detainee treatment act or the military commission act of 2006. If those published accounts are true, that may give rise to bar or criminal penalties--perjury or obstruction, but I assume this consideration refers to Mr. Bradbury’s period of service. 
 
So What’s Wrong With the Army Field Manual?
 
There is also the Senate intelligence committee report that will be coming out some months from now and, with that distance in time, will usefully cool the temperature a bit and permit us to dispassionately step back to see what the entire picture looks like  when the OPR and intelligence reports can be compared to the armed services report. All that said, I do think the United States would be warranted in returning to the limitations of the Army Field Manual for the CIA. I am not convinced from what Philip Zelikow and others have written that enhanced interrogation practices actually yield additional information or more accurate information.
 
Some Months from Now, A Public Truth Telling Session
 
Finally, I think it would be fair to ask Judge Bybee and Professor Yoo along with David Addington, Condoleezza Rice, and the principals in the CIA who undertook the practice of torture before it was legally analyzed or authorized to publicly explain their disposition and actions before a committee of Congress. I would not ask this to be done now, however, since I do think it is important for the written reports to be obtained first, and for the taste for revenge or recrimination to subside, especially in the House.
 
Hooray for our Statesman President!
 
After several generations now of misused and overused special/independent counsels, it is commendable to have a sitting president who is cautious about seeking to take partisan advantage of the mistakes of the opposition party and his predecessor. It has been a while since there has been a public figure of sufficiently statesman-like character willing to elevate issues of governance over the short or long term political advantage gained from government by investigation.

Stephen Vladeck: The first question is whether any of these officials could be prosecuted for the opinions they wrote, the advice they provided, or the decisions they made. And it's only if that question is answered in the affirmative that we need to reach the second question, i.e., whether they should be.

To suggest, as Andy McCarthy does, that prosecutions would represent the "criminalization of politics" is to invert the inquiry. Thus, those (like Andy) who oppose prosecutions appear to believe beyond question that the relevant officials were all acting "in good faith," and that the overwhelming majority of the conduct undertaken by our CIA and military personnel did not actually constitute "torture." In other words, prosecutions would be inappropriate because no crimes were committed. Of course, that only assumes the first question, rather than answering it. And while it is possible that some of those who oppose prosecution believe that we should not hold officials to account even if they did break the law, such a view would rest on underlying beliefs quite distinct from those that have been articulated thus far.

On the flip side, those who support prosecutions also assume the first question, for they are equally convinced that the relevant officials acted with malice aforethought, and that they knew that the specific interrogation techniques they were sanctioning violated fundamental precepts of both domestic and international law. In other words, it is clear that these officialscan be prosecuted, and so they should be, lest we jeopardize our moral leadership on the international stage, and perhaps even the central premise of American constitutionalism-that ours is "a government of laws, not of men." 

As long as the debate takes place on these terms, it will be intractable, and any solution will necessarily alienate one side of the conversation. That's why the real underlying imperative, at least for the time being, should be the gathering and dissemination of more information-whether by Congress, the Obama Administration, or an independent body established for that purpose. And that's why President Obama's decision to release the OLC memos was, in my view, such a necessary (albeit not sufficient) step.

Bart DePalma: When CIA captured Khalid Sheik Muhammad, the al Qaeda operations officer and the mastermind of the 9/11 attacks, the first thing KSM did was ask for an attorney. Al Qaeda had studied our reaction to the first World Trade Center attack in 1983 and determined that we would treat captured al Qaeda as civilian criminal defendants with a right to an attorney and silence. I would have loved to see KSM's reaction when his CIA interrogator laughed at him. KSM was about to learn that America had gone to war against al Qaeda nearly a decade after al Qaeda had begun its war against America.

A quarter century ago, the U.S. military started Survival Evasion Resistance and Escape (SERE) training to familiarize our soldiers and pilots with interrogation techniques that might be used against them in order to train them to resist those techniques long enough so any intelligence the enemy eventually gained from them would be stale and no longer actionable. Our soldiers would not be caught unprepared as was KSM when he was captured.

However, President Obama has now provided al Qaeda with a complete description of means, methods, and limits of every single one of our interrogation techniques by releasing four Justice Department memoranda with detailed descriptions of the classified CIA interrogation program to go along with the techniques disclosed in the publicly available Army interrogation manual. Courtesy of this gratuitous intelligence bonanza, al Qaeda can now conduct its own SERE training, allowing its next generation of terrorists to resist our interrogation long enough for al Qaeda cells to redeploy to safety before being compromised.

Reckless and irresponsible does not even begin to adequately describe the damage that Mr. Obama has done to the national security of this nation. If he had the benefit of this information prior to his capture as do our SERE trainees, KSM would have had the knowledge necessary to resist the interrogation, instead of rapidly breaking and providing the actionable intelligence which allowed CIA to roll up much of al Qaeda and thwart over a dozen planned attacks on the United States. If a military officer had made these disclosures to a wartime enemy, he would have been justifiably court martialed and sent to prison.

I wish I could say that the country gained something from the disclosure of this intelligence to the enemy, but I cannot for the life of me think of a single thing. The memos did not reveal any criminal "torture" to be prosecuted. Rather, it appears that CIA simply borrowed the SERE techniques we have used on thousands of our own soldiers and pilots for a generation now and used them to instead break al Qaeda officers and save American lives. No longer, though. Our intelligence gathering has been partially blinded.

David Luban: Andrew McCarthy and Bart DePalma argue that by releasing the torture memos, the Obama administration has handed Al Qaeda a primer for their resistance training. In fact, the newly-released torture memos add very little to what has already been published about US interrogation techniques. CIA personnel revealed most of the tactics to ABC News reporters in November 2005. A few months earlier, the Army released part of the Schmidt Report, which vividly described weeks of intensive sleep deprivation and sexual humiliations in the interrogation of Mohammed al Qahtani at Guantánamo. The full stories of US detainees who had been tortured to death--Jamadi, Mowhoush, Dilawar, Wali--have been available for years. The idea that releasing the memos gave Al Qaeda valuable knowledge of secret US interrogation practices does not stand up to even minimum scrutiny.

For that matter, the existence of the memos was no secret either. We knew about the second Bybee memo because the first Bybee memo refers to it; and the New York Times described the 2005 Bradbury memos almost two years ago. Steven Bradbury's argument about why none of the techniques constitutes cruel, inhuman, or degrading treatment first appeared in a 2005 letter written by Assistant Attorney General William Moschella to Patrick Leahy; most of us who follow the issue assumed that a similar argument must be in one of the OLC memos, as indeed it was. To be sure, it is disconcerting to read the actual documents, with their clinical detail about specific techniques side by side with antiseptic legalese. As an intellectual matter, though, that's what we knew they would look like.

We do learn a few important things. In Bradbury's May 30, 2005, memo (page 37), we learn that Abu Zubaydah was waterboarded in August 2002--three months after Jose Padilla was arrested based on information obtained from Zubaydah. Ergo, that information didn't come through waterboarding. This partly confirms Ron Suskind's reporting (in The One Percent Doctrine) that Zubaydah gave up his most important information before the interrogators turned to torture.

More importantly, we learn that Abu Zubaydah was waterboarded 83 times within a month, and KSM 183 times--while the memo specifies that the waterboard may be used up to 60 times a month. In other words, given highly specific guidelines, the CIA violated them. The recently-revealed ICRC report likewise describes tactics significantly rougher than those permitted in the memos. One argument against officially-approved tortures is that, historically, it always metastasizes beyond the official limits--in Algeria, in Argentina, in Israel. (Interested readers should see Darius Rejali's exhaustive book Torture and Democracy.) The United States turns out to be no exception.

Furthermore, we learn that KSM was waterboarded as soon as he was captured on March 1, 2003 (the 183 waterboardings took place in March). This contradicts the government's previous narrative, which was that waterboarding was a last resort after rapport-building methods failed--and that the waterboard broke KSM immediately.

The memos were only part of the news. The SASC chronology released this week shows that planning for harsh interrogations began in 2001, months before any high value detainees were captured; and the Senate Intelligence Committee's chronology shows that when OLC received the request to opine on the harsh techniques, Condoleezza Rice had already signed off on them--powerful evidence that OLC was tasked with approving the tactics, not providing objective legal analysis. And a McClatchey article from last Tuesday quotes intelligence officials who said that one reason for the turn to brutality in 2002-03 was urgent pressure to find evidence of an Iraq-Al Qaeda link to justify the upcoming invasion of Iraq. Bit by bit, the Bush administration's interrogation narrative is unraveling.

The biggest news, however, is that President Obama opposes a truth commission. This, I think, is a bad mistake: some form of public accountability is essential. Otherwise, presidential silence becomes the next chapter of the story. Silence is acquiescence, and acquiescence becomes precedent. The next time a president chooses to defy the law, he or she will be able point to the current episode and say, "Look: the Bush administration tortured detainees, and nothing happened to them, not even an investigation--even though the next president was from the other party and they controlled both houses of Congress." President Obama obviously prefers to let bygones be bygones. But that is impossible: bygones become benchmarks, redefining the scope of presidential power. That is too dangerous.

So far, I've said nothing about the specific legal issues in the memos. I'll try to weigh in on those in a future post.

Douglas Kmiec: Cheney's Ethics--Can Torture's Success Be Its Ethical Justification?

So does it matter if aggressive interrogation--viz. torture--is a successful means of gaining actionable intelligence?

More than once in the last few days I have heard the former vice president or others advocate that President Obama release other classified materials in order to demonstrate the effectiveness of aggressive interrogation techniques. The ethical and legal assumptions under this line of argument will be troubling to many.

If torture has been declared an intrinsically evil act (i.e., wrong regardless of context), which I take it is the point of the United Nations convention which we signed, ratified, and incorporated into our criminal law, what exactly is the point of the former vice president's argument--unless he is making Lincoln's emergency argument into some kind of far flung general prerogative power.

The argument from utility at least vis-à-vis torture is pernicious because it seems to be a fulsome denial of law and the ethical principles settled beneath it. The best case for such utilitarian consideration to carry the day would be obtaining indispensable and otherwise unattainable actionable intelligence. I've noted in an earlier post, this factual indispensability and unattainability is highly disputed. What I wish to raise here is what would surely trouble an ethicist--namely, constructing a justification for what the world community has called the employ of intrinsically evil means.

What would such an ethical justification look like? I suppose it could be a variant of the just war doctrine, but most ethicists I think would be appalled by that prospect. Even under just war theory, far more ethical analysis would have had to be on display in the OLC memos in order to supply the kind of good faith presumption for those instituting a torture policy or rationalizing it with legal opinion. As with just war theory generally, there must be a clear threat; there must be reasonable chance for success; there must be a reasonable use of force (in the case of torture that would mean death or impairment should never be the result); and the consequences of torture should not cause greater harm. Of course, all just war theory depends upon an authorization from proper authority, and insofar as the torture policy of the Bush administration was being accomplished in the teeth of treaty and law, it is obvious that the former Vice President's ethical framework still does not include much, if any, role for the legislative branch or respect for its enactments.

Douglas Kmiec: Of Politics & Post-hoc Rationalization

I agree with Andrew McCarthy's general precept that inter-branch disputes ought not be "criminalized," a point nicely underscored by my own Dean's second-thoughts on the inescapable politicization associated with the repealed but ubiquitous independent (special) counsel authority.

But if independent counsels have largely been engaged in political prosecutions, then there remains special reason to be concerned that OLC not be used as a political organ, even as we recognize that OLC is within the executive branch and has by history and design an obligation to objective appraisal of legal materials and defense of the office of the presidency again from an objective frame of reference.

While as a matter of friendship, I would like to conclude that the Bybee-Yoo-Goldsmith-Bradbury era in OLC exemplified this objectivity in its work product, the written record of the torture memos, as Stephen Vladeck thoughtfully argues, does not permit the ready inference that the interpretative exercise, or perhaps even its delayed and ineffectual withdrawal or reconsideration, can reasonably be seen as objective.

What casts doubt upon a conclusion of objectivity?

  • The timing of when the interrogation practices--now conceded to be torture--began (before all OLC consideration),
  • that OLC failed to either make any effort to caution the Attorney General or the White House about the risks of not waiting until OLC could do its work or obtain--contrary to its established practice--the views of directly implicated Departments in a timely and complete way (i.e., State and DOD), and
  • an examination of the extreme definition of torture ultimately adopted--which remains especially troubling for those of us who from non-governmental context know and respect the abilities of well-educated men like Jay Bybee and John Yoo. By virtue of that relationship, most on this list would naturally want to plausibly claim the extreme definition was adopted out of the same animating patriotic pragmatism as Lincoln's suspension of the Great Writ--even if unfortunately done without the same overt Lincolnesque candor, but
  • now many find this benign explanation severely tested by the Senate Armed Services Committee disclosures that the interpretation adopted by OLC was more likely deliberately drafted to rationalize the practices already undertaken as not being torture.

As my earlier post indicates, OLC's function of independent objectivity is not served by post hoc rationalization, and the context as we now know it suggests that another OLC principle may well have been ignored, i.e., circulation of an OLC legal opinion in draft prior to signature.

Answers needed

So while I still oppose prosecution and/or impeachment for reasons consistent with President Obama's desire to govern, rather than recriminate, some questions should be publicly addressed and these questions implicate more than Judge Bybee or Professor Yoo:

Who initiated the aggressive interrogations and on what authority?

Who requested (apparently repeatedly) OLC's review (blessing)?

Who, if anyone, in and outside OLC examined a draft of the OLC opinion before it was finalized and signed?

Were competing (opposing) interpretations to the extreme interpretation adopted by OLC considered and why were these discarded?

There is, of course, much packed into that last question. Specifically, how did OLC reach its conclusion in light of the UN Convention and relevant statute (18 U.S.C. 2340)? In defining the federal crime of torture, Congress required that a defendant "specifically intend to inflict severe physical or mental pain or suffering," and Congress narrowly defined "severe mental pain or suffering" to mean "the prolonged mental harm caused by" enumerated predicate acts, including "the threat of imminent death" and "procedures calculated to disrupt profoundly the sense or personality." The interpretative inquiry for OLC was: What is the threshold at which intense suffering become torture? The OLC memos pushed that threshold to an extreme.

Having answers to these questions in the words of the relevant participants and decision-makers is important for our re-commitment to the rule of law. And this should not be seen as merely a stone-throwing exercise aimed at the Judge or the Professor. In this regard, whether or not one finds the OLC interpretation plausible, it would be reassuring to have the authors describe how it was their legal analysis that led them to the extreme outcome they settled upon. In particular, the authors deserve an opportunity to rebut the circulating public assumption that the interpretation was crafted in order to support preexisting policies and acts--and most particularly, that the opinion had urgency because within the administration the Iraq WMD claim was coming under serious challenge and the opinion was needed to help the President obtain coerced statements that would establish a link between Saddam and Al Qaeda.

Bart DePalma: David:

You contend that "the newly-released torture memos add very little to what has already been published about US interrogation techniques" and thus Mr. Obama has not provided al Qaeda with an intelligence coup that will allow them to provide far better SERE training to their terrorists. As evidence, you offered prior leaks to ABC News, the Schmidt Report on Gitmo complaints, and various unnamed accounts concerning the deaths of detainees in US custody. However, these sources either do not address some or all of the CIA techniques described in the memos or fail to do so in anything like the detail provided in the memos.

  • The technique descriptions in Brian Ross' ABC News report barely amounted to 100 words. Ross' CIA sources (and one would like to think Ross himself) knew better than to provide any real details to the enemy.
  • The Schmidt Report was limited to very brief descriptions of detainee complaints and did not discuss in any detail the means, methods, and most importantly the limitations imposed on each technique as do the disclosed memos. This missing information is critical to al Qaeda being able to train its terrorists what to expect while in US custody.
  • Finally, I am unaware of any accounts concerning the deaths of detainees which describe in any useful detail the CIA interrogation methods addressed by the memos.

There is a world of difference for SERE training development purposes between a news article simply disclosing brief generic descriptions to al Qaeda and the memos disclosing the technique, its effect on prisoners, the normal duration of the technique, and reasons CIA might terminate the session.

To the extent that some of this information was previously leaked to the press, it is a basic principle of Intelligence 101 that you never ever confirm news reports to the enemy. Absent confirmation, the enemy cannot be sure what is true and what is intentional or negligent misinformation. As a former intelligence officer, believe me when I tell you that the media is fed and reports a constant diet of misinformation provided for national security, partisan, or ideological purposes. Since the media has largely stopped using the old two source requirement for publication, they are gamed with even more misinformation than in the past. If the enemy is at all competent at intelligence gathering, and al Qaeda appears to be very good at this game, they will know about misinformation and will take our media reporting with considerable skepticism.

Bart DePalma: As a criminal defense attorney, I was appalled when I read the Torture Statute (18 U.S.C. 2340, et seq.) for the first time. The prohibited criminal act is simply described as "severe physical or mental pain or suffering." Pray tell, how does this incredibly vague language give CIA, OLC, or anyone else a clue about what is and what is not permitted under the Torture Statute?

The real mischief here is caused by the use of the term "severe" to modify "pain or suffering." This means that CIA can freely inflict non-severe pain and suffering without criminal sanction, but it's off to the hoosegow if they cross the line into severe pain and suffering.

Medical science tells us that it is impossible to objectively define levels of pain, nevertheless what level corresponds to the term "severe." Yet, every learned attorney and law professor with an opinion on the subject will confidently tell you that he or she can effortlessly determine with near certainty whether a particular technique is "torture," even though none of them can agree on the same list of techniques they claim are torture, and none of them has ever been able to objectively define the crime of torture for me. Indeed, the claims to know that a particular technique is obviously torture without actually being able to define the crime remind me of Justice Potter Stewart's frustrated refrain at being unable to define pornography: "I know it when I see it."

If medical science and the collective legal brain power of our finest universities cannot agree on what constitutes severe pain or suffering, then how can we sentence CIA interrogators and their chain of command to ignominy and prison for not seeing this invisible line separating the permissible from the criminal?

If I have an indictment of the OLC attorneys given the thankless task of applying the Torture Statute to the CIA interrogation program, it is that they played along with the charade that this law can be used to objectively determine that any act is "torture."

In my opinion, the Torture Statute as written should be considered void for vagueness in violation of Due Process. Rather than discussing from which tree to hang Dick Cheney, we in the legal community should be discussing how to redraft the Torture Statute to give our war fighters clear guidance and protect even unlawful combatants from true torture.

David Luban: Bart DePalma raises a basic question about the federal torture statute: is its definition of torture--roughly, the intentional infliction of severe mental or physical pain or suffering--too vague? How much pain is "severe" pain? If there is no formula for answering that question, is the statute too vague to apply?

As a matter of practice, clearly not: judges and juries have applied it, in civil suits and asylum cases. As a matter of common sense, also not. "Severe" is a term of ordinary language and commonsense experience. Almost everyone has experienced severe pain at some point in their lives; doctors routinely ask their patients to grade their pain on a 1-10 scale; and in a litigation setting, testimony from people who have undergone the SERE techniques, or medical researchers who have studied the effects of unfamiliar stress positions, close confinement, or intensive sleep deprivation, could be elicited.

In fact, the word "severe" is no vaguer than lots of words in the criminal law. The anti-bribery statute (18 USC § 201) criminalizes exchanges of gifts for favors when it is done "corruptly"; the wire fraud statute criminalizes any "scheme or artifice to defraud"; self-defense requires that the person pleading it "reasonably" feared attack; recklessness is disregard of a "substantial and unjustifiable" risk; defense lawyers argue that their clients' confessions were obtained "coercively." All law, requires judgments of broad qualitative terms that can't be reduced to formulas. To imagine otherwise is to imagine law for robots or machines.

The torture memos treated the definition of torture as if it was an arcane matter of legal technicality; that was the fundamental fraud underlying them. As newspaper columnist Kathleen Parker has written, if you have to ask whether it's torture, then it is. Professor Yoo has said that he proposed the notorious "organ failure or death" standard in order to make the vague term "severe" clearer. A moment's thought shows how absurd this is. Anyone who has been hit in the groin with a batted ball, given birth to a baby without anesthesia, or broken a bone understands the meaning of "severe" pain; few among us know what organ failure feels like, and none among the living knows what the pain of death is like. "Severe" is a broad term, but it isn't an obscure one.

And ideas have consequences: when a CIA lawyer explained the Bybee Memo's standard to interrogators at Guantánamo, he told them that if the detainee dies, you've done it wrong. What other operational advice could you derive from the "organ failure or death" standard?

It's important to notice the assumptions that go into even asking the question that the torture memos asked: are these techniques torture as defined in a criminal statute? That is an important question only if you assume that anything short of torture is just fine. That assumption is a sign that we've lost our bearings.

Scott Horton: We have reached the 100 day mark for the Obama presidency. I'd like first to look at what the decisions taken in the last two weeks about the declassification and release of documents suggest about the Obama presidency and how it is likely to address similar questions in the future. Then I'll look at the way the Obama White House has dealt with the question of criminal law accountability.

First, the issue of the OLC memoranda. I see this principally against the backdrop of FOIA compliance, particularly in the testy area of national security. During the presidential campaign, Obama was critical of the Bush Administration's FOIA policies. Much of what he said reminded me of the criticisms of Daniel J. Metcalfe, who resigned following many years as DOJ's senior career FOIA officer, articulating a series of stinging criticisms about the way the Bush Administration dealt with FOIA requests, specifically with respect to the internal operations of the Justice Department. Metcalfe argued for far higher levels of openness with respect to Justice's internal records--moreover, he said the Bush Administration repeatedly withheld documents which FOIA plainly required to be made public on demand. Of all the FOIA issues that arose over the last eight years, among the most troubling was the Bush Administration's decision to withhold a large number of OLC memos addressing national security issues. A good number of these memos leaked out, and a few others were grudgingly given up in response to Congressional demands. Still, a large group were held down to the day that the Bush Administration departed Washington. These memos reflected the attorney general's exercise of his opinion power under the Judiciary Act, and as such they were determinations of law binding on the entire executive branch. There is therefore a particularly strong public interest in knowing the legal policy determinations contained in these memoranda. Keeping them secret constituted a species of secret law. Because it was secret it could not be effectively challenged or discussed through the vehicles our system provides for making and changing law.

The Bush Administration claimed that national security concerns compelled its decision to withhold all of these documents; a number of them were classified. I consider these claims at least overblown and in some cases specious. In fact the major concern driving the decision to withhold disclosure of the memoranda was simple: they were so riddled with poor legal reasoning and false factual assumptions that they could not withstand public scrutiny. With respect to the last set of memos, which contained discussion of interrogation techniques and therefore a better grounded claim of secrecy, it is argued that their release compromised national security because it disclosed techniques used and the limits applied to their use. But in fact, the techniques described were already known and had in fact been described in still greater clinical detail in a recently published Red Cross report. The supposed secret was therefore long out of the bag. The real secret guarded by withholding these memos was the legal reasoning employed by their authors. That reasoning was repudiated in some cases by the Bush OLC, and the balance by the Obama Administration. But key ideas in those memos were even repudiated by the three finalists in the Republican presidential race in 2008. It was therefore a legal historical relic.

These disclosures are important to a deeper understanding of the process by which the Bush program was authorized and implemented, though our understanding of that process remains fragmentary.

Still, the two disclosures suggest that Obama will adopt a more transparent approach with respect to his administration's legal policy. I expect to see OLC memos published in the ordinary course, including memos addressing national security issues. But we should note that it is easy for an administration to declassify and release potentially embarrassing documents of a predecessor government from the other party. The real test will come with respect to the transparency surrounding the Obama team's own controversial or embarrassing decisions. Obama's decision on the OLC memos will nevertheless provide an important standard against which later decisions can be tested.

Bart DePalma: David:

Thank you for your thoughtful response to my post arguing that the Torture Statute is irredeemably vague. I have made this point on multiple blawgs and the responses generally sidestepped the issue. You took it head on. Allow me to address your main rebuttal arguments.

I. Courts and Juries Have Applied The Statute

You can count the number of prosecutions under the Torture Statute on one hand and still have fingers left. Most of the applicable case law appears to concern courts reviewing the deportation of aliens who allege that they will be tortured if returned home. None of these courts have attempted to define torture and their decisions do not appear to follow any rhyme or reason. In fact, my favorite case is Dandan v. Ashcroft, 339 F.3d 567 (7th Cir. 2003), where the court found that a beating of the face that only caused swelling was not torture. Do you share this opinion? If not, that is my point.

In any case, courts and juries have used statutes far more often than the Torture Statute before the statute is finally found to be void for vagueness. The lewd and lascivious behavior statutes were on the books for decades before being struck down as vague or judicially rewritten to make them constitutional. Thus, I do not see volume of prior usage to be a determining factor in this analysis.

II. Severe Pain Is A Term Of Common Experience

Everyone may have experienced what they consider to be "severe pain" sometime in their lives, but they all have substantially different thresholds for when they believe severe pain begins depending upon their life experiences and personal tolerance for pain.

For example, as an infantry officer during the Persian Gulf War, I stood in the turret of my Bradley IFV for the better part of two days straight. My feet and legs were so swollen, I could barely get my boots off. My feet were sore, but I did not believe I was suffering from severe pain.

In contrast, the leaked Red Cross report summarizing the interviews of the 14 al Qaeda high value detainees subject to CIA interrogations described how CIA doctors would stop the long time standing sessions whenever it appeared that the detainees legs would start swelling. Thus, these detainees stood for less time than I did and did not suffer the swelling I did. However, several lawyers and law professors with whom I have discussed this report still believe that the long time standing technique is torture because it inflicts severe pain.

It is hard to say that either of us was wrong because we all have different subjective conceptions of when severe pain starts.

Finally, as you observed, doctors do not even use vague terms like severe for patient pain self evaluation. Rather, they use 1 to 10 scales. If you ask ten people where on scale of 1-10 severe pain starts, I doubt half of them will end up choosing the same number.

III. Other Statutory Terms Are Equally Vague

Can you offer an objective definition for the term severe pain or suffering which could be used as a jury instruction? I have posed this challenge repeatedly at various blawgs and no one can even begin to define this term. In contrast, the terms you use as points of comparison generally have pretty objective jury instructions or plain meanings. For example:

"A person offers a thing of value to a public official "corruptly" if the person acts knowingly and intentionally with the purpose either of accomplishing an unlawful end or unlawful result or of accomplishing some otherwise lawful end or lawful result influenced by the offer of the thing of value to the public official." (3d Cir. Pattern Jury Instruction)

"If the defendant engaged in the conduct charged only because he/she reasonably feared that immediate, serious bodily harm or death would be inflicted upon him/her (or others) if he/she did not engage in the conduct, and he/she had no reasonable opportunity to avoid the injury, then the defendant is not guilty because he/she was coerced." (7th Cir. Pattern Jury Instruction)

A "scheme or artifice to defraud" hardly needs a jury instruction at all. It simply means a plan to defraud.

"A person may use force which is intended or likely to cause death or great bodily harm only if he/she reasonably believes that force is necessary to prevent death or great bodily harm to himself/herself/another." (7th Cir. Pattern Jury Instruction) The term reasonable simply permits the jury to place itself in the defendant's shoes to determine if they think the objective elements of self defense were present. In contrast, the term severe pain or suffering has no objective elements at all.

To sum up, unless you can give me a jury instruction for "severe pain or suffering" comparable to the generally objective pattern instructions above, I do not see how you can expect a jury trying this case to come up with anything but a completely arbitrary verdict.

IV. One More Illustrative Exercise For Anyone Who Wants To Play

In a good faith effort to try to find this elusive line between legal interrogation and torture, I would ask any of the participants to (1) name the most intense type of physical pain CIA can impose on a terrorist that is not severe and is thus lawful, (2) name the least intense type of physical pain CIA can impose on a terrorist that is severe and is thus unlawful, and then (3) tell me your reasoning.

For example, does slapping a person on the face fall just short of torture, but punching him in the stomach crosses the line over to torture?

Good luck.

Andrew McCarthy: Prof. Doug Kmiec writes:

There is little question but that the [2002 Bybee/Yoo OLC] opinion was written very ham-handedly or at least without comprehension of the severity of the techniques the opinion was describing. While it is conceivable that the office of professional responsibility (OPR) will be particularly hard on the memo writers, I doubt anything in the OPR report will change the prosecutorial assessment. Moreover, given the emergency circumstances the nation was confronting and, again, the vagaries of the law itself, I doubt any type of bar discipline should or will be pursued.

So, if I have this right, it's a bad OLC opinion but he doesn't say what it got wrong--and he concedes "the vagaries of the law itself" that OLC was interpreting, as well as "the emergency circumstances the nation was confronting." Surely, he concludes, no "bar discipline should . . . be pursued." And prosecution? Prof. Kmiec tells us the "vagueness of the law" coupled with the obvious lack of criminal intent leave him "reasonably confident" that there would be no conviction of the lawyers for the way they grappled with the . . . "vagaries." 

Nevertheless, let him assure you the process was bad, the opinion was bad, and the whole episode is bad for OLC's reputation, such that OLC now desperately needs the guiding hand of Dawn Johnsen--who has speculated in a Supreme Court brief that abortion restrictions may violate the 13th Amendment bar against slavery--to right the ship. And while he's at it, three cheers for our "statesman president" who is so "cautious about seeking to take partisan advantage of the mistakes of the opposition party and his predecessor" . . . even as the said statesman opens the door to the very criminal prosecution of the opposition party that Prof. Kmiec seems to say is unwarranted.

It has become all too typical to deride Judge Bybee and Prof. Yoo without wrestling with what they wrestled with. To his credit, Prof. Kmiec admits the "vagueness of the law" they were asked by the CIA to construe, but like most critics he does not tell us how he would have resolved the vagueness, nor why the way they did it was so wrong as to merit the calumny to which they've been subjected. Even in retracting its 2002 guidance, DOJ's 2004 OLC memo stressed that American law has always drawn a sharp distinction between the heinous barbarity of torture and other modes of cruel, inhuman and degrading treatment (and the latter, I note, were not conclusively prohibited--at least with respect to aliens held outside the United States--until the 2005 McCain Amendment). Moreover, the 2004 guidance acknowledged both that "severe pain" was not defined in the torture statute and that there was support for the 2002 Memo's conclusion that "severe" translated into "excruciating and agonizing" pain and suffering. It disagrees with the latter conclusion but points to exactly nothing that shows the 2002 guidance to be wrong (it just disagrees). 

The 2004 OLC guidance further rejects the 2002 OLC memo's analogy of "severe pain" to "the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." But at least the 2004 OLC, unlike most media coverage and academic analysis, did not accuse Judge Bybee and Prof. Yoo of pulling this putatively monstrous definition from thin air. Rather, because the term "severe pain" is undefined, they did what thorough lawyers are trained to do: they looked for guidance from the use of the same term in other statutes--and found it in federal laws describing an emergency medical condition. The 2004 OLC disagreed with Bybee and Yoo on this point--it's de rigueur, after all. But, again, it couldn't point to anything that conclusively said they were wrong: "We do not believe that [these emergency medical condition statutes] provide a proper guide for interpreting 'severe pain' in the very different context of the prohibition against torture[.]" The 2004 OLC authors were entitled to their opinion, of course, but the best they could do in explaining their disagreement was to draw a less precise analogy of their own--citing cases involving the otherwise irrelevant terms "wages paid" and "employee" to make the undeniable point that even mirror-image terms can mean different things in different situations. Okay, an analogy is rarely perfect. But can we at least agree that it was not until the Obama administration that drawing one has been thought grounds for criminal and ethics investigations?

The 2004 memo then launches into a factitious parsing of "severe," on the one hand, and "excruciating and agonizing," on the other, which does nothing to settle the definition of "severe" and is miles removed from the tactics actually used by the CIA, which were neither severe, excruciating, nor agonizing. To be fair, we do learn that DOJ agrees with a case that held "severe beatings to the genitals, head, and other parts of the body with metal pipes, brass knuckles, batons, a baseball bat, and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of "Russian roulette," constituted torture." A real close call, that one. And who knows, OLC might even have agreed with David Luban that "[a]nyone who has been hit in the groin with a batted ball, given birth to a baby without anesthesia, or broken a bone understands the meaning of 'severe' pain" (having been through menu items 1 and 3, I agree they seemed pretty excruciating and agonizing to me). But I'm not sure how any of that helps with a species of waterboarding that (a) did not cause severe physical pain or suffering; (b) did not cause prolonged mental anguish (i.e., severe mental pain); (c) was calculated not to cause the fear of imminent death (i.e., severe mental suffering) by having subjects informed they would not be killed and by administering the technique in a way that made clear they would not be killed, and (d) was not materially more severe (if more severe at all) than what they United States has administered to tens of thousands of its own military and intelligence operatives in counter-interrogation training. 

The disclosure of the memos demonstrates that assiduous care was taken not to torture--i.e., not to inflict severe mental or physical pain or suffering. That much is plain, notwithstanding our statesman president's refusal to permit the public to learn the fruits of interrogations that top intelligence officials have said dramatically increased our understanding of the enemy. So what specifically did the memo get wrong--and not just factually wrong, but criminally andethically wrong? The definition of severe? What's the alternative definition that demonstrates how malicious or recklessly irresponsible Judge Bybee and Prof. Yoo were? Does Steve Vladeck have one that illustrates his intimation that there may be substantial doubt about whether "the relevant officials were all acting 'in good faith'" or that "the overwhelming majority of the conduct undertaken by our CIA and military personnel did not actually constitute 'torture'"?

David Luban: Andrew McCarthy thinks that "American law has always drawn a sharp distinction between the heinous barbarity of torture and other modes of cruel, inhuman and degrading treatment," and never prohibited the latter until the McCain Amendment in 2005. This mind-boggling proposition is--fortunately--a parallel reality to the one we live in. Here, in no particular order, are a few legal reminders of the legal system we actually live in.

Let's start with the constitutional ban on cruel and unusual punishment, which draws no distinction between cruelty and torture. In Hudson v. McMillian, the Supreme Court held that even inflicting minor physical injury (in that case, a cracked dental plate) can violate the Eighth Amendment--a far cry from the "sharp distinction" between torture and cruelty McCarthy detects in American law.

Or try the federal war crimes statute (18 USC 2441), before Congress retroactively rewrote it in 2006 to ensure that US personnel involved in harsh interrogations would never be prosecuted. In its original and unexpurgated form, section 2441 made violations of common Article 3 of the Geneva Conventions a war crime, and these include both cruel treatment and humiliating and degrading treatment. (And, by the way, assault and battery have been crimes throughout the United States as long as the republic has existed.)

Of course, at least since Rochin v. California (in 1953), the due process clause has prohibited government conduct that "shocks the conscience," and there is no hint that this category includes only "the heinous barbarity of torture."

Or we can go back to 1902, when the US court-martialed troops who had administered the "water cure" (a version of waterboarding) to Filipino insurgents. We tried and executed Japanese police and troops who used "the water treatment" on Allied captives. And in 1983, the Fifth Circuit upheld the convictions of deputy sheriffs who engaged in "water torture" of prisoners to extract confessions (U.S. v. Lee, 744 F.2d 1124 (5th Cir. 1983)).

These reminders should come as a relief to those who might have feared that Andrew is right in supposing that US law has never forbidden government officials from cruel, inhuman, and degrading treatment of those in their clutches, so long as it falls short of "the heinous barbarity of torture."

I assume what he was getting at is that the torture statute criminalizes only torture, not lesser forms of cruelty. He fails to notice that cruel treatment of prisoners is criminalized by other laws, and he fails to notice that criminal prohibitions aren't the only prohibitions the law contains.

At least John Yoo and Jay Bybee had an excuse for looking only at the torture statute: that's what they were writing an opinion about. Of course, the fact that the question had narrowed from "are these tactics cruel?" to "are these tactics criminal?" already suggests that a moral barrier had been breached. When you have been reduced to asking "How cruel can I be to captives without going to jail?" you are asking the wrong question. Andrew is surely aware of this, and that is why he wants to insist that distinguishing torture from other cruelty represents a hallowed tradition of American law. Fortunately, he is mistaken.

He goes on to defend the Bybee memo's "organ failure or death" definition of "severe pain or suffering" on the following ground: Yoo was right to reach into a health care statute defining a medical emergency to get a definition of "severe pain." In 2004, DOJ rejected Yoo's standard because the health care statute was not trying to define "severe pain." Andrew thinks the authors of the later memo "couldn't point to anything that conclusively said" that Yoo and Bybee were wrong. But mere logic does the trick nicely. The health care statute says severe pain can be a symptom that "a prudent lay person . . . could reasonably expect" might signal a dangerous medical emergency. It doesn't follow that only pain equivalent to organ failure or death can be severe. In fact, the health care statute never tries to define "severe pain." It assumes that a prudent lay person knows severe pain when he or she experiences it--precisely the assumption that the torture lawyers wanted to deny when they treated "severe pain" as an arcane legal term of art instead of a term of common sense. It isn't surprising that there is no prior legal authority pointing out that you can't get to the torture statute from the health care statute: until the Bybee memo, it never dawned on anybody to try.

In my last post, I suggested that the law is filled with terms that require jurors to exercise their judgment, in ways that they won't inevitably agree on. One example is the word "reasonable" as it appears throughout the law. Bart agrees that "reasonable" will have to be interpreted by jurors using their own imaginations, putting themselves into someone else's shoes on this subjective element. He distinguishes this from the torture statute by saying "in contrast, the term severe pain or suffering has no objective elements at all." I don't think that Bart's distinction works. He quotes model jury instructions on self-defense, which require jurors to assess whether the accused "reasonably feared" immediate death or harm. Reasonable fear is a subjective term embedded in a defense that also has objective elements. Just the same is true with "severe pain or suffering" in the torture statute. The objective elements of the crime of torture are that one person has inflicted pain or suffering on another; and that the other person is "within his custody or control." The subjective elements of the crime are, first, the accused's mens rea and second, whether the pain or suffering is "severe." The latter--what we're talking about here--should be evaluated exactly the way that Bart proposes that juries evaluate reasonable fears: by imagining what it would be like to be in someone else's shoes who is having the experience, and then making up their own minds.

Bart DePalma: Earlier, Prof. Kmiec posed the question: Why does it matter if the CIA coercive interrogation was successful in obtaining actionable intelligence when the interrogation is "conceded to be torture" and torture is malum in se?

The problem with this question is that it assumes a concession of torture that proponents of CIA interrogation have not made and the Torture Statute hardly demands. For the reasons I have discussed above, the language of the Torture Statute offers far more gray than black and white. In our subsequent discussion, Prof. Luban has essentially acknowledged that jurors will be compelled to substitute their subjective beliefs of what constitutes "severe pain or suffering" for an objective definition of law.

In this problem lies the answer to Prof. Kmiec's query.

A jury subjectively applying the Torture Statute will be arbitrarily setting the bar for torture after the fact. Thus, it is perfectly natural for proponents of CIA interrogation to attempt to convince prospective jurors balancing the equities to set that bar high enough so CIA can comfortably limbo under. An effective way to do so is to make the utilitarian argument that CIA interrogation was successful in saving the lives of the jurors and their families by breaking tough al Qaeda terrorist leaders and thwarting their plots of mass murder. As a newGallup poll noted, the closer attention Americans pay to these arguments in our national debate, the more they believe that CIA harsh interrogation methods were justified.

Opponents of CIA coercive interrogation might want to heed my earlier suggestion that the Torture Statute be redrafted so that the law rather than juries determine what acts are prohibited as torture because you are currently losing the hearts and minds of the jury pool on this issue.

David Luban: This is in response to earlier posts by Bart and Andrew about the dangers of releasing the torture memos. Alas, I'm merely going to quote someone else. This is counter-terrorism expert Malcolm Nance, one of the writers for the important blog Small Wars Journal. Nance, as many know, wrote a powerful piece about waterboarding almost two years ago, here. He is a former SERE trainer who has waterboarded many trainees and been waterboarded himself. Nance began his 2007 post with the warning that "we, as a nation, are having a crisis of honor." He went on:

The carnival-like he-said, she-said of the legality of Enhanced Interrogation Techniques has become a form of doublespeak worthy of Catch-22. Having been subjected to them all, I know these techniques, if in fact they are actually being used, are not dangerous when applied in training for short periods. However, when performed with even moderate intensity over an extended time on an unsuspecting prisoner--it is torture, without doubt.

Today, Christopher Hitchens published an article that includes an excerpt of his interview with Malcolm Nance. As before, Nance cuts through mountains of BS.

Torture advocates hide behind the argument that an open discussion about specific American interrogation techniques will aid the enemy. Yet, convicted al-Qaida members and innocent captives who were released to their host nations have already debriefed the world through hundreds of interviews, movies, and documentaries on exactly what methods they were subjected to and how they endured. Our own missteps have created a cadre of highly experienced lecturers for al-Qaida's own virtual SERE school for terrorists.

Bart offers another argument about why it was a bad idea to release the memos--not that the memos spill the beans about interrogation techniques, but that they tell Al Qaeda the limits beyond which the US will not go. Presumably, that encourages Al Qaeda operatives by reassuring them of their relative safety if they are ever captured.

There are two problems with this argument even on its own terms. First, the USG has already announced that it will not use these tactics any more, so there is actually no cat to be let out of the bag here. Second, as the evidence I have already mentioned in a previous post makes clear, US interrogators have all too often proven themselves willing to exceed legal limits. This will always be true, no matter who the interrogators are. No sane person will rest easy with the thought that his interrogators are operating under strict legal limits, because no sane person in the absolute power of someone else will ever rely on them to keep within legal limits. We know what happened to Jamadi, a suspected bomb maker in Iraq: he was roughed up by SEALs at his arrest, and roughed up again by a CIA agent during his interrogation. Somewhere along the line, his ribs were broken. Then he was hung up with his arms behind his back, and died during the night. He wound up in an Abu Ghraib horror photo, packed in ice cubes in a shower stall. Mowhoush, an Iraqi general, was smothered to death in a sleeping bag by an over-eager interrogator hoping to induce claustrophobia. No detainee will ever be sure that a similar fate isn't awaiting him. The idea that the release of the torture memos in any sense encourages or abets Al Qaeda is risible.

But the most basic argument is that abusing captives is morally wrong (and legally wrong as well). If Bart's response is that our interrogation tactics should know no limits, I have no trouble rejecting it. And if the argument is that there should be limits on interrogation, but they should be hidden from the world, I would like to know who the guardians of those secret limits are--and who guards the guardians.

David Luban: Two days ago, I guest-taught a colleague's class on the torture issue. The students, mostly graduating college seniors, were well-read, well-informed, and very intelligent. I mentioned three options about how to respond to the newest revelations: do nothing, launch criminal investigations, start a truth commission. One student asked me which I favored. I replied that I didn't want to answer until I heard what they had to say. I pointed out that one grave difficulty with criminal investigations is that Americans are in fact divided about the torture issue, and investigations would inevitably appear politically partisan. The students asked tough questions, and I didn't always have answers.

One of the students was in ROTC, and is headed for Navy flight school after graduation. He was silent through most of the discussion, but then looked at me and asked this question: "Do you think that these interrogations are what America stands for?" I answered immediately: No.

He went on: "Then why aren't we investigating? If people did these things, there should be accountability. There should be retribution." He went on: "I'm going to go through SERE training, and I'll do it willingly for my country. But that's not how we're supposed to treat captives. Why aren't there investigations and punishment?" I thought for a while. I said: "If you believe the news reports, these interrogations implicated the highest officials in the government. Do you really want to see them investigated? Wouldn't that be a catastrophe?" He looked troubled by the question, but replied: "It happened in Watergate. Nixon resigned, Haldeman and Ehrlichman went to jail, the attorney-general was convicted. The country didn't falter." I found myself mouthing platitudes about political reality and the world of the second best--and, quite frankly, hating the words as I was saying them.

Since then, I haven't been able to get the conversation off my mind. It has reflected itself in my earlier posts, when I said that by the time we get to the question "Is this torture, or mere cruelty?" we have already crossed a moral line that should not be crossed and asked the wrong question. The student asked the right question.

Bart DePalma: A short response to David's new rebuttals to the contention that Mr. Obama provided an intelligence bonanza to al Qaeda by releasing OLC memos with detailed descriptions of the means, methods and limits of CIA interrogation techniques:

I. Mr. Obama Has Announced That He Will Not Use These Techniques, So The Point Is Moot

If he is telling the truth, Mr. Obama's disclosure to al Qaeda that he will only use the techniques in the publicly available Army interrogation manual is an equally damaging intelligence coup for al Qaeda. Al Qaeda's task in developing SERE training to effectively defeat our interrogation has now become considerably easier.

Of course, Mr. Obama's executive order limiting CIA interrogation could be a lie meant as sop for his political base. After all, Mr. Obama is on record opposing legislation limiting interrogation to the Army manual, and it only takes a two minute phone call by the President to make an exception to his own order. I believe Mr. Obama has made almost twenty exceptions to his executive order banning lobbyists from serving in his administration. If Mr. Obama were to likewise make an exception or ten to his order limiting interrogations, then the point is no longer moot.

II. The United States Has Released Dozens Of Prisoners Who Were Subjected To CIA Interrogation Who Can Now Serve As Al Qaeda SERE Instructors

The 14 al Qaeda officers who underwent the interrogations described in the OLC memos are all in custody.

David Rivkin & Lee Casey: Here is a rejoinder to David Luban's post. To be perfectly blunt, the discussion with his ROTC student, far from illustrating how idealistic young men successfully challenge the more politically-minded grown-ups--the point David appears to be advancing--demonstrates how superficial the whole discouse about this set of issues has become.

For example, the student in issue proclaims his willingness to undergo SERE training (featuring 9 out of the 10 enhanced interrogation techniques described in the OLC memos), but declares that this isn't how we should treat "captives." No rebuttal from David ensues. Yet his claim is far from being self-evident, or even particularly compelling, either as a legal or moral proposition.

If the use of the enhanced interrogation techniques, in the doses/combinations being administered in SERE courses, constitutes torture, as defined by the anti-torture statute, then criminal offenses have been committed over a course of years by hundreds of US officials; under the student's own passionate logic, the people responsible should be investigated and prosecuted. The fact that SERE students may have volunteered for this treatment is legally irrelevant--consent is not a factor featured in the statute or in the anti-torture convention. And, more generally, most legal systems, including our own, maintain that one cannot volunteer for treatment that is illegal/against public policy, e.g., enslavement, prostitution, torture, etc.

To the extent that the use of these techniques isn't torture, the legal questions no longer shape the debate. Moral issues, of course, remain relevant. I certainly agree that even a fully legal conduct may be sufficiently morally problematic to be discouraged or even suppressed, particularly if used by the government. To be sure, it would be useful, if we are to have a serious debate, to separate the legal and moral issues, instead of constantly commingling the two.

Let me close by reflecting briefly on the moral issues. I stipulate that the techniques involved, particularly waterboarding, are jarring; they certainly offend my sensibilities. But being offended and shocked does not a serious ethical discourse make. And, in this context, I don't understand David's assertion that talking about things being cruel per se amounts to crossing a moral line.

Regrettably, cruelty and coercion permeate many aspects of public life. All custodial interrogations are inherently coercive. When Andy Fastow of Enron fame was pressured by law enforcement personnel to cooperate and incriminate his colleagues (and threatened that failure to do so would result in a more aggressive prosecution of his wife for tax evasion, such that they would end up serving prison sentences at the same time and his children would have to go into foster care)--these facts were widely reported at the time--I am pretty sure he suffered severe and protracted mental anguish. Likewise, prisons, both federal and state, boot camps for juvenile offenders, miltary training at all levels, and many other things in life entail much physical and mental suffering. Yet even our highly evolved 21st century society tolerates this state of affairs and is perfectly capable of separating permissible and impermissible levels of cruelty. I haven't heard, by the way, of many political scientists accusing, a la David Luban, our citizenry of crossing moral lines by virtue of asking, whether explicitly or implicitly, how much cruelty we would tolerate in what circumstances.

Last, but not least, I don't quite grasp the school of morality which suggests that our own servicemen or our garden variety criminal suspects or even our incarcerated criminals can be legitimately treated with a substantial modicum of cruelty, but that one class of people--captured high-value foreign terrorists--should be advantaged with an utmost kindness.

Andrew McCarthy: To deny, as David Luban does, that American law has always rejected the trivialization of torture which would result from equating it with lesser forms of abuse, is indeed to inhabit an alternative universe. Furthermore, observing that torture is categorically different from cruel, inhuman and degrading treatment (CID) is far from saying CID is unworthy of condemnation. It is simply to observe that CID is not torture and has never (at least until now) been treated as if it were.

The 2004 OLC guidance recounts the relevant history well: In recommending ratification of United Nations Convention Against Torture (CAT) in 1991, the Senate Foreign Relations Committee observed that, in both American and international usage, the term torture "is usually reserved for extreme, deliberate and unusually cruel practices." Thus, as the guidance elaborated:

The CAT distinguishes between torture and "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1." CAT art. 16. The CAT thus treats torture as an "extreme form" of cruel, inhuman, or degrading treatment. See S. Exec. Rep. No. 101-30 at 6, 13; see also J. Herman Burgers & Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 80 (1988) ("CATHandbook") (noting that Article 16 implies "that torture is the gravest form of [cruel, inhuman, or degrading] treatment [or] punishment") (emphasis added); Malcolm D. Evans, Getting to Grips with Torture, 51 Int'l & Comp. L.Q. 365, 369 (2002) (The CAT "formalises a distinction between torture on the one hand and inhuman and degrading treatment on the other by attributing different legal consequences to them."). [Footnote omitted; brackets in original 2004 OLC memo.]

This elemental distinction between the unique heinousness of torture and lesser forms of abuse:

  • was emphasized by the Senate Foreign Relations Committee ("'Torture' is thus to be distinguished from lesser forms of cruel, inhuman, or degrading treatment or punishment, which are to be deplored and prevented, but are not so universally and categorically condemned as to warrant the severe legal consequences that the Convention provides in the case of torture"; "The United States [helped to focus the Convention] on torture rather than other less abhorrent practices");
  • was reflected in the testimony of the executive branch ("Mark Richard, a Deputy Assistant Attorney General in the Criminal Division, testified that '[t]orture is understood to be that barbaric cruelty which lies at the top of the pyramid of human rights misconduct'"); and
  • is borne out by federal caselaw, as the cases cited by OLC demonstrate. See, e.g.,Cadet v. Bulger, 377 F.3d 1173, 1194 (11th Cir 2004) ("The definition in CAT draws a critical distinction between 'torture' and 'other acts of cruel, inhuman, or degrading punishment or treatment'"); Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 92-93 (D.C. Cir. 2002) ("The severity requirement is crucial to ensuring that the conduct proscribed by the [CAT] and the [Torture Victims Protection Act] is sufficiently extreme and outrageous to warrant the universal condemnation that the term 'torture' both connotes and invokes. The drafters of the [CAT], as well as the Reagan Administration that signed it, the Bush Administration that submitted it to Congress, and the Senate that ultimately ratified it, therefore all sought to ensure that 'only acts of a certain gravity shall be considered to constitute torture[.]' . . . The critical issue is the degree of pain and suffering[.] . . . The more intense, lasting, or heinous the agony, the more likely it is to be torture") (abusive police beatings as alleged did not suffice to satisfy "the TVPA's rigorous definition of torture"); see also Simpson v. Socialist People's Libyan Arab Jamahiriya, 326 F.3d 230, 234 (D.C. Cir. 2003) (allegations of incommunicado detention and threats to murder, though reflective of "a bent toward cruelty on the part of their perpetrators," were not "so unusually cruel or sufficiently extreme and outrageous as to constitute torture within the meaning of the [TVPA]").

The distinction, moreover, is perfectly obvious from the manner in which the CAT was ratified. The torture provisions were essentially accepted in toto (precisely because of the extensive effort to narrow torture to extremely heinous conduct), and legislation was enacted to make them judicially enforceable. The CID provisions were treated far differently. Ratification reservations reduced them to the conduct already prohibited by the Fifth, Eighth, and Fourteenth Amendments. While David touts the Eighth Amendment, he conveniently glides by a key jurisprudential limitation: as Alan Dershowitz points out (in Why Terrorism Works), the Eighth Amendment's application is limited to punishments resulting from convictions in the civilian criminal-justice system. See Ingraham v. Wright, 430 U.S. 651 (1977) ("An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. We adhere to this long-standing limitation.") It has no bearing on military detentions of captured enemy operatives during wartime. 

That reduced CID to Rochin's "shock the conscience" due process standard, which, as that test's author, Justice Frankfurter, took pains to note, is situational (i.e., the process that is due under all the attendant circumstances): "Hypothetical situations can be conjured up, shading imperceptibly from the circumstances of this case and by gradations producing practical differences despite seemingly logical extensions." Even if David doesn't see it this way, I daresay most Americans will view waterboarding a top al Qaeda terrorist who has knowledge of an imminent weapons-of-mass-destruction attack against an American city differently from coercing a suspect to submit to warrantless stomach-pumping just so we can use the couple of pills he emits to try him for narcotics violations, as happened in Rochin. 

Moreover, the protections the Constitution affords Americans do not presumptively apply extraterritorially to the benefit of non-Americans. I concede this is a withered view when a willful Supreme Court majority is clearly bent on usurping the traditional, constitutional, and prudential role of the political branches (especially the executive branch) in foreign affairs and warfare. But the view was still viable enough in 2005 to drive enactment of the McCain amendment: it did nothing to clarify the vague CID terms but did emphatically apply them to the conduct of U.S. government officials anywhere in the world (which would, of course, have been unnecessary had prior law seen to that).

David does not advance his cause by regurgitating the now familiar canard that the United States "tried and executed Japanese police and troops who used 'the water treatment' on Allied captives"--suggesting that this was all the Japanese officials were executed over. MyNational Review colleague, Mark Hemingway, has recently debunked this misleading claim. As Mark relates, "At the International Military Tribunal for the Far East, a.k.a. Tokyo Trials, . . . only seven Japanese war criminals were executed. Every one of them was convicted of either being complicit in or directly committing atrocities and murder on a grand scale." See here(outlining the seven cases). Quite plainly, all waterboarding is not the same: the recently disclosed memos elucidate the care taken to police the form of waterboarding used by the CIA. But even if we enter the alternative universe where it is, it would still not be true that we executed prisoners solely or even primarily for waterboarding.

Nor is David's case advanced by the unremarkable fact that U.S. soldiers were court-martialed a century ago for using "the water cure" during the Spanish-American War. Presumably, soldiers would be disciplined or face court-martial for using any coercive tactics that were beyond their authority. Thus, U.S. soldiers would have faced (and have faced) such sanctions in this war because Defense Secretary Don Rumsfeld refused to authorize waterboarding (as well as scenarios creating a fear of imminent death or pain and exposure to cold weather or water) when guidelines were issued in 2002; and the Rumsfeld guidelines were further refined in 2003 to prohibit even the tamest forms of coercion if they involvedany physical touching (which, I suppose, the New York Times would nonetheless call "brutal" treatment). In any event, the fact that David can't say anything more than "court-martial" over the Philippine prisoner abuse--he doesn't even pretend that it resulted in execution or the type of sentence one would expect in a case of actual torture--underscores that torture is, as it has always been, in an execrable category unto itself.

Finally, let me end this already too lengthy post by observing that David's reliance on the war crimes statute is similarly unavailing. Up until 2006, Section 2441 punished "grave breaches" of the Geneva Conventions, like torture. Section 2441 also included violations of Common Article 3, but they were irrelevant because CA3, by its plain terms, applies only to civil wars and al Qaeda did not, in any event, qualify for prisoner-of-war treatment (as Eric Holder used to say back in 2003) because its terrorist operatives do not comply with the laws of war. InHamdan, the Supreme Court nevertheless applied CA3 to al Qaeda. To accomplish this, five justices had to torture the language of Common Article 3, ignore settled law requiring courts to defer to the executive's interpretation of treaty obligations, end-around the fact that the Geneva Conventions were never intended to be self-executing (by claiming CA3 had been incorporated by the Uniform Code of Military Justice), and skip by the inconvenient fact that the Conventions expressly provide for disputes over its application to be resolveddiplomatically. It is a fact of life that a willful Supreme Court majority can ride roughshod over the law. But do we really have to pretend that the Brave New World the justices have wrought was really the law all along?

Bart DePalma: I am chagrined I did not see this discrepancy right off when I reviewed the OLC memos and the Red Cross report, but it appears that CIA did not waterboard KSM 183 times as has been widely reported in the media and offered here as evidence of "torture." Rather, water was poured on the cloth over KSM's mouth and nose 183 times for a couple seconds apiece during five waterboarding sessions over a month period.

David Luban: David Rivkin's principal point is that if we subject our own service members to SERE resistance training, then the SERE techniques (specifically, the Level C techniques used to break resistance) can't be torture. I don't agree. The cases aren't at all on a par with each other. The reason is straightforward: what makes torture torture is not simply the physical sensations. The awfulness of torture (the "severity" of the suffering, to use the statute's word) can't be divorced from its context; the physical sensations are part but not all. Torture is connected with constant terror and the humiliating knowledge that you are the interrogators' plaything. The victim never knows when his tormenters will stop, or how far they will go. (And, as I pointed out in an earlier post, knowing that DOJ has set legal limits won't make a difference to someone facing actual interrogators, who can't be counted on to abide by limits.) The victim never knows how many sessions there will be--whether the sessions will continue for weeks, months, or years. He never knows whether the interrogator will "lose it" and go all the way.

The SERE volunteer knows things that the prisoner cannot know. He knows that the resistance training will end in a fixed amount of time, that the trainers don't want to kill him or destroy him, that they care about his health, that they are on his side. Crucially, the SERE volunteer can make it stop by quitting the program. He won't get into Special Forces then--but ultimately it's in his control. If that weren't true--if, once you've volunteered for SERE, there is no way out of the resistance training for those who can't take it--I would turn David's rhetorical objection around: yes, Americans HAVE been tortured in the sense of the torture statute, and those who run it should indeed be investigated. (In the legal terms of the torture statute, it seems to me that the volunteer nature of SERE training, and the ability to opt out, negates the objective element of the definition of torture, that the victim be within the torturer's "custody or physical control".)

David Luban: Andy McCarthy correctly points out that CAT distinguishes between torture and CID. That is a long way from his proposition that "American law has always drawn a sharp distinction between the heinous barbarity of torture and other modes of cruel, inhuman and degrading treatment." I fear that he misunderstands why I pointed to the Eighth Amendment, the war crimes statute, the "shock the conscience" test, and various cases in which the US has treated "the water treatment" as a crime. I was not arguing that these prohibitions apply to the interrogation of the Al Qaeda captives; some don't, some might. My point was much simpler: they are all places (some familiar, some not) where American law prohibits cruelty, even when it does not rise to the level of torture.

Andy finds that the Supreme Court had to "torture language" to reach its result in Hamdan; but he finds nothing peculiar with the Bybee memo's derivation of the definition of "severe pain." We truly do have differentideas about what is and is not torture, apparently including the torture of language. I don't think there is much point in revisiting Hamdan now, but I do want to say something about Andy's comment regarding "settled law requiring courts to defer to the executive's interpretation of treaty obligations." Article 3, section 1, of the Constitution vests the judicial power in the courts, and section 2 informs us that "The judicial power shall extend to all cases, in law and equity, arising under . . . treaties." If settled law indeedrequired the Supreme Court to defer to the executive's interpretation of treaty obligations, it would violate the express terms of the Constitution.

David Rivkin & Lee Casey: David Luban tries to draw distinctions between SERE training and CIA interrogations, both of which utilze the same stress techniques. Yet while such differences certainly exist, they are not nearly as profound as David suggests; they are certainly not legally dispositive.

To help establish this point, a couple of clarifications are in order. First, both David and I seem to agree that the mere fact that SERE techniques are used on our own personnel doesn't per se immunize them; whether or not they constitute torture depends on their impacts on the persons to whom they are administered. Second, David and I seem to concur that it isn't the physical pain that is the issue here. The enhanced techniques, used in both SERE and CIA interrogations, produce virtually no pain and certainly don't come even close to causing severe pain. Not to belabor this point, but, at a time when most of the CIA critics speak about the Agency interrogation program in tones of horror befitting a medieval dungeon operation, for David and me to agree that physical pain or suffering was neither sought nor inflicted on the detainees is an important development.

Unfortunately, when it comes to the psychological impact assessment, David and I totally part company. To begin with, he singles out such factors as the feeling of helplessness of detainees, their status as the "plaything" of the interrogators, their inability to predict how long the interrogations will last, whether the interrogators will play by the rules, etc.

I will probably surprise David by agreeing that these fears may indeed arise in detainees' minds. However, these feelings aren't attributable to the use of the OLC-blessed techniques; they are likely to arise in the context of entirely different interrogation procedures, relying on pure "mind games", deployed by interrogators. In fact, such fears are a generic consequence of any protracted custodial interrogations. So, David is basically arguing that all protracted, tough, intense interrogations amount to torture. This is an untenable position.

But there is another reason why David's analysis is wrong. While exaggerating the intensity of fears associated with interrogations, he deftly and unduly downplays the intensity of fears experienced by an average SERE trainee. In this regard, everybody knows that training accidents happen, that sometimes trainers miscalculate or get excited. Indeed, military personnel get killed and maimed while training, as do police officers, firefighters, and other similarly situated professionals.

And, finally, quite aside from this rational calculus/analysis, an average SERE trainee surely experiences many irrational fears, stemming from the use of the enhanced interrogation techniques. It is worth noting here that, for example, most of the waterboading critics assert that it terrifies its victims at a subconscious level, and that they cannot help feeling terrified, at least for some time. The fact that both a SERE trainee and a high-value detainee know they will not be killed or harmed, albeit for different reasons, by their respective interrogators is supposed to provide no comfort sufficient to offset their irrational fears. If so, and I have no basis to disagree with the critics' analysis in this respect, both SERE trainees and high-value detainees are impacted by waterboarding in remarkably similar ways. Hence, either both are tortured or neither are tortured.

Andrew McCarthy: I leave to others to decide whether my demonstration that American law has always drawn a sharp distinction between the heinous barbarity of torture and other modes of cruel, inhuman and degrading treatment is consistent with my proposition that American law has always drawn a sharp distinction between the heinous barbarity of torture and other modes of cruel, inhuman and degrading treatment. I think, moreover, that we've drifted into the silly season if we have to debate whether forms of cruelty are prohibited under American law. Even if I hadn't been a federal prosecutor for 19 years, I would have stipulated that from the beginning (as I assume any of us would have). I thought we were talking about the coercive interrogation of alien detainees held outside the United States in wartime.

Mainly, I write to respond to David's last assertion--viz., that the Constitution is somehow violated if a court defers to the executive branch's interpretation of a treaty--which is just absurd. As the constitutional provision he cites (art. 3, sec. 1) makes plain, the judicial power extends to all cases, including those arising under treaties. Having access to court, however, is a far different thing from having a judicially enforceable remedy--which is to say, just because you file a lawsuit doesn't mean you have a case and that judges are at liberty to start fashioning relief as they see fit.

Thus, for example, in Johnson v. Eisentrager, 339 U.S. 763 (1950), the Supreme Court rejected the claim of alien enemy combatants that they were entitled to judicial enforcement of the Geneva Conventions' prisoner-of-war protections. As the justices explained, "It is . . . the obvious scheme of the [Geneva Conventions] that responsibility for observance and enforcement of these rights is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention." Id., at 789 n.14. (In treaty parlance, "protecting powers" are a long-established but little used diplomatic device under which parties to a conflict pick a neutral country or humanitarian organization--not the court system of one of the parties to the conflict--through which to resolve such war related disputes as the treatment of prisoners. See Adam Roberts & Richard Guelff, Documents on the Laws of War (Oxford, 3d Ed. 2000), Introduction at p. 33.) See also Geneva Common Articles 8 ("The present convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers[.] . . .") and 11 ("In cases where they deem it advisable in the interest of protected persons, particularly in cases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the present Convention, the Protecting Powers shall lend their good offices with a view to settling the dispute").

Even in Hamdan, where they contrived to enforce part of Common Article 3, the plurality justices did not hold that the Geneva Conventions were judicially enforceable but reasoned, however implausibly, that Congress had incorporated CA3's requirement of "regular constituted court[s]" through the Uniform Code of Military Justice. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Federal judges have no power to enforce treaties and fashion remedies based on treaty terms unless the treaty in question expressly provides for judicial enforcement and specifies the proposed remedy. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) ("If we were to require suppression for . . . violations without some authority in the Convention, we would in effect be supplementing those terms by enlarging the obligations of the United States under the Convention. This is entirely inconsistent with the judicial function") (citing The Amiable Isabella, 6 Wheat. 1, 71 (1821) (Story, J.) ("[T]o alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty")).

Scott Horton: Last night at Barack Obama's hundred-day press conference, two questioners pressed him on the question of accountability for torture policies. Obama's answers carefully avoided the thrust of the question--yes, he insisted, he believed that waterboarding was torture. Current polling shows that notwithstanding a sustained campaign by the Bush Administration with considerable support from the media, large majorities of the American public agree with Obama on this. Polls also show large majorities agreeing that the Bush Administration used torture as a matter of policy. But the question posed to Obama is what consequences would be assigned to those beliefs. There's no doubt in my mind that he heard the question and ducked it.

The accountability question can be presented several different ways. There are issues about professional ethics surrounding the conduct of lawyers and health care professionals involved in the formulation and implementation of the Bush Program. There are questions of criminal liability, particularly under the Anti-Torture Act and the War Crimes Act. There is the call for a national commission with special authority to investigate, establish a consensus narrative, and make recommendations about what to do. 

The first question is an acute one for the memo writers. They are now arguing vigorously that their opinions were rendered in good faith, and they believe that this argument will be a sufficient shield against bar disciplinary action. Bar disciplinary organs very rarely punish lawyers for the opinions they issue, and when they do the punishments are relatively mild. Still, a full exploration of the professional responsibility issue would require us to know in more detail the facts and circumstances surrounding the commissioning and issuance of the OLC memos. That was the subject of a study by the Justice Department's Office of Professional Responsibility which was submitted to Michael B. Mukasey for approval in October 2008. Mukasey was apparently very upset by the report and required that it be revised. But now, seven months later we still do not have it. I believe a more meaningful discussion of the legal ethics issue will need to await the final issuance of this report--I also hope we are able to get a precise account of Mukasey's objections when the final report issues.

The criminal law accountability issue is now active, though not in the United States. Yesterday, Spain's central criminal court issued a decision announcing that a pre-indictment preliminary investigation was open into the torture and mistreatment of four former Guantánamo prisoners who were themselves the subjects of terrorism charges in the court. The decision refers to the OLC memoranda and Senate Armed Services Committee report, saying they "reveal what had previously been mere conjecture: namely an authorized and systematic program for the torture and mistreatment of persons denied their freedom without any charge whatsoever and without the rights the law grants any detainee." Although specific persons are not identified as the subject of the investigation, the court clearly rejected the recommendation of Spanish Attorney General Cándido Conde Pumpido, who argued that any torture investigation would have to focus on those in the room when the torture occurred. Conde Pumpido specifically rejected the notion that lawyers could be held to account criminally for the issuance of an opinion. (Conde Pumpido's remarks proved ill-timed, however, since the same papers that carried them also contained the story of the sentencing of a lawyer from Valencia--he had issued an opinion which prosecutors considered an element of a criminal enterprise to launder money). The court, however, says it will focus on the "intellectual authors" of the torture program. The Spanish proceedings are not likely to come to a conclusion any time soon. Nor are they apparently the only rumblings on this front. In Britain, Germany and Italy criminal investigations are open looking into torture accusations connected with the renditions program. In Poland a criminal probe is underway into what happened at a CIA-run black site. It's likely that prosecutors in these cases are seeking cooperation from their American counterparts, and it's unlikely they're getting much. In fact, Barack Obama acknowledged in an interview with CNN Español that his administration had been in discussions with Spanish Prime Minister José Zapatero about the Madrid case, and that almost certainly led to the intervention by the Spanish attorney general, trying to shut it down. In Spain, as in several other civil law countries, however, the process of criminal investigation and prosecution is controlled by independent judicial officers, not by prosecutors.

But there's one point on which all observers seem to agree: the issues raised are best resolved in the United States. Under the Convention Against Torture, the United States is obligated to open a criminal investigation into credible allegations of torture. Last night the president said he believed torture had occurred; Attorney General Holder stated the same conclusion in the course of his confirmation. And Susan J. Crawford, the Bush Administration's senior official in the Gitmo commissions process, told Bob Woodward that she concluded one detainee had been tortured. All of this should have triggered a criminal inquiry. But none has been opened.

Obama bungled this issue terribly in the last two weeks. He traveled to Langley giving a speech in which he promised CIA agents they had no need to fear investigation or prosecution on account of the Bush Program. Within two days his chief of staff, a political figure, spoke on ABC's Sunday talk show insisting that there would be no investigation of "the lawyers" or other policy makers, either. Shortly thereafter Robert Gibbs, the White House press secretary, confirmed this was official policy. The point is not whether this position is ultimately right or wrong, but rather that it presents a dangerous crossing of the line in criminal justice administration. Decisions about who is or should be the target of a criminal probe and who should be prosecuted should not be the topic of casual conversation on a Sunday talk show or by a political advisor to the president. The White House quickly recognized it made a mistake and retreated from the issue, but it did serious damage. One consequence is that if the attorney general now follows in the footsteps that the White House established as the president's view, he will not appear to be exercising independent judgment. And this is a point against which Eric Holder, especially given his experience with the Marc Rich case, needs to be on guard.

This has created yet another reason why a special prosecutor should be appointed to examine these questions and make a final determination. But it is not the most compelling reason: the center of action for the transactions that should be investigated was the Justice Department itself. The offices involved include the attorney general, the deputy attorney general, OLC, the counterterrorism division and the criminal division. It would be unseemly to have the investigation conducted by a person who was present in the Justice Department during these dealings, and we already see signs that any investigation by the new administration's political appointees will be dismissed as "partisan." A solution to this dilemma can be seen in James Comey's reaction to the outing of CIA agent Valerie Plame: he appointed a career prosecutor distant from Washington and gave full authority to progress the case without the need to check back for instructions. He tapped Patrick Fitzgerald, a highly suitable choice. In every respect, Comey's handling of this matter reflected the Department's best traditions. In the current case, however, the attorney general would be better advised to look for a person with comparable prosecutorial experience and stature but more detachment, such as a retired federal judge or other senior law enforcement official. And he would be best advised to pick someone who is both a Republican and far detached from the rough and tumble of partisan politics. 

But the focus of the current discussion needs to be on process forward and not the ultimate conclusions. On that point, we should trust the process to work.

Stephen Vladeck: Since my opening salvo, I've been rather quiet, largely because I think this conversation has gone somewhat off the rails. As Scott puts it in his most recent post, "the focus of the current discussion needs to be on process forward and not the ultimate conclusions." That was the point I tried to make initially, but one that has since gotten lost. Commentators have had strongly held views on both sides since the very first news leaked in December 2002 about governmental abuses, and no number of talking heads or volume of blog posts are going to move any of these folks off their initial positions. The real question is about evidence, and that's why I support a further investigation of some kind. It's possible that a searching investigation will reveal that defenders of the Administration are correct, i.e., that based upon what the right people knew at the right time, their beliefs with respect to what was legal were reasonable. But what is missing is the equally important concession from those folks that it is possible that there was malice aforethought here--that OLC was told to provide legal cover, whatever the cost, for conduct that the right people knew was unlawful. We just don't know, based on what's currently in the public record, which of these (or other) interpretations of the same facts is correct--or, at a minimum, more plausible. And so one has to wonder how opponents of further investigations can be quite so sure that there's nothing worth investigating . . .

Consider Andy McCarthy's post over the weekend, where he asked whether I have an "alternative definition [of torture] that demonstrates how malicious or recklessly irresponsible Judge Bybee and Prof. Yoo were?" Malice or reckless irresponsibility here is not about how I define torture, or even how Andy would. It's about why the memos were written, what their authors' instructions were, and whether, at the time they wrote them, they reasonably believed that the conduct they were sanctioning was legal. Anything else is simply a post hoc rationalization.

So, at the risk of being blunt, let's move the ball a bit. If Judge Bybee, Professor Yoo, and the other subjects of this conversation did nothing wrong, why oppose an investigation that might well exonerate them?

Bart DePalma: Steve and Scott suggest that our debate should not be about evidence that the OLC attorneys committed actual criminal wrongdoing, but rather about in which venue to conduct a criminal prosecution of these attorneys. I would suggest that this suggestion is exactly backwards.

No ethical career prosecutor is going to initiate a government corruption criminal prosecution without significant evidence of criminal wrongdoing. The very existence of a criminal prosecution imposes heavy costs on the targets in destroying their reputations and running up tens or hundreds of thousands of dollars in legal bills. Even if a target is eventually spared an indictment or found not guilty by a jury, where does he or she go to recover their good name and life savings? Such legal actions should never be taken lightly.

Apparently, the criminal wrongdoing being alleged here is OLC engaging in a conspiracy with the White House to commit torture by drafting memoranda authorizing illegal acts to create an estoppel defense against future Justice prosecution of the White House and CIA torture perpetrators. The problem here is that there is no significant evidence to prove the elements of this allegation and thus provide the basis to start a criminal investigation.

To start, it is far from clear that the CIA interrogation methods violated the Torture Statute. As evinced here and across the blawgosphere, there is a good faith debate among legal professionals and academics over the actual scope of the vague statutory description of torture: "severe pain or suffering." No one can objectively define this term. Rather, as David conceded in an earlier discussion, a jury hearing a torture case would have to apply its own subjective beliefs as to what pain or suffering rises to the level of "severe." Thus, OLC's subjective belief as to whether CIA interrogation rose to that level is as good as anyone else's.

Likewise, there is no evidence that OLC attorneys started out with the subjective belief that the CIA interrogation violated the Torture Statute and then changed that belief in a conspiracy with the White House. The OLC attorneys all maintain that they acted in good faith and the White House denies any collusion with OLC, so there are no admissions from party opponents. More importantly, there is no third party claiming a conspiracy of any kind between OLC and the White House. Given that these memos were run up and down the flag pole and vetted at Justice and the White House, there were certainly multiple parties privy to the drafting process. Opponents of the CIA interrogation program and Mr. Bush in Justice and CIA who were privy to this information have extensively leaked to the press about these memos for years, but none of the leakers even alleged, let alone offered evidence of, a conspiracy between OLC and the White House. If there was such evidence, it likely would have leaked years ago.

All that is left is surmise.

If any investigation of these highly classified matters must take place, Congress' intelligence committees should conduct it in secret with the cooperation of the Obama Justice department. If they find actual evidence of a criminal conspiracy, then and only then should the intelligence committees refer the case to Justice for prosecution. However, until there is substantial evidence of criminal wrongdoing, no criminal prosecution should even be contemplated.

Stephen Vladeck: In response to Bart, my suggestion was not about the "venue [in which] to conduct a criminal prosecution of these attorneys." It was about making sure we understand exactly what happened before reaching any conclusions one way or the other as to the potential liability of particular officials, and/or whether any of them should face prosecution (or impeachment, in Judge Bybee's case). And Bart seems to all but agree at the end of his last post, suggesting that the intelligence committees might investigate in secret, and then (and only then) contemplate prosecution. Taking Bart at his word, then all we are really fighting over is the appropriate forum for (and public access to) an investigation--and I suspect even there, we are not that far apart. No one should be in this conversation for the purpose of destroying reputations.

I'll probably pay for drawing this admittedly imperfect analogy, but how would we ever have learned of the Nixon Administration's direct involvement in Watergate without some kind of investigation, whether by the Senate Select Committee or Cox/Jaworski? Bart says "[n]o ethical career prosecutor is going to initiate a government corruption criminal prosecution without significant evidence of criminal wrongdoing." Is it simply naïve of me to assume that evidence of individual responsibility is often the result of, and not the catalyst for, criminal investigations? I have no prosecutorial experience, and so am at a disadvantage compared to some of the other commentators, but it strikes me as a non-sequitur to argue that we shouldn't investigate because we're not sure that any laws were broken.

So if the real concerns arising out of investigations are (1) the protection of the reputations of the potentially innocent government lawyers; and (2) ensuring that any investigation isn't simply a witch hunt, there are ways to vindicate these concerns short of simply not investigating, aren't there?

Bart DePalma: Steve is mistaken in his belief that I personally support any investigation of the CIA interrogation program or the OLC memos which opined that the program did not violate the Torture Statute. My conclusion in the last post suggested a least worst alternative if President Obama caves to his political base and launches an investigation.

I have been trying to keep my personal opinions out of this debate, but I suppose my subjective opinions are as good as anyone else's.

1) With the exception of waterboarding, none of these techniques comes even close to what I would consider torture. When I served as an Army infantry officer during the Persian Gulf War and most training exercises in the German winter, my troops and I went through far worse physical and mental stress than these 14 al Qaeda terrorists.

2) CIA waterboarding gets closer to the statutory line, but ultimately falls short of torture in my opinion. It is important to realize that the CIA technique is a far cry from the so called "water cure" inflicted by the Japanese, the Inquisition, our troops in the Philippines a century ago, and apparently our own SEALs. The "water cure" forces large quantities of water into the lungs and stomach of the victim, which the Japanese followed by jumping on the abdomen of the victim, causing actual physical damage and excruciating pain. In stark contrast, he CIA technique described in the memos and demonstrated on civilian reporters involves pouring small amounts of water over a cloth covering the mouth and nose of the person. This triggers an involuntary gag reflex and panic. It is over in two minutes or less and does not inflict any physical pain nor any observed and documented extended mental pain in SERE trainees, the three al Qaeda leaders, or any of the handful of reporters who underwent the process. Even that fat, chain-smoking, cardiac-arrest-waiting-to-happen Christopher Hitchens does not appear to be mentally any worse for the wear after having been waterboarded--although he rails against the experience as "torture."

3) As a matter of policy, I would reserve waterboarding as a last resort in an interrogation of unlawful combatants, to be avoided if at all possible because it does get close to the line. However, if the choice is between waterboarding to get actionable intelligence from a terrorist leader and losing American lives, I personally have no compunction against waterboarding. Last night, President Obama finally acknowledged reading the CIA memos concerning intelligence gained from KSM & Co. and backhandedly admitted that the interrogations saved American lives. I would have asked the follow up question to Mr. Obama and to those interrogation opponents here: How many Americans are you willing to allow al Qaeda to murder rather than waterboarding the next KSM?

4) Finally, I consider the CIA agents who broke the al Qaeda leadership, rolled up much of that terrorist network, and saved hundreds of lives to be heroes, not villains. These CIA agents should be decorated, not hauled before a Senate committee to answer to a gaggle of hypocritical Senators who were briefed on and overtly or passively approved the interrogation methods used by CIA.

Of course, this is just the view of one irascible former infantry grunt. I have a more calloused view of war and this nation's enemies than many of my colleagues in the legal profession.

Douglas Kmiec: The Flaws in the Memo

Andrew McCarthy has asked where I thought the Bybee Memorandum had shortcomings. I agree with much of the scholarly commentary that has identified three failings: first, an exceedingly narrow definition of torture premised upon an interrogator specifically intending to cause the kind of extreme pain that would be associated with organ failure or death; second, a correspondingly generous allowance of affirmative defense to gain an acquittal; and most notably, and unnecessarily, a claim of presidential power well beyond the law as written.

The first major inaccuracy is in the memorandum's assertion that the federal criminal statute prohibiting torture applies only where a government official specifically intends to and actually causes pain so severe that it "rise[s] to . . . the level that would ordinarily be associated with . . . death, organ failure, or serious impairment of body functions." This seems to give identity to causing pain and causing organ failure. There is no necessary identity between these; causing severe pain is a more expansive terminology not necessarily associated with pain at all.

As Jack Goldsmith recounts in his book, this standard was imported from a wholly unrelated Medicare statute. Now one does need some source of meaning, but the purpose of the Medicare statute is to outline when hospitals must provide emergency medical care. Severe pain qualifies for medical treatment. The statute suggests that severe pain leading to "serious impairment to bodily functions" or "serious dysfunction of any bodily organ or part" would justify care. But how, Andrew, does it justify torture? Indeed, the Bybee Memorandum seems to be inverting the benign purpose of the Medicare statute to claim that severe pain only occurs when there is a "serious physical condition or injury such as death, organ failure, or serious impairment of body functions." This gives the interrogators substantial freedom to cause pain so long as it is just short of death, etc. I see nothing in the reasoning to convincingly show this definition to be faithful to the statute being construed, and, of course, we know after the fact that it hardly kept interrogators from avoiding even the deaths of some being interrogated.

The memorandum also surveys defenses to a prosecution under the torture statute: principally necessity and self-defense. To its credit, the Bybee Memo does discuss self-defense in a way that ultimately suggests the defense is a weak one, which is obvious to the extent someone being interrogated is not typically in a position to launch a terror attack (if you conclude self-defense includes defense of others). Thediscussion of the necessity defense is not nearly so reassuring. The Memo suggests acquittal for necessity, but, as David Luban has written elsewhere, the Convention Against Torture itself seems to proscribe such a defense when it declares that "[n]o exceptional circumstances whatsoever, whether a state of war or . . . any other public emergency, may be invoked as a justification of torture." The Memo is written in a manner that would misinform on matters of necessity.

I won't belabor the expansive presidential power flaws, since they have been addressed widely by others. Most notably, the claim of Presidential power beyond statutory limit seems especially troubling without any meaningful discussion of Congress' war powers, including the powers to define "Offences against the Law of Nations; . . . make Rules concerning Captures on Land and Water; . . . [and] make Rules for the Government and Regulation of the land and naval Forces," all of which suggest that Congress was well within its constitutional authority in banning torture and limiting the Executive.

Too often, on these points and others, there is no evidence of consideration of a countervailing view, which we know was being expressed at State and within the JAG. Despite these obvious weaknesses, the memorandum apparently became the basis for the CIA's use of extreme interrogation methods, including "water boarding," and shaped Defense Department interrogation policy. As I understand it, the memorandum was used verbatim in an April 2003 Defense Department Working Group Report on interrogation methods, which then became the basis for Defense Department policy. Ultimately, the Memo was rescinded by the Department itself, at least with respect to its analysis of "specific intent" and "severe pain" and its claim of executive power.

Of course, Andrew is correct that a statute still requires interpretation, not just after the fact criticism. Given that State and the JAG presented alternatives at the time, I think it most appropriate to compare what their submission would have been to the OLC. This comparison, of course, would have happened as a matter of routine practice had OLC followed its usual decision making protocol. It apparently did not. Why? As best as I can tell the Bybee Memo does not reveal the answer, so a public inquiry where the Judge and the Professor can be placed into direct dialogue with those at State or JAG--again without recrimination as its purpose, seems to me to be a wise course--following the report of the Intelligence Committee and OPR.

Stephen Vladeck: No one can question that Bart's views are deeply held (and, I dare say, widely shared). But I want to pick up on his argument that "if the choice is between waterboarding to get actionable intelligence from a terrorist leader and losing American lives, I personally have no compunction against waterboarding." Bart is certainly entitled to his opinion--and, unlike mine, his is borne out of frontline experience. But we need to be careful to distinguish between actions that the relevant government official (or informed commentator) believes to be "necessary" and actions that are legal. The latter does not--and in a society based upon the rule of law, cannot--follow simply from the former.

Consider Justice Jackson's dissent in Korematsu, which accused the majority of making this precise error, i.e., conflating necessity with legality. As he wrote,

It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. . . . But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. . . . [E]ven if [the exclusion orders] were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.

There are those who may well believe that torture is sometimes necessary. My own opinion is to the contrary (largely because I believe the large number of studies indicating that torture is ineffective in eliciting truthful information). But even if I were wrong--even if torture were sometimes productive--that reality would not make it legal. It's one thing to argue, as many have (including in this debate), that what the CIA and the military did was not actually "torture." Or, separately, to argue that senior Bush Administration officials should not be held liable for the torturous acts of the front-line CIA and military personnel. It is quite another, though, to argue that even if some of the conduct did in fact constitute torture, it was legally justified torture. As Jackson wrote 65 years ago, "A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image."

I say all of this because at various moments of this exchange I have felt as if we're quibbling over moving targets. What are we really arguing about here?

If it's whether the OLC memos should have been released, that's not really a legal question--and in any event, I think we've all staked out our views pretty clearly.

If it's whether torture took place, I suspect none of us are willing to be convinced by those with whom we disagree, and so this debate will simply go on ad infinitum (the rather convincing ICRC and SASC reports notwithstanding).

If it's whether such conduct was "justified," I think that, as a legal argument, that's incredibly dangerous, for the reasons noted above.

If it's whether we should investigate the extent to which senior officials, including OLC lawyers, may have been complicit in torture, it should not be an answer, as I've tried to suggest in my earlier posts, that nothing illegal happened on the ground.

The harder and more interesting question remains whether there are ever circumstances in which government lawyers should be investigated to determine if their legal advice either directly or indirectly contributed to (if not facilitated) the unlawful conduct of government agents. If the answer to that question is ever "yes," then perhaps Andy, Bart, or David can explain the legal basis for treating this case differently?

David Rivkin & Lee Casey: I am taking Stephen up on his offer to respond. Indeed, I am pleased to do so; having reread his post several times, I am particularly struck by one of the questions contained therein. For everybody's ease of reference, it is reproduced below:

If it's whether we should investigate the extent to which senior officials, including OLC lawyers, may have been complicit in torture, it should not be an answer, as I've tried to suggest in my earlier posts, that nothing illegal happened on the ground.

Let's consider for a second how unprecedented Stephen's position really is. He suggests that it would be appropriate to investigate OLC lawyers for their advice given to the CIA interrogators concerning the legality of certain enhanced interrogation practices, even if the CIA interrogators, who acted upon this advice and utilized the OLC-blessed interrogation techniques, stayed within the bounds of the law.

Let's also stipulate what's not in dispute here. If the CIA operatives exceeded the bounds of permissible conduct, laid out in OLC memos, and ended up engaging in torture--as alleged by some of the media outlets--then they should be scrutinized, either by the House and Senate intelligence committees, or investigated by the Justice Department through the normal institutional channels, e.g., the Public Integrity division.

But this is not, obviously, what Stephen has in mind. Instead, he is suggesting that lawyers, proffering legal advice to policy makers, who followed that advice and did nothing illegal in the process, still could be investigated.

This is a stunning position and one, in my view, without merit. What exactly is the basis for investigating the lawyers in these circumstances? Is it that they had the proper sense of duty and intestinal fortitude to tackle difficult and unpleasant issues and provide legal advice? Should they have just thrown up their hands in the air and told the CIA that we are not going to soil our hands by looking at when coercion--or as critics have called it, cruelty--does not rise to the legally-proscribed levels of torture or cruel, inhuman or degrading treatment? Is this behavior consistent with the canons of ethics or the best traditions of our profession? To me, the question is a resounding no.

Congress has obviously criminalized some forms of cruelty and coercion. Other forms, while unpleasant and even odious, have not been so criminalized. This was the decision by our democracy, by the American people, acting through their elected representatives, with both political branches participating in the process. And yet, for Stephen and other critics, the proper thing for the lawyers at OLC and elsewhere in the government would have been to say what--we decided that the law be damned, that everything that we considered to be cruel treatment is off the table, should never be used by our policy makers, no matter what the exigent circumstances, and the way that we are going to accomplish this policy result is by refusing to provide any legal guidance to the policymakers, thereby causing them to do nothing.

I suppose that at a time when many judges routinely legislate from the bench, substituting their judgment for that reached by the political branches, I should not be entirely shocked by the notion that lawyers, even those who have not reached the exalted status of Article III judges, should also become the unelected Solomonic guardians to our democracy. I suppose it might be even fun to have a policy debate about such behavior, but to suggest that the failure by OLC lawyers to engage in this aggrandizing and non-lawyer-like conduct should be a basis for criminal investigation is a bit rich. The lawyers involved are guilty of, at most, an Orwellian "thought crime," and investigating people for thought crimes is fundamentally inconsistent with our most deeply held legal and political precepts.

I want to close by tackling a more legitimate question, also posed by Stephen, whether there are any circumstances in which government lawyers can be investigated for their legal advice? My answer is that the circumstances where this is permissible are remarkably rare; they are certainly not present here. Several things would have to be in place for even a preliminary investigation to be proper. First, the conduct of individuals who have received the legal advice and acted upon it would have to be clearly and palpably illegal. Second, there has to be compelling available evidence that the government lawyers involved knew that illegal conduct was being contemplated and would take place--stated differently, that instead of acting as lawyers, they were acting as co-conspirators in an illegal enterprise. Third, these facts must be available before an investigation can be commenced (investigations should take place only when sufficient factual evidence exists to justify them; fishing expeditions are not appropriate). Fourth, the prosecutorial discretion has to be exercised properly and the merits of proceeding with the investigation and possible prosecutions have to outweigh the costs of doing so.

Bart DePalma: From Andrew McCarthy's letter of May 1, 2009, to Attorney General Holder declining the invitation to attend the May 4 roundtable meeting of the President's Task Force on Detention Policy:

Moreover, in light of public statements by both you and the President, it is dismayingly clear that, under your leadership, the Justice Department takes the position that a lawyer who in good faith offers legal advice to government policy makers--like the government lawyers who offered good faith advice on interrogation policy--may be subject to investigation and prosecution for the content of that advice, in addition to empty but professionally damaging accusations of ethical misconduct. Given that stance, any prudent lawyer would have to hesitate before offering advice to the government.

Beyond that, as elucidated in my writing (including my proposal for a new national security court, which I understand the Task Force has perused), I believe alien enemy combatants should be detained at Guantanamo Bay (or a facility like it) until the conclusion of hostilities. This national defense measure is deeply rooted in the venerable laws of war and was reaffirmed by the Supreme Court in the 2004 Hamdi case. Yet, as recently as Wednesday, you asserted that, in your considered judgment, such notions violate America's "commitment to the rule of law." Indeed, you elaborated, "Nothing symbolizes our [adminstration's] new course more than our decision to close the prison at Guantanamo Bay. . . . President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law[.]" (Emphasis added.)

Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.

Bravo sir! I fully join in your sentiments.

David Luban: David Rivkin writes:

Several things would have to be in place for even a preliminary investigation to be proper. First, the conduct of individuals who have received the legal advice and acted upon it would have to be clearly and palpably illegal. Second, there has to be compelling available evidence that the government lawyers involved knew that illegal conduct was being contemplated and would take place--stated differently, that instead of acting as lawyers, they were acting as co-conspirators in an illegal enterprise. Third, these facts must be available before an investigation can be commenced (investigations should take place only when sufficient factual evidence exists to justify them; fishing expeditions are not appropriate). Fourth, the prosecutorial discretion has to be exercised properly and the merits of proceeding with the investigation and possible prosecutions have to outweigh the costs of doing so.

I don't see why any of these preconditions are right. I'm going to say little about the fourth (merits outweigh the costs) because it strikes me as empty (or else pernicious, if David counts political controversy among the costs). As for the others, notice how much David has pumped up the usual requirements for a criminal investigation. In an ordinary investigation, all a prosecutor needs to seek an indictment is probable cause. An indictment, not merely a preliminary investigation. That would be the standard if a prosecutor were investigating private lawyers representing private clients, if there was suspicion that the clients had committed a crime with the lawyers' assistance. Why should government lawyers enjoy special dispensations from inquiry that no lawyer in private practice would enjoy?

Here, the suspicions are that US agents committed torture; that the torture was endorsed by high government officials; that the officials communicated their desire to go ahead with it to the lawyers writing opinions about whether it was indeed torture; and that the lawyers used preposterous legal reasoning to support those policies. I know, I know: not everyone thinks it was torture. But to open an investigation, not everyone has to. And not everyone thinks the memos were scandalously bad lawyering. Again, not everyone has to.

David is absolutely right to criticize mere fishing expeditions. But it is absolutely preposterous to call this a fishing expedition, because there are already mountains of evidence, starting with the memos themselves. There have been substantial books by Ron Suskind, Philippe Sands, Jane Mayer, all based on insider interviews. Some of what they wrote has been met with denials and contrary evidence. The FBI has disagreed with the CIA about what was done and what was necessary. A great deal remains to be sorted out.

David's view is that you cannot even start a preliminary investigation of government lawyers without evidence that is "compelling" and that "clearly and palpably" establishes client criminality. This comes perilously close to saying that the investigation has to be completed before it can be started.

Scott Horton: David Rivkin gives us some grist on the topic of investigating lawyers and other imponderables. I have to applaud my Federalist Society friends for their good efforts as defense counsel. It's not the normal take I see coming from your corner. Moreover, we lawyers as a group have an interest in preventing the criminalization of the exercise of our franchise. I've spend a lot of time overseas defending lawyers who became the targets of government repression simply because they were doing an able job of defending their clients--this is one of the hallmarks of an authoritarian state. However, in this case, I have little sympathy for the conduct in question.

The arguments that David produces for the defense--I don't agree that they are actually "rules" or anything approaching that--don't make a lot of sense to me. To start with, I believe that the Justice Department is legally obligated to open a criminal investigation. The investigation should focus on the crime which was committed--which is the crime of torture under 18 USC § 2340 and § 2340A. That torture occurred is apparently already the subject of a judicial determination--as Susan J. Crawford, the convening authority for the Guantánamo commissions, explained in her interview with the Washington Post's Bob Woodward that she concluded one detainee had been tortured (interestingly, it was not a case involving waterboarding) and decided not to sign the charge sheet for that reason. Under the Convention Against Torture, the United States committed itself to investigate credible allegations of torture. We're now far beyond the stage of "credible allegations."

Beyond this, it is for the prosecutor handling the investigation to direct the investigation and to make decisions about bringing charges. Would the lawyers be targets? I don't understand why they would be immunized. It was first claimed, when the original "torture memorandum" appeared, that the OLC lawyers were giving abstract legal advice only--but the memos released on April 16 make clear that that claim wasn't true. The OLC memo writers were engaged in an elaborate dance with the CIA over the exact parameters of the techniques, with a full understanding throughout that whatever green light they gave would define the techniques actually used. We don't know most of the relevant facts surrounding the commissioning and writing of the memos, and those facts--which appear to have been investigated thoroughly by the FBI already, in an investigation apparently launched in 2004 and completed in October of last year (with the authority of the Bush Justice Department, therefore, not the Obama Justice Department)--will probably be reported by the Office of Professional Responsibility when it finally releases the report it submitted to Attorney General Mukasey last October.

Is subjective good faith a defense? The law on this point is not so settled as many suggest. And it does not appear that the Justice Department accepts it as a defense. Ask Ben Kuehne, the former president of the Dade County Bar Association, who is being prosecuted for issuing an opinion about whether payments made to counsel were "clean"--the Justice Department argues that his opinion is an element of a crime, and it rejects the notion that his subjective good faith is a bar to the charges. And curiously, it is main Justice that brought the case, as the U.S. Attorney in Miami declined to do so and is not even supporting the prosecution of the case. That actually parallels the accusations under consideration in Spain, in which the OLC opinions are seen as an element of a joint criminal enterprise--the civil law equivalent of what we call conspiracy. If the Justice Department were now to say that subjective good faith is an absolute bar to charges, it would be setting a lower standard for government lawyers than it sets for private lawyers. That posture is not going to bring credit to the Justice Department, whose public reputation is already at a modern low-water mark.

Moreover, the posture the United States argued in the Altstoetter case was the opposite: with respect to government lawyers dispensing advice about the laws of war in wartime, it argued a very high standard. Lawyers were not permitted to get it wrong, at least not if the result was foreseeable harm to protected persons. Two government lawyers got 10 year sentences for their authorization of a particular detention program. They had written memos arguing why the Geneva and Hague Conventions did not apply. The Altstoetter standard would suggest a very difficult defense for the OLC lawyers.

But this is leaping ahead to the question of charges, and we're still a very long way from that. There are an enormous number of moving parts in play. The question now is simply whether there should be an investigation. Even if the good-faith standard exists, there is already copious evidence that suggests the lawyers involved here cannot successfully assert it. Adverse authority was not included in the memo, apparently to make them "clean." But there are a number of government lawyers apparently prepared to testify that they warned that the conclusions of the memo were not just wrong, but actually criminal, and insisted that the adverse authority be included, to no avail. Moreover, the case of Condoleezza Rice's counsel Philip Zelikow is quite revealing. The White House undertook efforts to collect and destroy copies of his memo which raised strong reservations about the torture memos. Why is that? And why did Alberto Gonzales write of his concerns for prosecution, and repeat these concerns in cabinet meetings? A prosecutor could find evidence of mens rea in all of this. And that's without even getting into the course of dealings between the OLC lawyers and the White House leading to the preparation and issuance of the opinions. What if we were to discover that the memos were purely designed as CYA memos from the outset--even Jack Goldsmith suggests as much, he called them "golden shields"--and that the memo-writers simply parroted conclusions that people in the White House sought from them? 

But there is another very compelling reason why the lawyers should be under the hammer in this case. The model that the Bush Administration crafted is one under which the absolute prohibition against torture could be evaded simply by having lawyers write memos saying that the torture contemplated and used wasn't really torture. The net effect of this is a nullification of the prohibition of torture, using the lawyers as the instrument of nullification. If this scheme works, then lawyers must in fact fully bear the burden for giving false advice. Indeed, the prohibition on torture would come to depend on their criminal investigation and prosecution. And that brings us straight back to observations that Robert H. Jackson made when he argued for the prosecution of lawyers at the end of World War II. True, they may not have been hands-on actors in the worst abuses. But their conduct amounted to a subversion of the rule of law that allowed those abuses to occur; indeed, it gave them a sheen of legality.

Bart DePalma: Scott:

What crime(s) set forth in the U.S. Code do you suggest the authors of the OLC memoranda committed? Your citation to United States of America vs. Josef Altstoetter, et al. suggests you believe that the OLC attorneys engaged in an 18 USC 371 conspiracy to commit torture in violation of 18 USC 2340 & 2340A ("the Torture Statute") simply by drafting a memorandum opining that certain CIA interrogation techniques did not violate the Torture Statute.

Please make out your indictment setting out how you would hope to prove each of the four elements of conspiracy to commit torture against the memo authors:

1) The memo author and one or more other persons agreed to commit torture;

2) The memo author was a party to or a member of that agreement;

3) The memo author joined the agreement or conspiracy knowing its objective was to commit torture and intending to join with at least one alleged conspirator to commit torture;

4) At some time during the existence of the agreement or conspiracy, the memo author or another conspirator performed an overt act to commit torture.

The Altstoetter case does not provide you with much guidance in drafting such an indictment because the defendants in Altstoetter all directly participated in the alleged war crimes--the abuse of the criminal justice system to persecute enemies of the Nazi state. The Altstoetter indictment does not allege that any of the defendants were guilty of a conspiracy to commit war crimes by drafting a legal memorandum.

I cannot for the life of me think of how to spin the OLC memos into a conspiracy to commit torture. However, you may be more imaginative and creative than I.

Douglas Kmiec: Let Us Not Hire the Devil for Help

The Discomfort of a National Guilty Conscience

I am not regularly in the practice of criminal law so I cannot say whether Bart's challenge to Scott to state the indictment against the memo writers is answerable. Frankly, it saddens me that many (again perhaps only those not sufficiently experienced in proving up such cases) do readily contemplate, from the public reports made about the Armed Services Committee inquiry, that there is a conspiracy to be found in the counseling between CIA operatives and the Office of Legal Counsel before some people died in the midst of the clearly anticipated and then conducted interrogations that resulted from that counsel.

Whether this counseling about specific practices was an agreement to commit torture seems to end inconclusively in this debate as elsewhere until the techniques contemplated by OLC and the CIA are accepted as torture per se. From friendship, which mercifully would disqualify me from any service as counsel, judge, or juror should such case be brought, I am strongly resistant to concluding that the Judge and the Professor had any criminal intent to torture since I venture both would and could disclaim truthfully that the techniques being described and approved by their efforts were not at the time they wrote conceded to be torture or reasonably construed to be. I assume this lack of agreement to commit torture ends the proof of conspiracy.

I assume, however, that a defense of lack of intent, or lack of common agreement in light of the absence of that intent, would be troubled--perhaps not in criminal court but public mind--somewhat by the fact that the agreed upon techniques would later be asserted to be "torture" by subsequent Attorneys General of both political parties, and it seems much of the world community, and that the infliction of severe pain and suffering by the means so described as torture by these later sources was clearly intended to be acted upon.

Moreover, the Memo writers were of a unified mind with the White House Counsel and at least some CIA operatives that the actions now described as torture by those of high rank would not be undertaken (well, at least not continued) without the explicit approval of OLC and the personal immunity derived from that approval. OLC's longstanding practice of speaking only to law, and not policy, I assume would permit the Memo writers to deny--again truthfully--that the Office ever said these techniques should be used on anyone, though the failure to follow OLC procedure here weakens this defense. Whether in all this there is an agreement and overt act of the type necessary to prove conspiracy to violate section 2340 is open to question and, for my part, to be hoped against.

Beyond the niceties of criminal practice, I continue to insist as I have from the beginning of this debate, that President Obama is right to conclude that such prosecution is imprudent and unhelpful to the interests of the United States--both in terms of national security and in terms of the partisanship that would inevitably be inflamed by such prosecution which would both jeopardize the fairness of any criminal proceeding and distract us from other necessary work, such as defending the nation from terror, restoring economic confidence, reforming health care, ending dependence on fossil fuel, etc.

Having said this, perhaps we should conclude our conversation regretting that it has reached the point of technicality. In the 1950s the great French Thomist philosopher Jacques Maritain gave a series of seminars and lectures. They became the book entitled "Reflections on America."

Maritain wrote:

I would like to mention other characteristics of American life, . . . I shall point out the concern of the American people for moral and religious values, their attitude toward moral conscience. I do not say that they always act according to the dictates of conscience--what nation does? I say that they feel miserable, they endure terrible discomfort when they have a guilty conscience. The very fact alone of nursing a doubt as to whether their conduct was or was not ethically irreproachable causes them pain. The result is sometimes unexpected, as the wave of fondness for the Japanese people which developed after Hiroshima. Let us say that hiring the devil for help will never be agreeable even to your politicians. The common consciousness of this country loathes cynicism, cannot be cynical.

(Maritain, Reflections on America, page 38).

Let us not hire the devil.

Andrew McCarthy: Other business has required that I turn away from the debate for a few days, and there isn't time to respond to everything said since I left that ought to get a response. But I do want to weigh in on what's become some other-worldly commentary from David Luban, Steve Vladeck, and Scott Horton, none of whom appears veryfamiliar with how things work in a real prosecutor's office.

Lawyers are almost never investigated, much less prosecuted, in the innumerable instances where it is reasonable to suspect that they have given advice which, wittingly or unwittingly, has facilitated a violation of law. David absurdly compares the investigation of a lawyer to an "ordinary investigation," the leaping off point for his assertion that mere "probable cause" would be the standard for an indictment "if a prosecutor were investigating private lawyers representing private clients"--a claim that confounds a legal technicality with utter unreality. (It is technically true that probable cause would be the standard if a prosecutor were to charge all five people sitting in a circle with a felony violation of the federal narcotics laws each time one passed a marijuana cigarette to the next. Such a case, though, would not be ordinary and would never actually happen.)

Pressing fearlessly ahead, David further reasons that, because a preliminary investigation calls for less suspicion than an indictment, something even less than probable cause should be required to probe the government lawyers lest "government lawyers enjoy special dispensations from inquiry that no lawyer in private practice would enjoy." Right. Steve, meantime, urges that the lawyers should be investigated and prosecuted for conspiracy to torture even if no torture actually ever happened. And Scott takes a moment to "applaud my Federalist Society friends for their good efforts as defense counsel. It's not the normal take I see coming from your corner." We have indeed entered the Twilight Zone. In reality, more defense counsel work goes on in a good prosecutor's office than in the office of many a defense attorney. At the risk of making myself a target, here's a little advice: When it comes to investigations, forget about the lawyers; extra layers of supervision and approval are required before routine investigative techniques can be used against even a known, dangerous criminal once a lawyer is involved in the equation.

For example, in my old office (the U.S. attorney's office for the Southern District of New York), where the Second Circuit's lunatic Hammad case hovered, a prosecutor could not authorize investigative contact with, say, a mafia capo (even contact by investigators not covered by attorney ethics rules) once the prosecutor was on notice that the capo had counsel. Instead, the prosecutor had to write a Hammad memo to his unit chief, which then had to be approved by the chief of the criminal division and, finally, the U.S. attorney herself. And such was the lightning-rod nature of the ever-expanding safe-harbor known as the "attorney/client relationship" (not to be confused with the somewhat more modest but equally metastasizing "attorney/client privilege") that lawyers could not be investigated, much less charged, unless a line prosecutor went through the afore-described intra-District chain of command plus Justice Department rungs of approval. And, in the rare instances where such an investigation was authorized--which, Steve, only happened when there was an actual violation of law that was both serious and patent, a second team of prosecutors had to be assigned to vet any evidence seized from the lawyer (usually under the supervision of the court, with counsel for the lawyer given an opportunity to object) in order to guard against the case prosecutors being tainted by exposure to Sixth-amendment privileged information.

Ordinary? With due respect to David, I'll not weep for private lawyers representing private clients. In the real world, it is less treacherous to investigate the CIA--which President Obama deems--to borrow Scott's term--"imponderable."

It's refreshing to see academics so brimming with prosecutorial zeal--would that al Qaeda would go Republican! But could we possibly return to Planet Earth for a moment? Real prosecutors have to wrestle with real statutes, no matter who is claimed to have violated them. And people who actually care about formulating good policy, rather than about vengeance or theater, have to think carefully about the best means to that end--which, generally speaking, are not trials in the criminal justice system of oddly selected targets (here, the attorneys who evaluated the state of the law--not the policy-makers who gave orders and the interrogators who carried out those directives).

Under Sections 2340 and 2340A, torture is a specific intent crime. I think somewhere in the criss-crossing posts I've seen someone suggest charging a Section 371 conspiracy (i.e., the catch-all, general intent, federal conspiracy statute) to violate Section 2340A. That, however, wouldn't be permitted under regular DOJ guidelines (and perhaps not by a court, either, though I haven't worked that all the way through) because 2340A has its own conspiracy provision (in 2340A(c)), which prescribes a sentence of up to 20 years' imprisonment (or "any term of years" or death if death results from the torture)--highlighting that torture is very serious business, different in kind from other federal conspiracy offenses, and reserved for especially and quite consciously heinous conduct.

As a class, lawyers are doctrinaire about detainee abuse. Steve, for instance, says he buys the canard that torture never works--based on "studies," of course. The logic of this position is that people will lie whenever they have a motive to do so, and it would thus similarly foreclose obtaining information by purchasing it or by reducing charges in exchange for cooperation. But the rigorous "torture never works" fiction--so far removed from the experience of actual torture victims, who will tell you that everyone breaks at some point--does conveniently spare the doctrinaire from the unsavory choices that have to be made by officials who take on the responsibility of protecting Americans from mass-murder attacks.

And it further allows the doctrinaire a tunnel-vision on "torture" that licenses them to overlook sundry nuances and complexities they otherwise habitually accuse knuckle-dragging prosecutor-types of missing. Among these are (a) specific intent crimes can be extraordinarily hard to prove; (b) lawyer-defendants would have the unusual defense that they were performing the traditional role of attorneys to figure out what the law is, not recommending--much less directing--any particular course of action; (c) the memos themselves would support a factual defense that, if anything, the lawyers were trying to prevent policy makers from crossing the legal line into torture; (d) one needn't agree with the lawyers about where that line is in order--easily--to find that they had not committed the most serious of felonies; and (e) any indictment would have to be tried before a jury of twelve normal people, not twelve law professors and human-rights activists.

For a prosecutor, moreover, that calculus would not be made in a vacuum. It would be informed by all the policy considerations that explain why lawyers are almost never prosecuted. It would, in addition, factor in the pluperfectly obvious fallout from investigating government lawyers in the circumstances we are discussing: far fewer smart, decent people would be willing to serve; they'd give cautious, mediocre advice (if you could get them to give advice at all); and both policy-makers and government agents would get out of the habit of asking for legal advice. And you'd think of all those policy consequences before you started imagining how your trial would go--how you, the prosecutor, would feel about your chances for conviction once your government-lawyer defendants started playing the jury the long-forgotten videos of Americans leaping out hundredth story windows because that seemed preferable to the immolation al Qaeda had arranged for them inside; when they started summoning as witnesses the members of Congress who were demanding in 2002-03 that the intelligence community get as tough as it needed to get with detainees; when they started reading passages of the 9/11 Commission Report that decried the culture of risk-aversion that prevented government from stopping the murder of 3000 of our fellow citizens.

Finally, if I were truly troubled by what happened to the high-value al Qaeda detainees here (and I concede that I am not), the last thing I would want is to have that issue bound up with the related but knottier question of the potential liability of the government lawyers. If the Justice Department is pressured by the Left into charging the lawyers--as it has already been pressured into investigating them--they'll be acquitted, in a rout. The legal case would be a meritless political exercise, and would be seen as such. But its emptiness wouldn't necessarily mean what happened here is OK, or that we shouldn't have a thoughtful, measured consideration of when, if ever, harsh interrogation tactics are warranted. That consideration should be the work of Congress (that's what they represent us to do). And now that the interrogation tactics are out in the open, our consideration should include what was learned by using those tactics. Making our policy compass the legal culpability of the lawyers (of all people) would be the surest route to bad policy.

Scott Horton: Bart DePalma wants a specification of the charges against individuals. That's not the way a criminal investigation proceeds. It starts with the investigation of a crime, not of individuals. A criminal probe that starts with a focus on individuals is presumptively abusive. The prosecutor establishes the facts, determines the individuals involved, and decides who (if anyone) can be criminally charged. As my former partner Michael Mukasey said very often--usually when he was pressed about why no charges were being brought against political appointees of the Bush Administration when an inspector general's report found serious wrongdoing--"not every crime is prosecuted." Indeed, governments are generally quite unwilling to prosecute their own.

In this case, we have a crime, namely torture. We have several statutes which provide a basis for prosecutions for torture, most significantly 18 U.S.C. §§ 2340 and 2340A. As § 2340A is intended to apply, not every individual need complete every transactional element of the crime--it contemplates a crime that results from a common plan (as the civilians would say) or a conspiracy (as we usually put it).

In this case, the facts already suggest that those on the implementation end were refusing to implement a program that flowed from high levels--the Senate Intelligence Committee memo released on April 17, 2009, points to the National Security Council in the White House as the source of authorization. Let's assume the investigation establishes these facts (and I believe it will). Those charged with implementation insisted on assurance from the Justice Department that they would not face criminal accountability for implementing the program; they did this based on advice received from lawyers with actual depth in law of armed conflict that the program was likely to be viewed as criminal, specifically as a violation of the Convention Against Torture and the U.S. legislation that implements it, among other statutes. The OLC memos were then issued to induce these individuals to implement the program. They therefore were an element, and indeed an essential element, of a common plan to carry out criminal conduct. Moreover, the OLC memo writers were explicitly warned that their memos could easily be viewed as criminal acts and they reacted by doing their best to compartmentalize the information so that individuals with learning in the substantive area wouldn't learn any more about them. The memos then played an instrumental role in the overall crime.

And just how hypothetical is this? Criminal investigation is no longer a matter of conjecture. It's underway in several different jurisdictions. And to see how a case against the lawyers could be developed, one need look no further than paragraphs 1 and 2 of the decision of the Audiencia Nacional opening the criminal probe that was issued on April 29, 2009--it makes clear that the criminal investigation focuses on the "intellectual authors" of the torture policy, a group that includes the OLC lawyers, but is not limited to them.

They may have defenses and there certainly are many facts we don't know. And that's why the criminal investigation should be managed by an independent prosecutor who can exercise appropriate discretion--and not by Bart DePalma or Scott Horton. But as Bart reads the law, we might as well dispense with the crime of torture. Any government in the world can reach to torture whenever it chooses to do so. All it needs is a lawyer ready to give it the opinion it wants saying that the torture program it contemplates is not torture. And such lawyers are, I am afraid to say, a dime a dozen.

Bart DePalma: Scott:

I completely agree that a criminal prosecution should focus on a crime, not individual targets, and a prosecution that does the reverse is abusive. You have suggested that an independent prosecutor be appointed to conduct an investigation targeting among others the attorneys who authored the OLC memos. My response requested that you describe the crime upon which this independent prosecution will focus. Without a viable crime, I would submit that you are demanding an abusive criminal prosecution targeting these OLC attorneys for personal destruction.

There is no evidence or even a credible allegation that the OLC attorneys actually committed the crime of torture, thus I am unsure why you keep writing: "We have a crime, namely torture." Instead, I have asked you to describe how OLC attorneys could possible have committed the crime of conspiracy to commit torture. To facilitate this exercise, I offered the basic elements of criminal conspiracy as set forth by 18 USC 371.

[Andy pointed out in a subsequent post that the actual provision under which a conspiracy to commit torture charge would proceed would more likely be 18 USC 2340A(c) instead of 371. I stand corrected. However, the basic elements of conspiracy should be the same.]

I do not think it is too much to ask for those demanding a special prosecutor to launch criminal investigations against the OLC attorneys to at least be able to describe a credible crime for which they should be investigated.

David Luban: Andy,

You may be right that if the lawyers ever faced trial they would be acquitted. That would be a reason not to bring charges--but that's a decision to make after an investigation, not before. Unprosecutable cases could also be a reason for a truth commission. What strikes me as truly other-worldly is closing the books and walking away--or, as you seem to prefer, pinning Medals of Freedom on the enablers of waterboarding. You think that the government has "already been pressured into investigating" the lawyers, by which I take it you're referring to the OPR investigation, the report of which hasn't yet been released. I am supposing that OPR investigated narrow issues of ethics, with a limited mandate. The OPR report may reveal part of what we need to know about how decisions were made.

On the issues you raise in your post: I don't doubt that prosecutors are especially careful going after lawyers for conspiring with their clients in client wrongdoing, and for just the reason you suggest: they don't want to interfere with the attorney-client relationship. (There's an old joke about professional courtesy among sharks.) But that's not the law. As one court nicely put it: "Nothing in the caselaw, fairly read, suggests that lawyers should be plucked gently from the madding crowd and sheltered from the rigors of [the statute]." United States v. Cintolo, 818 F.2d 980, 993 (1st Cir. Mass. 1987).

And there have been notable exceptions, where prosecutors have indeed gone after lawyers for what they did representing their clients: Lynne Stewart, as you know better than anyone; or the Cali cartel's defense lawyers--one of them a former State Department expert on extradition, another a former federal prosecutor. There's the classic case U.S. v. Benjamin, where Judge Friendly sustained the conviction of a business lawyer who had "shut [his] eyes to what was plainly to be seen," namely that his client was using his services in "sickening financial frauds." Or the startling Seventh Circuit case of Amiel Cueto, a lawyer representing an illegal gambling boss, who drew 87 months for obstruction of justice merely for using legal procedures to thwart an ongoing investigation of his client. I don't agree with all these decisions, but they certainly show prosecutors willing to pursue lawyers perceived to be tied in with their clients' crimes. The common thread in these cases was excessive closeness between lawyers and clients, which thinned the line between legal representation and complicity or conspiracy--the line where, in a familiar phrase, a criminal lawyer becomes a lawyer-criminal.

For those of us who disagree with you and Bart, and think that torture was committed, that is the basic question about the lawyers' role that calls for investigation or a truth commission. What part did the lawyers play in the torture? For example, what are we to say about the "War Council" that Jack Goldsmith describes in The Terror Presidency?--"a secretive five-person group with enormous influence over the administration's antiterrorism policies" (p. 22). If it was truly "influencing policies," we are talking about something more than pure legal representation. Goldsmith writes that the War Council included Alberto Gonzales, David Addington, William Haynes, Tim Flanigan, and John Yoo; it excluded Attorney-General Ashcroft and Jay Bybee. It met every few weeks to "plot legal strategy in the war on terrorism, sometimes as a prelude to dealing with lawyers from the State Department, the National Security Council, and the Joint Chiefs of Staff who would ordinarily be involved in war-related interagency legal decisions, and sometimes to the exclusion of the interagency process altogether" (id.).

Of course it would be difficult to prove mens rea, particulary if the lawyers continue to maintain that the analyses in the memo represent their good faith analyses of the law. That's an argument for a truth commission rather than prosecution. But first the evidence about mens rea needs to be uncovered and sifted, and that's the job of an investigation.

In your letter to Eric Holder, you asserted that the DOJ lawyers offered their advice about interrogation policy in good faith--although how you know that is unclear. To me, good faith advice on the meaning of the law consists of advice that would not be much different even if the ciient wanted the opposite of what you know he wants. A legal opinion tailor-made to whatever result the client wants is not a good faith opinion.

One bit of evidence that the opinions were result-driven is simply the quality of their reasoning. Goldsmith remarks on "the unusual lack of care and sobriety in their [the interrogation opinions'] legal analysis," including a view of presidential power that "has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law" (The Terror Presidency, pp. 148-49).

The Bybee memo is scattered with indicators that portions were not written in good faith. When it proposes the availability of self-defense against torture charges, it supports this unusual assertion by appealing to "leading scholarly commentators," and cites a law review article by Michael S. Moore. Turning to the page cited, we find Moore writing, "The literal law of self-defense is not available to justify their torture," although Moore wishes it were otherwise. Brief-writer's license? A good faith opinion is not a brief, and brief-writers should not misrepresent what the sources they cite actually say.

When the memo advances the defense of necessity, it cites no federal cases where a court accepted a necessity defense for a crime of violence, for the very good reason that there are none. The one case cited rejected the necessity defense. That case states that in all formulations of necessity, "one principle remains constant: if there was a reasonable, legal alternative to violating the law, 'a chance both to refuse to do the criminal act and also to avoid the threatened harm,' the defenses will fail." U.S. v. Bailey, 444 U.S. 394, 410 (1980). An important information for anyone who might rely on the defense--but the Bybee memo leaves it out, and instead changes it so that defendants lose the necessity defense only if they know that alternatives will work. The memo also fails to mention that in 2001 the Supreme Court called it an "open question" whether the necessity defense ever exists in federal law without explicit statutory authorization--and Justice Thomas's phrasing suggests that the likely answer is no. US v. Oakland Cannabis Buyers' Coop, 532 U.S. 483, 490 (2001). The Bybee memo says: "Although there is no federal statute that generally establishes necessity, . . . the Supreme Court has recognized the defense"--citing the 1980 Bailey dictum while strategically ignoring Oakland Cannabis Buyers. None of the torture memos sees fit to mention the Fifth Circuit's decision in US v. Lee, 744 F.2d 1124 (5th Cir. Tex. 1984), sustaining the conviction of a deputy for using "water torture" on prisoners. Bradbury's May 30, 2005, opinion twice says that courts may well disagree with his analysis, but don't worry--judicial inquiry is very unlikely. These omissions and misstatements are, in and of themselves, relatively trivial--but as evidence that the opinions don't represent good faith legal analysis, they take on significance that is not merely scholastic.

One closing observation as this debate winds up: You seem to think that those who favor accountability for the planners and enablers of brutal interrogation have ignored the context: the horror of 9/11 and the need to prevent a reprise. That is not true. 9/11 remains as indelibly inscribed on our souls as yours; we are as grateful as you to the people who keep us safe. The demand for accountability comes from a simple conviction: torture is wrong, and we thought our country was better than that.

David Rivkin & Lee Casey: I want to weigh-in for the last time before this set of exchanges comes to an end. While I am in full accord with Andy and Bart's rejoinders on why there are no valid reasons today to investigate the Bush Administration lawyers, I want to tackle a few points, made by Scott and Steve, that haven't received the attention they deserve.

These are as follows: First, Scott asserts that Susan Crawford, the convening authority for military commissions, has made a "judicial determination" that one of the detainees being charged before the commissions was tortured; he uses this alleged determination to buttress his belief that torture has taken place here and investigations of OLC lawyers are in order. This assertion is totally without merit. Susan didn't make a judicial determination, since, while she has served as a judge before, she isn't presently serving in a judicial capacity. Rather, she serves as a prosecutor, tasked with the responsibility under the MCA to ascertain whether a particular kind of evidence was obtained in such a coercive fashion that it shouldn't be utilized in a military commission prosecution. Moreover, the detainee involved wasn't the one onterrogated under the OLC-approved gudelines; indeed, much of Crawford's basis for reaching her decisions was predicated on the totality of the circumstances that the detainee in issue had faced in wartime Afghanistan.

Second, Scott argues that the Altstoetter case provides persuasive authority for the proposition that the OLC legal advice can and should be investigated as a possible criminal law violation. In my view, this isn't just wrong; this is willful misreading of the case's teaching and its operative facts. The defendants in the Altstoetter case were German judges and justice ministry officials, who had participated in the warping of the German juducial and legal system so as to make it helpful/conducive to the genocidal policies of the Third Reich. The offenses charged in this case were not waterboarding or even actual torture, but active participation in the development and implementation of the Holocaust-related policies, genocide and other evils of the Nazi era. The people involved knew about the atrocities on the ground. To even compare these horrible events with the behavior of the OLC lawyers both trivializes the core events of the Holocaust and is obscene.

Third, there is an argument that the US is legally obliged under the anti-torture convention to investigate the OLC lawyers. This too is wrong. The convention requires the US to adopt an appropriate legal framework to punish torture; it certainly doesn't mandate any particular investigation or displace the normal exercise of prosecutorial discretion. Indeed, no treaty can possibly mandate the Executive Branch to investigate any particular alleged offense, without running afoul of the key constitutional principles.

Fourth, Scott is troubled by the fact that CIA interrogators had apparently refused to utilize stress interrogation techniques without being assured by OLC that these practices didn't constitute torture. From this, he draws the conclusion that OLC was complicit in torture. I don't understand this argument at all. In both private sector and goverment, policy-makers want to comply with the law, especially when non-compliance triggers criminal sanctions. Seeking legal advice so as to stay within the bounds of legality is a good thing, a proper thing, even a uniquely American thing. So is the refusal to embark on a given policy until and unless the legal advice has been received. And this reasonable and even honarable behavior is supposed to be evidence of conspiracy? Conspiracy to do what--stay within the bounds of the law? Indeed, under Scott's line of reasoning, any time a client asks his lawyer for advice, presumably attesting to the fact that the conduct involved isn't so self-evidently immune from criminal sanctions, the lawyers involved are conspiring to violate the law. This, obviously, is an absurd result.

Fifth, and last, the fact that Judge Garzon has commenced an investigation of the Bush Administration lawyers doesn't furnish any legitimacy to the notion that we should investigate as well. In this regard, Garzon's investigation is predicated upon the totally illegitimate version of universal jurisdiction. But legalities aside, nothing illustrates better how depressingly politicized Garzon's behaviour really is than the fact that he has done nothing to investigate Moscow's well-documented genocide and war crimes in Chechnya and Georgia; his sole focus these days is the US and Israel. Garzon's so-called investigations are really policy efforts, intended to discipline and control America's foreign and defense policies. As such, they neither deserve our respect nor merit our cooperation.

Scott Horton: I can't get into everything that David writes here (it's final exam week, alas), but I can't let his characterization of the Convening Authority go unchallenged. It is ridiculous to say that the convening authority is a "prosecutor." The convening authority sits at the apex of the military commission process, deciding whether to refer any or all charges to trial, convening the Military Commission, detailing (i.e., appointing) Military Commission members, reviewing and confirming or rejecting any determinations by the Military Commission. The function of the Convening Authority is essentially supervisory, and it includes a clear judicial component. Judge Crawford's determination not to sign a charge sheet because a prisoner had been tortured in U.S. custody strongly warrants the opening of a criminal investigation. To suggest otherwise is really not tenable.

The aspect of the Altstoetter case in play here is the determination involving von Ammann, the deputy chief of the Justice Ministry's Criminal Division, and it has nothing to do with the Holocaust. The charge against von Ammann was that he authored memoranda that provided the basis for the implementation of a special detentions program in France, setting aside the protections of the Geneva and Hague Conventions. Its relevance to this case is fairly obvious, as was noted in a recent interview given by Manfred Nowak, the U.N. Rapporteur on Torture. Von Ammann was sentenced to 10 years and got three off for good behavior. David may well argue that we would apply one rule to the opinions of a foreign justice official and another rule to an American justice official, but that would be a direct repudiation of the promise that Justice Jackson made at the opening of the tribunal--we press this chalice to our own lips, he said.

David continually writes about "investigating the OLC lawyers." But the point plainly is that the crime of torture needs to be investigated. The OLC lawyers are not exempt from the probe, and they were clearly and deeply involved in the decision making chain. Their opinions were instrumentalized, that is, they were issued for purposes of inducing individuals to implement the torture program--a fact that flows even from a reading of the memos, but should be fully investigated. But to call it an "investigation of the OLC lawyers" is wrong; the precise role the lawyers played is yet to be fully established, and it needs to be understood fully in relationship with the lawyers in the White House who commissioned and guided the memos. The New York Times article chronicling this process by Mark Mazzetti and Scott Shane, just posted, and drawing on interviews with a dozen Bush Administration officials, indicates that the opinions drawn up in OLC were in fact guided from Vice President Cheney's office. It speaks of a fierce battle over them within the White House. However, we now have a series of highly contradictory accounts about how these memos came to be written, so a rigorous investigation is needed to establish the facts.

With respect to Judge Garzon, David talks about "illegitimate" universal jurisdiction. But no country has been a more aggressive advocate of universal jurisdiction than the United States, and the Spanish case is predicated on a claim of jurisdiction that the U.S. would also recognize, namely the crime of torture committed against Spanish citizens. The validity of those claims was established by the Spanish Supreme Court in June 2006 in a separate proceeding. If Spanishcitizens were also tortured in Chechnya or Georgia, I assume that the Audiencia Nacional might also open a case, but it does not normally do so in the absence of a direct connection to Spain. Nor would it be prudent for it to do so. Still there is a clear connection between a U.S. criminal investigation and the Spanish proceedings. Under the Spanish statute, the Spanish proceedings would be stopped if the U.S. were to open its own investigation.

Stephen Vladeck: I don't have much to add to what Scott Horton and David Luban have said in response to Andy McCarthy and David Rivkin, except that I think Scott drives the point home when he writes that "the precise role the lawyers played is yet to be fully established and it needs to be understood fully in relationship with the lawyers in the White House who commissioned and guided the memos." No one is calling for prosecutions of the lawyers just for the heck of it. I, at least, first want to be sure we know how decisions were made before apportioning whatever blame we might agree is appropriate . . .

There's also a significant chapter that, though written, has not yet been publicly disclosed: the forthcoming report of the Justice Department's Office of Professional Responsibility (OPR) on its investigation into OLC's process vis-à-vis the torture memos. I can only speculate as to the contents of this report, but I suspect that it will not paint a pretty picture, and will provide only further evidence of the absence of professional responsibility (and further grounds to suspect potentially criminal conduct) in the preparation and filing of the memos released last month.

It may come as a surprise to some readers given what I've written earlier in this exchange, but I remain very much on the fence about whether there should or should not be any prosecutions. Part of my indecisiveness is because I really don't think we know everything yet, and I would feel more comfortable being decisive on this issue once there is a more complete record. For instance, it seems to me it would matter quite a lot whether the August 2002 memos were prepared based upon instructions from senior officials to reach a pre-determined outcome, or whether they were just sloppy reasoning produced by lawyers doing the best they could under the circumstances, however poor such reasoning turned out to be.

But part of my indecisiveness stems from a deeper concern about our posterity. My foremost concern going forward is for the next OLC lawyer, who is asked in the days and weeks after the next terrorist attack to evaluate the full scope of the government's crisis authority. How will that lawyer view the post-9/11 example? As proof that what's necessary is legal and that anything goes? Or, to the contrary, as evidence that even (if not especially) in crisis times, legal limits matter?

I'm often reminded of one of my favorite judicial passages--penned by D.C. Circuit Chief Judge William Cranch over two centuries ago:

In times like these, when the public mind is agitated, when wars, and rumors of wars, plots, conspiracies and treasons excite alarm, it is the duty of a court to be peculiarly watchful lest the public feeling should reach the seat of justice, and thereby precedents be established which may become the ready tools of faction in times more disastrous. The worst of precedents may be established from the best of motives. We ought to be upon our guard lest our zeal for the public interest lead us to overstep the bounds of the law and the constitution; for although we may thereby bring one criminal to punishment, we may furnish the means by which a hundred innocent persons may suffer. The constitution was made for times of commotion. In the calm of peace and prosperity there is seldom great injustice. Dangerous precedents occur in dangerous times. It then becomes the duty of the judiciary calmly to poise the scales of justice, unmoved by the arm of power, undisturbed by the clamor of the multitude. Whenever an application is made to us in our judicial character, we are bound, not only by the nature of our office, but by our solemn oaths, to administer justice, according to the laws and constitution of the United States. No political motives, no reasons of state, can justify a disregard of that solemn injunction. In cases of emergency it is for the executive department of the government to act upon its own responsibility, and to rely upon the necessity of the case for its justification; but this court is bound by the law and the constitution in all events.

Cranch was talking about courts, in particular. But to my mind, he states the very essence of government under the rule of law, and not of men.

Thanks to the Federalist Society for fostering such a spirited--and hopefully useful--exchange of views.

Debate Comments:

Lee Casey: I hope you will all excuse this late interpolation. I was, however, intrigued by Scott Horton's last post, and especially the reference to Manfred Nowak and his invocation of "von Ammann's" case, part of the Altstoetter case. Perhaps Mr. Nowak has other information, but the only defendant in the Altstoetter case with a name approximating "von Ammann" was Wilhelm von Ammon. According to the official record of his trial, he was Ministerial Counsellor of the Criminal Legislation and Administration Division of the Reich Ministry of Justice "and coordinator of proceedings against foreigners for offenses against Reich occupational forces abroad." (p. 15 of trial report). 

According to the court's judgment, von Ammon was convicted for his participation in the execution of Hitler's "Nacht und Nebel" or "Night and Fog" decree. Under this decree, civilians "of occupied territories who had been accused of crimes of resistance against occupying forces were spirited away for secret trial by certain Special Courts of the Justice Ministry . . ." (Para. 13 of indictment, p. 21 of trial report). Many of these people were sent to concentration camps, including Mauthausen, Auschwitz, Flossenbuerg, Dachau, Ravensbrueck, and Buchenwald, among others. (p. 1044 of trial report). According to von Ammon, about half of all those tried by the "People's Court" received the death sentence. (p. 1054 of trial report).

In summing up its verdict with regard to von Ammon, the court indeed noted that "[h]is main activity in the Ministry during [1935-1937] concerned 'questions of international legal usage in penal matters.'" (p. 1132 of trial report). However, the court also noted that, during the period 1942 onwards, he was "in charge of Nacht and Nebel procedure," and that von Ammon "held an executive position of responsibility involving the exercise of personal discretion. Within the ministry he was in charge of the section which handled Night and Fog cases. The defendant Mettgenberg stated that the Night and Fog section within his subdivision was headed by von Ammon and that whenever von Ammon had doubts concerning the handling of individual cases joint discussions were held. We quote: 'When he had no doubts he could decide on matters himself.'" (p. 1134 of trial record). In addition, the court noted that "[v]on Ammon is chargeable with actual knowledge concerning the systematic abuse of the judicial processes in these cases."

These were the activities for which von Ammon was found guilty of war crimes and crimes against humanity. If he did issue memoranda providing the legal basis for the Night and Fog program, as claimed by Mr. Nowak, this did not appear to figure in the court's verdict. 

The Altstoetter case was, of course, complex, and perhaps Novak was thinking of another individual. Indeed, if anyone is in communication with him, I would very much like to know what he is referring to here.

At any rate, the trial report of the Altstoetter case is available (http://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-III.pdf) from the Library of Congress' splendid site on the Nuremberg trials. That site is http://www.loc.gov/rr/frd/Military_Law/Nuremberg_trials.html, and I cannot recommend it highly enough.