Philippe Sands Writes About the Torture Memo and Related Issues

He seems reassured that his work has "not been challenged":

VF Daily: Guantanamo Update: I have received a great number of communications from around the globe since Vanity Fair published “The Green Light.”... [I]t’s hard to shake the suspicion that when a publication like Vanity Fair goes for the jugular and raises the stakes on war-crimes allegations, something big has changed. None of the facts set out in the article have been challenged. That too is significant.

No doubt the story was helped by the simultaneous publication of another notorious--but until then secret--legal opinion written by Justice Department lawyer John Yoo for Pentagon counsel Jim Haynes, on March 14, 2003. The memo generally followed the arguments of an earlier Department of Justice memo, from August 1, 2002, which was signed by another D.O.J. lawyer, Jay Bybee, but largely written by Yoo. The two memos follow the same general approach, unjustifiably raising the bar on the definition of torture and providing hopeless legal arguments to justify acts that would constitute international crimes under the Geneva Conventions. As I describe in my book Torture Team, from which “The Green Light” drew material, Jim Haynes had a healthy appetite for John Yoo’s opinions.

The release of the March 2003 memo gave rise to a further raft of articles. A New York Times editorial described Yoo’s continued employment at Berkeley as “inexplicable”, and this seems to have stung the Dean at that law school, Chris Edley, into explaining the limited options available to him. I strongly support academic freedom of expression, including the importance of exposing law students to competing approaches to legal issues. I also appreciate, as Dean Edley explains, that the standard that is to be applied for dismissal is a high one.... I have less sympathy, however, for Dean Edley’s assertion that:

no argument about what [Yoo] did or didn’t facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place.

Is that right? In our system of government, lawyers play a crucial role, as gatekeepers of legality and constitutionality. When the lawyers bend, when they fail to exercise independent and professional judgment, and when they become handmaidens to policymakers, they cross a line that raises the possibility of ethics violations and possibly even criminal violations. In “Torture Team,” I describe a conversation I had with a European judge and a European prosecutor. I was told that, under their rules of criminal law, “the lawyer has the same responsibility as the interrogator,” and that, when it comes to torture authorized by a lawyer, “the lawyer who gives such legal advice is not [treated] as an accomplice, it is as though he is the author the act.” Whatever the moralities of the situation, and however much one might agree that the principal responsibility lies with the politicians who ultimately made the decisions--the secretary of defense, the vice president, and the president—the responsibility of the senior lawyers is also there. Dean Edley’s point sits uncomfortably with the underlying rationale of the 1947 judgment in United States v Altstoetter and others....

On April 9, ABC News reported, in relation to C.I.A. interrogations, that “the most senior Bush administration officials discussed and approved specific details of how high-value al-Qaeda suspects would be interrogated by the Central Intelligence Agency.” The dates are not specified. Two days later, on April 11, President Bush confirmed the account. “Well, we started to connect the dots in order to protect the American people”, he told ABC News White House correspondent Martha Raddatz. “And yes, I’m aware our national security team met on this issue. And I approved.”

These important developments provide important confirmation of the thrust of my piece: that the law was circumvented, that key decisions were made at the top, that the bottom-up theory is false, and that individuals like Lieutenant Colonel Diane Beaver, the staff judge advocate at Guantánamo, were scapegoated. The disappearance of a plausible bottom-up narrative also adds ballast to the evidence showing that the Guantánamo techniques migrated to Iraq and informed events at Abu Ghraib.

Comments

[Leila Abu-Saba]

I like this photo of Dean Edley confronted by a protester at Boalt Hall graduation today:

http://www.sfgate.com/cgi-bin/object/article?f=/c/a/2008/05/17/BAOK10OF9L.DTL&o=3

We passed some of the protestors on Shattuck near University at 1 pm, just across the street from a middle-aged motorcycle gang and some flag wavers. I assumed it was all about the Marine recruiting kerfuffle so I was glad to see these photos in the Chronicle explaining the real target of the torture protesters.

Seeing the picture of Dean Edley in his robe with the hooded protester makes the whole discussion that much more vivid. Click through to all the photos - seems they also hired a plane to pull a banner over the Greek theater saying "Shame on Yoo - and UC".

Lifted my heart.

[jerry]

Leila, thank you very much for that link. I try to read the sfgate when I can, and pay attention to Berkeley happenings, but I missed that. I am so glad there is any sort of visible protest against Yoo.

"Lifted my heart."

Me too.

[non-lawyer]

""In France, innumerable summary executions occur, even as I sit here writing. Each day certainly more than a thousand people are killed, and thousands of German men experience murder as a matter of routine. And yet all of that is child's play compared to what's going on in Poland and Russia. Can I learn about this and just sit at the table in my heated apartment and drink tea? Don't I establish my complicity simply by doing nothing? What will I say in the future, when someone asks me: and what did you do during this time?"

- Helmuth von Moltke, in a letter to his wife, Oct. 19, 1941

[...]

"These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system.

For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses."

When Lawyers Are War Criminals

http://balkin.blogspot.com/2006/10/when-lawyers-are-war-criminals.html

What will Berkeley say in the future when someone asks: and what did you do during this time.

The answer, so far, is: we accepted and protected one of the criminals.

[also not a lawyer]

Dean Edley: "no argument about what [Yoo] did or didn’t facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place."

This sounds like a defense attorney in a murder trial, not a law school dean. Is that really his role?

Why not just stick to the academic freedom angle and ride that as far as he can?

Edley knows the role of the OLC, no? That it exists to provide the Administration with legal interpretations, right? He has to understand that if the OLC says something is legal, the Administration has a strong case against later liability, yes?

Is Edley angling for a Halliburton building or something? I just don't get why he'd be so eager to throw the cred of Boalt Hall away SO EAGERLY.

[Chris Brown]

"I have less sympathy, however, for Dean Edley’s assertion that:

no argument about what [Yoo] did or didn’t facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place.

Is that right?"

It seems to me that the Dean's logic is as tortured as was Yoo's, attorney as slut, legal analysis.