By Harvey Silverglate

So the truth about waterboarding finally comes out, thanks in no small part to the Boston Globe's Charlie Savage   among the most astute journalists to chronicle the sins of omission and commission made by the Bush administration and its lawyers over the last seven years. In this morning's Globe, Savage reports that Attorney General Michael Mukasey has refused to investigate the CIA’s torture practices, in part because investigating those who relied on the advice of legal counsel would undermine the credibility of the government’s lawyers. According to this logic, Savage reports, if Mukasey were to second-guess the Department of Justice’s legal conclusions, “officials would stop trusting other legal opinions from the department.”

Fair enough. It’s very important, in terms of preserving the rule of law, that government operatives and officials be able to rely on the legal advice of administration lawyers. And as I have noted in the past – both in my Boston Phoenix “Freedom Watch” column from June 18, 2004, as well as an entry on this blog from November 2007, – there is little doubt that the lawyers in Bush’s Office of Legal Counsel (and other offices in the Justice Department) were issuing their bogus legal opinions precisely in order to give the torturers a “good faith reliance on the advice of counsel” defense, in case criminal investigations or prosecutions were ever brought against the torturers.

I have to grudgingly admit that I agree with Mukasey to an extent. Indeed, why should a CIA torturer be investigated and indicted if he had in his hand a legal opinion – albeit a secret opinion not subject to scrutiny by Congress, much less by the nation’s independent bar – drafted by lawyer with superb credentials and proffered as the Executive Branch’s official (though secret) position on the matter?

But acknowledging that the CIA’s torturers might have been acting in good faith – that they believed the lawyers when the lawyers told them certain highly coercive interrogation techniques were legal – hardly ends the inquiry. Why are these lawyers not being investigated in order to determine whether they wrote their legal opinions in good faith, or instead made up fanciful legal theories to appease the administration’s interest in taking the gloves off when it came to dealing with suspected terrorists?

It’s hard for a CIA operative to determine whether such a legal opinion is bogus, and for policy reasons we probably wouldn’t want bureaucrats and agents second-guessing the Executive Branch’s legal opinions in any event. But surely the duly constituted authorities within the legal establishment, including the Attorney General and his legal ethics experts, if not the bar authorities in the states where these lawyers are members of the bar, should be able to figure out whether the opinions pass even the “giggle test” that separates legitimate legal analysis from chicanery.

These legal opinions were drafted by John Yoo (once Assistant Deputy Attorney General, but now safely ensconced in a tenured position at the UC Berkeley Law School – formerly known as Boalt Hall), David Addington (legal aide to Vice President Dick Cheney), and Jay Bybee (rewarded for authorizing torture with a judgeship on the U.S. Court of Appeals for the Ninth Circuit). My own view is that their legal analyses and conclusions are so far from accepted American law that a legal ethics expert might well conclude that they were written in bad faith. Of course, one has to surpass a high threshold to conclude that a lawyer had deliberately misrepresented U.S. and international law in order to provide a legal basis for authorizing torture. But I think Yoo, Addington and Bybee might qualify.

Prominent legal scholars like Yale Law School’s dean, Harold Koh, and the University of Chicago Law School’s Cass Sunstein, have agreed, calling the opinions “abominable” and “embarrassingly weak.” And as Yale’s Jack Balkin points out, there’s a difference between disagreeing with settled law when you are analyzing it as a law professor, and ignoring settled law when you are advising the United States government.

In any event, it’s high time for some quality control, not to mention accountability, to be exerted over Bush Administration legal opinions. That leads to the question, what is to be done? Instead of investigating “the client” (that is, the CIA operatives), why not investigate the lawyers? Investigators could seek their disbarment for offering bad faith legal opinions to authorize torture, which is plainly illegal under United States and international law. That would be a less drastic alternative than Shakespeare’s suggestion in Henry the Sixth (Part II) that “the first thing we do, let’s kill all the lawyers," a remedy that no civilized society would tolerate, just as no civilized society should tolerate torture. But an ethics investigation would be a reasonable start. And, of course, I would insist that we accord Yoo, Addington, and Bybee – and anyone else involved in drafting the opinions – all due process, even though they have done everything in their power to deny it to their torture victims. Some of us are still serious about the majesty of the recently somewhat battered notion of “the rule of law.”

By Harvey Silverglate

The media has been abuzz today with the Senate Judiciary Committee’s discomfort with Attorney General nominee Michael Mukasey – and his refusal to opine whether waterboarding (the interrogation technique widely reported as used by CIA interrogators to wring information out of suspected terrorists) is illegal or unconstitutional. Whether waterboarding works – that is, provides accurate and reliable information – is immaterial to questions about its illegality; nonetheless, it is abundantly clear to everyone outside the administration that waterboarding is, in fact, illegal.

Mukasey has a strong professional interest in not answering the question. Back in the summer of 2004, I wrote in my Boston Phoenix “Freedom Watch” column that the infamous “torture memos” had been drafted to allow interrogators to defend themselves, if they are prosecuted under the statutes that criminalize torture, by claiming they had relied on the good faith advice of counsel. (Such prosecutions would only occur if the immunity Congress has granted to interrogators – in the Military Commissions Act and the Detainee Treatment Act, according to Yale Law professor Jack Balkin – were revoked sometime in the future when the country comes back to its senses and its adherence to the rule of law.) The argument that the memos were written solely to give interrogators the operative cover of an advice of counsel defense was recently given additional credence in the memoir written by Harvard Law Professor and former Department of Justice lawyer Jack Goldsmith, The Terror Presidency.

By not taking a stand on whether waterboarding is torture, Mukasey is trying not to undermine any defense the interrogators might have. While interrogators could still rely on such a defense, a proclamation after the fact by the incoming Attorney General, to the effect that John Yoo’s advice of counsel was incorrect, would raise questions about whether it was made in good faith. An advice of counsel defense is valid only if the advice was given by the lawyer, and received by the client, in good faith.

But Mukasey’s evasions aren’t solely based on concerns over future liability for CIA interrogators. They are more transparent and laughable than the news media portray them, because he actually has effectively conceded – in not so many words – that waterboarding is torture. And he may not even know that he has done so.

He insists that he would define “torture” as conduct that “shocks the conscience.” Presumably he has deployed that vague definition so that the Bush Administration – and Republican Senators who must vote to confirm him – will figure that the legalities pose little threat to CIA torturers. After all, whose conscience are we talking about, anyway? Dick Cheney’s?

But here’s the rub: behavior that “shocks the conscience” is not as open-ended as it might appear. The formulation comes from a 1952 Supreme Court opinion, Rochin v. California, in which Justice Felix Frankfurter declared unconstitutional the harsh treatment lavished by California authorities on a suspect who swallowed his stash of morphine as he was arrested during a raid at his home. The officers took Mr. Rochin to a hospital, where, in the Court’s words,

"at the direction of one of the officers a doctor forced an emetic solution through a tube into Rochin’s stomach against his will. This ‘stomach pumping’ produced vomiting. In the vomited matter were found two capsules which proved to contain morphine."

The court determined that stomach pumping – a medical procedure commonly performed when someone attempts suicide by pills, or when a child accidentally swallows poison – violates the requirement that citizens be accorded “due process of law” as guaranteed by the Fourteenth Amendment to the Constitution. The court found that when done by police in search of evidence rather than doctors acting out of medical necessity, stomach pumping was too invasive to withstand constitutional standards of decency. Certain principles are inherent in the concept of “due process”, and stomach pumping crosses the line:

"We are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience…. this course of proceeding by agents of the government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation."

In Rochin, stomach pumping involved emptying the defendant’s stomach in order to retrieve morphine capsules. Similarly, waterboarding involves strapping the victim to a board – a rack? – and filling the victim’s lungs with water (producing the sensation, and eventually the reality, of drowning) in order to get him to answer questions.

So the Judiciary Committee should be putting this question to Mukasey: if stomach pumping “shocks the conscience,” can waterboarding be far behind? Are you really unable to decide if inducing the sensation of drowning by filling the detainee’s lungs with water shocks the conscience any less than making a prisoner throw up?

(Thanks to James F. Tierney for his assistance in preparing this blog entry.)