The Boston Globe reported this morning that although Attorney General Michael Mukasey will still speak at this year's Boston College Law School commencement, the school has decided that it would nonetheless "deny Mukasey the Founder's Medal," which celebrates "traditions of professionalism, scholarship, and service which the Law School seeks to instill in its students." Some students had protested against the decision to honor Mukasey, in part "because his position on waterboarding conflicts with the university's Jesuit mission." (Incidentially, would the students and faculty members who are up in arms in defense of BC's 'Jesuit mission' be equally upset having a speaker from Planned Parenthood, Death with Dignity, or Gay & Lesbian Advocates & Defenders -- all of which advocate legal and social positions at odds with Catholic theology?)

Retaining Mukasey as the speaker while not bestowing an honor upon him has the effect of defanging the criticisms of campus activists who are opposed to the viewpoint espoused by the speaker. Indeed, by disaggregating the symbolic function of the invitation (giving him the Founder's Medal arguably puts the law school's imprimatur on Mukasey's views) from the expressive function of the invitation (exposing law students to the highest-ranking lawyer in the Executive Branch), Boston College has made it so no one can claim that the school is ratifying Mukasey's views. Instead, it becomes clear that those who still object to Mukasey's speech simply do not like the idea of hearing speech they disagree with.

Update: The story was originally broken by student reporters at BC Law school's eagleionline.com, which the Globe report failed to mention. Gotta give credit where credit's due.

By Harvey Silverglate

It’s unlikely that the pooh-bahs at the Bush Administration’s Department of Justice (DOJ) read any civil liberties column or blog, let alone The Free For All. But I can’t help but think that somehow this blog launched an idea when I suggested on February 8 that the DOJ sic its legal ethics watch-dogs from the Office of Professional Responsibility (OPR) on the DOJ lawyers who drafted the infamous “torture memos.” (Dan Kennedy certainly saw the connection!) My argument is that the blame for whatever illegal conduct was authorized by those bogus memos should be placed on those who deserve it: the lawyers who gave the bad legal advice, rather than the CIA agents and others who depended and acted on the basis of that advice.

And so I read with some satisfaction Dan Eggen’s Washington Post report indicating that the DOJ’s OPR had begun such an investigation. The first subject of the OPR’s scrutiny is Jay Bybee, the former head of the Office of Legal Counsel at the DOJ (and now a sitting federal judge for the Ninth Circuit Court of Appeals) who signed the infamous August 2002 memo (PDF). The key bit of chicanery deployed in that memo was the legal conclusion – breathtaking as a sheer matter of legal scholarship – that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

The other subject of the OPR’s investigation is John Yoo, who is said to have actually drafted that piece of legal nonsense while serving as Bybee’s then-deputy, and is now sitting in a tenured position at the University of California-Berkeley Law School (having switched from being paid with our federal tax money to living off of the taxpayers of California). As a result of the legal advice given by these charlatans, human beings were subjected to waterboarding in 2002 and 2003, while others were subjected to stress positions and psychological torture techniques. Over at Balkinization, Marty Lederman published a series of critiques (see, e.g., here) of the 2004 memo that superseded and repudiated the Bybee memo – but which left the door open for torture to be used.

We will do our best to follow the OPR’s investigation, hard as it will be, since OPR investigations are notoriously secret, although in this instance the OPR has indicated that an unclassified version of its final report will be made public when it is delivered to Congress. Though the punishment visited upon a DOJ lawyer sometimes becomes public, neither Bybee nor Yoo is still a DOJ employee, so no formal intra-department discipline can be recommended by the OPR. Instead, the DOJ can refer the matter to state bar associations or other agencies in charge of disciplining lawyers for unethical conduct. If this investigation results at some point in discipline – whether a mild admonition or censure, or a more radical penalty like suspension from practice or disbarment – it is possible that the life tenure enjoyed by these two lawyers could be disturbed.

Federal judges, for one, “shall hold their Offices during good Behaviour,” according to Article III, Section 1 of the Constitution. This means that if they behave badly (a standard notoriously difficult to define but left up to the Congress), they are subject to impeachment. And every university or law school has its own standards for revoking tenure. Of course, bouncing a judge or a tenured professor presents serious questions of judicial independence for the former, and academic freedom for the latter. But, as I wrote in my last post, there’s a difference between publishing revisionist law review articles as a law professor – as Yoo has done under the protection of academic freedom, both before and after his stint at DOJ – and ignoring federal statutes and treaties while advising the Executive Branch on its legal duties. This distinction would likely be key in any effort to discipline or dismiss Professor Yoo, or unseat Judge Bybee.

The point is that there are myriad questions to be answered, both substantive (did Bybee or Yoo commit unprofessional or unethical acts? did they write their nonsense in bad faith?) and procedural (who decides, how, and what results from such findings?). This is a long but vitally important road to travel, since there should be consequences when a government lawyer has put his imprimatur on advice that the lawyer knew, or should have known, was contrary to federal as well as international law to which the United States has accorded treaty and legislative recognition. Traveling that difficult road would be well worth the effort in order to re-assert that this is a nation of laws.

As it is said, the wheels of justice grind slowly, but infinitely fine.

By Harvey Silverglate

    Last Friday, I wrote in this space that there are ample grounds for launching ethics investigations against the Bush Administration lawyers who wrote formal opinions authorizing various “coercive interrogation” techniques that long ago overstepped the lines – a bit vague here and there, but not altogether unfathomable – the law uses to define torture. There is no prohibition – at least in theory – preventing investigations against lawyers if investigators can prove that the legal opinions the lawyers wrote are so far off the mark that one can confidently and reasonably conclude that they wrote their advice in bad faith. That kind of conclusion would be supported by evidence that the lawyers gave their advice not so much to inform and educate the agency operatives, as to give them legal cover and, concomitantly, the defense of ‘good faith reliance on the advice of counsel’ in case they were ever prosecuted for violating anti-torture statutes.

    And last month, I argued that the Department of Justice’s prosecution of a Connecticut lawyer for obstruction of justice – for deleting child pornography from a client’s computer – provided a good preview of how the Department would treat the CIA’s destruction of interrogation videotapes, so long as they applied the same principles to DOJ lawyers as to outsiders.

    Lo and behold, just this week the DOJ echoed this storyline when it indicted a well-respected Florida lawyer for providing legal advice to a second lawyer that the second lawyer’s acceptance of a large legal fee from an alleged drug kingpin was legal. (It is against the law to knowingly accept money acquired in the drug trade.) The DOJ prosecutors alleged that highly-regarded Miami attorney Ben Kuehne – who just happened to represent Al Gore in the legal dispute over the outcome of the 2000 election, when the Supreme Court installed that election’s loser in the White House – wrote the opinion in bad faith, in order to facilitate the acceptance of the fee by the kingpin’s high-profile trial lawyer, Roy Black.

    Bloggers and other commentators are just beginning to focus on the increasingly obvious link between the DOJ’s war on lawyers and its war on civil society more generally. For various reasons, ranging from the brazen stonewalllng of Attorney General Michael Mukasey to the administration’s closely-held true-believer attitude toward its claims of expansive Executive power, DOJ officials are reluctant to call “coercive interrogation” by its rightful name – torture. If they will not do that, they are even less likely to prosecute or start ethics investigations against government lawyers who authorized torture techniques that lawyers, legal scholars, and laymen all recognize are illegal and immoral. (Of course, as I noted earlier, state bar authorities may arguably commence ethics investigations of lawyers for transgressions committed while they were in federal service.)

    In his own take on the connection between the Kuehne prosecution and the torture memos, Scott Horton explains that in “United States v. Altstoetter[,] … two officials of the [Reich's Ministry of] Justice … gave erroneous advice under international humanitarian law which led to more than a thousand persons being tortured or shot,” leading to their conviction at the Nuremberg war crimes tribunal in 1947. “And in fact the lawyers got off lightly,” he writes: facing “[t]en years … they were released after seven years for good behavior.”

    So maybe prosecution is in order, given the legal precedent for it. But let’s be generous and say that prosecution would be overkill – or let’s be pragmatic and say that in this political climate it simply won’t happen. But if a respected Miami lawyer can be indicted for writing a legal opinion – which many Florida lawyers believe to have been written in good faith – on a drug-money question, then surely government lawyers can and should have to undergo, at minimum, an ethics investigation for selling out themselves, the legal profession, and American politico-legal values in order to tell Bush and Cheney that they could torture prisoners to their hearts’ content.

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

One of the more silly pieces that I’ve read in recent years appeared in, of all places, the usually polished and interesting "Ideas" section of The Boston Globe, to which I invariably turn every Sunday. In an opinion piece on the first page of that section, Darius Rejali, a political science professor at Reed College and the author of a forthcoming book (Torture and Democracy) argues that while we like to think of torture as “mainly the province of dictators and juntas – the kind of thing that happens behind the iron doors of repressive regimes,” in fact, “it is the democracies that have been the real innovators in 20th century torture,” modern torture “is mainly a democratic innovation,” and we have “exported [new torture techniques] to more authoritarian regimes.”

Of course, the idea underlying Rejali’s argument is relatively unobjectionable within the academic discipline that studies torture, in both its ancient and modern forms – something I explore more below. For example, several years ago, University of Wisconsin professor Alfred McCoy published A Question of Torture, which describes how the CIA developed and later spread new torture techniques during the cold war. Around that same time, McCoy wrote an op-ed in the Boston Globe arguing that this history of what Rejali calls “innovation” led to these methods being used in Abu Ghraib:

“For more than 50 years, the CIA's no-touch methods have become so widely accepted that US interrogators seem unaware that they are, in fact, engaged in systematic torture. But now, through these photographs from Abu Ghraib, we can see the reality of these techniques. We have a chance to join fully with the international community in repudiating a practice that, more than any other, represents a denial of democracy.”

Hopefully, most supporters of democratic rights (not to mention civil liberties or human rights) would agree that torture “represents a denial of democracy,” which is what makes Rejali’s claim – that torture “is mainly a democratic innovation” – so bizarre.

On first glance, it is hard to make out what Rejali is actually arguing. Initially it appeared that he was trying to link the fact that certain torture techniques were developed in the West – such as electrotorture – with a conclusion that Western democracies were practicing torture more than authoritarian states elsewhere in the world. It seemed that this new technical savvy developed in the West was indicative of a culture that promotes and tolerates torture – the logical implication of the argument that torture “is mainly a democratic innovation.”

But the core of Rejali’s argument comes out only on repeat readings; the silliness of the article arises from the fact that his writing is sloppy, he is apparently self-contradictory, and he doesn’t follow through his conclusions.

Tracing the history of torture from the rack and screw through the nominal abolition of the practice, he concludes that “torture hasn’t really disappeared in the modern age. What have disappeared are forms of torture that leave marks.” Rejali then details the development of electotorture and its application in Seattle police stations; a magnetic device “that produces a high-voltage spark,” first employed “by the French colonial police” and popularized by the Nazis, later to be used in Vietnam and in Chicago police stations; stress positions like “forced standing,” as seen in the iconic Abu Ghraib photograph; and finally the use of waterboarding. But why are these “democratic” innovations? “[N]ewer, ‘cleaner’ tortures first appear in conditions of public monitoring, usually in democratic states,” he writes. “It is only afterward that we find authoritarian states adopting them.”

This point is astoundingly obvious: anyone who has thought with any depth about the problem of torture fully understands that while torture occurs with unnerving frequency in and by democratic nations – including, alas, our own, particularly in prisons as well as in such occasional netherworlds as the despicable American gulag in Guantanamo Bay – in fact, torture lives a very tenuous life in democracies. This has nothing to do with Americans’ inherent superior character, nor with citizens of democratic cultures generally being better than those unfortunate enough to live in dictatorships. We have learned enough from our history, and even from our present administration in Washington, to know that we’re the same human beings that “they” are.

But we also know from history that social and political institutions make all the difference. They differentiate civilized societies from their opposite. As Professor Rejali acknowledges, torturers in democratic societies take care to keep their activities secret, and even employ methods that leave no marks on the body. Unfortunately, even though he was given quite a few column inches in which to write his piece, he never explains why this is ultimately the case – only referring offhandedly to “conditions of public monitoring” that precipitate these “‘cleaner’ torture[]” techniques. This omission is all the more remarkable given the underlying reason why this occurs: in democracies, the free sectors of civil society – the free press, humanitarian organizations, the organized bar, civil liberties groups, medical associations, religious benevolent institutions, and on and on – exert constant and significant pressure every time they learn that the CIA, prison guards or some warden, some sadistic private school headmaster, a group of wayward police officers, or sometimes a whole department engages in torture.

(The fear of oversight can even lead agents of a Western intelligence agency to destroy videotapes of their torturing captives, for fear of discovery, investigation, disgrace, even prosecution. The prospect of being labeled hostis humani generis – enemy of all mankind – as the U.S. Court of Appeals for the Second Circuit described the torturer in the 1980 case Filartiga v. Pena-Irala – is enough to make torturers do incredible things to hide the visible effects of their truncheons.)

So if Rejali’s underlying claim is ultimately right, why do I think it’s a silly article? Because it’s painfully and frustratingly inelegant. If he’s trying to argue that the oversight role of civil society has forced modern democracies’ torturers to hide their efforts and develop “cleaner” techniques, he simply doesn’t say that. Instead, he claims that “the modern repertoire of torture is mainly a democratic innovation,” in which “the role of democracies is central,” leading susceptible readers to think that he’s actually blaming the democratic form of government itself, for some bizarre reason, for the institution, and spread, of torture. The Globe’s editorial staff is complicit in twisting the argument, tagging his headline with a sub-headline: “The surprising force behind torture: democracies.” And without examining whether torture is a product of sadism inherent to human nature, he risks raising questions – whether or not he means to – about whether democracies are just as bad as authoritarian states when it comes to torture.

The other major problem with Rejali’s article is that he is apparently self-contradictory. If on the one hand oversight leads to torturers developing “cleaner” techniques, how can he turn around and argue that more oversight will stamp out these torture techniques? If Rejali has correctly identified the direction of the causal arrow, shouldn’t more efforts by civil society – such as “[t]he American Bar Association’s 1931 report [on torture, which] transformed American law and policing” – cause torturers to become even more secretive? It’s not clear how, if “torturers and their apologists really do care” what people think about them, increased oversight will lead to “an end of this sorry history” rather than more refined techniques.

I’ve read a few bad dissertation proposals over the years, in which a hapless graduate student – desperate to find a worthy topic that’s not already been beaten to death by denizens of the academic enclaves – throws together a few ideas from the traditional literature and obfuscates them to make the topic sound more sexy and original. Rejali is no newly-minted Ph.D., but it seems he falls into this trap, recalling writer Barbara Grizzuti Harrison’s observation that “there are no original ideas.” It’s quite obvious that where a government is predisposed to want to torture, robust oversight by civil society will force torturers to go underground and hide their practices. If that’s his point, I wonder whether it’s a sufficiently original “idea” to warrant being placed in the “Ideas” section of the Globe – which could have mitigated some of the silliness of Rejali’s work by running a critique of the article next to it, as they have sometimes done in the past on the last page of the section. Such a critique could have been invited from someone with actual experience dealing with torture and torturers – in my own field, criminal defense lawyers, prosecutors, and judges almost all have such experience, and all understand full well the powerful role that the free institutions of civil society play in deterring official lawlessness and cruelty. Academics sometimes are not the most qualified people to throw light on such real world matters.

(With a tip of the hat to James F. Tierney for helping focus my myriad problems with the Globe piece about which I’ve blogged here.)

By Harvey Silverglate

Sometimes, as Sigmund Freud put it, a cigar is just a cigar. And, likewise, sometimes words in the Constitution actually mean what they say. Much brainpower, however, has been expended trying to argue that the First Amendment, which admonishes that “Congress shall make no law…abridging the freedom of speech, or of the press” [emphasis added], actually doesn’t mean what it appears to say. And, similarly, we are now in the midst of a national (and judicial) debate over whether the Constitution’s protection of the writ of habeas corpus – a cornerstone of the historic rights of Englishmen and of Americans – really means what, in quite clear terms, it says.

Yesterday the Supreme Court heard arguments in the combined cases Boumediene v. Bush and Al Odah v. Gates, which touch on this momentous question: Can the United States government escape the seemingly clear language of the Constitution’s habeas corpus guarantee by shipping people to the gulag at Guantanamo Bay and then providing so-called “combatant status review tribunals,” run entirely by the military, as a supposed substitute for habeas corpus hearings conducted by the federal courts?

Article I, Section 9 of the Constitution seems pretty clear: “The Privilege of the Writ of Habeas Corpus shall not be suspended, except when in Cases of Rebellion or Invasion the public Safety may require it.” Habeas Corpus, under ancient English law inherited and adopted by this country, guarantees that any prisoner has the right and opportunity to petition a court to seek a release order. The court is then obligated to order release unless the jailer is able to show the court that the incarceration is lawful. This is what makes any prison system operated by our government subject to the rule of law – the jailer has to come into court and explain under what lawful process and charge the prisoner is being held. It distinguishes American prisons from the gulags found in dictatorships around the world. In the England of old, habeas corpus limited even the power of the king to arbitrarily lock up those in royal disfavor.

Well, Congress and the Bush Administration take the position that the right of habeas corpus should not be made available to prisoners at Guantanamo, even those already held without trial as long as six years and still counting, because the military tribunals provided them somehow are an adequate substitute for habeas corpus. What is the legal justification for this argument that kangaroo court military hearings are an adequate replacement for real judicial hearings in a real court? The Supreme Court foolishly ruled in 1977 in Swain v. Pressley that the writ of habeas corpus does not need to be made available to detainees so long as they have an “adequate and effective” substitute allowing them to raise similar claims, even if not wholly within the formal habeas petition structure. So the question is whether the military tribunal system cooked up by the Bush Administration furnishes such a reasonable substitute in the Guantanamo enclave.

In its brief for yesterday’s arguments, the Administration argued that the kangaroo court system provided by the 2005 Detainee Treatment Act is an “adequate and effective” substitute, which it is plainly not. Of course, the government also argues – and Justice Scalia will undoubtedly agree – that habeas does not extend to Guantanamo, even though the court definitively settled that the answer to that question is “yes it does” in 2004’s Rasul v. Bush. These two curious arguments are further explained in this online write-up of the case.

Besides the administration’s bad faith interpretation of the law of habeas, the answer to the central question posed in Boumediene would appear to be quite simple to any citizen with an IQ at least as high as his or her age. But, from all reports, the Supreme Court is close to being divided on this question. For those of us who take seriously the Constitution – and the plain meaning of the words of the English language, in which the Constitution is written – these petty squabbles about what the phrase “shall not be suspended” means are quite remarkable. There may be some vague language in the Constitution, but the habeas corpus clause does not seem to be an example. How can it be, then, that the conservatives on the high court, who normally can be found bleating about liberals’ failure to follow the “strict construction” of the “plain language” or “original intent” of our founding document, are suddenly going out of their way to twist and turn in order to escape the obvious import of the habeas corpus clause? It seems to me, to use a syllogism, that combatant status review tribunals are to habeas corpus, as Hustler Magazine is to real sex – a rather pale imitation.

Stay tuned for whether language, not to mention common sense and the lessons of history, has any real meaning in our age, and whether, to paraphrase the late Lillian Hellman (commenting on the tendency of some leftists during the McCarthy period to denounce friends and associates as Communists), the plain and tested meaning of ancient laws is to be tailored to meet the fashions of the day.

By James F. Tierney

We wanted to post a brief follow-up on Harvey's argument about Michael Mukasey and whether waterboarding is torture (it is). MSNBC host Keith Olbermann explains that Mukasey's dissembling equivocation is a result of Bush's desire to cover his own legacy. Olbermann is right, and it does this while also serving the purpose noted by Harvey -- protecting an "advice of legal counsel" defense in the event of future prosecutions.

(Update, Nov. 12, 2007: this post has been edited from the original.)

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.)

  I’m equally dismayed at the ADL’s poor handling of this fiasco. I wrote earlier that the ADL finds itself in a hole largely of its own digging (see “Genocide and its Partisans: What the ADL Did Wrong”). And if you think that the ADL’s flip-flop on the G-word is going to make this flap disappear, think again. The ADL’s poorly conceived and essentially dishonest explanation of its reversal has opened the door for yet more attacks.

Of course, the ADL won’t admit that it caved to the Armenian lobby. So in a textbook PR move, the organization tries to claim that reversing its stance was its own idea all along (“We have always described the painful events of 1915-1918 perpetrated by the Ottoman Empire against the Armenians as massacres and atrocities”).

Rather than succumb to any notion that their Armenian counterparts were right, Foxman and company write that “on reflection, we have come to share the view of Henry Morgenthau, Sr. that the events [constitute] genocide.” It’s no accident that ADL cited Morgenthau, a Jew, instead of any of the large number of contemporary historians who have criticized the ADL’s stance. This is clearly a cynical attempt by the ADL to remind us all that the man credited with blowing the whistle on the so-called genocide was Jewish. If I were Armenian, I would be a bit peeved by these lame attempts at spin. (As a Jew, I’m a bit embarrassed by it all, even though I keep telling myself that it’s not my doing.) And, don’t expect the Turks to be happy with this Morgenthau reference either. As one of my colleagues pointed out, this will only pour salt in the wounds of the already defensive Turks, seeing as Morgenthau, in those same very same dispatches, frequently used colorful racist language to describe “those unspeakable Turks.” Chalk this up as one more example of how dishonesty brings nothing but trouble.

I’m also curious to see how the ADL plans to maintain its tenuous new position that there was a genocide, but that the issue should not be voted on by the Congress nor litigated in the courts. The ADL’s legal staff must realize that it doesn’t work that way. A nation can’t acknowledge the genocide but then try to avoid all the baggage that comes with it. And judging from press accounts so far, it’s clear that the Armenians won’t relent and meet halfway on this issue. The mudslinging has just begun, I fear.

And no one, it seems, is fighting for the proposition that historians, rather than politicians and interest groups, should pronounce on historical truths. Decisions on when the term “genocide” applies should be made on the basis of documentation, reliable evidence, and clear legal standards and definitions. This does not imply that what happened to the Armenians at the hands of the Ottoman Turks was, or was not, a genuine genocide in terms of modern-day definitions. It’s simply a plea for keeping government and pressure groups out of the business of pronouncing truth and labeling opposing points of view as the equivalent of blasphemy.

While you’re reading up on this brouhaha, check out Jeff Jacoby’s column from yesterday’s Boston Globe, in which he writes that “the Armenian genocide is an incontestable fact of history. Shame on anyone who refuses to say so.” This is exactly the sort of rhetoric that sends chills down my spine. If Jacoby wants to push his view that there was a genocide, more power to him. What irks me is the attack on those who disagree with him, who are now becoming known as “genocide deniers,” a category of “haters.” Not only is this viewpoint poisonous to the notion of open and unfettered discourse, but it is also plainly inaccurate, since it ignores the work of credible scholars who have formed more nuanced responses to the Armenian question. How can a civilized discussion of such an important historical event, resulting in so many deaths, be conducted if one side is always demonized in this fashion?

The unwarranted uproar among the punditocracy over President Bush’s commutation of part of I. Lewis “Scooter” Libby’s sentence is indicative of the sorry state of this nation’s public political discourse. The left is agitated because Bush spared Vice President Cheney’s right-hand man a humiliating prison sentence for lying in an investigation about his knowledge of the leak of CIA agent Valerie Plame’s identity. Additionally, there are protestations against the right’s inconsistent stand between the Libby case and President Clinton’s impeachment for perjury nearly ten years earlier. On the other side, the right is equally agitated over Bush’s failure of nerve in granting what they see as an incomplete, equivocating, partial commutation of the sentence rather than a full and unconditional pardon. Such a pardon would have wiped out the criminal conviction itself, along with the fine and the probation that Bush’s partial commutation left intact.

But this uproar is over a red herring, since it misses the real injustice of the case. Bush should have granted Libby a full pardon precisely because Special Prosecutor Patrick Fitzgerald’s investigation was the latest in a long train of abusive federal criminal investigations. These investigations are symptoms of an underlying disease: a Department of Justice that is out of control, and a special prosecutor who emulates the tactics of the department from which he is supposed to have some independence. As such, there was no reason to expect Fitzgerald to show restraint when faced with the rule of law. Few federal prosecutors show restraint these days. In practice, he didn’t: even though Fitzgerald knew virtually from the start of the investigation that there was no prosecutable crime that had been committed—Plame was almost certainly not protected by the statute prohibiting the disclosure of certain clandestine CIA agents’ identities—he bulldozed through the ranks of the Fourth Estate like a common drunkard (on power, however, rather than on booze).

Fitzgerald managed to put then-New York Times reporter Judith Miller in jail for eighty-five days for contempt, on account of her principled refusal to hand over her confidential source notes. She changed her mind when her source—Libby—waived his confidentiality. Similarly, Fitzgerald forced Norman Pearlstine, the editor-in-chief of Time Magazine, to hand over the notes of Time reporter Matthew Cooper, despite Cooper’s pledge to keep his source confidential. In the process, any naïve notion that something remained of a federal confidential source privilege for reporters was dashed beyond repair.

When no crime has been committed, there is something fundamentally wrong – and dangerous – when a federal prosecutor nonetheless constructs an indictable crime by finding some witness who will tell something other than the truth, the whole truth, and nothing but the truth. (It is a felony, it should be noted, to lie to a federal investigator, even when not under oath, and it is perjury to lie under oath.)

For that reason, conservatives correctly argue that Bush should have thrown out the entire conviction, not just part of the sentence. Indeed, I predict that is what Bush will do if Libby loses his appeal in the Court of Appeals for the District of Columbia Circuit. Part of the purpose of the commutation was to leave the conviction intact—and the appeal alive. The appeals court could then do what Bush did not see fit to do—throw out the case. However, if the appeals court affirms Libby’s conviction, the odds favor Bush giving Cheney’s right-hand man a full and unconditional pardon. Libby would deserve it, not because he acted well or wisely in lying to Fitzgerald, but rather because Fitzgerald abused his power by luring Libby into a lie when there was nothing legitimate for Fitzgerald to investigate.

In my opinion, there is one crime that Libby, in addition to his boss Cheney, might usefully and properly be investigated for. They have arguably committed gross violations of the Constitution, federal laws, and the international humanitarian law of war in the course of waging the war on terror, and have opened themselves to credible accusations of war crimes. Now there is an investigation that friends of the Rule of Law could support. But the phony conviction for lying to the special prosecutor, on a subject on which the prosecutor had no right to inquire, should not garner support from any self-respecting liberal.