Torture Memos

TORTURE MEMOS
2/28/2010

The primary philosophical characteristic of a Constitutional Republic is virtue. Virtue is doing the right thing because it is right-- not because it is easier, faster or more popular.

Do we ever learn, or more importantly, do the elected representatives of the people and their employees ever learn? Again, our country is facing a Constitutional “crisis” because top people in the Executive Branch of government chose to disregard that we are a nation of laws, and no one gets to choose which laws to honor. If the laws of the United States are not sufficient for today’s world, there are lawful procedures to enact new laws or amend the constitution. Those procedures are required, and not only when convenient.

In the days and weeks after 9-11 two former Justice Department lawyers, John Yoo, and Jay Bybee, pursuant to instructions from the Attorney General, authored, or authored in part, a series of documents, or drafts of documents, now known as the Torture Memos. These memos, written while Yoo and Bybee were employees of the Justice Department and Office of Legal Counsel (OLC) at the White House, resulted in a serious constitutional confrontation.

Yoo and Bybee are lawyers that had worked almost exclusively for government since leaving their law schools. That unfortunately has become all too common-- some lawyers go to work for the various departments of government after law school, and never work as a lawyer in the private sector. Many years ago, most lawyers that went to work for the government immediately after law school were those not offered a job in the private sector, or did not want to work the many hours required by the private sector. Now, however, for those who have aspirations for a political office or judicial appointment, the recognized “track” is to clerk for a (preferably) federal judge, then work as a government lawyer and at the same time become as active as permissible with one of the major political parties. Then, ingratiate yourself with the right people and hope for an impressive political, judicial or prosecutorial appointment–the latter allows you to utter the hallowed words—“I was tough on crime”. The problem with this “road to success” is the possible loss of independence as a lawyer. Your future depends on pleasing bosses that are also your clients. It would seem that the legislators and bureaucrats would have learned, in the aftermath of Watergate and Iran-Contra, that lawyers that work for government are not inclined to disagree with their client- bosses. It is naïve to think that all, or even most, lawyers will always do the right thing and tell the client what he needs to hear, even though he or she knows it is not what the client wants to hear. I suppose it is even more daunting when your client is the President or Vice President of the United States.

The Office of Legal Counsel (OLC) is a part of the Justice Department; their job is to keep the President and the Executive Department in compliance with the Constitution and Laws of the United States. Their lawyers work for the Attorney General and the President of the United States. Their future advancement depends on the perception that the AG and the President have of their work. Bybee was the direct superior of Yoo at the time of the drafting of the initial Torture Memo at the OLC.

The issue that the Attorney General gave them to address was whether the United States could resort to “enhanced interrogation techniques” to obtain information from persons captured, or “rounded up” in Afghanistan and Iraq. The stated goal was to gain information that may assist in preventing further attacks on our allies or us.

There was an immediate, strong difference of opinion at the White House regarding the conclusions in the Memo, favoring the enhanced techniques. However, and importantly, all the top military lawyers for each branch of the service were against employing the enhanced techniques. Those against let their superiors know that criminal prosecutions were possible against those that conducted or approved the questioned techniques. I can find no suggestion that any members of the Executive Branch or the attorneys approving the “enhanced techniques” offered to subject themselves to the “enhanced” process to help them evaluate whether the techniques amounted to “torture” as defined by them in the initial Memo. (A lawyer later to be in charge of the OLC did subject himself to a brief water boarding.)
I have no information about the content of the document giving Yoo and Bybee their instructions on the preparation of the Memo. That is, told to present argument for legitimizing the techniques or told to present the arguments for and against? If, the latter, I have not seen or heard of it---therefore I suspect it was the former. Was there pre- disclosure to the lawyers of the position taken by their superiors on what they wanted the conclusion(s) to be? Was the Memo intended to be an independent legal analysis or was it to give “cover” to those who were to engage in the techniques, if approved, or techniques that were already surreptitiously approved? Were they told to disregard the Geneva Conventions, Rome Statute and the United Nations Convention on Torture and to disregard the United States prosecution of members of the Japanese military for water boarding (although called water torture) in 1947? I doubt whether we will ever get answers to these many questions, absent a trial.

The underlying and mostly ignored question that needs an answer is why was there such an intense debate? Remember, we are addressing the issue of torture (the nomenclature is unimportant), and whether representatives of the United States may engage in torture. Is it truly conceivable that we Americans, or some of us, really believed that torture was, or is, an acceptable method to obtain information? If you were a school age child during World War II, you should remember how much hatred existed for the Japanese because of the reports of torture of American Servicemen. That hatred, in the USA, was universal---and to think that we now have a heated debate over legal meanings in order to coerce information, by recognized illegal mean-- is just not possible—at least to me.

Torture is not available no matter what anyone thinks may be sufficient justification. The UN Convention on Torture, signed and ratified by the United States says, “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”(Emphasis added) No “memo” can change that, no matter the author.

If the Executive wanted a truly independent analysis of the issues, and if he, or they, were aware of the competing claims and philosophies of those in government, why didn’t the Executive follow the lead of the private sector, when facing an issue with strong differing opinions, and get a highly qualified outside counsel, who had no financial association with government, and no desire for such association, (believe it or not, there are law firms that don’t crave government business) to provide an independent opinion letter?

It appears that many of the policymakers determined that personal safety is more important than the virtuous concepts employed in the founding of this country. Will we really jettison our virtue and our honor, then change or weaken our democracy for personal safety. Thankfully, the founders of this nation did not. They knew they were committing treasonous acts, and if the war for independence failed, they would have been hanging from a tree (alone or together). They chose virtue over safety----we must make similar decisions as a nation. I personally wish for virtue.