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In an earlier post, I wrote that there was really no difficult question with respect to prescribing CIA interrogation techniques—that the agency could, for instance, simply be required to abide by the same Army Field Manual rules that govern the military, rules that are more generous than those that have governed wartime U.S. interrogations throughout much of our history.
Ben disagrees. He doesn't really explain why the CIA (which, until recently, wasn't in the business of detention at all) needs more flexibility than the military has historically had. (After all, presumably Ben would agree that if our enemy here were even more dangerous than al-Qaida but were a state actor with an established military command structure (say, like Nazi Germany or the Soviet Union), the Geneva Conventions would prohibit all coercive interrogation. No such limitation is imposed as to al Qaeda detainees—and why isn't that increased flexibility enough, if it's more than we would be entitled to use in a traditional war?)
More specifically, Ben argues that the Army Field Manual is too restrictive for the CIA because the Army "rejected almost all of the new techniques that Donald Rumsfeld earlier approved for use at Guantanamo." I don't think that's right. The Field Manual includes almost all of the techniques Rumsfeld had (nominally) approved for GTMO in his April 16, 2003 memo. (In fact, Rumsfeld's April 16th memo was a whitewash to deflect attention from the much harsher techniques approved in the Working Group Report—but that's another story.)
Which Rumsfeld techniques does the Field Manual not include? I might have missed one or two, but I think this is the list:
1. Removing privileges for uncooperative detainees, and "dietary manipulation," such as the denial of hot rations.
2. "Change of Scenery Down": placing the detainee in a setting that is less comfortable but that "does not constitute a substantial change in environmental quality."
3. Environmental Manipulation: Altering the environment to create moderate discomfort that would be shared by the interrogator, e.g., "adjusting temperature or introducing an unpleasant smell."
4. Sleep adjustment, such as changing sleep cycles from night to day, but NOT sleep deprivation (caps in original Rumsfeld memo).
(Some of these techniques might be incorporated in the Field Manual; I haven't done a comprehensive check.)
I would readily concede that these techniques certainly could be used in a manner that would not violate the legal restrictions against torture and cruel treatment (particularly if safeguards were in place). But does Ben truly think that these techniques are what all the fuss is all about? If that were the case, then the Bush Administration could simply say so—at which point, the Democrats would gladly incorporate them in the legislation for use by the CIA against non-POW detainees. There would be no need for a presidential veto. In other words, if these are the techniques that Ben thinks are so critical for the CIA, then I think he would find a receptive audience on the Hill.
But they are not what the fuss is all about. Instead, the Bush administration wants the CIA to be able to use some or all of the "enhanced interrogation techniques" that it has employed over the past few years, including (reportedly) waterboarding, hypothermia, hyperthermia, stress positions, severe sleep and/or sensory deprivation, and threats against the detainee and his family. Indeed, more than anything else, the Administration wants detainees to think that we might use such techniques (or worse)—an implied threat that the CIA is working in a law-free zone.
These (or some subset of them) are the techniques that precipitated the presidential veto. In my view, they're all illegal—they are all either cruel or torture or both (and perhaps violations of other statutes as well). Do you disagree, Ben?
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Michael Brick’s ambitious piece in today’s New York Times about the wide ranging narcotics prosecutions in the housing projects of Brooklyn omitted some important details which suggest that the “historic conspiracy” referred to in the Brooklyn District Attorney’s press releases was not the series of drug transactions being prosecuted under the false flag of an overused conspiracy law, but rather one between Mr. Hynes’s office and a compromised judiciary conscripted in the service of unsustainable prosecutions by fawning press coverage and a lack of simple courage.
While Mr. Brick does imply (by quoting defense lawyers) that the use of first degree conspiracy charges had the effect of “exacting jail terms they might not otherwise have won,” he does a shoddy job of explaining just how the use of bail coerced plea bargains, and entirely omits the fact that bail is a matter of judicial discretion, thus failing to pose the question of why judges continued to set and maintain bail as case after case collapsed.
The omissions reflect Mr. Brick’s thesis that the cases “stumbled at the courthouse steps.” That thesis posits that the system actually works with judges fulfilling their proscribed role as checks on prosecutorial power. In fact, judges were complicit in the continuing prosecution of the cases at each step from arraignment onward.
Mr. Brick correctly noted that those charged with Conspiracy in the First Degree (Penal Law Section 105.17) had bail set at astronomical numbers. Certainly (though he didn’t mention it) this is in part because 105.17 is a class A-1 felony, punishable by life in prison and subject to the same penalties as a murder. Still, there is no statute that requires judges to set high bail, or even, bail at all. In fact, releasing defendants charged even with serious crimes is the prerogative of any presiding arraignment judge, and one of the main things those judges are required by law to consider is “the weight of the evidence against (the defendant) in the pending criminal action and any other factor indicating probability or improbability of conviction.” When juries soundly reject conspiracy charges in case after case, and when the district attorney’s office resolutely refuses to even explain the basis for such serious charges citing secrecy, it becomes incumbent upon judges to refuse to set bail and to begin to release defendants charged in the same manner.
What happened in Brooklyn, though, is precisely the opposite. For years and years, despite the District Attorney’s office’s utter failure to secure even a single conviction on Conspiracy 1 charges, judges continued to set and maintain high bail knowing full well that it would take a year or more for cases to come to trial, and that when they finally did, almost no defendant in their right minds would refuse a “time-served” or get out of jail today plea offer. In short, judges were the silent partners in an Alice-in-Wonderland-like sentence—first verdict, afterward regime. Had they done their jobs and refused to set bail based on unsustainable charges, prosecutors would quickly have tired of the legal charade they have used for years to railroad potentially innocent people into pleading guilty to unprovable cases founded on questionable and sometimes virtually nonexistent evidence.
Letting the judiciary off the hook for their complicity does a disservice to readers and perpetuates the myth of a well-functioning system of criminal justice. In fact, as even the most cursory look reveals, co-opted judges, all to eager to appear tough on crime and unwilling to exhibit the courage necessary to take an unpopular stand, have long ago become prosecutorial partners in the tragic dismantlement of the constitutional safeguards we all rely on to protect us from an increasingly overreaching government.
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One of the things I agree with Ben Wittes about is the need to get serious about how a next administration is going to fix various aspects of U.S. counterterrorism policy. That's why one of the things I liked most about Jack Goldsmith's column this week on the rule of law in the "war on terror" is that its "fixing it" premise accepts the reality that something is broken. On this, and several other points he makes, Jack and I certainly agree. In the spirit of productive dialogue, though, I focus here on a few of the areas on which we don't.
Let me start with two points in this post, and I'll turn to the biggie question of a national security court separately. First, I'm 100 percent in accord with Jack's finding that the administration has had a bad habit of over-classifying information, and it would help for the public to know more—about the nature of the threat and our own responses to it. But disclosure for the purpose of restoring government credibility (though we surely need that too) is rather the least of the reasons why over-classification needs a fix. As pressing is the purpose of avoiding another 9/11—in no small measure a result of the failure of the pathologically secret intelligence agencies to share information with the other state and federal agencies that might actually help catch the terrorists. And then there's that whole old-fashioned idea of open government in a democracy. Or something like that.
Anyway, given all that, I was then surprised to encounter what sounded strangely like a warning to the next administration—that after receiving a few harrowing threat briefings and absorbing the awesome personal responsibility of keeping Americans safe, the new commander in chief won't rush to eliminate the Bush program and that he or she will realize that any legal climb-down that is later perceived as even indirectly responsible for an attack would be a personal and political disaster.
Actual legal obstacles were not principally (or, as best I can tell, even modestly) what prevented the U.S. government from averting the attacks of 9/11. The notion that they were seems to me to have been a myth propagated in the wake of the attacks to avoid a more clear-eyed (and less favorable) assessment of the administration's less-than-stellar counterterrorism performance. Regardless, as authors, bloggers, and the like, we have some say in whether "any legal climb-down" (by which I take it he means any difference in approach) in detention or interrogation policies in the next administration is "perceived" as responsible for any next attack. I'd hate to think we're setting up the next perception spin even before any "climb down" or attack happens. That may well not be how Jack intended this passage. But that's how I read it.
A second issue. Jack wisely recognizes the importance of working with (rather than, say, antagonizing) international allies on whom we depend for success in our counterterrorism efforts. But I remain deeply skeptical of the utility of the recommendation he puts forward (one that has also come in recent months from current State Department Legal Adviser John Bellinger). Namely, that we work toward a new international legal framework for handling terrorist suspects. As best I can tell, the impetus for the "more international law" idea seems to come from two perceived needs: 1) Guantanamo is a catastrophic mess, it needs to be closed, and we need to do something with the prisoners that remain there, and 2) neither international nor domestic U.S. law allow us to preventively detain terrorist people who we think might someday pose a danger but as to whom we have no real evidence yet that could show they've done anything wrong.
On one, yes, of course Guantanamo is a mess—for a host of reasons. We didn't afford the detainees there even the most basic status hearing under the Geneva Conventions when we first picked them up (for no discernable reason) and still had some hope of figuring out whether we had evidence justifying their detention; we picked up a bunch of the wrong (i.e. innocent) people; we treated some of them so badly we may've compromised our ability to secure convictions of those who may actually have done bad things; and we've created the best recruiting tool al-Qaida ever could've imagined. One could go on. But why then wouldn't it be far better to try to "fix Guantanamo" by crafting a Gitmo-specific solution for these detainees—not by compromising the next 20-plus years of terrorism detention policy and practice as a result of trying to dig ourselves out of one of the worst security policy decisions of recent history? Put differently, I can't see why we should let the especially hard case make especially bad law. Whatever we do next about Gitmo—and it should involve closure, it should involve Congress, and it should involve some combination of trial, repatriation and release—I'd just as soon try not to take fixing it as our baseline for all detention measures going forward.
Now, what of preventive detention (either for those still in Gitmo or, more to the point, for anyone we might pick up tomorrow)? The view that the current web of domestic and international laws regarding detention (a key area of dispute) is insufficient for dealing with the detention needs of international counterterrorism is, to say the very least, contested. And for reasons I'll get to in a next post about a national security court, I think most arguments in favor of broader detention authority just don't hold water. In the meantime, I'd like to know whether Jack, John, et al. think even a next administration (with necessarily less international-law lethal baggage than this one) will be able to overcome hurdles of trying to negotiate a new framework here with an international community that has failed to reach consensus for decades even on the threshold question of what we mean by "terrorism." Perhaps more to the point, which do they think is more likely to come sooner—a new international legal framework or the next attack?
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Eric suggests that he and Adrien Vermeule never actually meant to defend the merits of the John Yoo torture memos. Well, I suppose I should simply be grateful that there finally appears to be something verging on a consensus that the memos are indefensible. But it is worth recalling that when the first of these memos appeared, Eric and Adrien did not do anything to criticize the merits or to express their outrage or disdain. Instead, they saved their fire for the critics of the memo, writing:
Now, to be sure, Eric and Adrien never quite say here that they approve of John's use of text, structure and history. The evident point of their op-ed, however, was to defend John and the "dynamic generation" of which he is said to be a part—to legitimize the "distinct methodological valence" that John was said to bring to the table—and to call into question the sincerity and arguments of we "intellectually partisan" critics. If, in fact, they agree(d) with us critics on the merits that John's "dynamism" regularly (and especially in the torture memos) consists of sloppy, disingenuous, incomplete, and tendentious readings of the text, structure and history, one wonders why they did not simply say so. (By the way, John's memos do not disdain Supreme Court precedents at all. He cites them repeatedly, distorting some to pretend that they support his conclusions, and feebly attempting to distinguish others when he knows that they undermine his entire edifice. If John had written, as Eric and Adrien suggest, that "the President is constrained under the governing precedents, but frankly, we reject the Court's methodological valence," it would have been candid and refreshing, if audacious. But the memos don't read that way, not in the slightest. For good reason: If the memos were written in such a candid manner, the CIA, NSA and DOD would never have felt free to rely on them to justify disregard of statutes and treaties.)
And as for the claim that the torture memos "fell into OLC's tradition of pro-executive lawyering"—well, I just don't quite know how to respond to such a claim, which sounds a bit like John's recent statement that the March 2003 memo was OLC "boilerplate." Is OLC sometimes too "pro-executive"? Yes, it is (although not always, and I am troubled by the assumption that the office should not be expected to express a fair and balanced view of the law). I am on record (see pages 1080-1097) as being quite skeptical of several OLC opinions published since 1984, including some in the Clinton Administration when I worked at OLC. But with the possible exception of the 1986 "Timely Notification" opinion—which in its very first footnote conceded that it was neither balanced nor objective—there is nothing remotely close to the torture memos in OLC history. Boilerplate? Well, suffice it to say that it was not every day at OLC that I was asked to draft opinions explaining the 17 different legal arguments for why the president could authorize the military to gouge out the eyes of our detainees.
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I appreciate Marty's effort to be conciliatory, but in the process he very seriously misrepresented my views and those of a frequent collaborator. Marty says that he is "heartened that [I am] no longer defending the idea that the Yoo/Addington theories are the better readings of the text, structure and history." And he cites a blog post by Jack Balkin, which criticizes an op-ed that we published in the Wall Street Journal almost four years ago. However, as Balkin's post makes very clear, that op-ed did not defend the Yoo/Addington theory. It instead argued that Yoo's memos fell into OLC's tradition of pro-executive lawyering, and should be understood within the context of this tradition, whether or not the legal reasoning was correct (and we did not say that the reasoning was correct).
Jack criticized our argument, and although I don't agree with all of his criticisms (he mistakenly implies that the Bush OLC was the first OLC to fail to cite the Youngstown case in the course of making an aggressive interpretation of the president's constitutional powers, when the Clinton OLC did the same thing), I appreciate that he resisted the impulse to tar us with views that we were hoping to put into context but not to defend.
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“A groom must expect matrimonial pandemonium/ When his spouse finds he’s given her cubic zirconium.” So begins a dissent by Justice J. Michael Eakin in the 2002 case of Porreco v. Porreco, which addressed whether a wife fairly relied on her husband’s claim that an engagement ring was worth $21,000 when, in fact, the stone in it was fake. I resurrect this couplet in response to Diane’s call to celebrate National Poetry month, but also to make a serious point about poetry and law.
As the New York Times then reported, the rhyming judge drew the ire of some colleagues. Chief Justice Stephen A. Zappala wrote that “an opinion that expresses itself in rhyme reflects poorly on the Supreme Court of Pennsylvania.” Other judicial lyricists have been similarly criticized by their peers. Generally, I am with the critics. At least since Plato banished the poet from his ideal republic, law and poetry seem like things to be valued separately. One is reminded of Balzac’s comment that he liked women’s hair and that he liked soup, but not women’s hair in his soup.
In a 1986 essay, Robert Cover explains why we hold the two enterprises apart. He observes that law is different from other textual enterprises because judges “deal pain and death.” “In this they are different from poets, from critics, from artists,” he contends. “It will not do to insist on the violence of strong poetry, and strong poets. Even the violence of weak judges is utterly real—a naïve but immediate reality, in need of no interpretation, no critic to reveal it.” This point may explain why, as Benjamin Cardozo once noted, dissents (which do not deal immediate pain or death) are more likely to be literary than majority opinions. Even the otherwise unrepentant Justice Eakin included his couplet in a dissent and assured the Times that he would never rhyme in a “serious criminal case.”
But like every generalization, the idea that law is a serious business while literature is an ornamental pastime has some important exceptions. Given a culture that seeks to drive a wedge between law and literature, we should not expect legal poems to declare themselves as such. This is not, however, the same thing as saying such poems do not exist.
The most famous poem in law is the Miranda warning. More people can recite this quatrain than can recite the Gettysburg address, much less a quatrain from most poets who were intentionally writing quatrains, like the quite catchy Alexander Pope. The broad dissemination of the warning in our culture through television and film has not just given it force, but affected its Constitutional stature. In the 2000 case of United States v. Dickerson, Chief Justice Rehnquist held that the warning had acquired a Constitutional dimension because it had become part of our “national culture.” This was not Congress as a co-equal interpreter of the Constitution—indeed, Congress in Dickerson was trying to get rid of the warning. It was Hollywood.
I appreciate Diane’s call to celebrate law and poetry. But a celebration of law and poetry that (so far) buys into the relatively ornamental status of poetry in law feels like something less than a full one. The Greeks embodied law-like mores in poetry to ensure their broad dissemination in an oral culture. If we are committed to having laws that “We, the People” can understand, we might do worse than to reinstate that practice.