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Let me begin by saying I have respect for John Yoo. Before 9/11, his presidential scholarship was uniformly thought to be of the highest academic standard. He is still greatly respected by his colleagues at Berkeley and elsewhere. In person, he is unfailingly polite and intellectually curious. It is wrong to lay at his door all of the hubris that has been exhibited by the present administration and that led to our seriously tragic and mistaken disregard of international agreement and our deeply costly occupation of Iraq without well-conceived purpose or strategy.
While there has been a feeding frenzy of criticism directed toward his recently released 2003 memorandum, and some of that criticism is deserved or understandable, some frankly is over-the-top, and insufficiently appreciative of the law and the facts as Professor Yoo confronted them.
Geneva Conventions
First, on the Geneva Conventions applicability to al Qaeda there was virtually no one in any part of the government, presidential appointment or career public servant, who thought this Convention applied to these unlawful combatants. Justice Stevens thought differently about Common Article 3 in Hamdan, but his interpretation was hardly accepted wisdom. That makes sense then and now. Individuals who observe no dignity of human life and who, contrary to every law of war, target civilian populations have been since the time of Bracton or before outside the protections of civil society. There was some discussion, nevertheless, of whether as a policy matter the Conventions should have been extended to al Qaeda and there was considerable disagreement about how the Conventions applied to the Afghanistan and the Taliban. Here there is reason to believe that the administration in not opting to apply the Convention committed error. But, of course, this is wonderfully clear hindsight. Functionally, the administration proclaimed itself to be extending equivalent humane treatment, and perhaps in the main, it did, but the photos of Abu Ghraib would leave an indelible refutation.
Better to Put It in Writing
There is reason to believe that Professor Yoo presented both sides of these difficult questions in his oral briefings to his superiors. It is unfortunate this more balanced appraisal was not memorialized. Recently, in Esquire, the Professor stated: "these were not easy questions. Whether it was a war or not, the question of whether Geneva Conventions applied to al Qaeda was a straightforward question, at least to me. The policy question is much more difficult, whether they should apply to them as a matter of policy." Professor Yoo here shows a keen appreciation for the fact that what is legally permitted is not necessarily what should be prudently done. He shows an extraordinary appreciation for not misleading his military clients, which is somewhat remarkable, given the later, more sweeping nature of the memorandum. Nevertheless, the Professor reports that he was concerned about the "balance" of the advice giving, asking "Is this going to degrade military discipline? Is it going to give us a bad image versus does it produce gains in security? Is it part of the message that terrorists are not going to be given the same status as people who follow the rules? It's a very difficult trade off. And then it's harder and harder because there's the question that if you don't give them full Geneva Convention protection, what are you going to give them? That's a hard question, too. I think the legal questions are much easier than those fine hard-grained policy issues. I think those are very hard questions. It's not my job to say what they should do."
Not His Job
The last point - that it was not OLC's job to set policy is very important to remember. One wonders if the decision-makers remembered this, or if OLC should have even more strenuously than usual given emphasis to this point that is virtually a uniform recital in OLC advice giving. It may be convenient for the fingers to be pointed at Professor Yoo, but it is not beyond reason to think that there was a fundamental confusion in the White House between what was "legal" and what was "right." To be sure, Professor Yoo cannot be fully excused here because it is OLC's job to both make that plain and also not to overstate what is "legal" as an advocate would, and unfortunately, the memos are not the ideal on either score.
If You Can Do Better, Why Didn't You?
Professor Yoo's work has been called "slapdash" by Professor Goldsmith. Professor Goldsmith has written an important book on his very short tenure in OLC (nine months). I have reviewed and complimented the book in part in the forthcoming issue of the Harvard Journal of Law & Public Policy, but in fairness, Professor Goldsmith did his nation a disservice by "dropping into" the OLC role for such a short period. He is an able lawyer, but allowing himself to use government service in this pivotal spot between two academic appointments added more than he may fully appreciate to the ill-considered advice going to the White House from DOJ generally. Professor Yoo was Jack Goldsmith's mentor and supporter, and it is hard for him to comment beyond saying that some of his criticism is "unfair." It is "because Goldsmith never issued an opinion of his own. He's certainly free to criticize. It goes back to unless you've actually made the hard decision yourself, then you don't really know how you think it through, what you would do. So he says "slapdash opinion," but we have no idea what he would have done, because he left."
Nobody Home
Professor Yoo relies also on the "normal" review process in the Department, but in truth, that did not exist both because of the abnormal times, the extraordinary turnover in the Office, and the strength of John's talent. To say that the Attorney General signed off is simply not to say a great deal since those selected for even that post in this administration were more likely "friends," or saw themselves as answerable to the White House rather than the keepers of the integrity of the executive and the law.
In his book, Professor Goldsmith dwells on the statute Professor Yoo borrowed by analogy to give meaning to the often vaguely worded provisions against torture. He does not say what source he would have used and why it was more analogous. The phraseology "organ failure or death," was at least specific, and had been written into law by Congress. Professor Yoo concedes that it is fair to criticize his legal analogy, but then, one has to supply something else to make things specific. Of course, once having chosen this phraseology, with all of its attendant harshness, it should have brought home to the Professor and those who he was advising that the United States was sailing into very troubled waters. It would likely be accused of besting the terrorists at their own awful game - of disregarding the sanctity of the human person. It is not at all clear this was grasped that what the government was proposing to do in interrogation practice was not just "unpleasant" as the Professor put it, but except in the most extraordinary of circumstances (ticking bombs about to take out millions), unthinkable and wrong.
Law Is Not Morality
When Esquire asks if he had "any moral qualms," of course he says yes, but reverts to the law, saying "again, just because the statute says -- that doesn't mean you have to do it. You're right, there's still the moral question -- after you've answered the legal question -- whether you should do it at all." John was relying on the usually narrow role of OLC to convey that or the balance of his memorandum, but having written in a style contrary to the usual OLC role, could that really be grasped? As it turned out, it was not.
The Totality of the Circumstances
The Fourth Amendment portions of the Yoo memorandum are likewise subject to misreading for similar reasons. Again, I think it fair to note that any memorandum written within a few weeks of the fall of the twin towers would naturally view the nation as under attack and at war. Soldiers on a foreign field of battle do not have Fourth Amendment limits on their operations. It was logical to think that was true for domestic military action aimed at enemies or belligerents within the United States as well. The passage of the AUMF was then, and is now, viewed as a legislative endorsement of making war on those who executed the attack against us as well as those who aided and abetted them. What is remarkable is that two years later in 2003 the same proposition seems to have become doctrine even as the context was different.
It is also possible to fault Professor Yoo for not writing more narrowly given what he likely knew was the anticipated audience. Statements like "Our office recently concluded that the Fourth Amendment had no application to domestic military operations," without qualification were certain to mislead non-lawyers receiving the document. In the legal context of foreign affairs which our founders painted with fine point brush in hazy gray to deliberately allow for the unforeseen, it is seldom prudent to spray paint in black and white.
The Professor relies upon Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity. This is plausible, but should also have been acknowledged to be scant precedent derived from considerably different facts. U.S.v Verdugo-Urquidez involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government. Obviously, there is nothing domestic about that.
To his credit, Professor Yoo did caution that his analysis "should not be confused with a theory that the Constitution somehow does not "apply" during wartime." But this again warranted greater explanation, since his point of reference is the civil war case of Ex parte Milligan, 1866), which had it been fully explained would have been a reminder that the Bill of Rights is fully applicable domestically in wartime to U.S. Citizens.
Of course, the Justice Department has since disavowed both memoranda, properly noting that "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."
When the administration gave its legal reasons for the Terrorist Surveillance Program in January 2006, it gave a far more nuanced appraisal of the Fourth Amendment, focusing on special needs exceptions and the like.
What Have We Learned?
What is the importance, then, of the recently released 2003 memorandum? In part, it illustrates that the nation was in crisis in 2001, and the crisis mentality shaped the legal analysis being given. What is remarkable is that this attitude continued right through 2003. When facing what was perceived to be a profound threat of uncertain dimension with the fear of even more devastating attack, I am not prepared to say that -- in the 2001 memorandum that has yet to be released -- the legal statement and reasoning should have been more carefully given, but two years later, when the circumstances could have been more objectively assessed, the standard arguably should have been different.
Again, I am reasonably confident that thoughtful appraisers of executive branch lawyering like Professors Dawn Johnsen and Marty Lederman share my regret that the president never staffed OLC with individuals, who could have brought to bear a longer, more mature institutional memory that would have given him the full benefit of legal advice. It was important for a Deputy like John Yoo, with his strong conception of presidential power to be present, but it was also important to have a senior counsel heading OLC who was not in the president's usual orbit of hand-picked friends or advocates and who would have ensured that the Professor's advice was juxtaposed and tested by the diplomatic and practical thinking of the Legal Advisor at State and the General Counsels of the military branches. Of course, it would have been especially handy if there had been a steady hand in the front office capable of synthesizing the contradictory views of this complex area and withstanding the kind of internal political skepticism directed at the OLC lawyer in the room who raises a note of caution.
It seems unlikely that a lawyer attempting to preserve the objective, non-advocacy role of the OLC tradition would have concluded without qualification on the basis of little or no direct precedent that:
"Even if these statutes were [construed] to apply to persons acting at the direction of the President during the conduct of war, the Department of Justice could not enforce this law or any of the other crirninal statutes applicable to the special maritime and territorial jurisdiction against federal officials acting pursuant to the President's constitutional authority to direct a war. Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute w6uld be unconstitutional as applied in this context."
No doubt that is what the CIA wanted to hear, but given all the legal and policy imponderables that Professor Yoo has since acknowledged, that could not be said.
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Diane's point is well-taken: If the evidence is tainted, it's tainted for purposes of conviction, as well as for sentencing, and it's just as tainted if the defendant gets a long prison sentence as it is if he gets a lethal injection. If the conviction is "clean," by contrast, it's clean irrespective of the nature of the sentence he receives.
Yet I think Emily is onto something anyway when she says that she doesn't "want this country to be a place where people are sentenced to die based on a prosecution that is tainted by torture testimony." Death, after all, is different in many ways, some legal, some prudential. I'm willing, for example, to see a conviction sustained on a weaker factual record than the record on which I'm willing to see a capital sentence carried out—notwithstanding the fact that as a purely legal matter, the evidentiary threshold is the same: proof beyond a reasonable doubt.
That's why I've been cheered at times when governors (and President Clinton once) commuted death sentences to life in prison based on residual doubts about the integrity of a trial record but did not act against the conviction itself. Something similar may be at work here. The stakes in the MCA's softening of the traditional rules of evidence are particularly high in light of the availability of capital punishment in this case. Put another way, I think many people would not argue against conviction of someone who had been waterboarded upon capture if the government can prove his culpability without the use of tainted evidence. Many more, I suspect, would argue in principle against his execution, even if the evidence is clean.
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Today I endorse Barack Obama for president of the United States. I believe him to be a person of integrity, intelligence, and genuine good will. I take him at his word that he wants to move the nation beyond its religious and racial divides and that he wants to return the United States to that company of nations committed to human rights. I do not know if his earlier life experience is sufficient for the challenges of the presidency that lie ahead. I doubt we know this about any of the men or women we might select. It likely depends upon the serendipity of the events that cannot be foreseen. I do have confidence that the senator will cast his net widely in search of men and women of diverse, open-minded views and of superior intellectual qualities to assist him in the wide range of responsibilities that he must superintend.
This endorsement may be of little note or consequence, except perhaps that it comes from an unlikely source: namely, a former constitutional legal counsel to two Republican presidents. The endorsement will likely supply no strategic advantage equivalent to that represented by the very helpful accolades the senator has received from many of high stature and accomplishment, including most recently, from Gov. Bill Richardson. Nevertheless, it is important to be said publicly in a public forum in order that it be understood. It is not arrived at without careful thought and some difficulty.
As a Republican, I strongly wish to preserve traditional marriage not as a suspicion or denigration of my homosexual friends but as recognition of the significance of the procreative family as a building block of society. As a Republican and as a Catholic, I believe life begins at conception, and it is important for every life to be given sustenance and encouragement. As a Republican, I strongly believe that the Supreme Court of the United States must be fully dedicated to the rule of law and to the employ of a consistent method of interpretation that keeps the court within its limited judicial role. As a Republican, I believe problems are best resolved closest to their source and that we should never arrogate to a higher level of government that which can be more effectively and efficiently resolved below. As a Republican and a constitutional lawyer, I believe religious freedom does not mean religious separation or mindless exclusion from the public square.
In various ways, Sen. Barack Obama and I may disagree on aspects of these important fundamentals, but I am convinced, based upon his public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them.
No doubt some of my friends will see this as a matter of party or intellectual treachery. I regret that, and I respect their disagreement. But they will readily agree that as Republicans, we are first Americans. As Americans, we must voice our concerns for the well-being of our nation without partisanship when decisions that have been made endanger the body politic. Our president has involved our nation in a military engagement without sufficient justification or a clear objective. In so doing, he has incurred both tragic loss of life and extraordinary debt jeopardizing the economy and the well-being of the average American citizen. In pursuit of these fatally flawed purposes, the office of the presidency, which it was once my privilege to defend in public office formally, has been distorted beyond its constitutional assignment. Today, I do no more than raise the defense of that important office anew, but as private citizen.
Sept. 11 and the radical Islamic ideology that it represents is a continuing threat to our safety, and the next president must have the honesty to recognize that it, as author Paul Berman has written, "draws on totalitarian inspirations from 20th-century Europe and with its double roots, religious and modern, perversely intertwined. ... wields a lot more power, intellectually speaking, then naïve observers might suppose." Sen. Obama needs to address this extremist movement with the same clarity and honesty with which he has addressed the topic of race in America. Effective criticism of the incumbent for diverting us from this task is a good start, but it is incomplete without a forthright outline of a commitment to undertake, with international partners, the formation of a worldwide entity that will track, detain, prosecute, convict, punish, and thereby stem radical Islam's threat to civil order. I await Sen. Obama's more extended thinking upon this vital subject as he accepts the nomination of his party and engages Sen. McCain in the general campaign discussion to come.
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[Benjamin Wittes] To the extent the eventual convictions of KSM et al rely on coerced testimony, even indirectly, I agree with you, Emily, that the Defense Department should not put them to death. The hard question is what to do if, notwithstanding their brutal treatment, the military commissions can deliver "clean" convictions that do not depend on coercion at all. There are several ways this could happen. The first is that the defendants-some of whom have evinced significant pride in their acts-do not contest the allegations against them, but actively take credit for them. This is what KSM did in his combatant status hearing and also what Richard Reid did in federal court and two other detainees tried to do in prior military commissions. It strikes me as a plausible, even likely, disposition for at least some of the 9/11 defendants.
The second possibility is that prosecutors may be able to convince a military commission-as civilian prosecutors convinced a judge and jury in Jose Padilla's case—that the evidence they are presenting is in no way tainted by the circumstances of the defendants' initial interrogation. So while I agree with you that this country shouldn't "be a place where people are sentenced to die based on a prosecution that is tainted by torture testimony," that doesn't seem to me to end the inquiry. These cases could raise a different question: whether the fact of having been tortured-or something close to it—renders one ineligible for the death penalty, no matter how culpable one is and no matter how well-scrubbed one's criminal trial might be. I hate the death penalty enough that I have trouble answering that question dispassionately, but I think my answer is that it probably doesn't—that is, if the conviction is truly unaided by the fruits of coercion, I would not fight execution based on the fact of the coercion having taken place (though I would, as described earlier, have grave anxieties about execution in these cases for other reasons).
That, of course, raises the question of whether the rules of the tribunals created by the MCA are strong enough to make sure that convictions are not tainted. The answer is, well, maybe. In theory, they could stand to admit a fair bit of coerced testimony if the presiding judge deems it probative and reliable given the totality of the circumstances. But that very standard also allows a lot of litigation over the reliability of a given piece of evidence and its probative value under the circumstances under which authorities got it. The result of that litigation could well be that the tainted stuff stays out. In other words, I can imagine unfair trials under the MCA or very fair trials under it. So all the rhetoric aside, I don't think we'll know until trials actually happen how fair or unfair the system really is.
The truth is that a lot of trial systems have rules that permit horrifying unfairness under the worst circumstances. A few years ago, I did a series of editorials for the Washington Post about procedural rules in Virginia criminal cases under which more than 10 percent of convicts used to lose their right to appeal because of lawyer errors in filing appellate documents. The process of restoring these defaulted appeals would generally cause the inmates to lose all ability to file habeas corpus actions. (The rules have since changed.) Nothing in the MCA is that indefensible, in my opinion—yet we don't generally talk about Virginia rules as so pervasively unfair as to render trials conducted in the state as per se illegitimate. We treat each case on its own merits. While I do suggest substantial changes to the MCA in my forthcoming book (about which I'm grateful for Emily's kind words), I'm inclined to view trials under it as warranting at least that level of confidence.
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Ben, you posed great questions the other day
about the 9/11 plotters, their culpability and appropriate punishment,
the due process that the military tribunals set up to try them could
deliver, and, especially, what "real due process" would look like for
them. For me the answers to the first two questions are tied up in each
other. Because of my doubts about the procedural protections to be
afforded KSM et al, in particular the influence of torture testimony
on their trials (whether or not it's directly admitted), I don't
think they should be executed, despite their culpability. I just don't
want this country to be a place where people are sentenced to die based
on a prosecution that is tainted by torture testimony.
There are a lot of hard questions that this sliver of certainty
doesn't address: What's supposed to happen to these detainees, then,
and your crucial question, what due process should they get?
I'm only beginning to stumble toward my own answers. I know you've
thought a lot more about this than I have, thanks to the
impressive-looking advance copy of your new book, Law and the Long War,
that is sitting on my desk. We probably come out in different places on
various points, but I'd love to hear your thoughts whenever you think
the time is right. (And everyone else's, too, of course.)
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Emily’s brief post raises several fascinating questions, which seem to me to warrant fleshing out. The key sentence is the following: “if the government executes these men [the 9/11 plotters] after the coercive interrogation (torture) some of them experienced and all the failings of the this-ride-only military tribunals set up to try them, the damage Guantanamo has done to the reputation of our justice system will be raised by a power of ten.” But that specter, she writes may concentrate the mind. So “maybe the threat of the death penalty is the best hope that they will get some semblance of real due process.”
So here are my questions—to Emily and to all:
1) Whatever people think of the death penalty, should the circumstances of these detainees’ interrogation ameliorate their sentences? I can see why we would want to suppress evidence obtained under duress. I’m not sure I see why being coercively interrogated—even tortured—lessens one's culpability for September 11, assuming that culpability can be proven without relying on evidence obtained improperly.
2) Are we really so confident that these tribunals are incapable of delivering a semblance of real due process? Are they really that different from other ad hoc tribunals countries have set up to deal with extraordinary international criminal trials? Nuremberg, after all, was a this-ride-only military tribunal and we think of it as a triumph of international justice. Do we really think fair trials are impossible under the Military Commissions Act and, if so, why?
3) What would “real due process” look like for these defendants at this time?
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Like Ben and Eric, I felt a certain appreciation for Mukasey's odd riff about how he "kind of hope[s]" the 9/11 plotters don't get the death penalty because they're like masochists who want it, which would make the US a sadist in doling it out. First of all, he's right. And also, if the government executes these men after the coercive interrogation (torture) some of them experienced and all the failings of the this-ride-only military tribunals set up to try them, the damage Guantanamo has done to the reputation of our justice system will be raised by a power of ten. I wonder, though, if in some upside-down way it's useful that the government is seeking the death penalty. Nothing concentrates the mind like a killing, including, perhaps, the minds of the military appointees and eventually (one hopes) Supreme Court justices who would have to allow these executions to take place. So maybe the threat of the death penalty is the best hope that they will get some semblance of real due process. Distressing as that is, it's better than the alternative.