Obama Misunderstands Res Judicata

I understand these are not exactly the words of Obama but if this is his thought process hes making a serious mistake.

Obama apparently believed he could avoid what is now happening. In the weeks during which he was weighing the release of the torture memos, there was a vigorous debate within his administration. There was, according to a senior official, considerable support among Obama's advisers for the creation of a 9-11 Commission-style investigation as an alternative to releasing the Justice Department memos. But Obama quashed it.

"His concern was that would ratchet the whole thing up," the official said. "His whole thing is, I banned all this. This chapter is over. What we don't need now is to become a sort of feeding frenzy where we go back and re-litigate all this."

Obama knew he could not stop Congress from doing whatever lawmakers decided to do but he was reluctant to give a presidential imprimatur to a national commission that would keep the controversy alive for months and months and months. Obama had his own agenda and wanted to move on. Putting out the memos was the cleanest way to accomplish his goal.

The problem is that Obama's decree that we wont do this anymore is not a final judgment that brings with it res judicata. He is not the judge in a bench trial between torturer advocates and opponents. A truth commission isnt relitigation of this issue because--the issue hasnt been litigated the first time. The issue is not, did we do this or does this work but how to stop it from happening again in the future and how do we clean up America's moral perception.

Obama can ban the use of these techniques now and during his term but just as he was able to reverse Bush the next person can reverse him. By trying to consider this case closed Obama has not put in place meaningful consequences for someone who tries to repeat this in the future. Augment the inducement to comply with the substantive law mr president. Prosecute those responsible for not only authorizing but also carrying out the policy. This needs to be done because the media framing and the general discussion still doesnt carry the message that TORTURE IS A HEINOUS ACT! from the dan balz article,

There was also a practical rationale for the White House to release the memos, according to officials. Much of the information contained in them was already in the public domain, in large part through an article in the New York Review of Books. Arguments that the release of the memos would compromise national security by providing a roadmap for enemies on U.S. interrogation techniques seemed less compelling given that the information was already publicly available.

see the problem here? the justification balz advances is that the techniques can now be trained against so letting everyone know about them doesnt matter. umm we arent supposed to be using them now or ever so the fact that al-qaeda or any one else reads about them is totally irrelevant. President Obama needs to do his job and ensure that in the future people recognize this for the seriousness that it has because right now it lacks the feeling of gravitas.

Read more...

Are Torturers Protected by Law?

First, read the whole thing before you flame. This post explores the idea that the cia torturers are protected by law from prosecution based on their torture. The bases for a legal argument that the cia torturers are protected is derived from the idea that those who rely on authoritative statements of what is and is not legal from the OLC are protected. The two sides of this argument come from Marty Lederman who is now Assistant Attorney General in the Office of Legal Counsel and from Kevin Jon Heller of Senior Lecturer at the University of Auckland Faculty of Law in New Zealand.

First is the case for legal immunity for the torturers. From Lederman, (emphasis in original)

Well, to begin with, it's a fairly academic question. As a practical reality, it is virtually inconceivable that any Department of Justice, of any party's Administration, would ever prosecute an intelligence official or contractor who had relied upon formal OLC advice. The practical ramifications of such a prosecution for future intelligence activities and the functioning of OLC would simply be too substantial, and therefore no DOJ will ever seriously consider such a prosecution. (The only hypothetical exception to this would be in the almost unthinkable scenario in which the OLC lawyers and CIA operatives all knew that the advice was bogus and were simply conspiring to engage in conduct that they all believed to be unlawful.)

More importantly, even in the unlikely scenario that DOJ would one day consider such a prosecution, I think that it would be of dubious constitutionality in almost all cases. The doctrine on this is a bit complicated, but I think it is fair to say that the four leading Supreme Court cases --- Raley v. Ohio; Cox v. Louisiana; U.S. v. PICCO; and Marks v. United States -- stand for the broad proposition that criminal culpability may not be imposed for conduct undertaken in reasonable reliance upon the representation of government officials that the conduct was lawful.

The defense advocated by Lederman is not a just following orders defense. That defense would be that the superiors of the tortures told them it was ok. Here they were told by the people who are supposed to say what the law is that their actions were ok. You learn in criminal law about this type of defense. The example taught is Section 2.04 of the Model Penal Code that provides,

[a] belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when… (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in… an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

You will commonly see cites on this site to international treaties and other statutes that makes torture illegal and a crime. The point of this defense though is to say that although torture is a crime, reasonable reliance on a government opinion that it is not is exculpatory. It doesnt matter that torture is illegal if the torturer could reasonably rely on the olc opinion that it is not. Lederman's argument hinges, as he recognizes, on whether or not a person could reasonably rely on the memos. Lederman cites two pillars for his contention that a court would find the reliance to be reasonable.

(i) the official and historical role of OLC in providing authoritative legal advice within the Executive branch; and (ii) the continued insistence of the President and subsequent Attorneys General that the advice was not mistaken, I think it is almost certainly the case that no court would find the reliance by CIA operatives and contractors on OLC's advice to have been so unreasonable as to justify prosecution.

The second pillar seems to have fallen away. However, there is still a question as to whether a court would be willing to say that the president and attorney general and the rest of the Bush administration's belief that the conduct was legal carries no weight. The first pillar is one that Obama and presumably Lederman wish to protect. The OLC issues its opinion and it is essentially binding on the executive branch. The OLC tells the executive what is and is not legal because the courts only decide cases in controversy and do not issue advisory opinions.

It is possible that this traditional OLC function and the way it is carried out needs to change. Prosecuting those who relied on what they believed to be the law will certainly make the OLC less effective in providing advice about what is and is not legal.

Prof. Heller makes the counter argument, and again here, that reliance on the memo's was prima fascia unreasonable.

The MPC formulation makes clear that the reasonableness of reliance cannot simply be inferred from the fact that the erroneous official statement was made by the “public officer or body” charged with interpreting the relevant law. Any other interpretation of the defense — most relevantly, that relying on an official statement made by the appropriate public officer or body is per se reasonable — renders the word “reasonable” completely superfluous. Reliance itself would be enough to invoke the defense.

Differently put, the reasonableness requirement in entrapment by estoppel only makes sense if we leave open the possibility — however slight — that reliance on official advice can be unreasonable no matter how authoritative the public officer or body that issues it. Lederman, however, seems to foreclose that possibility completely when he writes that no court would find the waterboarders’ reliance on the OLC unreasonable “given (i) the official and historical role of OLC in providing authoritative legal advice within the Executive branch; and (ii) the continued insistence of the President and subsequent Attorneys General that the advice was not mistaken.”

We are thus back to the original question: would a reasonable person — a “reasonable CIA interrogator”? — have known that waterboarding was illegal despite the advice of the OLC and the President’s assurances? I suppose reasonable people could disagree on that question, but Lederman himself seems confident that the answer is “yes.” After all, as pointed out above, he believes not only that waterboarding is illegal, but that it is patently illegal. It is thus difficult to understand why he nevertheless insists that “prosecuting the intelligence operatives who relied on OLC’s bad advice is not the answer.” If their reliance was unreasonable, why not?

This tension, it is worth noting, undermines other aspects of Lederman’s argument. Later in the post, after opining that it may be appropriate to prosecute the authors of the OLC’s erroneous opinions, he insists that prosecuting the waterboarders themselves “would be targeting the wrong government actors,” because we “want CIA officers to be able to rely on OLC advice.” No — we want CIA officers to rely on reasonable OLC advice, and we do not want CIA officers to assume that any advice they receive from the OLC or from the President is necessarily legal. In other words, we want CIA officers to exercise their own independent legal judgment.

To be sure, CIA officers no more carry around a library of international law than soldiers. Yet a soldier who commits a war crime can only invoke the defense of superior orders when, in the words of the Army Field Manual, “he did not know and could not reasonably have been expected to know that the act ordered was unlawful.” We expect a soldier, in other words, to have at least a basic understanding of the laws of war. Why should we expect any less of a CIA officer?

I think Prof. Heller drives a truck through Prof. Lederman's argument that there is a reliance defense available to the torturers themselves. This, i think, makes President Obama's decision to exempt them from possible prosecution wrong. If not waterboarding, certainly the room 101 style actions, were torturous on their face and a reasonable person would have known this. This means that the torturers had could not reasonably rely on the memos of the OLC and that they should be just as culpable as the authors for the torture.

While torturers themselves can be held accountable by law, it seems a practical certainty that they will not be.

Read more...

Impeachment of Bybee a Problem for Obama

First off, Jay Bybee deserves to lose his judgeship. The memo's he authored in favor of torture are reprehensible. This diary discusses the rationale for impeachment. Evicting Bybee from his cushy and prestigious job as a federal circuit court judge would be a great success for those who are anti-torture and pro-morality. However the successful impeachment of Bybee would present a political problem for President Obama.

The impeachment of Bybee based on a charge that the memo's he authored were a gross distortion of the law would affirm that laws were broken when the waterboarding and room 101 tactics were employed. The non-prosecution of those who relied on those memo's is not unexpected as the law protects those who rely on authoritative statements by the government on what the law is. That is why the OLC memo's were sought as CYA.

This is where the problem arises with going after Bybee and Yoo over the memos. What contact did they have with the administration regarding the torture policies? That remains the big and potentially explosive question. Were Bybee and Yoo supporting the administrations torture policies simply because they agreed with them or were they getting additional guidance from the white house?

It is very unlikely that there is any record of the white house simply telling these lawyers to find justifications for the policies. However that possibility is still a non-zero value. If a communication directing Bybee and co to find legal protection for torture does exists somewhere then that leads an investigation into the Bush white house. This is not at all what Obama seems to want. He has never been particularly supportive of a scouring of the Bush abuses committed in the area of civil liberties or detainee rights. Obama seems to be content with the "its all in the past" approach. If an investigation leads into the Bush white house you can bet that it will become the dominant story of Obama's presidency and overshadow the reforms that Obama wants to make.

It appears that the administration views all of the Bush abuses as a can of worms. The impeachment of Bybee is the possible beginning of a serious inquiry into the origination of the torture regime.

Read more...