I don’t buy Lederman’s argument, which he agrees rests upon whether or it is “patently” (meaning, for legal purposes, openly, as opposed to latent or hidden) unreasonable to rely upon the OLC determination that waterboarding (as well as applying pain and stress to the point just shy of organ failure or including organ failure in some instances, and the Bybee gamut) was legal.

I know he is and remains enamored of OLC from his time there, but purient passions aside, he is basically taking the posture that the Nuremberg Defense should always WIN if there is an OLC opinion to back it up, because how could it be PATENTLY clear that waterboarding is torture?

I think he’s very wrong there – it is patently clear that almost everything being done under the authority of the OLC memos was torture and abuse and cruel and unusual – depending on whether you choose to rely upon the bill of rights, the GEneva Conventions, the Torture Conventions, the Torture Victims Act, the War Crimes Act, etc.

His point is primarly that, while:

If the OLC memos on torture, and the subsequent CIA General Counsel directives, were so patently wrong that any reasonable CIA operative or contractor should have been aware of that fact, then the reliance would not have been reasonable.

he’s just not sure it is all that patently wrong to tell someone that waterboarding isn’t torture.

Bull.

And not just for waterboarding – bull for almost all of it, from the hypothermia, to the burying alive, to the stress hangings, to the mock executions, to the disappearing, to the kidnap and taking hostage of family members, etc.

Bull.

Patently, on its face, absolutely, unequivocally torture, cruel, unusual, abusive and CRIMINAL. Period.

The one place where there is some quibble room IMO, is that now and then there are defenses to a criminal act (not a decriminalizing of the act, but a defense to that act) based upon certain legally defined necessities or exigencies. Those are pretty much not susceptible to memo-ilization and turn on a case by case, fact intensive examination.

You want to know one of the MOST telling factors as to whether or not the advise in those legal opinions was patently unreasonable or not?

The fact that CIA operative, in the field, without regard to pressures of exigency or necessity, froze and would not perform the acts without the authorizations.

The initial reaction, even in the field, even face to face with these terrorists, was that no one could do what Bushco was asking them to do, without a get out of jail free card from OLC.

Like flight from a crime, the fact that they wanted specific approval to perform acts of depravity that every civilization and every time has condemned as torture, shows how disingenuous the “reliance” and how patently unreasonable it would be to rely upon that advice.

Especially when it was being given in secret, not for national consumption, and while the President was refusing to go before the nations of the world and the American people and proclaim that he is authorizing waterboarding.

And I guess this is where I part company some with those who want only to go after those who gave the orders, not those who committed the acts.

At some point, we each become responsible for when and how and whether we say ‘no.’ Someone who will not say no when asked to perform depraved acts on another person who is completely under their control; someone who cynically sits back and says, ’sure, I’ll torture them however much you want, as long as you give me a DOJ memo first’ that is someone who is responsible for their own actions.

Bush can’t give the order without his sure and certain knowledge of the character of the men and women to whom he gives it. Whether they are chaining, tieing and freezing to death a man to death or kidnapping a Canadian and disappearing him into Syrian torture.

So what Lederman is really saying, is who are we as a nation – who are we as people.

And the answer he is giving is that, as a national norm, we are people who cannot distinguish whether actions are torture if there is a piece of paper signed by a corrupt lawyer on the table.

I’m almost to the point of believing that, but I’m not there yet.

“but you can prosecute for purposefully giving a false opinion”

IMO this is being far too obtuse and existential for the facts at issue.

You can prosecute for conspiracy to torture and for solicitation of torture.

But I should have just read through first and said, “what bmaz said”

BTW – to say I think someone is responsible for their own actions isn’t to say I don’t think OLC should be overlooked.

If I get around to it, I may put up a kos diary on why Conyers really, truly, should start impeachment inquiries – but vis a vis Bradbury. And perhaps Bybee, who is conveniently in a federal appointment (as judge) and whose actions are conveniently not tied to his actions as judge (which are harder to go after).

Bradbury is really in a prime spot for impeachment, especially with COngressional questions as to the legitimacy of his current tenure as an additional factor.

When you read you begin with ABC
When you impeach you [should] begin with OLC

101 – Am I the only one who wishes we could go back to having soldiers instead of “warriors?”
102 – a nontechie thanks you for the link.

112 – no, I don’t agree.

We need to break this into pieces. There’s the logic of the argument and the validity of the assumptions.

The argument has no logical support without presupposition of the validity of assumptions that are flaty invalid. It’s like saying there is a logical argument to be made for saying that the sky is yellow, if you assume it is valid to say that blue is yellow.

If you grant the assumption that there was even a tiny bit of doubt as to whether waterboarding was legal, then the logic of Mukasey kicks in and the DoJ can’t investigate waterboarding.

No. You are confusing reasonableness with beyond a reasonable doubt. The standard for relying on an opinion is whether or not that reliance is reasonable – not wheteher or not there was “even a tiny bit of doubt” as to whether the opinion “could” be valid. The standard of proof of whether or not the actions constituting torture were actually undertaken (or the actions constituting conspiracy to torture were actually undertaken) is beyond a reasonable doubt (which really isn’t the ‘even a tiny bit of doubt’ but rather ‘a scintilla of REASONABLE doubt’ fwiw).

As Lederman himself points out, though, the standard for reliance on a legal opinion is whether or not reliance on the patent (on their face) statements and conclusions in the opinion is a “reasonable” standard.

If you refuse to grant the assumption that there was any doubt, then you can investigate.

Nope, whether or not something is reasonable is a jury question. Not an investigation question. If a reasonable prosecutor can believe that a reasonable jury would find it unreasonable to believe that waterboarding is not torture, based on an OLC opinion (just like a reasonable jury at Nuremberg could find it unreasonable to believe that the actions of the Nazi war criminals on trial there – almost ALL of which were supported by legal opinions from the Nazi lawyers – could be reasonably deemed to be legal, despite the Nazi opinions to the contrary), then you can and SHOULD investigate.

Since a waterboarding case is in the JAG textbook, and since every waterboarding case ever brought, to my knowledge, resulted in convictions, then I say rotsa ruck on whether or not a reasonable person would rely on an opinion that says, “but if W says it, then that makes it different” Because, really, that IS the basis for that opinion and others from OLC. In the end, it isn’t really even a definitional approach on torture – it is what Bradbury said to the SJC, what Comey said was the predominant opinion that he did not believe, what Whitehouse pointed out on the floor,what Ehrlichman said during Watergate. The sole underlying basis of all of these OLC opinions, admitted by the OLC, is that “if the President orders it, it is legal.”

So the issue then is – do Americans believe that? I don’t think so. But if they do, then that is where we are and what we are, but that is the ONLY case where you could say that there should be no investigation and prosecution. If America believes that the Dept of Justice should operate under the rubric that if the President orders it, it is legal – THEN you would say, don’t investigate.

With that said, please note that the mere fact that the OLC gave an opinion not only establishes the content of the opinion as the DoJ’s official position, but it also establishes the idea that the DoJ agreed that there was at least some doubt.

While I don’t really follow the logic or syntax in the above, here are a few observations. First, opinions are given all the time on things about which there isn’t much doubt. Go to a bond closing sometime and look at the opinions of counsel. Opinions on due execution. Opinions on …

In any event, I think what the DOJ opinion indicates is something quite contrary to what you seem to think, if I understand your position correctly. Did anyone at CIA request an opinion to capture? No. To put handcuffs on? No. To put a guard on? No. To begin questioning? No.

Did some exigent set of circumstances cause someone, on their own account, to begin using torture/harsh techniques and were there then requests, as this was discovered, for whether or not the reaction of the questioner was subject to a valid exigency excuse/defense at law? Maybe, but if so we haven’t heard about that.

Instead what we have heard about is a cold blooded, calculating, decision and determination to start using torture techniques – techniques that had been clearly held and deemed to be torture and that could (and did) result in death – and as that decision was conveyed, the reaction was very different than the reactions to the decisions to handcuff, to capture, to question.

What happened when they were told to torture (using the euphemism of “harsh techniques”) is that pretty much every fiber of every being involved in that situation revolted and knew that they were at Nuremberg, they were sitting in the dock, about to answer the question of whether or not they followed legal orders. And some – like Dan Coleman and Jack Cloonan – gave the right answer. Torture is wrong and it is a crime. I don’t care what a piece of paper says.

Others said – do we own the prosecution? Can we get a corrupt lawyer to give us a piece of paper that says what we want it to say? If so, sure, I’ll torture. As a matter of fact, remember that one very public report indicates CIA agents were building a coffin in which to bury Zubaydah alive – all based on a lawyer telling them that wasn’t torture. Who would find that reasonable?

The question isn’t “what do you think it is reasonable to do to a known and convicted terrorist” but rather, what do you think is reasonably deemed torture by reasonable people. And it legal opinions that flout reasonablity cannot be relied upon – that’s black letter.

So, as soon as an opinion is given by the OLC, that would seem to slam the door on any investigation of the activity in question.

No – for many reasons, most given above. But also, and foremost, you have the fact that the OLC opinions are not judicial opinions. No jeopardy applied, no actions are foreclosed legally or constitutionally. THere is no statute, there is no regulation, there is no rule of law that prohibits prosecution.

As a matter of fact, there is a whole body of law on reasonable reliance on advice of counsel and we’ve touched on it above.

There is another body of law that also applies – administrative law (which I learned a little about from a very good prof who is now a Bush appointed Circuit Ct judge but for whom I still have good thoughts) And as shocking and depressing and demoralizing as it can be to many people, the fact is that when someone in gov gives you advice on how something can be done, and that advice ends up being wrong, you are not legally insulated from liability for doing it wrong. Sure, lots of times administrative accomodations are made if you followed the advice given by the people in the agencies, but legally, you can be liable for handling a matter incorrectly, even if you were following the advice of the agency representatives.

Another item of importance is that the OLC opinion was kept secret. This goes to a lot of different issues, one of which, prominently, is the knowledge of culpability that is circumstantially demonstrated by hiding the opinion, but more than that – we can’t have secret law. The Exec has no power to create, in a secret star chamber buried in OLC, secret torture laws without the other two branches of goverment having notice and ability to respond.

Also, with changes in AGs, DAGs, dept heads, administrations, etc. DOJ always and constantly changes positions – it is disingenous to say that one AG’s exercise of prosecutorial discretion to not pursue certain kinds of cases or crimes becomes a binding stance on a successor AG (or dept head, etc.) That just isn’t true. So the fact that one set of prosecutors gave a bye to crimes (but without public Executive pardons or court approved pleas waiving punishment) does not mean that other prosecutors, or even the same prosecutors under different leadership, are somehow prohibited from going after the crimes and criminals during the SOL.

It does, of course, leave any body with oversight on the DoJ free to investigate … both the opinion itself and the process that led to the opinion.

Well, I definitely agree that Congress has the ability to investigate – I’m not sure what you mean by any body though. However, you run into the same issue that was the TRUE issue with the OLC opinion. Not whether or not it is reasonable to say waterboarding isn’t torture (it’s not) but rather that DOJ is being operated under an approach that if the President says do it, it is legal. So if the President says don’t turn over information, don’t show up to testify, etc. Mukasey has said that he will not cooperate and DOJ will not cooperate. He won’t turn over the opinions. He won’t enforce subpoenas. He won’t force testimony. He won’t force preservation of evidence. And Congress has no “troops” to back it up. (Which is why I think impeachment of Bradbury needs to be first step – troops can be swayed when consequences are at hand)

But going back to your orignal “we need to break it down” point – the fact that Congress can and should investigate is a severable point from whether crimes have been committed and should be prosecuted. IMO, the answer to both is very clearly yes.

But I still agree with Lederman’s argument that the DoJ is out of the picture, given the OLC opinions.

I guess, as I pointed out above, I do agree with Lederman’s recitation of what the blackletter law is – which is that in order for anyone to rely on the opinion, the reliance has to have been patently reasonable. That he has to concede and does. But I disagree on his interpretation of patently reasonable and to that I will stress again in this ramble the issue of “patently.”

I think there is a very good argument that a secret opinion, covertly tucked away for fear of having it ever see the light of day, can never be said to meet the initial level of being patent. A secret opinon is almost by definition latent in and of itself and offers no patent aspects on which reliance can attach.