Laying Down the Law

When an angry parent or frustrated teacher says they’re going to lay down the law, well, they don’t really mean it, or they mean only part of it. Yep, there will be rules, and you’ll follow them – or you’ll pay the price. It’s a threat. There are standards and you’ll meet them, or else. But a smart-ass kid will say fine, but doesn’t the law also have to do with my right to question the evidence against me and make you prove that I have committed the crime, whatever it is, and the right to mount a defense, with representation – which you have to provide if I can’t afford it – all based on the idea that I am innocent until you prove, to an unbiased panel of others, that I am not? Such kids are then sent to their room. No one likes a smart-ass. But it is easy to confuse the law – a process of sorting things out as fairly as possible, in order that the guilty get just what they deserve and the wrongly accused get an apology – with authoritarianism – where you shut up and do what I say. The one often looks like the other, or people think the law should be what it isn’t. There are the laws – the rules everyone agrees on – and there is the law – the process of proving, beyond a reasonable doubt, that someone broke the rules, and dealing with them in a way we all have agreed is appropriate.

And then there is Liz Cheney, the gift that keeps on giving, who, as Ben Smith reports in Politico, seems hopelessly confused about all this:

A group that includes leading conservative lawyers and policy experts, former Independent Counsel Kenneth Starr and several senior officials of the last Bush administration is denouncing as “shameful” Republican attacks on lawyers who came to the Obama Justice Department after representing suspected terrorists.

Senate Republicans have demanded details of the lawyers’ past work and Liz Cheney’s group “Keep America Safe” has questioned their “values.” A drumbeat of Republican criticism forced the Justice Department reluctantly to identify seven of them last week. But the harshness of the criticism – Keep America Safe labeled a group of them the “Al Qaeda Seven” – has provoked a backlash from across the legal establishment.

That was what that web-ad was about, but on Monday, March 8, nineteen Bush lawyers said this – “We consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.” They told Liz she was confused:

The statement cited John Adams’s defense of British soldiers charged in the Boston Massacre to argue that “zealous representation of unpopular clients” is an important American tradition.

The attacks on the lawyers “undermine the Justice system more broadly,” they wrote, by “delegitimizing” any system in which accused terrorists have lawyers, whether civilian courts or military tribunals.

The letter’s signers include some of the top officials of a Bush Justice Department that wrestled at length with the legal questions surrounding terrorist detentions.

Yep, many of the nineteen “clashed repeatedly” with some of these detainee lawyers that Liz hates so much, but they don’t begrudge them arguing the detainees’ cases – they were supposed to do that:

The signers include former Deputy Attorney General Larry Thompson, John Ashcroft’s No. 2, and Peter Keisler, who served as acting attorney general during President Bush’s second term. They also include several lawyers who dealt directly with detainee policy: Matthew Waxman and Charles “Cully” Stimson, who each served as deputy assistant secretary of defense for detainee affairs; Daniel Dell’Orto, who was acting general counsel for the Department of Defense; and Bradford Berenson, a prominent Washington lawyer who worked on the issues as an associate White House counsel during President Bush’s first term.

In 2007, Stimson resigned as the Bush administration’s top detainee affairs official after suggesting on a radio show that companies not hire law firms providing pro bono services to detainees. He later apologized.

Unlike Liz Cheney, Stimson figured it out. On the other hand, these nineteen seem to imply that Liz’s father was a dangerous fool:

The lawyers’ sharp support for the Democratic appointees reflects, in part, a rift that deepened late in President George W. Bush’s term, in which allies of Vice President Dick Cheney fought pitched battles over the treatment of detainees with lawyers throughout the government seeking to bring terror suspects into a more familiar legal framework.

The letter’s other signatories include Philip Zelikow and John Bellinger III, who were top advisers to then-Secretary of State Condoleezza Rice.

But also signing were David Rivkin and Lee Casey, who worked in the Bush administration, in the Department of Justice, and have a long history of defending the Bush Administration detainee practices – Smith quotes them as saying nothing that was done was that bad, as if you look at the memos that have been declassified, those memos “detail the actual techniques used and many measures taken to ensure that interrogations did not cause severe pain or degradation.” What is so bad about splashing a little water on someone’s face, or turning up the cool music? But even those two had a problem with Liz. The Al Qaeda Seven, stepping in to represent the bad guys, if they were bad guys, were doing what lawyers are supposed to do – so back off if you don’t understand the law.

But it seems Ben Smith cornered former Bush administration Solicitor General Ted Olson, who also agrees Liz is being a fool and rose to the defense of lawyers representing detainees. But Olson – whose arguments before the Supreme Court helped win the presidency for Bush in 2000 – has another problem. Some of the nineteen who signed the protest letter, and who are now defending current Justice Department lawyers, were “completely silent” in the face of “vicious attacks” on Bush administration lawyers handling terrorism issues.

Think John Yoo:

I of course think it’s entirely appropriate for members of the legal profession to have provided legal services to detainees. It is a part of the responsibility of lawyers and in the finest tradition of the profession to represent unpopular persons who are caught up in the criminal justice system or even in the military justice system. I think that people who do so, do so honorably.

But I also think that some of the people being highly critical now of the criticism of the lawyers in the Justice Department, have been completely silent when it came to attacks – vicious attacks – on lawyers in the Department of Justice and the Defense Department who were providing legal assistance and advice to the United States of America during the last administration in connection with the attacks on the United States by terrorists.

So lawyers should be encouraged to provide legal advice conscientiously to their clients. And that goes for people in the Bush administration and the Obama administration.

That seems to be a different kettle of fish, but Olson is who he is. And there was some backing down:

Liz Cheney’s partner in Keep America Safe, Weekly Standard Editor Bill Kristol, wrote Sunday to dispute the notion that his group’s sharp-edged ad constituted an “attack” on the lawyers. His aim, he wrote, was to push for Justice to release their names and to raise “the question of whether former pro bono lawyers for terrorists should be working on detainee policy for the Justice Department.”

And Smith reports that is where this gets tricky, as this was never about the law and only about establishing a narrative:

Other critics have compared the Justice Department appointees to mob lawyers, and argued that while they have a right to defend their clients, they don’t belong in government.

Keep America Safe is not alone in raising the issue. And Republican leaders on Capitol Hill believe the attacks are politically effective, exposing what they see as concern for the rights of alleged terrorists outweighing the security of Americans. A senior Republican congressional aide said that the line of attack is likely to broaden as the midterm elections approach. Sen. Charles Grassley (R-Iowa) has taken the lead in pressing the Justice Department first to reveal the number of its appointees who represented or advocated for detainees and then to confirm their names to Fox News.

And so it goes – Assistant Attorney General Tony West of the Justice Department’s Civil Division represented John Walker Lindh, and Jennifer Daskal, another political appointee at Justice, worked on detainee issues at Human Rights Watch, the group opposing the Bush Administration’s policies. And another represented Salim Hamdan, Osama bin Laden’s driver, in the case in which the Supreme Court declared President Bush’s military tribunals unconstitutional. But that lawyer won. That makes him right – the Supreme Court said so – or a terrorist himself, or something. Accept the latter and you have to accept that the Supreme Court is a terrorist organization too. Maybe you don’t want to go down that particular rabbit hole with Liz – try the rabbit hole in that new movie.

As for Ted Olson defending John Yoo too (that sounds cool), Julian Sanchez argues that’s rather silly:

Let’s review, though. The complaint against the current DOJ attorneys is that they took up one side of a vital legal dispute as part of our adversarial process, and made arguments sufficiently compelling that the Supreme Court often agreed. The complaint against John Yoo is that he acted rather like he was an advocate for one side – the “whatever the president wants to do” side – when his actual role was to objectively assess the requirements of the law in secret memos that would effectively determine the limits of policy. His arguments were so far from compelling that they were repudiated in unusually strong terms by his successors in the Bush administration, and career DOJ man David Margolis found it a “close call” whether they were so strained as to constitute professional misconduct. Advocates may sometimes risk trotting out a radical, out-of-the-mainstream legal argument in hopes that it will persuade five justices; Yoo took it upon himself to let such arguments determine policy, growing bolder rather than more humble in the absence of opposition or accountability.

I assume most people intuitively grasp the difference, because I don’t remember seeing anyone level the same kind of criticism against the government attorneys who argued the administration position in the detainee cases. Unlike Yoo and company, they were playing their proper roles in our system of law, not abusing them.

See? That’s not so hard, is it? And Sanchez adds this:

Finally, and perhaps most obviously, the attacks on the current DOJ appointees don’t just question their judgment or aver that they made bad arguments that were ultimately harmful to America. They imply that an attorney who works to defend a set of constitutional principles must be a terrorist sympathizer if those principles are, in the instance, being invoked by someone accused of involvement with terrorism. If someone has been arguing that John Yoo was Salafist mole doing his best to corrupt the American system of law, shame the United States, and murder our soldiers by swelling the ranks of Al Qaeda, then the analogy is more apt – but I missed it.

Sanchez missed it because it wasn’t there.

But sometimes you have to put something there – you just can’t hint at dark conspiracies and play the spooky music and roll the dark shadowy images. You need to propose an alternative. And John McCain and Joe Lieberman did just that, by immediately introducing The Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010 (twelve-page PDF file of the actual bill). This is curious – it denies terrorist suspects their Miranda rights and codifies indefinite detention without trial, and had a provision that codifies the President’s right to define any criteria he chooses, any at all, to deliver any individual, citizen or not, into the curious legal zone defined by the bill. But John McCain and Joe Lieberman are bold thinkers.

That zone is considered at xpostfactoid:

The bill authorizes the President to establish an “interagency team” to make a “preliminary determination of the status” of an individual “suspected of engaging in hostilities against the United States or its coalition partners through an act of terrorism, or by other means in violation of the laws of war, or of purposely and materially supporting such hostilities.” That team will determine whether the suspect shall be accorded a preliminary designation as a “high value detainee” (a.k.a. “unprivileged enemy belligerent” – the bill makes no coherent distinction between these terms). A final status determination is to be made by the Attorney General and Secretary of Defense; the President can only weigh in if these two disagree. Incredibly, the entire procedure from capture to final status determination is to be completed within 48 hours.

The provision that removes all discretionary limits to this secret determination of status is in the Criteria for Designation of Individuals as High-Value Detainees. That section creates an initial impression that such “determinations” are subject to the rule of law by laying out specific criteria, beginning with “(A) The potential threat the individual poses for an attack on civilians…” (B) The potential threat the individual poses to United States military personnel…” etc. But the final criterion (E) zooms to infinity: it is simply “Such other matters as the President considers appropriate.”

Well, someone has to lay down the law, but this is curious:

Thus any individual, whether a foreign national or a U.S. citizen, can be designated an “unprivileged enemy belligerent,” forever denied access to civilian courts and subjected to indefinite detention “without criminal charge and without trial for the duration of hostilities against the United States or its coalition partners” – that is, forever – on the basis of such other matters as the President considers appropriate.

Yes, that’s bold, or nuts. But it seems the President can set any criteria he chooses to determine the detainee’s status, but he can only overrule the final status determination if the Attorney General and Secretary of Defense disagree. That’s odd, and once a captive “is captured” (by whom and under what circumstances is not defined) or “comes into custody” (somehow) and “is suspected” (by someone or other) of being – or who “may be” (one never knows) – an “unprivileged enemy belligerent” – the President does not have the option of having the suspect tried in civilian court. And that’s that, or not:

Once the captive “is suspected” by a nameless agent, there is a kind of infinite regress to the adjudication: interrogation yields to “preliminary status determination” which moves on without any further legal proceeding to a final determination by the Attorney General and Secretary of Defense, made according to any criteria the President deems appropriate. The captive then can – indeed, arguably, must – be detained “for the duration of hostilities” – that is, forever. There is no mention even of trial by military commission. In fact, the process outlined effectively forecloses the possibility of a military trial.

Now THAT is laying down the law, or abandoning the concept of the law. The authoritarian right will love this. And a big block of Democrats – frightened to the core at being called soft on terrorism by Bill O’Reilly or Rush Limbaugh or Glenn Beck or the cat lady in the old house down the street – will support this, as they usually do. That’s how we got the Patriot Act. But this McCain-Lieberman bill will probably go nowhere. And if passed, over Obama’s veto, the Supreme Court – even this one, packed with authoritarian Bush bullies – would laugh at this thing. It’s not only not constitutional, it’s Rube Goldberg meets Franz Kafka in a Tim Burton movie.

But they’re trying to help Liz, and see Spencer Ackerman on another variation on this theme:

Two weeks ago, Sen. Lindsey Graham (R-SC), in the midst of negotiations with the White House over trading a military tribunal for 9/11 conspirator Khalid Shaikh Mohammed for the closure of the Guantanamo Bay detention facility, floated a new proposal: “a new national security court” for terrorism detainees. Graham didn’t appear to press the point in interviews since. But his spokesman, Kevin Bishop, said Graham is busy drawing up a proposal for how such a system would work, and gave some detail about its scope. As it happens, this is less a national-security court than it is an indefinite detention system. “There has to be some type of statute – and he’s been clear on that – for indefinite detention,” Bishop said.

Primarily, the system Graham is designing is set up for handling the Obama administration’s so-called “Fifth Category” of detainees that a Justice Department task force recommended against charging and releasing. “What do you do with them? What type of system do you have to hold them indefinitely?” Bishop said. “What type of system do you establish where we can ensure that we’re looking back at their cases; that we are holding them; we still determine that they are enemy combatants; they’re too dangerous to release; but we also aren’t going to try them in either a military or a civilian court. So there has to be a system for that, and that’s why Senator Graham is looking for a legal framework.”

And Digby pounces:

I think this is a terrific idea. In fact, I don’t see why we shouldn’t apply this new category to other people we just “know” have committed crimes but for a variety of reasons we don’t think we can convict in a court of law. Surely you cannot tell me that people suspected of serial murder or child molestation are less dangerous and more deserving of human rights.

I think it’s only a matter of time before this becomes obvious to lots of people. Once you give up the principle of due process and the rule of law it only goes one way.

And this is just embarrassing:

Iran Torture Trials Begin

TEHRAN, Iran – The trial in Iran opened Tuesday for 12 suspects accused of torturing to death three anti-government protesters tortured in prison during the turmoil following the June elections, the official news agency reported.

Iran’s judiciary last year charged 12 officials at Kahrizak prison for involvement in the death of three protesters detained there in July. …

In January, a parliamentary probe found a former Tehran prosecutor, Saeed Mortazavi, responsible for the torture death of the three in Kahrizak detention center in the capital. …

Anger over the abuse emerged in August, after influential conservative figures in the clerical hierarchy condemned the mistreatment of detainees. The outrage forced Supreme Leader Ayatollah Ali Khamenei to order the immediate closure of Kahrizak.

Glenn Greenwald asks us to compare and contrast – Iran does what we won’t, and begins criminal trials for those accused of torture.

And he points out that at least one hundred detainees died in United States custody. And General Barry McCaffrey said this – “We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the CIA.” And we tried a handful of very low-level scapegoats, even though Army General Antonio Taguba concluded that the abuse was the direct result of the orders of top-level Bush officials and said this – “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.” And most of the people subject to our detention system were completely innocent. And Iran does this?

Greenwald comments:

Iran is a horribly oppressive regime and many of these judicial processes may (or may not) be sham trials. But they have a citizenry which effectively demanded accountability for torture, a government which relented to citizen demands, and a judiciary which compelled at least some judicial scrutiny and adjudication for these crimes. One can only imagine what it must be like to be a citizen of a country that feels obligated – even if just to placate populist anger – to at least maintain the pretense of that the rule of law applies to all.

Yeah, but we believe in the laws, even if we don’t believe in the law, as a concept.

And after all, Washington Post columnist Marc Thiessen has told us that torture, as practiced by the Bush administration, bore no resemblance to torture as practiced by the Spanish Inquisition, since in the Inquisition when they waterboarded people they also tied them down with spiky ropes, or something like that.

We were more kind, unless you read the newly revealed details about the operational aspects of just what we did:

Interrogators pumped detainees full of so much water that the CIA turned to a special saline solution to minimize the risk of death, the documents show. The agency used a gurney “specially designed” to tilt backwards at a perfect angle to maximize the water entering the prisoner’s nose and mouth, intensifying the sense of choking – and to be lifted upright quickly in the event that a prisoner stopped breathing.

The documents also lay out, in chilling detail, exactly what should occur in each two-hour waterboarding “session.” Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to “dam the runoff” and prevent water from spilling out of a detainee’s mouth. They were allowed six separate 40-second “applications” of liquid in each two-hour session – and could dump water over a detainee’s nose and mouth for a total of 12 minutes a day. Finally, to keep detainees alive even if they inhaled their own vomit during a session – a not-uncommon side effect of waterboarding – the prisoners were kept on a liquid diet. The agency recommended Ensure Plus.

The full details are at Mark Benjamin’s Waterboarding for Dummies:

As brutal as the waterboarding process was, the memos also reveal that the Bush-era Justice Department authorized the CIA to use it in combination with other forms of torture. Specifically, a detainee could be kept awake for more than seven days straight by shackling his hands in a standing position to a bolt in the ceiling so he could never sit down. The agency diapered and hand-fed its detainees during this period before putting them on the waterboard. Another memo from Bradbury, also from 2005, says that in between waterboarding sessions, a detainee could be physically slammed into a wall, crammed into a small box, placed in “stress positions” to increase discomfort and doused with cold water, among other things.

The CIA’s waterboarding regimen was so excruciating, the memos show, that agency officials found themselves grappling with an unexpected development: detainees simply gave up and tried to let themselves drown. “In our limited experience, extensive sustained use of the waterboard can introduce new risks,” the CIA’s Office of Medical Services wrote in its 2003 memo. “Most seriously, for reasons of physical fatigue or psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness.”

The agency’s medical guidelines say that after a case of “psychological resignation” by a detainee on the waterboard, an interrogator had to get approval from a CIA doctor before doing it again.

But that’s how some of us feel after listening to Liz Cheney, or John McCain and Joe Lieberman – psychological resignation. You just want to give up. Let them lay down the law. With any luck no one will be able to take them seriously. And you know that when someone lays down the law – like that angry parent or frustrated teacher – no one takes them seriously. You shrug and move on.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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