June 25, 2004,
The coverage of the internal government memoranda regarding interrogation tactics and the legal parameters of torture continues to provide stark indications of both what is wrong with policymaking in our 24-hour media age and what becomes of the legal profession in an era when facts take a backseat to feelings.
Stretching for ScandalPredictably, the New York Times, straight from its anti-Iraq War Room, supplied the latest dose of juvenilia, targeted at a Justice Department memo written in August 2002 by Jay S. Bybee, then an assistant attorney general and now a judge on the Ninth Circuit Court of Appeals. At the time the memo was drafted, Bybee was the head of DOJ's Office of Legal Counsel, the brainy legal beagle unit that serves as "lawyers for the lawyers" on knotty issues that affect not only DOJ but the wide array of executive-department agencies. According to the Times, Bybee's memo was addressed to chief White House Counsel Alberto Gonzales, and it provided an expansive assessment of the president's capacity to allow physically aggressive interrogation techniques by so narrowly crimping the concept of "torture" as nearly to define it out of existence. Thus, the Times reports: The memorandum, dated Aug. 1, 2002, defined torture narrowly under a federal law that prohibits it. Only pain like that accompanying "death, organ failure or the permanent impairment of a significant body function" qualifies, Mr. Bybee wrote. It went on to say torture is unlawful only if the infliction of pain is the offender's specific objective. "Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent," he wrote.
As an academic matter, the memo's construction of torture at least the part of it mined by the Times is unpersuasive. As relevant to this discussion, torture is statutorily defined (in Title 18, U.S. Code, Section 2340), as an act "specifically intended to inflict severe physical or mental pain or suffering[.]" Plainly, there is some room for reasonable minds to differ on what "severe" means. But it does not seem reasonable to equate "severe physical" pain with pain "like that accompanying 'death[.]'" To do so would suggest that any pain which is not life-threatening cannot be torture. That cannot be right one can easily imagine lots of non-lethal inflictions of pain that rational people would regard as sufficiently severe to be called "torture."
Similarly, the "specific objective" qualification seems especially unworthy, conflating the separate legal (and common sense) issues of intent and motive. As just noted, the torture statute talks about specific intent, not specific objective, to cause severe pain. In evaluating mental states, "intent" is the what, and "objective" which is akin to "motive" is the why. That is, intent goes to what you are trying immediately to accomplish, while motive deals with why in the long run you are trying to accomplish it.
Thus, for example, a defendant who robs a bank to get money for mom's operation is still guilty of bank robbery even though his objective was not to steal money but to pay for health care. A person who inflicts extreme pain has committed torture even if he was motivated by noble concerns, such as obtaining information to prevent terrorist attacks. We can argue about whether such a person should be prosecuted (in our system the government always has the discretion not to bring charges) or pardoned (which the president always has the power to do). But there should be no dispute over whether the person has committed the legal violation of torture; he has.
Consequently, this would all be very interesting if Bybee were the president, and if there were a scintilla of evidence that he had directed anyone to beat detainees to within an inch of their lives in order to compel information. Of course, he wasn't and there isn't. Bybee was a middle-management government lawyer who was providing an opinion about the law to higher-management government lawyers, who themselves were not decision makers and were not empowered to order anyone to do anything.
The interpretation of torture expressed by Bybee, and by other attorneys who may have had a hand in the memorandum, may not even have been his view. It is part of the territory of being a lawyer, and in particular a government lawyer advising principals, that you are called on to prescribe solutions in matters of judgment. Generally, there will be no "right" or "wrong" answer, and in what is the hardest part the lawyer must factor in that the decision ultimately will not be made by him, but rather by someone who thinks differently from him, and is beset by interests and incentives from which he is insulated. These circumstances impel the lawyer not simply to provide his view of the best answer but to spell out the entire range of possible answers, even the ones he disagrees with, and dispassionately make the best case for each.
That is why this contrived memos "controversy," half-baked by the media and grandstanding politicians, is so backward and so harmful to good policymaking. First and foremost, the opinions of the advisers are utterly irrelevant unless it is established in the first instance that a decision maker actually did something, or issued some directive, that violated the law. It's the principal's action, not the agent's advice, that makes an offense. After all, if the principal transgressed, it is no defense that he was merely following his attorney's counsel; and if he acts properly, it is makes no difference that his lawyer gave him bum advice that he wisely ignored.
Let's assume for argument's sake that a president instructs his subordinates that interrogators were free to cut off fingers and toes of terrorists during questioning, and they proceed to do so. In the course of investigating the inevitable torture allegations, the Senate Judiciary Committee discovers that a mid-level lawyer at the Justice Department wrote in a memorandum that severing limbs did not come within the ambit of "torture" as legally defined. Does anybody think the senators, upon reading this memo, would let the president off the hook because government lawyers had opined that he was in the clear? Of course they wouldn't. They would say, "I don't give a damn if a bunch of eggheads told him he could draw-and-quarter detainees in Yankee Stadium at high noon; he's the president, not them. It matters what he did, not what they said."
That is the crucial missing element in this manufactured scandal. You have prisoners being abused, but as things stand there is zero evidence that the abusers were instructed in their tactics by the president, the Defense secretary, and the top military commanders. Nor could the most provocative advisory memoranda available close that gap. Absent evidence that those top officials actually gave such orders, what they were told about the range of options they had is beside the point. It is academic because it can have had no causal connection to the abuse.
How We WorkMoreover, let's suppose for argument's sake that there were evidence that the president or his underlings ordered abuse. Does anyone think a lawyer's memo could conceivably make the problem go away? Does anyone suppose for a second that Senator Leahy, prominently featured in the Times story, would say: "There's no need to conduct further investigation into what was done here because the Justice Department attorneys appear to have written very sound legal analyses, so we must assume the president acted appropriately"? Of course he wouldn't. He wouldn't infer that the president, having gotten proper advice, acted properly, nor should he. But it makes no more sense to presume the president acted improperly just because he might have gotten shaky advice. The president needs to be accountable for his actions and directives. He can't slough it off, one way or the other, on "advice of counsel."
Which gets us to the second point: Since the president is going to be held responsible for what he does, we want him to do it on the basis of the best, most candid, most comprehensive information that can be garnered. These are tough problems like, what do we do if a dirty bomb in New York Harbor is about to detonate and the terrorist who can tell us where it is has clammed up? They are problems that call for intelligence and creativity. Stifle those qualities make advisers afraid to say what they think for fear that the New York Times may one day breathlessly inflate it into a page-one, above-the-fold scandal and you have national security by dunces. And that means you also have the occasional mushroom cloud, probably right near where the Times lives, and where the editors, if they survive, will no doubt be preparing their next feature about how the Bush administration failed to uncover the evidence that might have prevented the bombing.
Without a violative action by the president and his top aides, this is a kerfuffle invented by people with too much space and air time to fill who know that scandal is what sells. You would think that with a war going on, Iraqi sovereignty about to revert, and a beheading by jihadists every week or so, someone might question the news judgment of turning into a story the thought processes of advisers to officials who haven't been shown to have misbehaved.
Reflections on the Luxuries of the PressThere is, of course, a straightforward way to find out what was actually done here, and it is precisely the way the administration appears to be proceeding: zealously prosecute the cases. The soldiers thus far charged, for the most part, appear to be claiming, unsurprisingly, that they were "just following orders." That claim will be tried in court-martial proceedings, meaning each soldier making it will have to establish who supposedly gave him such commands, at which point the spotlight will focus on that official, who will either deny it, admit it, or admit it and say he was acting on someone else's orders, at which point the process moves upward. That is how investigations routinely proceed.
But if you were on trial, I wouldn't be allowed to try to prove that you believed something, much less that you had acted on that belief, just because someone else expressed an opinion. On that score, the next time someone tells you the media and the Democrats don't have a policy of "defeat Bush today and worry about principle tomorrow," think about last year's manufactured scandal over the Patriot Act and library records.
Leave aside for the moment that the Patriot Act does not even mention library records and that it turned out the government hadn't used the Patriot Act a single time to subpoena library records. Concentrate, instead, on what the Times and Democratic senators were saying at the time. Remember? It was that this kind of evidence viz., what we choose to read was irrelevant. It was that a person couldn't be presumed a guilty just because of what lay on his bookshelf, and that if Big Brother were give carte blanche to pore over our reading matter that would unconstitutionally chill the terrorist's sacred First Amendment right to consult bomb manuals and this month's edition of "Death to the Infidel."
Now, those same people are implying that the president of the United States may be a torturer because of reading material he probably never even saw, much less read. And they have not the slightest concern about the chilling effect this will have on presidents asking for, and policymakers providing, advice about issues that affect national security. I guess DOJ should forget about all this "top secret" classification jazz and just file its memos at the library.
In any event, almost as disturbing as the trumped up nature of the controversy is the Times's new algorithm for assessing legal counsel. Here's what it says in the story about Judge Bybee:
Former colleagues say the judge, whose chambers are in Las Vegas, is a serious, soft-spoken, reflective man. They say it is difficult to reconcile his discussion of torture in clinical, dispassionate detail with his background. A former legal academic, Judge Bybee told Meridian, a Mormon magazine, last year that he hoped to be remembered for his probity. . . . "I would like my headstone to read, `He always tried to do the right thing[.]'"
So, it is not so much that Bybee appears to have presented a weightless argument that bothers the Times. Instead, it is that, somehow, it is incongruous for a "reflective" scholar to discuss a legal issue "in clinical, dispassionate detail[.]"
It used to be, though, that this was the very definition of a lawyer's job. It used to be that this was precisely what a judge, or any lawyer, would be doing if a legacy of probity was his life's ambition. The law is supposed to be logic stripped of fear or favor, enduring principles applied to facts rather than feelings.
Just because a newspaper may freely slant its reporting to suit an agenda doesn't mean everybody has that luxury. The Times can afford to be wrong; a president conducting a war against an enemy whose primary tactic is to kill as many civilians as possible cannot. That means his advisers have to tell him the truth, even if it's not, um, "reflective."
Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is an NRO contributor. McCarthy is reachable via www.benadorassociates.com.