Ruminations of an Expatriate

Scott Shane has a fascinating report of CIA interrogation and torture in the CIA’s secret site near Warsaw.

I came upon this copy of the 2006 Yale Law School Commencement address through Professor Brad DeLong’s excellent blog.

Dan M. Kahan, Deputy Dean and Elizabeth K. Dollard Professor of Law at Yale, presented a fascinating exposition relating to John Yoo’s failure to accept “moral responsibility” in producing the “torture memo” to justify the Bush administration policy of torture; and Jack Goldsmith, appointed in 2003 to head the Justice Dept. Office of Legal Counsel, exercising the “moral responsibility” of repudiating Yoo’s tortured legal reasoning, a noble act for which he was rewarded with his dismissal from the Justice Department. Along the way Kahan compares the training of folks in the ambiguous art of chicken sexing with that of imbuing a “situation sense” in student attorneys in the hope they will become “good rather than bad lawyers.”

It is a fascinating read for those interested and who have fifteen or so minutes. An excerpt to whet your appetite.

In the poultry industry, it is very important to separate out male and female chicks almost immediately after birth: the males are less valuable – they can’t lay eggs and their meat isn’t nearly so tender – and they end up competing with the female chicks for food. So you need to pick the males out and get rid of them. This job falls to the professionally trained chick sexer, who turning the chicks over gently in his or her hand is able to sort out male from female at a rate of 1,000 per hour and at an accuracy rate of 99%.

What makes this feat so astonishing, though, is that there just isn’t any readily discernable, or at least articulable, difference in the anatomy of newborn chicks. All zoologists agree that this is so. If you ask a professionally trained chick sexer what he is looking for, don’t expect a satisfying answer. Either he’ll confabulate, telling you some fantastic and silly story about the inability of the male chick to look him straight in the eye. Or more candidly, he’ll just shrug his shoulders.

But while the nature of the chicksexer’s skill may be inexplicable, how he acquired it isn’t. To become chicksexers, individuals go off for an extended period of study with a chick sexing grandmaster. He doesn’t give lectures or assign texts. Instead he exposes his pupils to slides– “male,” “female,” “male,” “male,” “female,” “female,” “male” – continuing on in this way until the students acquire the same special power to intuitively perceive the gender of a newborn chick, even without being able to cogently explain how.

What in the world does this have to do with law, you are asking yourself of a professor’s lecture, once again. Well, what I want to suggest is that what’s going on in the chick-sexing profession is the very same thing that goes on in
the legal profession. The formal doctrines and rules that make up the law – unconscionability, proximate causation, character propensity, unreasonable restraints of trade – are just as fuzzy and indeterminate as the genetalia of dayold
chicks. And yet just as the trained chick sexer can accurately distinguish female from male, so the trained lawyer can accurately distinguish good decision from bad, persuasive argument from weak. Ask the lawyer for an explanation, and in his case too you’ll get nothing but confabulation – “plain meaning,” “congressional intent,” “efficiency” – or what have you.

In addition, the lawyer attains her skill – to recognize what she can’t cogently explain – in much the same way that the chick sexer does: through exposure to a professional slideshow, this one conducted by law grandmasters, including law professors but also other socialized lawyers, who authoritatively certify what count as good and bad decisions, sound and unsound arguments, thereby inculcating in students and young practitioners the power of intuitive perception distinctive of the legal craft.

Now, by this point in my argument, you’ll likely recognize that my analogy between legal reasoning with chick sexing is just a colorful rehearsing of legal realism. As developed at Yale Law School in the 1920s and 1930s, legal realism was less interested to demonstrate that legal rules are formally indeterminate than to explain how lawyers nonetheless form such uniform and predictable understandings of what those rules entail. Llewellyn attributed this ability to what he called “situation sense,” an intuitive perceptive faculty born of immersion in professional and cultural norms – the slide show of law. Contemporary social psychologists use the concepts of pattern recognition and prototypical reasoning to describe the same cognitive processes – which are pervasive in all fields and facets of life, not just law and the poultry industry.

Well, if you accept this central insight of legal realism, as I do, then you will readily understand that effective legal training has very little to do with learning the mass and detail of formal legal rules. Instead, it has everything to
do with acquiring situation sense.

———-

A little over a decade ago, a brilliant 25 year-old [John Yoo] was standing where you are. Less than a decade later… [John Yoo] found himself serving as Deputy Assistant Attorney General… battling internal opposition from career military officers and lawyers, [John Yoo] wrote a legal memorandum which construed the law to permit the use of interrogation techniques that the U.S. had for decades understood to be banned by the Geneva Convention. Because of the institutional stature and formal authority of the OLC within the Executive Branch; because of the function the memo was intended to play in resolving a debate among other governmental officials of immense authority; and because of the impact of 9-11 in provoking societal reconsideration of the relationship between civil liberties and national security, this Yale-trained lawyer did have every reason to believe that his memo, all on its own, would have a profound and shaping impact on the professional and cultural understandings that are our law. Yet he pretended this wasn’t so. When asked by an appalled career military intelligence officer whether the memo meant the President could order torture, he answered, “Yes, but I’m not talking policy. I’m talking law here.”

The analysis reflected in the so-called Torture Memo did not, in fact, become part of our professional and cultural understandings, our situation sense. But… credit for that belongs to another individual lawyer, who as a 20-something also stood where you now are about a decade and a half ago…. In 2003 he took over as head of the Office of Legal Counsel. And to the shock of his patrons, he immediately issued a directive advising the military intelligence services that they couldn’t rely on the so-called Torture Memo… at a time when high-ranking political appointees in the Justice Department and Pentagon were continuing to place decisive reliance on the Torture Memo. As a result, this lawyer had every reason to believe the Memo’s understanding of the law would persist, and that it would pervade and shape the shared professional and cultural understandings of lawyers, unless he as a lawyer took responsibility for repudiating it. So he did.

This lawyer, Jack Goldsmith, was ultimately pushed out of OLC…. Now that Goldsmith is there [at Harvard Law School], I suspect it’s much less likely that any of its future graduates will try, in cowardly fashion, to evade moral responsibility for their actions by insisting that law is nothing but a set of formally binding rules. And I have hope that as a result of [Goldsmith’s] actions, it’s much less likely any of you ever will either.

This was my last chance to teach you some law, Yale style. These were my final two slides: one bad lawyer, one good. What made the bad one bad wasn’t that he knew “less law.” It was that he, unlike the good lawyer, refused to take moral responsibility when he found himself in a position where his individual actions as a lawyer were likely to have a decisive role in shaping our profession’s situation sense, and thus in shaping the law itself.

Because you today are standing where these two lawyers stood, because you are standing where number members of Congress, Justices of the Supreme Court, and Presidents of the United States have all stood too, I feel petty certain that a number of you too will be in that position some day. If you are, how good a lawyer you are won’t be determined by how many rules you’ve learned; it will turn on how good a person you are. My apology for not teaching you more “law” is that I thought it was much more urgent to try to teach you that.

You may have read that the federal government, pursuant to an ACLU Freedom of Information Act request, has at last released the March, 2003 memo, prepared by John Yoo of the Dept. of Justice Office of the Legal Counsel, which asserted that the President has unlimited authority as Commander in Chief to in times of war, presuming that the pursuance of Al Queda constitutes a war under provisions of the Constitution. The memo asserts that, given the president’s unfettered authority, no USA military personnel nor “contractor” acting under such authority could be prosecuted for violations of statutory or international law.

The memo discusses at length the Fifth and Eight amendments to the Constitution and a bunch of statutory law, and explains why none apply to USA torturers nor those who authorize torture.

A Washington Post report of the memo may be found here and a New York Times report here.

I must disclose that I am a college dropout and, thus, probably shouldn’t even be addressing the subject. My qualifications on the subject extend no further than my frequent reference, over the years, to the copy of the Constitution I bought at the John Birch Society booth at the county fair twenty years ago.

The Yoo memo was submitted to the Pentagon on March 14, 2003 and was rescinded some months later. Yoo had in 2002 produced a similar memo which was also rescinded.

As the NYT reports puts it “Justice Department lawyers later rescinded both Mr. Yoo’s memorandum and the similar one written for the C.I.A. in August 2002. In a book published last year, Jack Goldsmith, who as head of the Office of Legal Counsel made the decision to rescind the memorandums, criticized the documents, saying they had used careless legal reasoning to provide national security agencies with sweeping interrogation authority.

The WP reports Goldsmith noted “In his 2007 book, ‘The Terror Presidency,’ that the Yoo memos “stood out” for “the unusual lack of care and sobriety in their legal analysis.”

I have perfunctorily read the 81 page Yoo memo and can report that it discusses, and dismisses as matters of concern, the Fifth and Eight Amendments to the Constitution and whole bunch of statutory law. It does not address the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” ratified by the USA on October 21, 1994, nor other international treaties and/or conventions addressing torture and the treatment of prisoners of war.

The “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” provides, in part:

Article I

1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

A convention, so far as I have been able to determine, is included within the definition of a treaty.

So here’s what I don’t understand.

Article VI of the US Constitution provides that “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” [emphasis added]

The USA is signatory to the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”.

So why wouldn’t the torturers and those who authorize torture be subject to prosecution in the USA for their acts?

And why is John Yoo a professor of law at U of C at Berkley and where does he get his brown shirts pressed?

Now the AP is reporting:

WASHINGTON (AP) — For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution’s protection against unreasonable searches and seizures on U.S. soil didn’t apply to its efforts to protect against terrorism.

That view was expressed in a secret Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo is classified and has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

Everyone paying attention, by now has heard or read reports that the CIA destroyed video tapes of torture sessions. Why?

CIA Director Michael Hayden released a statement he had sent to CIA employees in which he indicated that the tapes “were no longer of intelligence value and not relevant to any internal, legislative, or judicial inquiries.” The tapes were destroyed when the CIA director was renowned political hack Porter Goss, who you will remember elevated to the agency’s number 3 position a buddy who was later indicted on corruption charges.

So why were the tapes destroyed? Hayden passes it off as a bit of tidying up the office, as the tapes were no longer needed.

It seems obvious that the tapes contained evidence of torture that folks in the Cheney administration did not want the public to ever see. When war crimes trials are looming as a possibility then one certainly wouldn’t want tapes proving such charges laying around the office. Especially when an agency official with access to the tapes could have a bout of conscience. Hopefully someone in the agency already has somehow documented the tapes’ content.

Remember that those administration intellectual giants Alberto Gonzales and John Yoo had developed a tortured (pun entirely intended) interpretation of statute and treaty law to establish that the president may legally authorize “interrogation” methods which clearly fall under the long accepted definition of torture. (Yoo, you’ll remember, is the guy who stated in a debate at Notre Dame in December 2005 that there is no treaty that legally prohibits the president from approving “crushing the testicles of the person’s child”.)

So if the torturing was legal, why did Porter Goss think it best to destroy evidence.

Because the Bush administration psychopaths involved in this type of stuff know perfectly well what methods of interrogation are legally permitted under long standing USA and international law and that they encouraged methods that fall without the law.

UPDATE: David Kurtz, at the TPM site, passes on the comments of a reader making the same point.