Last month, the Huffington Post quoted an interview with torture-memo-writer John Yoo, in which Mr. Yoo said that although he did not regret the advice he had given in those memos, he did regret that they had not been more "polished."
"These memos I wrote were not for public consumption," said Yoo.
(snip)
"They lack a certain polish, I think – would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently."
(snip)
"I think the job of a lawyer is to give a straight answer to a client," Yoo went on to say. "One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, ‘What are people going to think of me?’ Your client the president, or your client the justice on the Supreme Court, or your client this senator, needs to know what’s legal and not legal. And sometimes, what’s legal and not legal is not the same thing as what you can do or what you should do."
Source ~ Huffington Post
But, Mr. Yoo, your client was not the President or a member of the Senate. You were at the Justice Department. And, therefore, your client was US.
The "client" of the United States Justice Department is the United States -- that is, all of us. The Justice Department is not, NOT, the private legal firm of the Administration. Rather, the lawyers at the United States Justice Department serve us. And "what is legal or not legal" is ALWAYS, for us, the people of the United states, what you should do.
If you have had the toxic horror of reading any of the torture memos released today by the Obama Administration, you are no doubt feeling ill. I know I am, and I have only managed to get through parts of the first memo, written by Jay Bybee, who is, amazingly, now a judge on the Ninth Circuit Court of Appeals.
What is a legal memo?
Having been through law school, and having taught legal writing at the George Washington University Law School, home to my hero, Jonathan Turley, I thought it might be useful to explain the "legal memo."
Legal memos are written (usually by associates at law firms to partners) to explain what the law is about a given set of facts. Partners use these memos to provide counsel to clients.
In law school, the "legal memo" is the first big writing assignment; you learn how to do these in your legal writing class during your first semester. You are given a set of facts and a question of law (or many questions) and you are asked to review the applicable law, in conjunction with the facts you are given, and to offer your opinion as to the course of action that should, based on the facts and the law, be taken.
First-year law students sweat these. My entire study group moved into my apartment (I was a good cook) for the entire weekend before our first-year memos were due. None of us slept very much. This was in the days before computers -- we TYPED them. And after we turned them in, everyone returned to my apartment and fell asleep for 15 hours.
My first-year law students, 10 years later, were no different. They were bleary-eyed when they arrived to turn in their memos.
This was because, as nascent lawyers, we cared about the facts and the law and we wanted to get them right.
There is, alas, no semblance of this in the horrifying memo I read today.
For one thing, the tone of the memo is enough to chill the warmest of blood (a horrifying metaphor, given the subject matter). The memo discusses, in stark detail, how each method of torture (and let’s not mince words here -- that is EXACTLY what this is) is to be carried out.
First-year legal memos usually have a "QP" (Question Presented) along the lines of "Whether the exercise of eminent domain for a public park violates local zoning laws." In the case of the Bybee Memo, however, the QP is this:
"Whether certain specified interrogation techniques designed to be used on a high value Al Qaeda detainee in the War on Terror comply with the federal prohibition on torture . . . "
See the memo here.
Jay Bybee -- now Judge Bybee -- wrote those words. Of course, the QP is deliberately slanted (because, apparently, the Justice Department under the Bush Administration believed that its duty was to preserve and protect the President and his policies, rather than to be the legal voice for the American people). Note: "high value Al Qaeda detainee in the War on Terror" -- a totally inappropriate QP. What the QP should have been was this: "Whether certain specified interrogation techniques comply with the federal prohibition on torture." But that wouldn’t have been neat and organized for the Bush Administration.
The memo discusses, in graphic detail, but in flat language (the sort of language one would expect to find in a memo on, say, zoning laws) various "techniques" of torture, including throwing detainees against walls, slapping them, putting them in stress positions for hours at a time and, of course, water-boarding.
There is, throughout this horrifying document, much detail about how each of these "techniques" is to be conducted. It’s nothing short of a "how-to" torture recital. And this is what lawyers were writing when okaying this stuff. Lawyers who were in OUR employ. It is beyond stunning (and I use that word advisedly).
Had I received the Bybee memo in an assignment I had given on this topic while teaching at GW, it would have received a grade of "F." And the explanation I would have given for the grade would have been this: You forgot who your clients were when you wrote it; there is nothing in this memo about the interests of the American people and whether permitting torture at the hands of Americans violates, just for example, the Geneva Conventions. Please explain how what you are advocating advances the interests of your clients: the American people.
And so, Judge Bybee:
It’s not just that this memo is so sickening to read, it’s not just that the prose describing torture is so flat and heartless, it’s not just that the memo bends the law beyond any reasonable comprehension of what it says -- it’s because, Mr. Bybee, that in writing it, you forgot who your client was. Your client was not the Bush-Cheney power-grabbing torturists; it was us, the American people.
Shame on you.
And I could not possibly end this without quoting from an interview Jay Bybee gave to Meridian Magazine in 2008:
The Constitution is the bedrock of Bybee’s professional life, and one of the hallmarks of his career has been articulate and thought-provoking constitutional scholarship. He became interested in theConstitution as a child when a teacher taught him that "the people are truly in charge, that this is a government of the people, not a government of the leaders."
Bybee said that unlike the common law, the Constitution is a written document and the text must be consulted. His analysis of the Constitution is that it provides two things. First it provides a process to create laws, with rules about how to make additional rules. An example is that although the Constitution says nothing about the environment per se, it nevertheless provides a process for creating rules about the environment. Second, the Constitution provides some actual rules, as it does with the First Amendment.
Regarding the law itself, Bybee said he appreciates the role of law in a society which must ask the fundamental question, "How are we going to conduct ourselves?" He explained that there is a system of rules and standards in the law as well as in our personal lives. In his own home, for example, a standard is, "Be nice," and a rule to encourage that is, "Don’t hit."
Meridian Magazine
"Don’t hit" ~ but feel free to torture.
(UPDATE: As kossack On the Bus explains in the comments, quite correctly, Jay Bybee actually worked for the Office of Legal Counsel, the section of the Justice Department that does work for the President. Comment. I think we agree that this does not change the thrust of this diary, but I am grateful to On the Bus for correcting my mistake.)