The Durbin amendment

by Ted on June 10, 2004

As most readers will know, it has recently come to the attention of the world that lawyers in the Pentagon’s Office of General Counsel have prepared a memo arguing that torture can be authorized by the President. The argument, as I understand it, is that when the President believes that he is operating in his capacity as Commander in Chief, he has unlimited power, which cannot be constrained by the Legislature. It goes so far as to say that authority to set aside the laws is “inherent in the president.”

Michael Froomkin’s analysis of the torture memo is an invaluable example of the best of blogging. (Also see Jim Henley, Eric Muller, von from Obsidian Wings, among others.)

On pages 22-23 the Walker Working Group Report sets out a view of an unlimited Presidential power to do anything he wants with “enemy combatants”. The bill of rights is nowhere mentioned. There is no principle suggested which limits this purported authority to non-citizens, or to the battlefield. Under this reasoning, it would be perfectly proper to grab any one of us and torture us if the President determined that the war effort required it. I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society. The Constitution does not make the President a King. This memo does.

Via TalkLeft, I see that Sen. Dick Durbin has introduced:

an amendment to the Defense Authorization bill to reaffirm US commitment to the Geneva Conventions, the Convention Against Torture, and the International Convention on Civil and Political Rights, and to affirm unequivocally the prohibition against torture, cruel, inhuman and degrading treatment.

TalkLeft has a good deal of information about this, including a sample letter of support for this amendment which can be adapted and forwarded to your representatives in Congress. Here’s a good resource for contacting them. Please do this.

One last point, in which I get a little emotional.

I’d like to say “me, too” to Digby. I spend too much of my life following politics, getting angry or amused or frustrated at the news. This is different. This memo was prepared by a group of highly-educated men and women at the top of my government. They are people who doubtlessly consider themselves patriots, probably with good reason. They were willing to sell out the principles of our Constitution, one of the greatest accomplishments of humankind, in order to torture other human beings.

This knowledge has made me want to cry, out of fury and shame. I hope that the people who wrote this, and the people that authorized it, are driven from the government and disbarred. I hope that they live the rest of their lives in shame, hoping that the next person they meet doesn’t remember their names. I hope that God alone shows them the mercy that they are unable to find on Earth.

From Ogged:

If America ceases to be a free country, you won’t necessarily notice. It won’t smell different, dark clouds won’t gather on the horizon, the roads will remain open, movies will still play in the theaters, and television will, most assuredly, stay on.

…Contrary to what we think we know in our bones, there aren’t many effective arguments from self-interest in favor of freedom. Being free just isn’t a matter of convenience, and being unfree isn’t necessarily inconvenient. It’s a matter of principle, and of pride. I don’t think many people care about the principle, but, for a couple of hundred years, Americans have been fiercely, even violently, proud of being free. Are they still?

{ 68 comments }

1

Walt Pohl 06.10.04 at 5:50 pm

Well, we had a good run. 228 years as a constitutional republic was a fine accomplishment.

2

mandarin 06.10.04 at 5:54 pm

They were willing to sell out the principles of our Constitution, one of the greatest accomplishments of humankind, in order to torture other human beings.

Ted, your syntax reveals the disorder of your thoughts.

Whatever the Bushies may or may not wish to do, and whether or not it’s justified, you’re raving when you claim that it would be done “in order to torture other human beings.” The purpose would be to try to protect our country, nitwit.

If America ceases to be a free country, you won’t necessarily notice. It won’t smell different…

True. Whereas a mushroom cloud over New York City would be hard to miss.

3

RD 06.10.04 at 5:58 pm

Given all the hue and cry, cuss’n and discussion, perceptions and misconceptions about what happened and what this great country will and won’t tolerate, shouldn’t all sides know where the line is. If you’re going to cite the Geneva Convention, shouldn’t you know what it does and doesn’t do. Durbin’s reaction is a blank deck. What it sounds like is that Americans want a new, modern updated Convention. We can call it the Durbin/McCain Convention for Christ’s sake. But for you all to slash your wrists because the President demanded that a thorough legal review of where the limits are – well Good Grief, calm the flock down.!!

4

jdw 06.10.04 at 5:59 pm

The amendment would be a nice gesture, I guess, and it would give me no end of pleasure to watch the attack ads against pro-torture Republicans forced to vote against a Defense bill.

But that’s all it would be: a nice gesture. Congress has been effectively taken out of the loop. Anything short of impeachments is doing nothing, and there obviously is nothing a Republican could do to get himself impeached.

5

norbizness 06.10.04 at 6:13 pm

Damn, I hate having to choose between “no torture, producing nuclear holocaust” and “torture, producing in all Americans an absolutely perfect sense of security and contentment.”

Get back to me later.

6

Charlie Robb 06.10.04 at 6:24 pm

I’m put in mind of Rome’s slide from Republican government (however imperfect by our standards) to dictatorship. There were many factors in play, but among them was a willingness by the elites to abuse traditional governmental processes (which functioned as a sort of unwritten Roman constitution) for political ends — sometimes out of nothing more than greed, but often out of a genuine belief that the good of Rome required it. Through it all, the Senate and the other representative bodies allowed their perogatives to be eroded, until they became nothing but rubber stamps for the dictator of the day.

If we’re to keep our freedom, the House and the Senate — and, really, the people — are going to have to stand up and insist that our rights be protected. The courts too.

Time for another March on Washington? Let’s see what 1 million people on the Mall would do to stiffen our representatives’ spines.

On a personal note, was on the law review (e.g., Paul Clement, who argued the Padilla case to the Supreme Court) with some of the leading actors in this awful drama. My friends and I used to joke that they were dangers to the Republic, etc. Who knew we were right?

7

Charlie Robb 06.10.04 at 6:24 pm

I’m put in mind of Rome’s slide from Republican government (however imperfect by our standards) to dictatorship. There were many factors in play, but among them was a willingness by the elites to abuse traditional governmental processes (which functioned as a sort of unwritten Roman constitution) for political ends — sometimes out of nothing more than greed, but often out of a genuine belief that the good of Rome required it. Through it all, the Senate and the other representative bodies allowed their perogatives to be eroded, until they became nothing but rubber stamps for the dictator of the day.

If we’re to keep our freedom, the House and the Senate — and, really, the people — are going to have to stand up and insist that our rights be protected. The courts too.

Time for another March on Washington? Let’s see what 1 million people on the Mall would do to stiffen our representatives’ spines.

On a personal note, I was on the law review (e.g., Paul Clement, who argued the Padilla case to the Supreme Court) with some of the leading actors in this awful drama. My friends and I used to joke that they were dangers to the Republic, etc. Who knew we were right?

8

Giles 06.10.04 at 6:28 pm

“One last point, in which I get a little emotional. “

“This is different. This memo was prepared by a group of highly-educated men and women at the top of my government. “

I think the difference explains why they’re in government and your muttering into your beer.

9

marc 06.10.04 at 6:34 pm

A statement that we affirm specific prior treaty obligations is an acknowledgement of the rule of law. There are legal procedures for repealing laws and breaking treaties.

The radicalism and amorality of the Bush Stalinists here is duly noted.
Every dictatorship under the Sun justifies brutality under the guise of security. The Bush administration has now adopted the amoral logic of totalitarian regimes. I can now look at posts by folks like mandarin and rd with the knowledge that they lack both a moral compass and an appreciation of the fact that actions have consequences that go far beyond their narrow intent.

You cannot behave like the devil and expect to be treated like an angel. And the odds of a mushroom cloud over New York city have been exponentially increased by a brutal policy of systematic torture that has made millions of people across the world detest us.

Marc

10

Ted Barlow 06.10.04 at 6:48 pm

Giles,

I’m confused by your statement. If I’m in the wrong, please help me understand why the people who wrote this memo are in the right.

11

Jack 06.10.04 at 7:22 pm

So much snarkiness on such a serious subject.

From the memo it is clear that the lawyers were tasked with finding ways that torture could be performed legally.

It appears that in some areas they succeeded by arguing that the President has the right to permit it when it is important in his view.

Is it good that the executive is doing this?

Are the laws really meant to allow that or have the lawyers merely found a loophole?

Is it right that the President can overrule the law at will?

If that is not what the law or the memo says, what exactly are the limits on the President’s power?

These are all questions that deserve a more relevant answer than “It’s better than a mushroom cloud over New York” aren’t they?

12

bull 06.10.04 at 7:26 pm

As a charter member of conservatism, I must say that I am sadly in agreement with Ted. That memorandum is wickedly immoral. It reads like a memorandum in support of the client’s taking some action the client really wants to take, the action is illegal, and the attorney knows the action is illegal, but the client really wants to do it, so the attorney holds his nose and writes a memorandum supporting the action. If the client wants, say, to take some aggressive stance toward the tax laws, then in a perfect world the attorney wouldn’t do it, but in the grand scheme of things, in this world, it’s not really such a big deal.

But torture? The memorandum carefully lays out exactly what is and isn’t torture, and then says if the Commander in Chief wants to have someone tortured during wartime he may do so without any constraints. Time after time the memorandum lays out some usual defense against torture, and then says that the defense can be overridden if there the government has some “necessary” objective, or that “great deference” is given to the prison official, or that some other justification can outweigh the defense. Time after time, there are no rules. Ted is right. Whoever wrote that memorandum should live out his life in shame, shunned by all civilized persons.

13

Matt Weiner 06.10.04 at 7:27 pm

Ted and Jack, I would like to congratulate you for your polite response to people who have shown they do not merit one. It may not do them any good, but it will do you good.

14

bob mcmanus 06.10.04 at 7:33 pm

I distrust the Durbin amendment, as it might confuse the issues in a court of law. The torturers might claim the torture was only illegal after Durbin, and can’t be applied retroactively. If this is a silly argument, remember if you get Cheney or Feith facing felonies, any conceivable excuse might help in front of a Republican judge. And if it is a silly argument, then why do we need the amendment.

I don’t trust Durbin not to want to help these people. I don’t trust anybody.

15

paul 06.10.04 at 7:45 pm

<quote>I hope that they live the rest of their lives in shame, hoping that the next person they meet doesn’t remember their names. &lt/quote>

I think a good first step is to display those names and what they believe prominently, in keeping with the “fair and balanced” meme. We’ve heard a lot about accountability and integrity from this crowd: let’s hold them accountable.

The million person march isn’t a bad idea. Anyone doing anything July 4th?

16

robbo 06.10.04 at 8:12 pm

If you can rationalize this memo — or parse it to amount to “a thorough legal review of where the limits are” — then clearly you can rationalize anything. Anything.

Small consolation: During this period before the uniforms are issued, it’s nice to be able to identify with great certainty the fascists are among us.

17

Giles 06.10.04 at 8:21 pm

“If I’m in the wrong, please help me understand why the people who wrote this memo are in the right.”

The point is that you haven’t made a point – you’ve just told us how you feel – I can’t disagree or agree with you at most I can only empathise.

You seem to think it strange/immoral that lawyers have to advise clients where the limits of the law lies. Well its not – its their job. And why do I sound so patronizing – well because you rather remind me of the sort tired and emotional girl who’d accost you at the end of parties harranguing you that you’d go to hell if you acted for criminals. Its tosh and you know it.

18

Maynard Handley 06.10.04 at 8:40 pm


Whatever the Bushies may or may not wish to do, and whether or not it’s justified, you’re raving when you claim that it would be done “in order to torture other human beings.” The purpose would be to try to protect our country, nitwit.

In spite of Godwin’s law, I think it is important to invoke the specter of Nazi Germany here. Totalitarianism in the US will not be some amateur operation like Zimbabwe or even Iraq. As Ogged said, life will continue as before. BUT, it is also IMPORTANT to note, as Digby said, that

They had meetings at which I’m sure they all believed very sincerely that they were doing important work on the War on Terror. I’m sure they worked long hours and diligently analyzed the law and offered their advice to the president and secretary of defense with nothing but the good of the country in their minds. And they produced a 50+ page paper from which, I understand, only one person — the state department representative — dissented.

And that report, this product of a bureaucratic “working group” of lawyers is so deeply depraved and contrary to American values that one wonders if at any time during the discussions if someone had stood up and said, “we’re talking about TORTURE for God’s sake!” they would have produced a report at all.

This is how the final solution was put together in Germany, one small step at a time, via careful planning, each individual acting as part of the bureaucracy.

Of COURSE the new US will not be a clone of the Soviet Union or Nazi Germany. But, ask yourself, already
– do you carefully censor what you say around airport security? I do
– have you ever thought of posting or commenting in a certain way and then thought “someone malicious could claim this meant xyz” and killed the posting? I have.

The most likely direction for US totalitarianism would be an ever increasing set of circumstances where you bit your tongue because you are afraid of the consequences. Where criticism of the president, and then the government, and then the party, are construed as “giving succour to the enemy”. Where conscription is re-introduced, but the fun twist that now a substantial fraction of soldier’s training is devoted to explaining why what the US is doing is so important to the world — ie political propaganda.

And so on and so on.

19

jdw 06.10.04 at 9:00 pm

Giles:

_You seem to think it strange/immoral that lawyers have to advise clients where the limits of the law lies. Well its not – its their job._

Obviously, if someone is just doing his job, he can’t be held responsible for the obvious implications of his actions.

_And why do I sound so patronizing – well because you rather remind me of the sort tired and emotional girl who’d accost you at the end of parties harranguing you that you’d go to hell if you acted for criminals._

You don’t see the difference between defending criminals and concocting legal strategies to avoid prosecution and accountability when the government starts torturing people? Huh.

_Its tosh and you know it._

I was thinking the same thing.

Maybe it would be a good idea for everyone who is of two minds about all this torture jazz, or who sees the government’s point, or who thinks that lawyers can’t be held responsible for things they do for a paycheck, to pause and consider the question: “Am I actively evil myself? Or am I just spineless or lazy when confronted by it?” I think this will be an important distinction come election time.

20

bull 06.10.04 at 9:23 pm

Giles – The genesis of that memo was not a request by the client for counsel’s opinion on the legal boundaries of torture. If that were the case, the memo would simply describe, as it did, the legal parameters of torture. The memo went further, however. The genesis of that memo obviously was that the attorneys’ client wanted to torture people and wanted counsel’s opinion that torture is some cases legal. Counsel, being immoral, provided just such an opinion. The follow-up questions are (1) who was “the client” – who requested the memo – and (2) did the client tell the attorneys they are immoral slime and ask for a revised memo or did the client tuck the memo in his back pocket and go out and torture people?

21

Scott Spiegelberg 06.10.04 at 10:23 pm

During the War of 1812, James Madison was encouraged to declare martial law in order to better fight the British. He refused, recognizing that doing so would make subsequent settings aside of law easier and easier, until the hard fought democracy would become an autocracy.

To those who have been defending the memo, do you agree that the president has the legal and ethical authority to set aside the law of the land when he deems torture necessary?

Finally, to those who think that these are isolated incidents, I point you to a timeline of recent torture events I created at my blog, admittedly incomplete yet frightfully long and varied.

22

Robert Lyman 06.10.04 at 10:41 pm

The genesis of that memo obviously was that the attorneys’ client wanted to torture people and wanted counsel’s opinion that torture is some cases legal. Counsel, being immoral, provided just such an opinion.

Ted, even thought this isn’t your comment, and even though it was included in an anti-memo post, it captures the problem with your position perfectly.

The question which a lawyer must answer is not “What is right, good, and moral?” It is “What is legal?” An attorney cannot, ethically, advise a client that X is illegal simply because X is immoral.

Consider, for instance, the fact that some people believe that abortion is horribly immoral, and deserving of legal sanction. Does it make sense for an attorney holding that belief to advise a client that abortion is illegal, in order to scare his client into carrying the baby to term? Some would consider that the more moral outcome (the lawyer has prevented a murder, in this view), but that lawyer would unquestionably be guilty of malpractice.

Now, I am emphatically opposed to torture. I have not read the memo, so I cannot comment on whether I believe the legal reasoning it employs (I probably wouldn’t). It may well be the memo makes a mockery of the law in the service of tyranny, in which case the authors deserve censure. But the mere fact that the outcome makes you cry (or violates your conception of the Constitution–lots of Supreme Court decisions, on, for instance, gun control, abortion, sodomy, affirmative action, etc., violate my conception of the Constitution) isn’t an argument that the memo is wrong or that the authors deserve the punishment you outline for them.

Lawyers must–not should, but must–advise their clients to the best of their ability, including giving their clients advice that many people are likely to dislike. Calling for disbarrment and shaming when the outcome is distasteful or even disgraceful makes that difficult or impossible, and imperils the rule of law quite substantially by substituting the rule of the masses, or the rule of Ted, or whatever.

Short version: You’re shooting the messenger.

23

Jeremy Osner 06.10.04 at 11:17 pm

Robert — go read the memo. The language of it clearly is not “this is legal; that is illegal”, but rather “this is legal in some cases; that is illegal but there are circumstances where you could avoid prosecution for it; the other thing is definitely illegal but if there was an executive order calling for it to be done, then we would have an out, because the president is allowed to nullify the law at his whim.”

24

Giles 06.10.04 at 11:54 pm

“The genesis of that memo was not a request by the client for counsel’s opinion on the legal boundaries of torture. If that were the case, the memo would simply describe, as it did, the legal parameters of torture. The memo went further, however. “

Jeremy – the whole purpose of any adaivse to a client in to say where the law lies and in this regard the lawyers must address both the expressed concerns of the client, and if good anticipate any potential areas of concern. If the memo went further – it is only because the US government – quite reasonably, mainly hires good lawyers.

And, from a Brisith perspective, any lawyer who refuses to give advice to someone they disagree with or cover any eventuality that they disagree with is not going to stay in the profession very long.

Consider for example counsel advising say an airline board that is cutting maintence costs. The counsel would probably first advise whether this was legal under air safety rules and then address the potential liabilities of claimants in the event of a crash caused by this lower. By doing so they are not condoning the cuts, just advising on the implications so the board can make a descision.

25

MQ 06.11.04 at 12:33 am

Giles and Robert: you either have not read the memo or you are just deliberately misrepresenting it. The point of the memo is not to explore what the law is, it is to explore ways to set aside and evade the law. That is not said in so many words but it is quite clear. It is an exploration of ways that the president can use his executive power to break the law.

26

robbo 06.11.04 at 12:36 am

Robert Lyman, if you didn’t read the material why have you lectured us on it so pompously?

Lawyers must—not should, but must—advise their clients to the best of their ability, including giving their clients advice that many people are likely to dislike.

Lawyers frequently review my work products and recommend/demand changes based not on their superior knowledge of the subject matter — scientific or legal — but because they think “doing their job” entails doing whatever they can get away with to get a better deal for their client.

Consultants in my field routinely bend to such pressure, leading to unnecessary environmental degradation and to other problems for the rest of society, but that’s of absolutely no concern to the lawyers. If the rest of us “don’t like it” then it’s up to us to hire our own lawyers and have them fight it out. Either way, they win, and apparently we should save our breath asking them to demonstrate ethics beyond that minimum level needed to keep themselves from being disbarred or imprisoned.

In this case, it allegedly would have “imperiled the rule of law” for the government’s top lawyers not to have invoked the “unitary executive” argument, even though it effectively places President Bush above the law. After all, the client wanted it and the lawyers believed they could get away with it, so no further questions needed to be asked.

Ultimately, Mr. Lyman may have fair point about the practical necessity for lawyers as a group to be amoral and essentially unethical. Nonetheless, each of us is capable of hearing the distressed bleatings of our own human conscience. If we, the privileged men and women of a rich and free democracy, can’t ever rally ourselves to make a principled stand against the powers that be, what good are we?

27

mq 06.11.04 at 12:36 am

Of course lawyers will always *claim* they are advising on how to stay within the law, but the memo advances a host of novel legal theories that claim exceptions from the need to obey the law for the president in his capacity as Commander in Chief, and redefine as “not torture” stuff that is clearly torture by any reasonable definition. This is a bunch of lawyers trying to lay out a legal blueprint for arbitrary rule. If you care about freedom you should be disturbed.

28

Jack 06.11.04 at 12:50 am

Giles, it is also true that soldiers who do not obey orders do not get very far in the army but from time to time many have found that fact to carry little moral force.

It also seems to me that interpreting the law is not entirely a neutral thing. The lawyer could have filled the brief in other ways. It is also the case that what is a good way of discovering the truth in an adversarial situation is not necessarily appropriate in advising governments.

The issue of the morality of the lawyers is however something of a distraction from the main problems.

First of all somebody asked for a report of this nature. Many will find this unappetising and few would willingly own up to having done so. It is only right that such behaviour be discussed.

Secondly even if the legal opinion is true, is it meant to be. It is unseemly for the head of state to be working the system on such a matter. Rather one would hope for the president to be an upholder of the spirit of the law.

Finally, is the discovery of an argument for presidential omnipotence within the US legal system a welcome development?

29

Robert Lyman 06.11.04 at 1:09 am

[T]hey think “doing their job” entails doing whatever they can get away with to get a better deal for their client.

That is precisely the job of the lawyer in the American system. To ask the lawyer to do otherwise in the context of an adversarial system such as we have in the US would require some massive structural changes. Even in a non-litigation setting, a lawyer who censors his advice because he doesn’t like the way the law points is doing his clients a substantial disservice (and committing malpractice).

Robbo, you are confusing ethics and morality. Legal ethics require lawyers to do things that are arguably or even patently immoral–such as helping child molesters to go free, or discussing when torture might be permissable.

I’m not defending the memo or its conclusions. I’m simply pointing out that when lawyers reach legal conclusions (or advocate legal arguments) you don’t like, the solution is to try to defeat their arguments legally, not complain that you don’t like them.

If a doctor recommended that you have a limb amputated, and you didn’t like that idea, you might seek a second opinion, and you might criticize the first doctor if the second one disagreed, but you wouldn’t demand that he have his license revoked because his conclusion upset you.

30

Robert Lyman 06.11.04 at 1:13 am

Jack’s right that the real problem is that someone asked for this memo, not that the lawyers wrote it. Like I said, shooting the messenger.

31

Rob 06.11.04 at 1:28 am

These are not some lawyers in the adversial legal system. These are GOVERNMENT lawyers. We are their clients, they are supposed to advise whether something is legal or not. It is not to find a way for the government to avoid the law. These are not corporate tax lawyers here, they have a higher duty.

32

Giles 06.11.04 at 1:44 am

“Jack’s right that the real problem is that someone asked for this memo, not that the lawyers wrote it. “

I dont see that as a problem – the fact that theGovernemnt asked for it shows me that they’re on top of the problem. What would you prefer – that they just waited untill litigation decided the matter or tooks steps to anticipate where the law lay in advance?

In fac that’s a stupid question – of course you’d prefer the former option – better tv to oggle over. But I’d rather be governed by someone who took the latter option.

33

Robert Lyman 06.11.04 at 1:58 am

they have a higher duty.

So, how do they identify this duty and put it into practice?

Should a Justice lawyer who doesn’t like antitrust law write a memo which inaccurately states the law to let Microsoft off the hook, thus serving his “higher duty” to the free market?

Should a BATFE lawyer who opposes gun control write an opinion that the “F” must be struck from the agency’s name, since all gun laws are unconstitutional, thus serving his “higher duty” to the Second Amendment?

Should an EPA lawyer who thinks Congressional fuel economy standards are too lienent recommend unilaterally raising them, thus serving his “higher duty” to the environment?

Should a prosecutor who opposes abortion insist on filing charges against abortion doctors, thus serving his “higher duty” to the unborn?

Now, we all agree torture is wrong and we all want it to be illegal, for both Americans and foreigners. Maybe torture is just “different” and no one should ever be allowed to contemplate it. But the “higher duty” argument won’t work unless you can define what the duty is, when it applies, and what it requires lawyers to do.

34

Robert Lyman 06.11.04 at 2:01 am

Giles, I’d prefer a government that didn’t care whether or not torture was legal, because they didn’t intend to use it.

35

Ted Barlow 06.11.04 at 2:05 am

Rob, I might try to respond at greater length tomorrow, but for now:

A defense attorney who knows that a defendant is guilty cannot plead innocent on his behalf. He can go to great lengths to avoid that knowledge. Even if he suspects that his client is guilty, he is ethically obligated to provide the best defense he can. However, his highest loyalty is not to his client, but to the law.

This memo is fundamentally lawless. In its most offensive argument, it argues that the authority to set aside laws is inherent in the President. This would be profoundly dangerous breach in the separation of powers; I haven’t seen anyone argue otherwise. The lawyers who wrote this memo forgot where their loyalty lay.

I don’t want to get into a discussion of amputee fetishes, so take this as a meta-example: If I go to the doctor and demand that he cut your healthy leg off, that’s an inappropriate thing me to do. If he does it, he’s violated his Hippocratic oath, and can’t be surprised if he loses his licence, even though he was representing his client’s interests.

36

Robert Lyman 06.11.04 at 2:30 am

A defense attorney who knows that a defendant is guilty cannot plead innocent on his behalf.

Ted, that’s not correct. Consider the ABA’s Model Rule of Professional Conduct Rule 3.1 reads:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

The second sentence means the lawyer may enter a plea of not guilty, and require that the prosecutor prove everything, and controvert each and every element of the crime with truthful testimony, even if his client has confessed to him. Of course, he cannot permit his client or any witness to lie on the stand, but he need not call his client at all.

Any other rule would subvert the attorney-client privilege and abridge the right to a jury trial, which of course does not occur except when a plea of not guilty is entered.

If I’m wrong, would whoever points that out please include cites to relevant caselaw?

37

Robert Lyman 06.11.04 at 2:42 am

Ted, I should have mentioned that you are correct as to civil trials: a lawyer who knows that his client has committed a tort cannot permit that client to lie on the stand, and defendants in civil trials, unlike in criminal ones, can be forced to testify against themselves. So for all practical purposes, a lawyer faced with a client who committed a tort needs to settle, and fast.

38

nick 06.11.04 at 6:01 am

I think the difference explains why they’re in government and your muttering into your beer.

Yes, because you have to be a pretty cheap legal whore to get to such high echelons of the Bush administration.

If the memo went further – it is only because the US government – quite reasonably, mainly hires good lawyers.

No, it’s because those ‘good lawyers’ can twist any limb of the law, past the point of breaking, as long as they still turn a trick.

If you haven’t read the memo, but are still arguing on behalf of the lawyers, then I do advise you to take a look. It’s a black parody of legal advice.

39

Jack 06.11.04 at 8:23 am

Is the argument that the lawyers are just the messengers undermined if the opinion is either weak or patently partisan? Does the President’s counsel have any professional obligation beyond what the president wants?

It is also interesting that the memo recommends an action on the part of the President to facilitate torture which he seems to have taken. That would appear to put the responsibility for Abu Ghraib etc pretty hihg up the chain of command. Maybe someone will use the argument of the memo in their defence and we will see how it comes out. It hasn’t saved any of the GIs charged so far.

A question for the lawyers out there. If a terrorist had confided in you that there was a bomb on a plane, would your professional ethics demand your silence or would the seriousness of the situation allow you to take action?

40

ajay 06.11.04 at 11:26 am

The answer to the “mushroom cloud” question is: yes. It would be far worse to permit torture than it would be to suffer the destruction of Manhattan. (For various reasons I believe this is a classic excluded middle fallacy, as do many posters; but leave that be.)
In 1939 the bulk of the British population believed that the outbreak of war with Germany would be immediately followed by the annihilation of several major cities by air raids and gas. The government prepared to bury tens of thousands of civilians a day in mass graves. This didn’t happen, of course: but the point is that they still decided that this outcome was better than giving in and probably becoming a Nazi client state.
I hate sounding like some sort of demagogue, but this is the point: the republic would survive the loss of NY, but not the introduction of torture and imprisonment without trial.
Most of the commenters here are US-based. The proposal “Will you risk death to be free?” is not supposed to require much discussion for you.

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Squiddy 06.11.04 at 12:03 pm

Lets break this down into simple bits.

The President, and other elected/appointed officials, are sworn to uphold the laws and constitution of the United States. Government lawyers owe allegiance to the Consitution, not the client, therefore the client, no matter how exalted, cannot instruct them to oppose the laws of the United States. They cannot derogate from their oath: all government appointees take an oath, solemnly swearing (or affirming) that they will support and defend the Constitution of the United States against all enemies, foreign and domestic; that they will bear true faith and allegiance to the same; that they take this obligation freely, without any mental reservation or purpose of evasion; and that they will faithfully discharge the duties of the office on which they are about to enter.

Torture is illegal, both in international and domestic law, and the domestic law against it has been ratified and implemented consitutionally. Given this, how on earth can ordering government appointees to prepare a brief that blatantly attempts to subvert the laws of the US be ‘true faith and allegiance’ to the Constitution and laws, on Bush’s or any other elected or appointed official’s part?

Rob, Giles, what bit of this are you not getting?

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Robert Lyman 06.11.04 at 1:31 pm

If a terrorist had confided in you that there was a bomb on a plane, would your professional ethics demand your silence or would the seriousness of the situation allow you to take action?

Model Rule of Professional Conduct 1.6(b)(2): “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary…to prevent reasonably certain death or substantial bodily harm.”

Note that this rule only applies to clients, so if a terrorist just walks up to a lawyer and tells him about a bomb, there are no professional responsibilites at all. But even if the lawyer is representing the terrorist in an unrelated matter, he is not barred from revealing the existence of the bomb.

There is a difference, ethically speaking, between saying “I did plant that bomb that exploded last week–can you get me off?” and “I have planted a bomb which has not yet detonated.”

(1) to prevent reasonably certain death or substantial bodily harm;

Torture is illegal, both in international and domestic law…

The whole point of the memo is to discuss circumstances in which torture may not be illegal. Now, having looked at it, I think it’s terribly argued, and I don’t agree with its conclusions. I would not hire lawyers who reasoned like that to represent me. But that’s not the same as saying “this makes me cry, so the lawyers should be disbarred.”

As to “protecting and defending the Constitution,” I disagree with the Supreme Court on any number of issues, and I think that there are many laws on the books which the SC permits but which are actually unconstitutional. Does this mean that if I entered government service, I would have a right or a duty to attempt to subvert those laws I disagree with?

Oh, and I think ajay is substantially correct in that legal torture and imprisonment without trial is worse than loss of a city.

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asg 06.11.04 at 1:40 pm

I think ajay made a very good point too.

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mccoll 06.11.04 at 3:58 pm

When Bush declares out-and-out martial law, I’d like to suggest for his new coat of arms the bend sinister, for ‘the state is your only true friend.’

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nolo 06.11.04 at 4:37 pm

I’m a lawyer, and I’m troubled both by the memos and some of the comments on this thread — particularly those that reflect a belief that attorneys should act as moral automatons. Personally, I think that’s a load of crap. As an attorney, it is incumbent upon me to advance my client’s goals, and to respect my client’s autonomy. But, as one (in)famous attorney said, “I’m not a potted plant.” I have a duty to advise my client, and that includes the duty Elihu Root described so aptly in his famous quote: “Half the practice of a decent lawyer consists of telling his client he’s a damned fool and should stop.”

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Robert Lyman 06.11.04 at 5:00 pm

Fine nolo, let’s do a hypo:

Suppose a government attorney, who believes that abortion is murder and therefore hugely immoral, is given the following assignment: “Please prepare a memo describing the cicumstances under which abortion is legally protected, and discussing ways in which the President might use his office to further expand abortion rights.”

1) Should the attorney submit a one-line memo: “Abortion is murder and therefore legally forbidden”?

2)Should he accurately describe the law but intentionally ignore or minimize possible Presidential action?

3)Or should he, to the best of his ability, find arguments which the administration could employ to justify the expansion of abortion protections, even where those arguments are controversial, weakly grounded, and subject to criticism?

There’s only one good answer, and that’s #3. Lots of people might say that makes the lawyer an accessory to murder; I’d say it meant he did his duty to his client.

Letting unelected lawyers veto the President’s requests diminishes accountability and shifts power in unacceptable ways.

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Jack 06.11.04 at 5:17 pm

Robert,
I think that is a very clear example and shows that thought has been put into the limits of lawyers professional obligations. I’m not so sure that in this case the limits of professional responsibility are clearly enough defined to be reliable as a moral guide in the way it is in matters of confidentiality. Other people have suggested that such an unbalanced and contentious reading of the law may be incompatible with the oaths and role of the lawyers in this case. A long way of saying that professional ethics are only a guide ot moral behaviour and not necessarily a good onein this case.

I’m with you and asg in agreeing with Ajay.

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nolo 06.11.04 at 6:40 pm

Robert, the problem with your hypo is that it fails to acknowledge the most important part of an attorney’s responsibility to her client — which is to fully respect the client’s moral autonomy. Bet you didn’t think I’d say that.

Regardless of whether the client’s an elected official or not, the ultimate decisions are always the client’s to make, and a good attorney always keeps this in mind. That being said, let me discuss the problems with your hypo.

First, option one is a pure strawman. It would simply be a lie (or maybe just incompetent) for a lawyer to say that “Abortion is murder and therefore illegal,” since this is not a correct statement of the law. Whether one believes the law to be moral or not, U.S. law does not equate abortion with murder, nor does it make abortion generally illegal.

That aside, to the extent that you have posited that option two and option three are an attorney’s only other options, you’ve presented a false dilemma. In your hypo, an attorney who has concerns about his or her client’s goals has only two options: Either (a) to try and surreptitiously direct the client by shading the truth about the client’s legal options or (b) to blindly follow the client’s directives regardless of his or her misgivings. Neither of these options, however, would be a proper discharge of an attorney’s duty *regardless* of whether the attorney had a moral problem with the client’s stated goal.

What the attorney in your hypo should do is what any attorney would be obligated to do, which is to fully brief the issues. This should include addressing both the strengths *and* weaknesses of the available legal arguments, but it shouldn’t stop there. Where pertinent, potential practical, moral and political repercussions ought to be raised as well.

This is not an usurpation of the client’s right to make the ultimate decision. It is the only appropriate way to respect the client’s right to do so.

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Robert Lyman 06.11.04 at 7:10 pm

Nolo,

I don’t think that we actually disagree much. Of course, an attorney should fully brief the issues (although I don’t agree that DoD lawyers should be considering political dimensions–leave politics to the politicians), and it certainly isn’t crazy to claim that the authors of the torture memo failed to do so. They did, and that’s part of why I wouldn’t hire them to represent me.

But most of the posters on this thread didn’t claim that the memo was incomplete in that it didn’t consider counterarguments fully. They said it was UTTTERLY WRONG that ANYONE could think of ANY circumstance under which torture would be legal (not moral, not wise policy, but legal). My option #1 isn’t a strawman at all, it is exactly what many posters think the lawyers should have written in response to the request for this memo.

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nolo 06.11.04 at 7:35 pm

Robert, it may be that we do not disagree greatly in substance. On the other hand, I find it hard on anything other than a pure rule-parsing level to disagree much with people who are highly disturbed by the idea of a passel of DoD lawyers cooking up somewhat strained legal justifications for torture. I’m disturbed by it, for sure.

51

nolo 06.11.04 at 7:48 pm

One other point, Robert — judging from its title, the March 6, 2003 memo was supposed to be an “assessment of legal, historical, policy and operational considerations.” Based on that, I would expect some attention to political issues. In any event, I’d certainly expect more than a cookbook on how to justify torture.

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Robert Lyman 06.11.04 at 8:02 pm

Based on that, I would expect some attention to political issues.

If by “political issues” you mean the impact on the ongoing operations in Afghanistan and Iraq, and on relations with allied nations, then yes, obviously. If you mean Bush’s chances of reelection, then no. But I agree this is a lousy memo in numerous ways.

53

pepi 06.11.04 at 8:58 pm

Oh well, look at the bright side. At least they’re no longer pretending the authorization to use torture doesn’t come from the President.

We should all commend that honesty.

Also, admire the transparency – and genius! – in admitting right from the start that international law means “international law *as interpreted* by the United States”. Other nations “may take a more restrictive view”, but the US needs a panel of legal advisors to try and spin it so they can defend treating those laws as toilet paper while simultaneously claiming they’re still signatories to them.

If this was a movie, I’d admire any character that’s so shamelessly machiavellian and still gets away with it. In fact, it does sound like a movie. It totally defies belief.

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pepi 06.11.04 at 9:21 pm

Really, one has to wonder why bother to sign up to Conventions at all if they can be overridden “because they’re not federal laws”.

Of course the only coherent, if ugly, route is to simply repeal the ratification of all international Conventions altogether, not claim that they can be “interpreted” and must come second to whatever national policy or decision.

But if the US did that, if it retracted its signature, then the US military would not be protected by those Conventions abroad. Ha.

I wonder this memo implies in that respect. If the US reserves the right to “interpret” the conventions as it sees fit, then surely it follows that other nations have the same right to interpret their own way too in respect to their relations with the US – interpret their way not just the conventions, but whether the US is still _effectively_ a contracting party, and its military still to be guaranteed by those laws. Very interesting.

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nolo 06.11.04 at 9:28 pm

But I agree this is a lousy memo in numerous ways.

Robert, as they say, from your lips to God’s ears.

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Ted Barlow 06.11.04 at 10:14 pm

Rob,

I should know better than to debate points of law with a law student. I have no doubt that you’re right about the obligations of a criminal defense attorney, and I’m sorry for misstating them. But by citing the proper rules, you acknowledge my larger point- an attorney ultimately has to be responsible to the law before his client. He is obligated to look out for his client’s interests, but he has to do so in a lawful way. When giving legal advice

Let’s say that a corporation asks its legal department about how to minimize taxes. They have any number of options:

1. They could give them conservative advice, telling them how to minimize their taxes in ways that wouldn’t put them in any danger in an audit.

2. They could give them advice that stretches the law. For example, they could advise them to laying out tax shelters, move income offshore, and redefine of assets and income streams in ways that an aggressive auditor might find suspicious.

3. They could give them indefensible advice. For example, they might advise their company that taxes are involuntary servitude, and that they shouldn’t pay any under the Thirteenth Amendment. This is an argument that an anarcho-libertarian might make; I’m sure I could find an intelligent person on Samizdata arguing it within a few minutes. However, it wouldn’t hold up in court, and we all know it. (I believe that it is tried on a semi-regular basis and laughed out of court. Not a lawyer; can’t find cases.)

4. They could offer advice that is not only plainly wrong, but lawless. They might recommend that the corporation refuse to pay taxes, falsify their records, and threaten any auditors with violence.

If this framework is useful, you’re arguing as if these lawyers’ behavior was more like #3. I’m arguing that it was more like #4.

I’d agree that there would be a chilling effect if lawyers felt that they risked disbarment for bad advice. I would not agree that there would be a chilling effect if lawyers felt that they risked disbarment for advising their clients to

“But where’s the line?” Good question. I’d have to say that that’s up to arbitrators on the bar. But without some attempt at judgement, a lawyer can advise his client to do anything- torture prisoners, claim unlimited power, falsify evidence, murder a witness-and suffer nothing but professional embarassment. As long as he can point to some sort of justification, however lame it is, he’s in the clear.

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Ted Barlow 06.11.04 at 10:28 pm

Wow, I left a lot of unfinished sentences there, didn’t I? Oh well, you get the idea.

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Robert Lyman 06.11.04 at 11:13 pm

If the US reserves the right to “interpret” the conventions as it sees fit, then surely it follows that other nations have the same right to interpret their own way too in respect to their relations with the US…

Pepi, you have correctly stated the law. As a matter of customary internatinal law, treaties are indeed interpreted by the parties to them, so the US can interpret any treaty as it wishes, including in a ridiculous way. (And here I must apologize–I do not have a copy of the Restatement 3d. of Foreign Relations Law handy and thus I cannnot provide authority for this proposition–can somone help me out or contradict me with a cite?)

And yes, other nations may then observe our behavior and interpretation and decide for themselves whether we are in compliance, and take what steps they consider appropriate. That makes patently false interpretations a bad idea.

Ted, since #3 in your example involves giving advice which has already been laughed out of court, it would be malpractice. I would prefer an option that read:

#3 giving advice which involve long, risky stretches of existing law, which, although not directly contradicted by existing case law, are quite likely to lose in court because similar but not identical arguments have lost. Stipulate further that the client had asked for long, risky stretches because he really, really wanted to do something and needed some argument–any argument–to use when the time came.

Then I’d pick #3 and you’d pick #4. I’d like to know if the DoD lawyers objected to their assignment and said that torture was a bad idea, only to be told “We know, but we want the memo anyway.”

I have in mind the defense lawyer who is trying to get his (black) client off for murdering his child by claiming “Post Traumatic Slave Syndrome.” He’ll be laughed out of court, and rightly so. But his client refuses to plead out, and presumably the DA has a mountain of credible evidence, so he has to do something.

Now, obviously it’s a different think to fight a desperate battle to free a murderer than to advise people “you can kill someone if you’re black, based on my outlandish theory.”

In any case, I think our difference is clear enough and firm enough that we must (as usual) agree to disagree.

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Ted Barlow 06.11.04 at 11:22 pm

Fair enough. One of these days, one of us is going to convince the other of something. On that day, bells will peal, the dead will walk, and dogs and cats will be found living together.

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Ted Barlow 06.11.04 at 11:28 pm

Last point- I should say that we’ve occasionally made the mistake of treating defenses and advice as morally equivalent. The lawyer pleading “Post Traumatic Slave Syndrome” is presumably doing the best he can with a bad hand. It’s embarassing, but not unethical. If that lawyer advised a client to commit a murder, based on “Post Traumatic Slave Syndrome” (or any other theory), that’s wildly unethical.

Similarly, I could imagine a lawyer charged with defending torture on the arguments laid forth in this memo. I wouldn’t want to see that lawyer disbarred. But offering this memo as a guideline for future action is different.

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Robert Lyman 06.11.04 at 11:47 pm

You’re right about that last point, Ted.

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pepi 06.12.04 at 9:34 am

Robert: are you sure about that “free” interpretation thing? that it’s the way it’s supposed to be for all international law?

It’s the first time I hear that any Treaties or Conventions especially those about war prisoners can be liberally adapted by the contracting parties. I mean, it’s being done, so of course it “can” be done – but doesn’t seem to me it’s allowed by those Conventions at all, or by international law at large. It’s only the US claiming this right.

Yes, I agree, it is a terrible idea. But I disagree that it has any legal basis whatsoever. You either sign on to them or you don’t. No in-between.

The conventions start off with “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances” – and in the commentary linked by Ted’s post, there’s many quotes and instances specifying torture is never admissible no matter what circumstances, war, threats, etc.

Plus, the whole point is also that this loose reading of the Geneva conventions seems to be against the US constitution so… it seems utterly indefensible. It voids the US adherence to the treaties without doing so explicitely via denounciation.

I must add I’m also puzzled by the discussion here on the nature of legal advice to clients. As if it was a case of private legal advice to an individual or a business? It’s not, it is about the policy of a government. The first question that came to mind when I read about this was, why have legal advisors discuss this issue, and not the parliamentary institutions? I have some trouble understanding that process.

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robbo 06.12.04 at 6:32 pm

Robert wrote:

Robbo, you are confusing ethics and morality. Legal ethics require lawyers to do things that are arguably or even patently immoral—such as helping child molesters to go free, or discussing when torture might be permissable.

Actually, I wrote:

Ultimately, Mr. Lyman may have fair point about the practical necessity for lawyers as a group to be amoral and essentially unethical.

Since I straightforwardly acknowledged your point it’s hard to see how I’m “confusing” anything. I do agree with those here who believe that government lawyers are actually beholden to the citizens of the United States, not the President or any other representative of the government itself. As such, I expect those lawyers to interpret the law with my best interest at heart, and yours. If you can argue that this team of lawyers did that then you’re among the most self-deluding people I’ve ever run across.

I sense that the legal amorality you expound upon here is heady and liberating to many who practice law at the highest levels, but I also perceive that we can’t maintain an advanced society without some leavening of morality.

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Robert Lyman 06.12.04 at 6:43 pm

Pepi,

I’m sorry I don’t have a citation, but yes, internatinal law holds that the final arbiter of the meaning of a treaty is usually the country which is “bound” by it. Sometimes treaties set up dispute resolution mechanisms (think the WTO), and the UN has some “courts,” but those courts don’t have meaninful enforcement power and most treaties don’t give them the right to have the final say. So countries have the authority to adopt deeply stupid interpretations, and the only recourse for their treaty partners is to retaliate with similarly stupid interpretations. (or invade)

International relations is a game where much is “impossible” only because people agree it is impossible, not because you can’t actually do it.

The first question that came to mind when I read about this was, why have legal advisors discuss this issue, and not the parliamentary institutions?

Well, the political answer is obvious, but I’d agree with you on the process–that kind of sea change in policy ought to be made in the open with the consent of the legislature. (Of course, I say that knowning full well Congress would never approve this memo as law.)

By the way, I had a chance to look a little more closely at the the ABA rules, and I found one which goes somewhat against the position I’ve taken here:

Model Rule of Professional Conduct 2.1:

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

Now, this says “may,” not “must.” But it does provide a good basis for demanding more from the laywer than just law.

I’m still concerned about a chilling effect (and in particular, the relationship between Ted’s post and the petition against John Yoo (scroll up for updates)), so I haven’t changed my mind. (I should have mentioned Yoo earlier, since really I’m more worried about him than this torture memo). But consider this an admission against interest.

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bull 06.12.04 at 8:14 pm

“Now, obviously it’s a different think to fight a desperate battle to free a murderer than to advise people ‘you can kill someone if you’re black, based on my outlandish theory.’”

It’s also different to fight a desperate battle to free a torturer than to advise people “you can torture prisoners, based on my outlandish theory.”

And hearkening way back in this thread, an attorney who believes that abortion is “murder” and therefore hugely immoral, if asked to prepare a memo describing the circumstances under which abortion is legally protected, and discussing ways in which the President might use his office to further expand abortion rights, should find a new job.

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jack 06.13.04 at 3:37 pm

Thanks in no small part to Rob Lyman this thread has defied Godwin’s law for an incredibly long time.

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pepi 06.13.04 at 4:27 pm

Robert: maybe we mean something different by “interpretation”. The UN, the WTO are organisations, any charters or treaties they imply with membership are far more general than extremely specific conventions on torture and the treatment of prisoners. For instance, deciding how to interpret the UN charter on resolution of disputes is very much a case-by-case business producing a lot of disputes in itself.

But, by sheer logic, there is no way such a specific and unequivocal convention as that on torture and prisoners of war can be “interpreted” in a way that explicitely renders its entire meaning, the very definition of its field of application, _and_ its very application completely useless – such as in this case.

The memo redefines the notion of torture, finds a million ways a “defendant” can excuse his actions of torture, overtly says the Geneva conventions are unconstitutional!, and that the President has the right to override any other law anyway, in his duty as commander in chief.

This is far from a simple “interpretation” – this amounts to complete denial of the duty to adhere to the Geneva conventions, without actually going through the inconvenience of repealing the US’s signature to them.

If the Geneva conventions are unconstitutional as the memo says, then the US _must repeal its membership immediately. But they’re not doing it – for the obvious reasons already said. Because they still want their protection when it comes to American citizens.

I very much doubt the concept of interpreting international law extends this far. No treaty can allow for a member to _completely_ deny their very duty to respect that treaty, while remaining a member and therefore demanding it is respected in their regard. That is not an interpreation. It’s a total farce.

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Adele MacLean 06.16.04 at 6:07 pm

I just learned about the Durbin amendment today. Has it come up for a vote yet? Today is Wed., 6/16/04. I want to call my senators if there’s still time, but I don’t want to call about something that’s old news.

Thanks.

AM

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