Which Explanation Is Less Credible?

MITHRIDATES
One can't possibly know for sure if someone is lying. I leave it to the reader to decide for themselves which explanation is least plausible.

• Nancy Pelosi was briefed about waterboarding in 2002 according to documents released by the CIA in response to Republicans' request. Her response: The CIA told her these techniques "could be used, but not they they would" be used. The documents suggest she was actually briefed on methods that had been used. There was apparently no objection made at the time, but now she wants a "truth commission" to investigate. Why a truth commission now and no objection then? Maybe there's a good reason, but we're still waiting to hear it . . .
  
• Manny Ramirez tested positive for banned substances and will serve a 50 day suspension. The drug is apparently a female fertility drug often taken by steroid users. His response:

  Recently I saw a physician for a personal health issue. He gave me a medication, not a steroid, which he thought was OK to give me. Unfortunately, the medication was banned under our drug policy . . . I've taken and passed about 15 drug tests over the past five seasons . . . I know everybody is disappointed. So am I. I'm sorry about this whole situation.
  

  Maybe there's a good explanation for why a man would take a female fertility drug banned by MLB, but we're still waiting to hear it . . .
  

Good Cop, Bad Cop, or Both?

PHUTATORIUS
Last year the New York Times published a feature story about Deuce Martinez, a CIA interrogator who established a singular rapport with captured "9/11 mastermind" Khalid Sheikh Mohammed and, according to the Times report, was instrumental in extracting key bits of intelligence from the terrorist.

The Times article placed described two interrogator camps within the Agency: "the gung-ho paramilitary types" and "the more cerebral interrogators."  Martinez fell into the latter category; he in fact had refused training in waterboarding, an approach he thought fit only for the paramilitary "knuckledraggers."
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The article takes pains to point out that interrogators of both sorts went to work on KSM, and it wonders aloud to what extent Martinez's success was, at least in part, attributable to the "knuckledraggers" softening the subject up:

Martinez came in after the rough stuff, the ultimate good cop with the classic skills: an unimposing presence, inexhaustible patience and a willingness to listen to the gripes and musings of a pitiless killer in rambling, imperfect English.  He achieved a rapport with Mr. Mohammed that astonished his fellow C.I.A. officers.

* * *

Mr. Martinez’s success at building a rapport with the most ruthless of terrorists goes to the heart of the interrogation debate. Did it suggest that traditional methods alone might have obtained the same information or more? Or did Mr. Mohammed talk so expansively because he feared more of the brutal treatment he had already endured?

According to the Times article, Martinez would get first crack at a prisoner. If the prisoner proved uncooperative, Martinez would yield the floor to paramilitaries, who would apply enhanced techniques like waterboarding until the prisoner finally agreed to talk. Then Martinez would reenter the scene. This was exactly how it played out with KSM. And we know now that in his case, "the rough stuff," the "brutal treatment" included 183 discrete instances of waterboarding over the course of one month.

This reads like a classic "good cop/bad cop" routine to me, and if we're going to allow ourselves to get drawn into a discussion about the "efficacy" of waterboarding — and I think this is an "if" worth contesting, as a whole lot of unacceptably repressive practices have the merit and appeal of being "effective" — it's worth reviewing the program in its entirety (or at least what we know of it to this point). The information we have is, of course, incomplete. And we may never know what it was exactly that made Khalid Shaikh Mohammed — a mercurial character, if the Times article and his subsequent court appearances are any indication — open up to Martinez. Was it entirely Martinez's "cerebral" approach? Was it all the waterboarding, such that KSM would have given up intel to anyone? Or was it the combination, the alternation of coercion and conversation that finally brought down the terrorist's guard?

I think I'm repeating the questions that the Times reporter asked, and didn't try to answer, in his article. But I think they're worth asking again, now that we know the nature and extent of the "bad cop" treatment leveled at Khalid Shaikh Mohammed.

Who's got answers (besides Dick Cheney)?

Rinse, Ask a Question, Repeat

PHUTATORIUS
Look — I'm far from an expert on these things, and I certainly don't have access to all the classified information about the interrogations of Khalid Sheikh Mohammed. But still, I'm gonna just throw this out there:
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How effective can waterboarding be as an interrogation tool, if you have to do it to a guy 183 times, to get all the information you want out of him?

Seriously: if the standard for an "effective interrogation technique" is that it is more or less successful if you try it 183 times, I can imagine quite a lot of less brutal and controversial approaches that would qualify. For example, I like the song "Jump in the Line" by Harry Belafonte. Wait — I don't just like that song, I love it. But by the time you've played it for me 183 times, I'd probably sell out my family just to get you to stop.

Extreme Anguish of Body or Mind

MITHRIDATES
President Obama released four memos regarding alleged "torture" during the Bush administration. Cue outrage from all corners:

• The New York Times editorial page condemns the memos for being "written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country's most basic values." They contend that "as far as Mr. Bush’s lawyers were concerned, it was not really torture unless it involved breaking bones, burning flesh or pulling teeth." They may be right in this regard. This type of thinking falls way short of the American ideal. But the Times's sin is in omission. The regimes we've been fighting might not even consider those acts "really torture." "They torture, we torture, we're no different" has been a rallying cry of the raving left. It's worth pointing out that it's nonsense.

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• "The Memos Prove We Didn't Torture" victoriously screams the Wall Street Journal headline of a David Rivkin and Lee Casey opinion piece. Thank you, WSJ, for saying what the Times wouldn't. Thank you even more for going into even more detail of decidedly un-American activities supported by the Bush Administration. The authors justify these techniques by noting that they've all been tested on US servicemen. They almost have a point. It seems clear — at least from what we know — that the CIA did not engage in any activity that inflicted serious pain. This is not the "torture" of Saddam Hussein's Abu Ghraib. But discovering a captive's worst fear and making him think it's about to be realized is something straight out of 1984. To claim these memos are an acquittal means you haven't read your Orwell.


• Former head of the CIA Michael Hayden condemns the release of the memos on the ground that it has made us less safe, without making any convincing argument as to why this is true.


• Meanwhile, the frothing Left is outraged that Obama won't prosecute CIA agents.


• Some say Obama is obliged to prosecute under the UN Convention against Torture. But we'd have to have a working definition of torture, now, wouldn't we? The CIA techniques may have been un-American and long-term harmful to our cause (we have to take the interrogators' word for it that they conferred tangible short-term gains), but is it really "torture" comparable to what the UN convention was designed to combat? Either way, the Bush Administration's actions and these type of responses will no doubt take the pressure off those engaged in "torture" of a far worse variety.


• At least one Feigned Outrage author thinks this a victory for transparency in government. Let the critics rant all they want, but find me another country where an organization like the ACLU openly sues for the release of top secret documents and the President agrees to release them. We're back on track to leading the way in democratic government. Keep this up and those who admired us before Bush will start to admire us again. And we'll be safer for it. So a shout-out to Obama for enraging the Right (and his own CIA director) by shedding some light on our past sins. Another shout-out for stating emphatically that the US will not engage in such activities any more. And a final shout-out for enraging the Left by refusing to undermine the CIA completely by prosecuting agents walking a fine line between defending their country and obeying the laws of human decency.

Don't Prosecute the Lawyers

PHUTATORIUS
Milan Markovic writes in Slate that a case can be made to prosecute the Bush Administration lawyers who served up the facile and intellectually bankrupt legal opinion approving the use of torture in terror interrogations. And what a lousy case it is, too. In fact, I'm not sure it would even pass the "John Yoo standard."

Markovic cites a 1919 Second Circuit case in support of the notion that an attorney can be prosecuted for advising his client to commit a crime. He also argues that soldiers have to deal with difficult legal gray areas all the time, but they enjoy a war crimes immunity for following orders — so maybe the best bet is to go after the lawyers who rationalized the orders (because apparently it's not enough to take on the superiors who issued them). And finally, he argues that the concerns attorneys have expressed about prosecuting for advice are simply the expected, instinctive responses of professionals protecting their own.

This last bit is a bummer, because I'm an attorney, and Markovic's preemptive strike has disqualified me from explaining why his article is idiotic. But what the hey, right? It's my blog, and I can blather if I want to. And I think maybe I can purchase back some of my credibility by stating that, as a personal matter, the Yoo memo was a lousy piece of work, and that the policy it promoted was godawful and indefensible. But don't prosecute the lawyers. Just don't do it. Here's why:

First, the law isn't always clear, and clients seek out attorneys to give them answers that allow them to go forth and do their work, despite the fact that very often the amount of legal uncertainty can be paralyzing. I can't tell you how often, in my three years working in-house, I've been consulted on a question of considerable legal ambiguity and asked to opine on whether my clients would be running afoul of the law, to the tune of considerable civil and even criminal liability. Lawyers have to be in a position to make judgment calls.

Second, a written legal opinion is First Amendment-protected speech. Sure, there are exceptions (most notably, when the crime is accomplished by speech, as in a fraud case), but we generally don't punish speech in this country. We don't punish a blogger who sits down at his desk and writes that we should torture people. Should we likewise punish an attorney who sits in abstraction and writes his opinions on whether a policy condoning torture is legally defensible? Incitement to violence or riot isn't constitutionally protected, but this isn't a case of the lawyer standing by with the electrodes, chanting DO IT DO IT DO IT into the ear of the covert intelligence operative. "Aiding and abetting" is Markovic's theory. He only has to go as far back as 1919 to find a case that supports it. That's usually a bad sign, especially when the First Amendment is in play. There wasn't a heck of a lot of protection given to freedom of speech back then. That came later.

Third, prosecuting attorneys for their advice implicates attorney-client privilege. Love it or hate it, Mr. Markovic, the ability of clients to consult their attorneys in confidence is a bedrock principle of Anglo-American law. The privilege itself is not in issue in this instance, because the Yoo memorandum was leaked to the public. But the notion that attorneys may have to answer to criminal prosecutors for giving bad advice begs the question: would law enforcement authorities have the power to compel them to surrender their privileged communications, toward the end of investigating the attorney? Even if not, and proponents of criminal counsel liability were therefore in a position to argue that in most cases an assertion of privilege would cut off the investigation, there's still the fact that it's not the privilege so much that is sacrosanct — it's the relationship between attorney and client, and the principle, which is fundamental to our law, that attorneys must not be impaired in their ability to give legal advice.

Fourth, Markovic makes the point that "lawyers can offer legal advice in such a way as to account for differing points of view when addressing controversial legal issues," and writing in this way would preclude liability. Yes, this is something that lawyers can — and should — do, if they want to be good at their jobs. But it's one thing to remark on the difference between good and bad lawyering — quite another to posit that this distinction ought to serve as the dividing line between legal and criminal conduct. Would it have been enough for Yoo to have written a disclaimer, a la "Authorities might come down on different sides of the question, but on balance I believe it's not illegal to torture detainees?" Should a recitation of those prefatory twelve words really make the difference between hard time in Leavenworth and a cushy post-government work gig with a Washington consultancy? Talk about your First Amendment concerns: Counsel, you're going to have do more "on one hand . . . on the other" in this memo, or you're going to be INDICTED.

Fifth, it seems at least reasonable to take account of the context in which this memorandum was written, and the power relationships that surely drove its content. The respect and independence accorded to attorneys varies from one institution to the next. I would suspect that the respect and independence Bush Administration attorneys had was negligible, and that Yoo's assignment wasn't so much to give an honest, forthright appraisal of the policy but instead to write up the best possible legal justification for it. I can't say what Yoo would have written if left to his own devices, but I don't doubt he was under considerable pressure to sign off on the policy. It's my impression that Bush's people didn't think much of lawyers. It's a bad state of things when lawyers don't feel free to speak the truth about bad policy. You don't fix that by prosecuting the lawyer; you fix it by creating conditions where lawyers feel independent and empowered to do their job and do it well.

Look, Yoo's memo was one-sided and ridiculous. It was insulting. An astonishingly poor effort. (I'm running out of pejorative adjectives, and I'm tempted to use facile again simply because I like it so much.) But let's just call it what it was — lousy legal advice — and leave the criminal charges for the folks who did the waterboarding. If Rummy does time, in part because he relied on John Yoo's memo, there's always a legal malpractice action to help set things right.

Let's not tear down core values of our legal system in our zeal to see the Bush Administration and its brutal, excessive policies brought to heel. Today it's John Yoo. Tomorrow it will be the public defender or divorce lawyer down the road. As we say in the business, "bad facts make bad law." Going out of our way to punish the attorneys here, no matter how attractive a prospect that seems to folks who have The Bloodlust (and now The Upper Hand), would set an awful precedent.