November 3, 2009

Whitehouse Speaks at American University Conference on Torture Memos

As Prepared for Delivery

Thank you very much for that warm introduction, and thank you for inviting me to speak on “The Torture Memos: Lawyers, Ethics, and the Rule of Law.” To evaluate the importance of this subject, let me offer two beliefs about America which I hold very firmly, for you to reflect on as we consider this topic: One: Beyond our borders, America is a beacon of light in a shadowed world. Two: Within our borders, America is an ongoing education of a people in democracy and freedom.

A beacon of light, and an ongoing education in freedom. Set against that: water-boarding.

Water-boarding is a technique of torture with a long and sordid history: it was used by the Spanish Inquisition, by the Khmer Rouge in Cambodia, by the French in Algeria, by the Japanese in World War II, and by military dictators of Latin America. Senator John McCain, held captive for more than five years by the North Vietnamese, has said: “It is not a complicated procedure. It is torture.” It has been prosecuted by the United States as torture, and described as torture by our courts of law. It does not belong in our arsenal.

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On America as a beacon, President Clinton said last year: “People the world over have always been more impressed by the power of our example than by the example of our power.” Every day six billion inhabitants of this planet wake up to a new morning, in which they choose where to invest their hopes and aspirations. When America represents to them a beacon for those hopes and aspirations, when they turn toward our beacon, a tide flows in our national favor; a tide whose persistent flow can offset our occasional well-intentioned errors and follies. When that tide flows against us, no power of wealth, no force of arms, can long prevail against it. Our beacon does not just light the world, it causes that tide in world events to flow gently but steadily in our favor. When we dim that beacon, for instance by torture, it causes a real and general harm to our national security. People are fond of saying “Freedom isn’t free”; torture isn’t free either.

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America as an ongoing education in freedom, teaches us that the vehicle of America’s freedom is process of law, so process matters. It matters a lot. The question how we came to torture is not an idle or prurient one.

I start with the proposition that something went badly wrong in the halls of government, and that the epicenter of the problem was OLC. Shocking enough that OLC opinions, the gold standard of executive construction of the law, should have to be withdrawn, over and over, for shoddy legal analysis; worse still that the Department’s Office of Professional Responsibility should have to investigate the OLC. To those familiar with the Department, that is almost unimaginable.

Everyone agrees that lawyers have a duty to give their clients the best legal advice they can. That includes subsidiary responsibilities, such as to identify relevant legal authority. But in determining what constitutes torture, OLC failed at that responsibility.

Consider the infamous August 2002 memo, which defines torture thus:
Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.

As lawyers, you might inquire: Where does this definition come from? What was the source of the “organ failure, impairment of bodily function, or even death” language? You will find it in 42 U.S.C. § 1395w-22, a Medicare reimbursement statute. Go figure the relevance of that. Lawyers sometimes must analyze language from unrelated statutes, but normally only when better authorities are unavailable. What would be a better authority than a Medicare statute for whether water-boarding is torture? Well, how about a civil rights prosecution brought in the 1980s by the United States government itself against a Texas sheriff who water-boarded prisoners. The government’s indictment in United States v. Lee charged that the defendants conspired to “subject prisoners to a suffocating ‘water torture’ ordeal in order to coerce confessions.” The sheriff and his deputies were convicted by a federal jury and the United States Court of Appeals for the Fifth Circuit affirmed. The water-boarding technique is called “torture” no less than 12 times in the Circuit Court’s opinion. At sentencing, the presiding judge admonished the former sheriff that “[t]he operation down there would embarrass the dictator of a primitive country.”

The Fifth Circuit decision is reported at 744 F.2d 1124. A Westlaw or Lexis query for the term “water torture” brings it right up. The Department of Justice itself brought the charges. The prosecuting Assistant U.S. Attorney is still in the Department. But the Lee decision is never mentioned in the OLC opinions. Not once. Nor, for good measure, are the war crimes prosecutions initiated by our government against Japanese soldiers who water-boarded American aviators; nor the U.S. soldiers court-martialed in the Philippines for water-boarding.

How is it that the Office of Legal Counsel, the elite legal conscience of the Department of Justice, completely missed all this? Particularly Lee: they missed their own prosecution? And instead found a faraway Medicare reimbursement statute? Challenged ex post facto on this failure, Attorney General Mukasey argued that Lee is not relevant, as a civil rights prosecution, to the international law questions at issue in the OLC opinions. This cover argument is a sham, for two reasons. First, Lee is a significant point of reference, even if only for the purpose of distinguishing it. But more important, civil rights prosecutions enforce constitutional standards: substantively, these include the Fifth and Eighth Amendments, and, as applied to the states, the Fourteenth Amendment. And guess what? OLC defines international law and treaty obligations in terms of the Constitution: to wit, the Fifth, Eighth, and Fourteenth Amendments.

Equally flawed is John Yoo’s argument that for an interrogator to be liable under the specific intent requirement of the torture statute, “the infliction of [severe] pain must be the defendant’s precise objective.” The words “precise objective” appear nowhere in that statute. They are there as a way of smuggling the motive of the interrogator into the specific intent analysis. Yoo writes: “[E]ven if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith.” But how common is it, in the dark annals of torture, for the interrogator not to have as his “objective” to extract information that can be argued will protect national security? “[I]t [is not] appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture.” Take that from Daniel Levin who used those words in replacing the Yoo memoranda, and who further explained that “specific intent must be distinguished from motive. . . . [A] defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute.” Dropping in the weasel word “objective” to confuse the legal distinction between intent and motive, was a cheap and transparent device.

And these are just a few of the OLC torture memos’ failings as scholarship and analysis. As I have said on the Senate floor, this is fire-the-associate quality work.

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We will find out more when the OPR report comes out, but I suspect that the authors of the OLC memoranda failed to perform a good-faith legal analysis. Instead of the role legal analysis is supposed to serve in a society committed to the rule of law, OLC’s legal opinions on torture, as Professor David Luban explained at a hearing that I chaired this spring, “read as if they were reverse engineered to reach a pre-determined outcome: approval of water-boarding and the other CIA techniques.” The deep, deep classification of their memos gave the authors confidence the memos would never see the light of peer review, and need only resemble legal opinions, without the intellectual discipline or honesty required of real legal opinions. The OLC torture memos were like the false fronts on a Hollywood movie set; Potemkin villages of analysis.

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How did this happen? Well, master bureaucrats and political manipulators made sure of it by eliminating internal procedural protections and brooking no dissent. John Yoo, for example, appears to have operated in near secrecy within the Office of Legal Counsel with little if any review by his peers there or elsewhere in the Department, including, it appears, the Attorney General. Lawyers in other Departments who were disturbed by the torture memos’ analysis were silenced. Senator Levin’s Armed Services Committee report on interrogation techniques detailed the squelching of dissent among military lawyers. Philip Zelikow, a lawyer within the Department of State, testified at my hearing in May: “I distributed my memo analyzing these legal issues to other deputies at one of our meetings, probably in February 2006. I later heard the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed. That particular request, passed along informally, did not seem proper and I ignored it.”

This silencing of dissent conflicts with the rule of law. A lawyer, as Professor Luban explained in May, must “explain enough that the client can make an informed decision.” A President who must “take care that the laws are faithfully executed” will not be able to do so if the legal advice he receives is one-sided and result-oriented. It is a significant question whether the President’s “faithful execution” was undermined by bad legal advice as a result of simple incompetence, or as a result of errant ideology, or as a result of secret instruction, even conspiracy.

Defenders of the Bush administration’s interrogation program suggest that the lawyers were merely doing their jobs providing advice and should not be held responsible for any consequences. But that argument presupposes the result. First, it is clear from these opinions having to be withdrawn that these lawyers weren’t doing their job of giving the President high-quality legal advice. Second, they may well have intended to give false advice. A mixture of panic and patriotism might have motivated them, but there is also evidence from the Senate Armed Services Committee report of a different motive: to generate evidence that would link Al-Qaeda to Saddam Hussein to justify the Iraq war, in the run-up to the 2004 elections.

Some suggest that time pressures and exigencies of the moment got the best of the lawyers. But the August 2002 Yoo/Bybee memos were issued eleven months after the September 11, 2001 attacks, and the flaws – including the improper backchannels, secrecy, and squelching of dissent – persisted even through Steven Bradbury’s 2005 opinions.

Finally, people have said investigation of this by the Attorney General risks “criminalizing policy differences.” Really? What makes behavior criminal? Do you “criminalize” behavior by investigating or punishing it? No. Behavior becomes criminal not when it is investigated, not when it is punished, but when it is committed in violation of law. Prosecution vindicates the law; it doesn’t form it.

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Attorney General Holder has indicated that the OPR report will be released upon completion of any necessary review for classified material. I applaud the Attorney General for recognizing that the truth about OLC, however unpleasant, must be revealed in order to restore full confidence in that office and for a complete understanding of this matter; to educate the people. I expect it to be a thorough and professional report. That would be consistent with the commitment every Attorney General should exhibit to follow the facts and law where they lead.

It will be a sad day, I am sure, when we finally read the Office of Professional Responsibility report, but its release will help avoid a repeat of this episode the next time an administration seeks to manipulate the role of government attorneys. At OLC, this means re-erecting its institutional defenses against manipulation: reasserting its tradition of providing detached and careful legal advice; ensuring that its opinions are peer-reviewed; honoring regular channels; and exposing opinions to the light of day as soon as reasonably possible. This recovery will require good leadership. President Obama has nominated Dawn Johnsen to complete this task, and she is well suited for it. A former acting head of the office, her nomination is one of many currently bogged down by meritless partisan obstruction by my Republican colleagues in the Senate. I look forward to seeing her confirmed soon.

I will close by returning to my two opening points. America’s ongoing education of a people in freedom requires us not only to understand freedom’s great constitutional architecture of separated powers, not only to watch over its great web of statutory law, but also to attend to those myriad traditions, rules and practices, developed over decades, that keep the undisciplined energy of government – even down to the level of OLC – directed within its proper bounds. The breaking of those traditions, rules and practices, what former OLC head Jack Goldsmith in his book The Terror Presidency, called “powerful cultural norms about the importance of providing the President with detached, apolitical legal advice, as if OLC were an independent court inside the executive branch,” Is what opened the gate to the dark side.

My largest point is my last and simplest one: For a country that holds up a lantern to the world, turning down to the “dark side” is a grave mistake. To borrow a closing image from Winston Churchill: the stairway down to the dark side may seem “a fine broad stairway at the beginning, but after a bit the carpet ends. A little farther on there are only flagstones, and a little farther on still these break beneath your feet.”

Thank you.