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You would think that with their stunning successes fighting terrorism, repealing the Bill of Rights and hustling Jose Padilla from brig to brig one step ahead of the law that John Ashcroft's Justice Department would be a happy, relaxed place. But no. In fact, they take umbrage at any hint that their record, uh, leaves something to be desired. That's why the Spy is pleased to call its new column exploring the variegated excuses proferred by apologists for John "Thank you Jesus" Ashcroft
This week, let's look at former prosecutor and teen heartthrob Andrew McCarthy [Are you sure it's the same guy? – Copy Ed.] Andy, after doing useful service as a prosecutor in Manhattan, now writes a column on justice for the National Review Online. It's an improvement on past National Review efforts, like the ones that opposed the Civil Rights Act of 1964 and declared the Brown decision a setback for civil rights, but his efforts indubitably qualify him for membership in the The Touchy Ones. Here's a recent effort, defending the indefensible by blaming it all on those al-Qaeda fellow travellers, The New York Times.
The coverage of the internal government memoranda
regarding interrogation tactics and the legal parameters of torture continues to
provide stark indications of both what is wrong with policymaking in our 24-hour
media age and what becomes of the legal profession in an era when facts take a
backseat to feelings.
Predictably, the New York Times, straight
from its anti-Iraq War Room, supplied the latest dose of juvenilia, targeted at
a Justice Department memo written in August 2002 by Jay S. Bybee, then an
assistant attorney general and now a judge on the Ninth Circuit Court of
Appeals. At the time the memo was drafted, Bybee was the head of DOJ's Office of
Legal Counsel, the brainy legal beagle unit that serves as "lawyers for the
lawyers" on knotty issues that affect not only DOJ but the wide array of
executive-department agencies. According to the Times, Bybee's memo was
addressed to chief White House Counsel Alberto Gonzales, and it provided an
expansive assessment of the president's capacity to allow physically aggressive
interrogation techniques by so narrowly crimping the concept of "torture" as
nearly to define it out of existence. Thus, the Times reports: The
memorandum, dated Aug. 1, 2002, defined torture narrowly under a federal law
that prohibits it. Only pain like that accompanying "death, organ failure or the
permanent impairment of a significant body function" qualifies, Mr. Bybee wrote.
It went on to say torture is unlawful only if the infliction of pain is the
offender's specific objective. "Even 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," he wrote.
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Gosh, we're off to a good start here. We can hardly wait for McCarthy to rip into the man who was supposed to be the Justice Department's deepest thinker on vital legal issues for allowing pressure from Pentagon and CIA red-hots to cause him to write the shabbiest and most poorly-supported legal memo ever leaked by the United States Government. That has to be what he means by what happens when "facts" take a backseat to "feelings."
By the way, is the Times's anti-Iraq War Room anywhere near Cheney's bunker?
Also, by the way, if the Times or another equally unpatriotic paper had not reported the existence of this truly terrifying legal document, how would we have found out about it?
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As an academic matter, the memo's construction of torture — at least the part
of it mined by the Times — is unpersuasive. . .
Consequently, this would all be very interesting if Bybee were the president,
and if there were a scintilla of evidence that he had directed anyone to beat
detainees to within an inch of their lives in order to compel information. Of
course, he wasn't and there isn't. Bybee was a middle-management government
lawyer who was providing an opinion about the law to higher-management
government lawyers, who themselves were not decision makers and were not
empowered to order anyone to do anything.
The interpretation of torture expressed by Bybee, and by other attorneys who
may have had a hand in the memorandum, may not even have been his view. It is
part of the territory of being a lawyer, and in particular a government lawyer
advising principals, that you are called on to prescribe solutions in matters of
judgment. Generally, there will be no "right" or "wrong" answer, and — in what
is the hardest part — the lawyer must factor in that the decision ultimately
will not be made by him, but rather by someone who thinks differently from him,
and is beset by interests and incentives from which he is insulated. These
circumstances impel the lawyer not simply to provide his view of the best answer
but to spell out the entire range of possible answers, even the ones he
disagrees with, and dispassionately make the best case for each.
That is why this contrived memos "controversy," half-baked by the media and
grandstanding politicians, is so backward — and so harmful to good policymaking.
First and foremost, the opinions of the advisers are utterly irrelevant unless
it is established in the first instance that a decision maker actually did
something, or issued some directive, that violated the law. It's the principal's
action, not the agent's advice, that makes an offense. After all, if the
principal transgressed, it is no defense that he was merely following his
attorney's counsel; and if he acts properly, it is makes no difference that his
lawyer gave him bum advice that he wisely ignored.
Let's assume for argument's sake that a president instructs his subordinates
that interrogators were free to cut off fingers and toes of terrorists during
questioning, and they proceed to do so. In the course of investigating the
inevitable torture allegations, the Senate Judiciary Committee discovers that a
mid-level lawyer at the Justice Department wrote in a memorandum that severing
limbs did not come within the ambit of "torture" as legally defined. Does
anybody think the senators, upon reading this memo, would let the president off
the hook because government lawyers had opined that he was in the clear? Of
course they wouldn't. They would say, "I don't give a damn if a bunch of
eggheads told him he could draw-and-quarter detainees in Yankee Stadium at high
noon; he's the president, not them. It matters what he did, not
what they said."
That is the crucial missing element in this manufactured scandal. You have
prisoners being abused, but as things stand there is zero evidence that the
abusers were instructed in their tactics by the president, the Defense
secretary, and the top military commanders. Nor could the most provocative
advisory memoranda available close that gap. Absent evidence that those top
officials actually gave such orders, what they were told about the range of
options they had is beside the point. It is academic because it can have had no
causal connection to the abuse.
Moreover, let's suppose for argument's sake that there
were evidence that the president or his underlings ordered abuse. Does
anyone think a lawyer's memo could conceivably make the problem go away? . . . The president needs to be accountable for his actions and
directives. He can't slough it off, one way or the other, on "advice of
counsel."
Which gets us to the second point: Since the president is going to be held
responsible for what he does, we want him to do it on the basis of the best,
most candid, most comprehensive information that can be garnered. These are
tough problems — like, what do we do if a dirty bomb in New York Harbor is about
to detonate and the terrorist who can tell us where it is has clammed up? They
are problems that call for intelligence and creativity. Stifle those qualities —
make advisers afraid to say what they think for fear that the New York
Times may one day breathlessly inflate it into a page-one, above-the-fold
scandal — and you have national security by dunces. And that means you also have
the occasional mushroom cloud, probably right near where the Times lives,
and where the editors, if they survive, will no doubt be preparing their next
feature about how the Bush administration failed to uncover the evidence that
might have prevented the bombing.
Without a violative action by the president and his top aides, this is a
kerfuffle invented by people with too much space and air time to fill who know
that scandal is what sells. You would think that with a war going on, Iraqi
sovereignty about to revert, and a beheading by jihadists every week or so,
someone might question the news judgment of turning into a story the thought
processes of advisers to officials who haven't been shown to have
misbehaved. . . .
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Note to Andy: You can read the whole thing on washingtonpost.com if you think, as you seem to insinuate,that the Times quoted it selectively.
Let's get this straight: the unequivocal statement by the Justice Department's senior legal thinker, approved by the Attorney General, and transmitted to the President's counsel for use in briefing the President, that (1) it's not torture if the victim can be resuscitated and (2) the President has the inherent power to violate U.S. and international law prohibitions on torture is of no significance because Bybee didn't actually attach the electrodes to some poor bastard's testicles?
That's Andy's defense?
Gee, there's hardly any evidence of torture of detainees that I can think of -- on the planet Zontar.
So Bybee's job was not to advise the President how to obey the law but how to evade it? Or maybe it's to spell out all possible courses of action, without stating which ones are legal and which aren't? That would certainly be a novel construction of the duty of a government lawyer.
I guess we should be glad Andy has turned in his badge.
You know, Andy's right. We don't have all the evidence about who ordered the torture of detainees in Iraq, Afghanistan and Guantanamo Bay. That's why we're sure he supports the call for a Congressional investigation and a special counsel to determine who in command gave Lynnnie England her dog collar.
Andy?
Boy, if New York was blown up because the Bush Administration was shamed out of pretending to drown terror suspects, the joke would be on the Times.
I guess Andy thinks we'd all be a lot safer if newspapers suppressed all evidence of government misconduct. That way, if New York was then blown up due to the incompetence of John Ashcroft's Justice Department, at least the Times editors wouldn't have to feel guilty.
It always helps in prosecuting a losing case to assume the answer: the Times is making something out of nothing (or in technical prosecutor talk, a "kerfuffle") because Andy assumes the readers of the memo did not then order the wrongful acts that took place and that the memo purported to justify.
His paean to the zealous prosecution of these cases might ring a trifle less tinny if the Touchy Ones showed the same zeal in interrogating top-level officials, up to and including the memo's audience, that they display in trying to blame the torture debacle on five goobers from West Virginia.
Speaking of zealous prosecution, Andy, how about you ask Holy John to release all the memos, not just the ones that can be read to support your flimsy defense?
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But if you were on trial, I wouldn't be allowed to try to prove that you
believed something, much less that you had acted on that belief, just because
someone else expressed an opinion. On that score, the next time someone tells
you the media and the Democrats don't have a policy of "defeat Bush today and
worry about principle tomorrow," think about last year's manufactured scandal
over the Patriot Act and library records.
Leave aside for the moment that the Patriot Act does not even mention library
records and that it turned out the government hadn't used the Patriot Act a
single time to subpoena library records. Concentrate, instead, on what the
Times and Democratic senators were saying at the time. Remember? It was
that this kind of evidence — viz., what we choose to read — was
irrelevant. It was that a person couldn't be presumed a guilty just because of
what lay on his bookshelf, and that if Big Brother were give carte blanche to
pore over our reading matter that would unconstitutionally chill the terrorist's
sacred First Amendment right to consult bomb manuals and this month's edition of
"Death to the Infidel."
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Unfortunately, on June 29 the Associated Press moved a story stating the Ashcroft, after much prayer, had authorized spying on library records. The AP also reported on May 24, 2004 that Ashcroft, acting directly on instructions from Jesus Christ, refused to turn over documents that would enable a judge to determine the truth, if any, of his (and Andy's) self-serving denials of library snooping.
Of course, we can trust Ashcroft to use his arrogated powers carefully. It's not like he'd just lock up American citizens for two years and claim no court could let them out, is it?
Andy loves to mock pinkos who assert First Amendment rights.
We don't hear him direct his hilarious wit at Second Amendment extremists, like Six-Gun John, who exalt the NRA's right to wipe out all records of gun transactions in 24 hours over the need to track down gun sales to potential terrorists. Surely an oversight?
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Now, those same people are implying that the president of the United States
may be a torturer because of reading material he probably never even saw, much
less read. And they have not the slightest concern about the chilling effect
this will have on presidents asking for, and policymakers providing, advice
about issues that affect national security. I guess DOJ should forget about all
this "top secret" classification jazz and just file its memos at the
library. . . .
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Perhaps Andy could review the entire memo for us and then explain how its public release did material harm to national security, which, last we looked, was the relevant legal test.
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Just because a newspaper may freely slant its reporting to suit an agenda
doesn't mean everybody has that luxury. The Times can afford to be wrong;
a president conducting a war against an enemy whose primary tactic is to kill as
many civilians as possible cannot. That means his advisers have to tell him the
truth, even if it's not, um, "reflective."
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Then we should all be grateful that the Lord's chosen instrument, John Ashcroft, does.
As for the "truth," last we (and the Supreme Court) looked, the President was not above the law. Even this one.
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Volume CCXXXIV, Number 47 July, 2004