Impeachment would, of course, get rid of him. I hadn't heard of that happening in recent memory, though.
Re: disbarrment. That would be hugely embarassing and all, but do you have to be a member of the bar to be a judge?
do you have to be a member of the bar to be a judge?
Not AFAIK. The point is to make it clear through whatever means available that he's a pariah, though. Individuals can't make the Justice Department prosecute him, or Congress impeach him, but he's a public figure, and the legal community could do a lot in the way of ostracism.
I like my motions-to-recuse idea -- the problem is finding lawyers with cases on appeal who are willing to risk pissing off the judge with an insulting motion. If you could find lawyers and clients who were up for it, though, I think it'd have some real effect.
RE: finding clients who are up for it, good luck with that. Maybe if the underlying case itself was a public-interest advocacy thing of some sort, but not if there's a client with any real personal stake in the appeal. And on your "I think it'd have some real effect", I'm wracking my brain trying to figure out how/what--coudl you help?
Also, the post title is not orange.
3: Yeah, the clients are the sticking point. I was thinking of very politically engaged clients, and cases where the legal issues were so clear as to make an unexpected decision implausible.
Effect? Huh. Maybe I'm just being spiteful -- I was liking the idea of making him read and rule on repeated briefs explaining clearly what a criminal piece of filth he is. But seriously, I think publicly filed legal briefs can have a fair amount of effect in shaping public opinion, if they get good media coverage.
Surely it would violate the sanctity of the judiciary to give non-judges any say in who's on the bench.
Also, the post title is not orange.
You philistines just don't understand art. You probably would tell Magritte that it was too a pipe.
5 is Yoo-related sarcasm, in case anyone was unsure.
Interesting, at this point, to look back at how little fanfare was involved in Bybee's nomination and confirmation. Bybee wrote "the torture memo" during the period in which he was nominated and confirmed (nice way to get a lifetime appointment). Nineteen Senators voted against his confirmation.
Kerry was lame, and didn't bother to vote.
Kerry is getting on my nerves as a Senator. I wouldn't want to get rid of him, since this is clearly Kennedy's last term, and we need to have somebody with seniority in there, but he is barely responsive to the needs and concerns of his constituents.
if you're an American voter, you've got two senators and a representative you can call about this
If only.
Any of you folks live in Rep. Conyer's district (MI-14)? Get thee to the e-mail! If there is going to be an impeachment, it's got to go through his committee. The best place to start would be for Rep. Conyers to convene hearings on the matter.
Here is a list of the other Dem members of the committee.
* Howard Berman, California
* Rick Boucher, Virginia
* Jerrold Nadler, New York
* Robert C. Scott, Virginia
* Mel Watt, North Carolina
* Zoe Lofgren, California
* Sheila Jackson-Lee, Texas
* Maxine Waters, California
* Bill Delahunt, Massachusetts
* Robert Wexler, Florida
* Steve Cohen, Tennessee
* Hank Johnson, Georgia
* Pedro Pierluisi, Puerto Rico
* Luis Gutierrez, Illinois
* Brad Sherman, California
* Tammy Baldwin, Wisconsin
* Charles Gonzalez, Texas
* Anthony Weiner, New York
* Adam Schiff, California
* Linda Sánchez, California
* Debbie Wasserman Schultz, Florida
* Dan Maffei, New York
Here is another article:
http://www.law.com/jsp/article.jsp?id=1202429821962
9: Kerry should have learned his lesson in 2004 about dealing with the right, but apparently the big take away for him was that he needed to live up to right wing caricatures of liberals as wet noodles. I'm hoping it will turn out that the Senator the NSA illegally wire tapped was him, in the off chance it'll put some steel in his spine.
It will be interesting if the wiretapped Congressman turns out to be Keith Ellison. The rationalizations from the Malkinite right just write themselves, don't they?
1
Impeachment would, of course, get rid of him. I hadn't heard of that happening in recent memory, though.
A list of impeached federal judges. Three were removed in the 1980s. In all cases impeachment was for conduct while a judge.
reasons for removing judges have declined in glamour: in the 20thcentury it's all improper this and inappropriate that, in the 19th century it's drunkenness at the bench! and waging war on the united states!*
*i assume this means he was active on the confederate side in the civil war, rather than some separate war all on his own
And one of the impeached judges, Alcee Hastings, is today a member of the House (elected 3 years after his removal).
16: It will be interesting if the wiretapped Congressman turns out to be Keith Ellison
I believe whoever it was, it was supposed to happen on a trip to the Middle East. Supposedly they were possibly going to meet with someone with terrorist connections (I'm thinking not someone in the house of Saud).
This is a tough issue for me. I've met Judge Bybee 3 or 4 times and have read enough of his opinions on a regular basis to have a pretty good sense of him as a judge. It's really extraordinarily-- I can't put this strongly enough -- difficult to reconcile the content of the released memos with either his personal or judicial demeanor. That is, as a person, he presents as thoughtful, tolerant, and decent.
As a judge, he strikes me as about as close as you can get to a liberal's model of a good conservative judge -- very smart, focused on getting the law right, follows precedent in a reasonable way even on issues where the precedent produces liberal results, keeps sweeping ideological statements out of opinions, doesn't seem to be making a conscious effort to reform the law to conform with right wing ideology, etc., etc. Obviously, he's still a conservative judge and I disagree strongly with many of his decisions, but if you accept that there get to be conservative judges on the bench, he's about as good as you could hope for. We're not talking about a Luttig or Scalia here, or even a public ideologue like John Yoo.
I guess this is just a lesson in the truth of the "banality of evil." But it's striking.
On one of LB's specific suggestions, I think that in most (not all) cases lawyers filing recusal motions based on the torture memos alone is a very bad idea. Such motions are probably frivolous (being a moral monster isn't a legal basis for recusal) and therefore unethical for most lawyers, in all but a few exceptional cases. That is, filing a recusal motion that a lawyer know will be denied harms the client and also violates the ethical and legal duty to avoid filing frivolous motions. I could see exceptions in some rare cases where torture by the US government or the "war on terror" would come up as a legal matter, but in those cases Bybee would likely recuse himself anyway.
Given the gravity of the torture memos, I guess I do think that impeachment is probably appropriate, although I don't think there's a precedent for impeachment on similar grounds (i.e., conduct before being elevated to the judiciary, as opposed to conduct while acting as a judge). And, there's some very real danger involved in threatening life tenure of the judiciary on what are close to being political grounds (although the gravity of the torture issue puts this, for me, into the impeachable offense category). And I have to admit to wishing that we were dealing with a more cartoonish villain.
Is life tenure of the judiciary a good thing at all? It doesn't seem obvious to me that it is. I understand the arguments for it, but does it really work that way? In the last 40 years we've seen a lot of Federalist Society court packing, without compensating liberal packing during the 16 Democratic years.
I think life tenure is pretty silly but some kind of long-term tenure for federal judges, like 20 years, is a very good idea. Often judges either grow out of the ideology that allowed them to be appointed, or the political sands shift and they find themselves opposite to the party that appointed them (e.g. Justice Stevens).
In any case, allowing the legislative branch to remove judges on political grounds is a really bad idea. As is allowing removal of judges by popular vote (as happened to the liberal California Supreme Court in the 1980s).
14: That's a really good article; I was going to link it if no one else had.
22: Your account of Bybee matches up with the article linked @ 14. My most charitable guess is that he let ambition for the bench get in the way of his conscience -- Yoo wrote it, he's a smart guy, sure I'll sign it. I hope he regrets what he did.
-- Not that I wouldn't like to see prosecution added to his regret, but that seems sadly unlikely.
I wasn't impressed by the stance that article describes ('Bybee is trying to move on with his life.'). If those memos are on his conscience, he has a wider range of options than "try to be a good judge now."
I like life tenure and the current appointment system better than any of the alternatives I've seen.
You know, the sheer number of times they waterboarded AZ and KSM is shocking even to me.
22: It's really extraordinarily-- I can't put this strongly enough -- difficult to reconcile the content of the released memos with either his personal or judicial demeanor.
And yet there's absolutely no doubt that he approved and signed them. Your personal evaluation of the man is what it is, but whatever else you know about him, you know that he thinks waterboarding, slamming prisoners into walls, and confining phobic prisoners in small boxes with the object of their phobias aren't torture.
But you're probably right about the motions to recuse in practice. There's really no way for an attorney to convey deserved contempt for a judge without injuring their clients.
27: You know what gets me about that (beyond the sheer horror of it all)? Remember the claim (I can't remember who made it, but Labs had a post linking to it in the archives somewhere) that waterboarding was humane because no one could possibly withstand it, so you only had to do it once for a minute or two to get total compliance from the prisoner. Guess that wasn't totally accurate.
There's really no way for an attorney to convey deserved contempt for a judge without injuring their clients.
"And since your Honor is a homunculus scum that I wouldn't scrape off the bottom of my shoe-"
"Counselor, that's enough! You're only harming the case of Widow Anderson."
"Widow Anderson!? Oh, sorry - my client is Andersen Windows. Wrong courtroom! See you later, Judge Eichmann."
You know, I don't do criminal law at all, so I may be way off base -- I'm thinking about stuff I know from law school. But isn't there a pretty clean argument for criminal liability here for conspiracy to torture, regardless of what Bybee 'sincerely' thought the law was?
(1) Bybee participated in the writing of the memos, knowing that the production of the memos would cause other people to waterboard prisoners.
(2) Waterboarding is torture under our law.
(3) Ignorance of the law is no excuse.
I see an active step to further an agreement to carry out a criminal activity (waterboarding). That looks like all you need for conspiracy. The fact that Bybee didn't think waterboarding was torture doesn't seem to be relevant at all -- we wouldn't accept that sort of defense (of ignorance of the relevant law) for any other criminal conspiracy (outside of specialized areas like tax).
Am I way off base here? (I could be, horrified contempt tends to confuse me.)
(Obviously, people have been talking about prosecuting the lawyers -- I'm just thinking that it wouldn't even be weird to do it, it's straightforward conspiracy.)
31, 32 -- I haven't heard a coherent explanation to the contrary. People who don't want prosecution (or disbarment) keep acting as if there was just an honest difference of opinion. Total bullshit, imo.
I'm waiting for the media to ask the government to identify the prisoner who was not "abused" -- by which I mean treated in a way that we would call abuse if done to a captive American.
Yeah, what I was thinking of was that 'honest disagreement' or no doesn't matter -- mistake of law isn't a defense. All you need for mens rea (usually, and I think here) is intent to bring about the set of facts that constitute a crime -- you don't need knowledge that there are laws prohibiting what you're going to do, or specific intent to break the law.
Lock 'em up.
Are we re-enacting the opening scene of the Christopher Reeve Superman? Because the line is "Guilty."
I really liked those rotating hoop things -- a very neat effect for something so simple.
I'm waiting for the media to [do something sensible]
Don't hold your breath.
I got all annoyed about something that the Obama administration was signing off on that seemed to be a violation of the 4th amendment--I think it was the right to detain prisoners indefinitely. (They do that in Canada too, but those are foreigners who have the right to leave; they just choose not to. I don't approve of that, but it seems less awful.)
He said, "Are you associated with the ACLU?".
I said, "No, but I agree with most of what they argue for."
He told me that one of his colleagues who got a green card through marriage was asked whether he or his wife had any connection to the ACLU. I don't understand how that can be a legitimate question.
Sometimes I feel like there aren't enough pitchforks in the world to sensibly solve the problems of the past decade.
41: The past decade? I have a feeling it took longer than that for income disparities to skyrocket.
41: Why (again) are we granting these people anonymity? If you want to complain to a newspaper reporter, fine, but have the !$!(%!&#(! decency to own up to it. And the reporter should be ashamed of himself.
I don't understand how that can be a legitimate question.
It could have been standard interview follow-up question. If it was a green card application, they'd already had to answer the questions on this form:
List your past and present membership in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or in other places you have lived since your 16th birthday. [...]
Include the name(s) of the organization(s), locations, dates of membership from and to, and the nature of the organizations.
It's not unusual for the interviewing officer to probe about membership. It would probably be a little more unusual to ask about a specific, highly political organization that you hadn't listed on your application, but Congress tends to leave a great deal of discretion and subjectivity in these cases.
whatever else you know about him, you know that he thinks waterboarding, slamming prisoners into walls, and confining phobic prisoners in small boxes with the object of their phobias aren't torture
I wouldn't even go that far, necessarily. He may think they *are* torture. He may have thought so when he signed the memos.
But if he wanted to play along and keep his chance at a lifetime spot on a federal appeals court -- my own dream job, certainly -- then he could rationalize that they were "torture," but not LEGALLY torture. Or that someone else would sign the memo if he wouldn't, so why not him? Or god knows whatever other rationalization.
The little quip in the article about wishing he'd had better subordinates at OLC is, when you think about it, remarkably base of him. Like he really found Yoo's memo -- the "Youngstown who?" memo -- so very persuasive?
Evil isn't just advanced by Sith lords, who are generally in short supply. Timeservers, people seeking promotion, "just trying not to make waves," are necessary for evil to succeed.
I can easily believe that Bybee is a nice, thoughtful, *moral* guy, who slipped really badly. And should go to jail for it.
List your past and present membership in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or in other places you have lived since your 16th birthday.
Jesus Christ, it's like the Obama employment application all over again. Who are these people who remember all this crap? I might've joined the Young Socialists league while I was in France---on a lark, on a whim, I don't remember!* That play I was in during college, was it associate with a "club"? I don't know! i have no idea! I wasn't even stoned at the time, but I wasn't keeping records!
*Actually, I do remember: I didn't join because I knew I would only be doing so to piss off the corpse of Joe McCarthy, and that didn't seem very authentic a motivation.
List your past and present membership in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or in other places you have lived since your 16th birthday.
Just don't mention Fight Club, Unfogged, or the Village Green Preservation Society.
45: Don't forget, a lot of this is just bureaucratic shortcuts to give them easy grounds to deport you later if they want.
That said, I was entertaining myself wondering when they will feel justified in taking off the "Were you a Nazi between 1933-1945?" question. Maybe 2045. That's a nice, round, hundred-year number. They could be pretty sure there won't be any geriatric Nazis suddenly deciding to apply for US residency at that point.
34
Yeah, what I was thinking of was that 'honest disagreement' or no doesn't matter -- mistake of law isn't a defense. All you need for mens rea (usually, and I think here) is intent to bring about the set of facts that constitute a crime -- you don't need knowledge that there are laws prohibiting what you're going to do, or specific intent to break the law.
I am not a lawyer but this source appears to say you aren't guilty of criminal conspiracy without an intent to violate the law.
Conspiracy cases are defined as cases in which two or more persons agree to commit a crime or to perpetrate an illegal act. The end may be legal, but the planned means are illegal. For example, two persons making a plan to steal bread from a supermarket (illegal) to donate to a local food bank (legal) would be guilty of conspiracy. While intent is key in any federal conspiracy case, only "general intent" to violate the law is necessary; proof of the defendants' specific intent to violate the law is not needed, only an agreement to engage in an illegal act.
34: I believe, James, that LB's point is that, in criminal law, intending to engage in a criminal act doesn't actually necessitate recognizing that said act is criminal. Your cite doesn't go against that, although its common language meaning does.
In everyday parlance, we think of "intent" as incorporating full knowledge & understanding, but (apparently) criminal law doesn't work that way: intent only means that you intended the act, not that you intended to break the law.
Example: imagine a jurisdiction where firing a gun is illegal. As a visitor, you fire your gun into the ground. As far as prosecution is concerned, the only questions are whether you did it and whether it was accidental (If you dropped the gun and it fired, no crime). The old "ignorance is no excuse."
Doesn't look like the procedural liberalism thing is panning out.
Did my comment get deleted or am I just having a bad day?
31: All you need for mens rea (usually, and I think here) is intent to bring about the set of facts that constitute a crime
I think you need to show the intent here, as you say. It doesn't seem sufficient to merely show that they (OLC authors) were writing bad legal opinions (that's malpractice, is it not?), you need to show they intended it for the purpose of enabling the crime to occur. I would think you would need an email or something along the lines of, well
(1) Bybee participated in the writing of the memos, knowing that the production of the memos would cause other people to waterboard prisoners.
It's the knowing business. You're inferring (and so am I) that he was being sneaky and conniving and evil, and not sincerely stupid and/or wrong. Impeaching him seems like a lower bar; he's so off, he must be a rotten judge. If you had an order to him, or an admission by him (or them) saying that they could/would find some way around the Geneva conventions, besides the implicit admission of the memos, I think you could make conspiracy with that.
Actually, that's the missing puzzle piece for the whole rotten edifice. I know someone must have ordered them to do what they did, and evidence for those orders (even if they were given verbally) must be all over the place. Other people must have gone along with it (knowingly or unknowingly) afterwards, but all we have evidence for is the deeds themselves, not the orders. Get the orders and it seems like you could take down anyone who was knowingly involved.
max
['Need the classified WH conversations.']
49
Here is a federal appeals court decision on a conspiracy case (involving insider trading). It says in part (at 34):
... Moreover, the jury charge, taken as a whole, repeatedly and emphatically instructed the jury that it had to find that Robles intentionally engaged in the charged scheme. See, e.g., A. 97 ("[T]he government must prove beyond a reasonable doubt that Mr. Robles knowingly, willfully and unlawfully entered into the conspiracy.... Willfully means to act with knowledge that one's conduct is unlawful and with the intent to do something that the law forbids, ...") (emphasis added). ...
Criminal law is not my strong suit.
That said, see this:
A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor.
Salinas v. United States, 522 U.S. 52, 65 (1997). I don't think there's a requirement on top of that for the conspirator to know that elements A, B, and C add up to a criminal offense. However, the offense itself likely includes some intent requirement.
See also United States v. U.S. Gypsum Co., 438 U.S. 422, 443 n.20 (1978):
In a conspiracy, two different types of intent are generally required-the basic intent to agree, which is necessary to establish the existence of the conspiracy, and the more traditional intent to effectuate the object of the conspiracy. See W. LaFave & A. Scott, Criminal Law 464-465 (1972).
52: It doesn't seem sufficient to merely show that they (OLC authors) were writing bad legal opinions (that's malpractice, is it not?), you need to show they intended it for the purpose of enabling the crime to occur.
This objection (not intentionally, I just don't think you thought it through) doesn't make any sense. The OLC was asked for a legal opinion explaining what interrogators were permitted to do (e.g., waterboarding). The issue here isn't about whether the OLC was evil or ignorant, it's about the manifest purpose of the memos. If someone asks you "May I waterboard a prisoner?" and you say "Yes, you may," it's not any kind of a stretch at all to say that you spoke for the purpose of enabling the waterboarding to go forward. The other possibility ("What? You mean there were actual prisoners being interrogated? I thought the names and details you gave me about individuals were hypothetical -- I had no idea anyone was going to act on the basis of the memos.") is technically possible in some sense, but clearly ridiculous. The OLC might honestly thought that waterboarding was okay, but couldn't plausibly have thought that their memos wouldn't cause waterboarding to occur.
48, 53: The mens rea question Shearer brings up is more substantial. Shearer, you misread the quote in 48 (again, understandably so -- it's ambiguous). The last clause would be clearer if it said: "only an agreement to engage in an [act which is illegal, regardless of the defendants' knowledge of its illegality]."
The case you cite in 53, on the other hand, you read correctly -- it does say what you think it does, that knowledge of the state of the law is required -- but that statement is dicta (what the court actually did in the case doesn't depend on it), and I think it's a misstatement of the law. There are Supreme Court cases that are good law that contradict it squarely. (See, e.g. United States v. Feola, 420 U.S. 671, 687 (1975) ("The general conspiracy statute, 18 U. S. C. § 371, offers no textual support for the proposition that to be guilty of conspiracy a defendant in effect must have known that his conduct violated federal law. The statute makes it unlawful simply to "conspire . . . to commit any offense against the United States." A natural reading of these words would be that since one can violate a criminal statute simply by engaging in the forbidden conduct, a conspiracy to commit that offense is nothing more than an agreement to engage in the prohibited conduct.")
On a quick review, I haven't found any cases (the could be out there, I'm not getting paid to do this properly) that squarely address mens rea on the basis of an attorney's purportedly good-faith belief that the conduct the attorney participated in bringing about was not criminal; I would guess that the cases aren't there because it's not the kind of argument one would expect a court to find persuasive.
(And to be clear, I'm still open to being schooled by a criminal attorney on the mens rea issue -- 'willfully', a word present in the conspiracy statute, does under some but not all circumstances have the meaning set forth in the case Shearer cites. But from the cases I've read, I don't think it does here.)
Does anyone know what Bradbury's doing these days, and how he can best be immiserated?
55
There are Supreme Court cases that are good law that contradict it squarely. (See, e.g. United States v. Feola, 420 U.S. 671, 687 (1975)
I don't think this correct. The issue in Feola was whether the defendents had to know their victim was a federal officer, in any case they knew their conduct was unlawful. Slightly above the part you quoted is:
This interpretation poses no risk of unfairness to defendants. It is no snare for the unsuspecting. Although the perpetrator of a narcotics "rip-off" such as the one involved here may be surprised to find that his intended victim is a federal officer in civilian apparel, he nonetheless knows from the very outset that his planned course of conduct is wrongful. The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected. In a case of this kind, the offender takes his victim as he finds him. The concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act, but also its consequence for the choice of a judicial forum.
and:
We are not to be understood as implying that the defendant's state of knowledge is never a relevant consideration under § 111. The statute does require a criminal intent, and there may well be circumstances in which ignorance of the official status of the person assaulted or resisted negates the very existence of mens rea. For example, where an officer fails to identify himself or his purpose, his conduct in certain circumstances might reasonably be interpreted as the unlawful use of force directed either at the defendant or his property. In a situation of that kind, one might be justified in exerting an element of resistance, and an honest mistake of fact would not be consistent with criminal intent. [Footnote 19]
and also:
Our decisions establish that, in order to sustain a judgment of conviction on a charge of conspiracy to violate a federal statute, the Government must prove at least the degree of criminal intent necessary for the substantive offense itself.
You also said:
(And to be clear, I'm still open to being schooled by a criminal attorney on the mens rea issue -- 'willfully', a word present in the conspiracy statute, does under some but not all circumstances have the meaning set forth in the case Shearer cites. But from the cases I've read, I don't think it does here.)
Actually I can't find "willfully" in the conspiracy statute (as least as regards torture) but I think "willfully" (in federal laws) does generally require criminal intent.
This objection (not intentionally, I just don't think you thought it through) doesn't make any sense. The OLC was asked for a legal opinion explaining what interrogators were permitted to do (e.g., waterboarding). The issue here isn't about whether the OLC was evil or ignorant, it's about the manifest purpose of the memos.
Well, yes and no. The manifest purpose of the memos is an inference, so far as I've seen. The memos in and of themselves are prima facie evidence of incompetence beyond a reasonable doubt; they're existence should easily allow the impeachment/disbarment hurdle to be cleared.
The OLC might honestly thought that waterboarding was okay, but couldn't plausibly have thought that their memos wouldn't cause waterboarding to occur.
Plausibly is in the eye of the beholder; and certainly Yoo got right up there in the NYT and argued that the executive power doctrine made all that stuff OK. But were they knowingly attempting to get around the common understanding of the law? If you can't prove they were trying to get around the law, they can fall back on arguing that if they were wrong they were only simply wrong.
Since we are in reasonable doubt land here, I would think you need to show two things: that their interpretation was wrong, and that their manufacture of those opinions was intended as a bad act. We can both infer that they did intend to commit a bad acts (I certainly do; I can pretty easily imagine the conversations that lead to the drafting of the memos), but that's an intuition, not a proof.
As an example: Your friend comes to you and asks to borrow your gun to go shooting. (Pretend either that you both have licenses or you live in a state with no licensing requirements.) So you loan him the gun. He goes and knocks over a liquor store. They arrest him for the robbery and they arrest you for conspiracy, since it was your gun and you gave it to him. What I don't see is how it could proven (beyond a reasonable doubt) that it was a conspiracy if all you did was to engage in a action that would not be prosecutable otherwise. I would need to show that you knew somehow, or should have known that a bad act was going to be committed with the weapon. Otherwise, if someone steals a knife from your house and kills someone with it, I can argue that you were engaged in a criminal conspiracy because you did not keep your knives securely locked up enough.
(Rereads comments) It seems the slippage here is between the bad act and the intent to enable the bad act.
since one can violate a criminal statute simply by engaging in the forbidden conduct, a conspiracy to commit that offense is nothing more than an agreement to engage in the prohibited conduct.[...] that squarely address mens rea on the basis of an attorney's purportedly good-faith belief that the conduct the attorney participated in bringing about was not criminal; I would guess that the cases aren't there because it's not the kind of argument one would expect a court to find persuasive.
They are going to argue that they intended commit a good and perfectly legal act, as required by their job, here, look at all these precedents. If you could show that they intended to write an interpretation of the law, and following that interpretation accurately resulted in a commission of a criminal act, then I think your 31 would fit, but just barely. Josh David Kurtz just linked something relevant:
Via Spencer Ackerman, I see that former Bush State Department official (and 9/11 Commission executive director) Philip Zelikow now says that not only did the Bush torture architects solicit terrible legal advice from the likes of Bybee, Yoo and Bradbury -- but they actively worked to erase any evidence that dissenting legal advice was given:At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives.Can we see the Zelikow memo, please? Late Update: We may not be seeing the memo anytime soon. Zelikow tells TPMmuckraker that it was highly classified, and any remaining drafts or copies should be in a government safe.
I think you need the memo and evidence of the attempt to surpress to make the conspiracy case against the 'architects', and I would think you would need something similar for BYB. I know something like that has to be out there.
max
['Fun fun fun, til Daddy took the waterboard away...']
57: There's a difference between "wrongful" and "in violation of a particular statute" -- if you look at the illustration you're quoting, it's talking about a state of mind where the defendant's lack of knowledge of the identity of the victim led him to believe that he was doing something factually different than he was in fact doing (that is, the defendant thought he was defending himself from a criminal assailant but was actually resisting a federal officer). That's much closer to a mistake of fact (which is generally, under appropriate circumstances, a defense to criminal liability) than to a mistake of law.
On the rest of what you've said, I think you're confused about "criminal intent." "Criminal intent" doesn't mean knowledge of the law prohibiting the act you've committed, it means whatever the intent is necessary for the particular crime: almost always knowledge of what you are, as a matter of fact, doing, and intent to do that thing or recklessness as to whether that thing happens. Finding quotes that address "criminal intent" don't specifically illuminate the issue we're talking about: whether the OLC attorneys needed to know not only the nature of the actions they were bringing about, but also needed to know that the state of the law rendered those actions criminal.
(BTW, Shearer, this is exhausting. You're a smart guy, and a good enough reader and googler to find relevant stuff, but you don't have the background to make it possible to argue with you on this stuff without doing an awful lot of heavy lifting. On the other hand, you are unparalleled in your nitpicking skill: you're perfectly right, the 'willful' language was from the case you cited, not the general conspiracy statute.)
58: Max, I can't tell what you're hanging your argument on. Do you think there's a plausible case to be made that Bybee & Co. were not aware that the individuals named in the memos would be waterboarded as a result of the memos? If you think that's a factually plausible argument -- "I, Jay Bybee, did not know or intend that any prisoner would be waterboarded as a result of my provision of the memos" -- that'd certainly be a defense. I think that's absurd, but it's not about Bybee's belief in the quality of his legal analysis one way or the other -- it's as good a defense if he's an evil liar as if he's an incompetent chump: if he thought it was just words on paper with no real world effect, he didn't commit any crime at all, whether or not he intentionally misrepresented the law.
Is that what you're arguing?
http://thinkprogress.org/impeach-jay-bybee/
They are going to argue that they intended commit a good and perfectly legal act, as required by their job, here, look at all these precedents.
But whether your intent is to do something you think is good and perfectly legal is not the question. The question (generally) is whether the thing you intended to do (or further) is in fact good and perfectly legal. And here, it's not.
Also, the original post is totally pwned.
62: I am pwned indeed. Looking back on that earlier thread, I've changed positions on what should happen with the newly released memos.
On the old thread, I was buying the argument that I think Max is making: where Bybee's and Co's defense would be "It was just an answer to a question of law! Not permission to do specific things to people! Words on paper, that's it!" I think that was plausible with the memos released earlier, but isn't any longer -- when you're dealing with specifics like how long you can waterboard someone for, you're clearly involved in actual waterboarding.
Do you think there's a plausible case to be made that Bybee & Co. were not aware that the individuals named in the memos would be waterboarded as a result of the memos?
I'm lost here. Bybee is not going to admit that he thought waterboarding was a crime. He's going to argue, in fact, that he signed two memos demonstrating it was NOT a crime.
That seems to bear on his intent, no?
64: If I understand you, I think I agree with you. I believe that Max is arguing that we can't say that Bybee participated in a conspiracy to cause prisoners to be waterboarded, because we don't know that he had actual knowledge that waterboarding was going to happen in practice. I may be wrong about that, but that's the argument I understand him to be making.
This seems to me to be accurate as a matter of law (that is, if he really did have no idea there were going to be real world effects, he's in the clear), but silly as a matter of fact (the content of the memos clearly establishes that they're written in contemplation of action on them).
That seems to bear on his intent, no?
Maybe I'm misunderstanding you, since LB agrees with you and I agree with her previous comments on intent, but no. If his intent was to further waterboarding in the belief that it was not a crime, the only relevant part is that his intent was to further waterboarding. Which is a crime.
66: I'm sure I agree with you. I'm not actually sure what Anderson was confused about in 64, but from 54 I'm pretty sure he agrees with that you just said.
59
... On the other hand, you are unparalleled in your nitpicking skill: you're perfectly right, the 'willful' language was from the case you cited, not the general conspiracy statute.)
I thought lawyers reveled in nitpicking. Here I am just trying to understand why willful was in the jury instructions if it isn't part of the offense.
That was meant as unqualified praise -- part of the reason while arguing with you about law is such hard work is that while I have to do a lot of heavy lifting to make it clear what's going on, I also can't handwave past stuff without getting busted because of the nitpicking skills.
On the question of what's "willfully" doing in the jury instructions? Seriously, IANACriminalL, which is where I started with this, asking someone who is to shoot me down, and the differing levels of mens rea are tricky -- the word 'willfully' really is slippery. My best guess for what it's doing there is that the mens rea for conspiracy is heightened compared to most crimes depending on how you look at it. For most crimes, you only have to have intended to perform whatever act it was that constituted the crime -- you had to do it while you were in control of your body and aware of what you were doing. For conspiracy, the act you personally commit doesn't have to be criminal at all -- lending someone a knife isn't a criminal act, unless you know that they're going to commit a crime with it.
My guess is that 'willfully' got into the jury instruction in reference to the concept that the conspirator has to not merely will the act he performed in furtherance of the conspiracy, but also has to will the criminal goal of the conspiracy -- a more involved and intentional state of mind than is needed for most crimes.
But seriously, I'm not sure -- when I was looking at cases this morning, I came across one Second Circuit case that both stated that "ignorance of the law is no excuse" in conspiracy as in other crimes and brought up the same issue of knowing that one's conduct is wrongful that you quoted from Feola. I reconciled the apparent conflict as I said in my 59, but someone with subject matter expertise could explain it differently and I'd probably be convinced.
(And I have also managed to post a whole bunch on the law of conspiracy without ever saying agreement. You need one of those.)
70
That was meant as unqualified praise ...
That's nice. Not everybody is so appreciative of my nitpicking skills.
WHY CAN'T YOU JUST LEAVE US IN PEACE SHEARER!!!!!1!!!
71
(And I have also managed to post a whole bunch on the law of conspiracy without ever saying agreement. You need one of those.)
So for Bybee (for example) to be guilty of conspiracy it is not enough for him to issue a bogus opinion which he knows will lead to illegal acts, he must be party to an agreement to that effect.
Right, you do need an agreement, but working together with someone else to bring about a common goal is sufficient circumstantial proof that you've agreed to it -- if we take it (as Max doesn't) that the content of the memos are enough to establish that Bybee knew they would cause other people to torture, that's enough proof of the agreement (which is why I haven't been bringing it up).
71 was a nod to completeness, not something that I see as a genuine issue.
Torture articles breaking out all over this morning (although many are of course labeled "harsh tactics" or "brutal techniques"). And it is hard to know which contain really "new" information since the MSM has previously ignored so many revelations. But in going for the gut McClatchy leads the way as usual: "Report: Abusive tactics were used to find Iraq-al Qaida link". Well, duh-uh, but what I think is new is "according to a former senior U.S. intelligence official and a former Army psychiatrist. ". Senate panel report out as well.
It'd be good to get one to turn on the others. This is probably the biggest cost to announcing a no-prosecution-of-little-fish strategy.
As I was lying in bed last night seething with rage at the criminals who used to run the OLC, I began to wonder just how far the reasoning in the Bradbury and Bybee memos could take you. To-wit, if waterboarding isn't torture, how many other classic methods of inflicting torment could pass muster?
Otherwise, I'd be satisfied to see Judge Bybee testifying under oath to Congress.* Let him explain what a crappy lawyer he was. Or let him take the Fifth.
I haven't read the SASC report yet, but the lesson from Abu Ghraib ought to be pretty obvious: they weren't restricting abusive and illegal techniques to kingpins. It was everyone.
* After suitable investigation, of course. The public record is still at the tip of the iceberg.
So for Bybee (for example) to be guilty of conspiracy it is not enough for him to issue a bogus opinion which he knows will lead to illegal acts, he must be party to an agreement to that effect.
Very illuminating. Reading between the lines of the just-released Levin report, I'm going to conjecture that Professor Yoo was trying to avoid incriminating himself in a conspiracy charge when he refused to answer a particular question in Congressional testimony:
Before drafting the opinions, Mr. Yoo, the Deputy Assistant Attorney General for the OLC, had met with Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, to discuss the subjects he intended to address in the opinions. In testimony before the House Judiciary Committee, Mr. Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the memos were being drafted.
There's a whole lot of law on "willful blindness" that addresses that kind of behavior.
78: I've been thinking about movies. For instance, in Three Kings, when Mark Wahlberg was force-fed oil, I would have once described that as a torture scene. Given the lack of permanent harm, it's now just a harsh interrogation scene.
Given the lack of permanent harm, it's now just a harsh interrogation scene.
And that's applying the relatively stringent Bybee/Bradbury standards. Once you accept the reasoning of the original John Yoo memo and stipulate that even torture is permissible as long as the President orders it in the interest of national security, we could resurrect the whole panoply of historical sadism: breaking on the wheel, the brazen bull, scaphism.... The possibilities are limited only by the torture architect's economist's deprativity, i.e. not at all.
There's a part of me that wishes Obama would simply adopt the Yoo standard, declare Bush, Cheney, and their minions to be enemy combatants, and ship them to Gitmo.
Oooh, you know what would be fun? "Jay, we completely accept your legal reasoning in these memos -- waterboarding isn't torture. But it is such terrible PR for the US that it's damaged our national security, and so we need all details of the program to be released publically. First, tell us absolutely everything you know about the program. Then Dave here will conduct some harsh interrogation to be sure you haven't forgotten anything. Shouldn't take more than a month or two. Got any phobias, Jay?"
Wrong, but fun.
Is it possible that Bybee would have been asked anything about the Bush torture policy when he was in confirmation hearings? Maybe we could get him on lying to Congress?
JM, who is "we"? There are probably plenty of things "we" could "get him on" if "we" were willing to do so.
Like, say, conspiring to torture. Which I'm pretty sure is a worse offense than perjury.
LB @ 60:I think that's absurd, but it's not about Bybee's belief in the quality of his legal analysis one way or the other -- it's as good a defense if he's an evil liar as if he's an incompetent chump: if he thought it was just words on paper with no real world effect, he didn't commit any crime at all, whether or not he intentionally misrepresented the law. Is that what you're arguing?
Potchkeh@ 62:But whether your intent is to do something you think is good and perfectly legal is not the question. The question (generally) is whether the thing you intended to do (or further) is in fact good and perfectly legal. And here, it's not.
LB @ 63:I think that was plausible with the memos released earlier, but isn't any longer -- when you're dealing with specifics like how long you can waterboard someone for, you're clearly involved in actual waterboarding.
LB @ 65:64: If I understand you, I think I agree with you. I believe that Max is arguing that we can't say that Bybee participated in a conspiracy to cause prisoners to be waterboarded, because we don't know that he had actual knowledge that waterboarding was going to happen in practice. I may be wrong about that, but that's the argument I understand him to be making.
What we don't know, or more accurately, what we don't have, is evidence that BYB were writing the memos in bad faith to provide legal support for torture - that is, we don't have the concession of BYB that waterboarding is torture. (Because...)
Potchkeh @ 66: If his intent was to further waterboarding in the belief that it was not a crime, the only relevant part is that his intent was to further waterboarding. Which is a crime.
This is tautological. Waterboarding is a crime, therefore any legal opinion allowing waterboarding is conspiracy in support of a crime. BYB are going to say that they don't think waterboarding a crime, because they have their own tautology. They're going to say waterboarding isn't a crime, and all they were doing is making a good faith attempt to deliniate the boundaries of allowable behaviour in their patriotic attempt to perform their jobs and help the USG win the war.
I think the basis of the first tautological argument that waterboarding is a crime is prohibited by federal law and treaty is correct. But if you went to trial on a conspiracy charge with nothing more than the memos, you would be putting your tautology up against their tautology, and since BYB will have the best defense a thinktank funded by a right-wing nutjob can buy, there is a good chance of acquittal.
Because:
LB @ 70:My guess is that 'willfully' got into the jury instruction in reference to the concept that the conspirator has to not merely will the act he performed in furtherance of the conspiracy, but also has to will the criminal goal of the conspiracy -- a more involved and intentional state of mind than is needed for most crimes.
LB @ 75: Right, you do need an agreement, but working together with someone else to bring about a common goal is sufficient circumstantial proof that you've agreed to it -- if we take it (as Max doesn't) that the content of the memos are enough to establish that Bybee knew they would cause other people to torture, that's enough proof of the agreement (which is why I haven't been bringing it up).
I don't think it constitutes proof enough to make a conspiracy charge stick. You would need to show evidence of a conspiracy, that is, everyone would concede they were working together with other elements in the government to determine policy around interrogations; but that (they will argue) will not constitute proof of a criminal conspiracy since they are not attempting to further the conduct of a crime, they are attempting to avoid conduct of a crime. And also and anyways, waterboarding isn't a crime.
In a trial, all they have to do is raise enough reasonable doubt to win; this is going to be in front of a jury (best legal defense money can buy &c.). You know what kind of close they're going to have; I could just about write it (but really don't want to).
Before we started filing charges, I would want to see evidence that BYB thought waterboarding was a crime and/or that they understood that the definition of torture everyone else has been using was correct. Writing the memos themselves isn't a crime; they're supposed to determine the legal limits under which government policy is carried out. So an alternative would be to see some evidence that they were trying, by writing the memos, to deliberately extend the reasonable legal limits of the definition of not torture.
I know what I'm looking for; if I was in the WH (well, the archives) right now with access, I'd be going through their files and emails. 'I know you sonsofbitches slipped up somewhere in here and admitted what you were doing - where is it?'
max
['Sorry for procrastination.']
84: Rumsfeld, for one, has been known to opine that the conditions there are so cushy (tropical climate, lemon chicken, forced standing limited to four hours per day rather than the 8-10 he customarily endured as SecDef.) that one ought to enjoy being confined there.
Is it possible that Bybee would have been asked anything about the Bush torture policy when he was in confirmation hearings? Maybe we could get him on lying to Congress?
Rachel Maddow had a segment on this last night. His confirmation hearing was, I believe, a couple months before details of the program started to be leaked and go public, so he wasn't questioned on it. Another guy--whose name I cant remember--involved in writing the memos was denied confirmation because his nomination came up afterward.
Sen. Sheldon Whitehouse (D-RI) went on MSNBC's Rachel Maddow Show last night, to talk about the fallout from the release last week of the Bush administration's torture memos. And his appearance added to the growing sense that pressure is mounting to hold the memos' authors accountable.
Whitehouse, who sits on the Senate Judiciary committee, did temporarily pour a little bit of cold water on the spate of calls to impeach Jay Bybee, the author of one of the memos, who is now a federal judge. He said that it's "certainly possible" that Bybee should be impeached, but that first, we should wait for the Justice Department's Office of Professional Responsibility to release its long-held report into the authorship of the memos.
But he added that the report's release "can't be more than a few weeks away," and that he has "every reason to believe it will be a devastating opinion."
I noticed last year when I first saw it that there's waterboarding in Godard's Le petit soldat. The film was made right after the initial reports of torture had come out of Algeria, but the torture in the movie is by left-wing militants of a right-wing militant. (Godard himself shows up in the torture scene to administer electric shocks.)
You don't need to have committed something that would technically qualify as a common law offense in order to be impeached (and convicted). If Congress wants to toss Bybee out for conspiracy to committ torture, they can certainly do it. It's not like he can appeal to the Supreme Court.
Whitehouse is right. Wait for the ironclad proof of which memos Bybee was responsible for. *Then* toss the bastard out.
Another guy--whose name I cant remember--involved in writing the memos was denied confirmation because his nomination came up afterward.
William Haynes II, general counsel (?) to the Dept. of Defense. The Dem majority blocked his confirmation to a seat on the 4th circuit. Although the Levin report is particularly damning to him, I wouldn't swear that his role as a torture economist was the sole or even the chief reason for keeping him off the federal appeals bench. The Dems smelled a chance to swing the ideological balance of that district by bottling up all GOP appointments, and his role in the torture scandal was a good pretext for doing so.
This is tautological. Waterboarding is a crime, therefore any legal opinion allowing waterboarding is conspiracy in support of a crime.
You either haven't read or didn't understand my discussion with Shearer above (note: I could still be wrong about the mens rea required for conspiracy, but relying on Feola, I don't think I am. Criminal lawyers, shoot me down if I'm wrong.)
(A) Generally, you don't need to know that what you're doing is against the law to be convicted of a crime. "Ignorance of the law is no excuse." If you steal a car under the really truly sincere belief that there was a loophole in the grand larceny laws so they don't apply to cars, and you successfully convince a judge and jury that that was your real true honest belief as to the state of the law, and while you did mean to take a car you didn't own away from the owner, you would never have have done it if you'd known there were a law against it, you still go to jail. The mens rea required is that you knew and intended to do what you did, not that you knew it was prohibited by law.
(B) I'm pretty sure that the same mens rea (changed only to the extent necessary to make conspiracy work) is all that's required for conspiracy. Dave, Joe and Bob want to steal some cars; Dave and Joe are going to do it, and Bob's just going to provide assistance from behind the scenes: "Bob, Joe was going to help me steal those cars. But he says he won't do it unless you give me a note telling him to go ahead."
"Well, Dave, I agree with you that I want the cars stolen. Sure is a good thing that there's that loophole in the law making it not against the law to steal cars. I'll write the note so that Joe will help."
Bob has the necessary mens rea for conspiracy. He agreed to steal the cars and took an action forwarding the conspiracy. It doesn't matter that he didn't think stealing the cars was a crime; it only matters that he agreed to steal the cars, and that as a matter of law, whatever Bob thought the law was, stealing cars is a crime.
Bob is in precisely Jay Bybee's shoes (assuming arguendo that Bybee's sincere). It doesn't matter that Bybee didn't think waterboarding was criminal, it only matters that Bybee conspired to waterboard, and waterboarding was criminal.
Now, I get that you disagree with me. Do you disagree about the mens rea required for conspiracy (that is, you have some legal authority that ignorance of the law rendering the object of a conspiracy illegal is an excuse)? Or is there some other basis? Because it feels like we're talking past each other -- if you tell me that "I understand what you're saying, but I'm convinced that you're wrong about what you need to show to get a conspiracy conviction," I'll drop it.
And 95 is, of course, true. I went haring off down this conspiracy to torture trail because it seemed surprisingly open-and-shut.
I don't have the relevant expertise to wade into the Shearer-LB-Max debate, but I have heard that police and prosecutors love conspiracy charges precisely because they are so much easier to prove in court than culpability for the underlying criminal offense.
98: LB, I haven't weighed in because I broadly agree with you and because I'm approaching this from roughly the same level of (non-)expertise as you, but some of your analysis above, especially 98, seems to present this as more of a closed question that is warranted. You're stating all the substantive law correctly (I think), and you're applying that law to the facts at hand in a reasonable and convincing manner, but your blowing right past the fact that the facts at hand are in some ways radically different from a typical criminal conspiracy case. Which means this could easily (and I think likely would) be treated as a novel question of law, not as a simple application of precedent. You're making a good case that he's guilty of criminal conspiracy, but that's different from simply reciting a foregone conclusion.
Also: holy hell are you doing a lot of work in this thread. Is torture a pet issue for you? I'm somewhat surprised you're as interested as you seem to be in establishing Bybee's guilt. You were always generally the outlier, I thought, who was more than happy to give Bush and his entire executive team a private Caribbean island and a lifetime suppy of taxpayer-funded personal servants as long as none of them were ever allowed to hold positions of power again.
101: You're right that it would get treated as a novel question of law for political reasons, but I don't think it should be. The only thing that differentiates Bybee from Bob in my example is that he's in a position where other people rely on his legal analyses, so it's tempting to say that his legal analyses, even if erroneous, carry more weight than someone else's errors of law. But I don't think there's any legal basis at all for that: ignorance of the law remains no excuse even if you're a lawyer in a highly prestigious position. (Part of what makes it seem so anomalous is that it's such a weak argument outside of the politicized context: "I really truly didn't think it was a crime" is a defense of about the same value as "There's gold fringe on that flag, which makes this an admiralty court. I'm not a boat.")
I don't, actually, care what happens to Bybee and Yoo and Bradbury and everyone else who participated in the conspiracy in the sense that I think that their suffering is a good thing because they deserve it (I don't mind at all if they suffer, but it's not a desideratum in itself). I care very strongly that torture be understood to be a straightforward violation of law rather than a policy question, and that people now and in the future know that if they torture, they will be punished, or at the very least regarded as pariahs and outcast by all decent people. I get exercised about deterrence (and incapacitation -- I want their careers ended), not so much about punishment.
I'm looking forward to Rod Stewart crooning "When the one you love's in love with someone else, don't you know it's harsh treatment--which some critics have likened to torture--I mean it's a living hell."
And 98 was in a words-of-one-syllable tone, I admit. I was getting a little frustrated because Max was continuing to disagree without apparently understanding what I'd been arguing; the talking-past-each-other drives me up the wall a bit.
Okay, LB, but even in 102 you're talking about what "should be", not what is. Even non-politicized: you really think a lawyer, writing a good faith (but badly erroneous) legal opinion that enables a crime is a classic and clear-cut application of conspiracy law? Even if it were something as straightforward as your "Bob, Joe was going to help me steal those cars. But he says he won't do it unless you give me a note telling him to go ahead," if Bob is a lawyer delivering an opinion to his client that the particular manner in which Joe will be stealing the cars is not technically illegal, that strikes me as involving a whole host of novel issues not present in a typical conspiracy case.
I mean, again, I completely agree with your analysis, but it's just not at all obviously "open-and-shut" to me.
101: Torture has been an important issue for a lot of people around here. I thought the reasons should be obvious: they are the most agregious crimes committed by the last administration. Further, the torture memos such a distortion of the rule of law that they would make a lawyer personally mad.
rob: clearly establishing that torture is a crime and convicting Bybee of criminal conspiracy are two very different things (although they could of course quite satisfyingly be achieved simultaneously). I was perhaps misreading LB's interest in the former as interest in the latter.
Even if it were something as straightforward as your "Bob, Joe was going to help me steal those cars. But he says he won't do it unless you give me a note telling him to go ahead," if Bob is a lawyer delivering an opinion to his client that the particular manner in which Joe will be stealing the cars is not technically illegal, that strikes me as involving a whole host of novel issues not present in a typical conspiracy case.
I'll admit it's a weird factual situation, but it's a weird factual situation because it's the kind of thing (a) very few lawyers would do, and (b) very few criminals would rely on. It's so clear that a legal opinion like that wouldn't provide any cover that no one would bother. (To come up with an even remotely plausible hypo, I have to think of the car thief as Lenny from Of Mice and Men. "George says taking these cars is okay. Then we'll go and live on a farm with rabbits.") Outside of the politicized situation, I don't see any novel legal issues, just a bizarre factual hypo.
Inside the politicized situation, it seems clear to me that they got the memos because of a belief that they could change the law by getting a memo from the OLC -- that if the OLC said something was legal, that wasn't merely information (which could be correct or incorrect) about the state of the law, it actually rendered conduct that would have been illegal in the absence of the memos legal. I strongly disapprove of this belief, and if that's what they're relying on, I want it dragged out into the daylight and kicked to death.
107: Well, I want it established that torture is not only a crime, but is a crime that people will be punished for, rather than some special category of crime that gets pushed under the rug because of legal confusion and national security harrumph harrumph harrumph.
it seems clear to me that they got the memos because of a belief that they could change the law by getting a memo from the OLC -- that if the OLC said something was legal, that wasn't merely information (which could be correct or incorrect) about the state of the law, it actually rendered conduct that would have been illegal in the absence of the memos legal
But this is what separates the bologna from the bacon, right? If you can show this (and show that the OLC was in on it), you're effectively showing bad faith, and then sure, the conspiracy charge follows naturally. But how easy is this going to be to prove?
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Hey LB, can you check your mail?
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Here is an explanation of conspiracy which implies ignorance of the law is a defense:
Intent Criminal intent is also necessary to create a conspiracy. This means that the parties must intend both to agree on and to engage in the unlawful act. Ignorance of the law is not usually a defense to a crime, but an unwitting conspirator may defend against conspiracy charges on grounds of ignorance. Ignorance will not be a defense if the person continues to participate in the common plan after learning of its illegality.
Of course this is just some random page on the internet but I don't think the issue is as clearcut as LB has been saying.
112: Dude, do the repeated appeals to a criminal lawyer to straighten me out mean nothing to you? I might be wrong, but I'm not doing any more work on that issue without someone who actually knows more about it than I do to straighten me out.
110: No, I don't need to show that. If (assuming, Shearer, I'm right about the mens rea issue) there's a prosecution on the grounds that (1) waterboarding is criminal (2) Bybee conspired to cause waterboarding, two things can happen. First, he can take his lumps or come up with some defense we haven't thought of. Or, he (or others relying on his memos) can bring up that bad faith argument as a defense. At which point they're affirming their own bad faith, and then we can kick the argument to death.
If (assuming, Shearer, I'm right about the mens rea issue) there's a prosecution on the grounds that (1) waterboarding is criminal (2) Bybee conspired to cause waterboarding, two things can happen
Wait, I might have missed something by not reading the comments in the middle of the thread. On what basis are you getting (1)?
98
I don't think Feola says what you think. The part you quoted was part of a discussion not a conclusion. The court later says:
With no support on the face of the general conspiracy statute or in this Court's decisions, respondent relies solely on the line of cases commencing with United States v. Crimmins, ...
in which:
... Judge Learned Hand nevertheless concluded that to permit conspiratorial liability where the conspirators were ignorant of the federal implications of their acts would be to enlarge their agreement beyond its terms as they understood them. He capsulized the distinction in what has become well known as his "traffic light" analogy:
"While one may, for instance, be guilty of running past a traffic light of whose existence one is ignorant, one cannot be guilty of conspiring to run past such a light, for one cannot agree to run past a light unless one supposes that there is a light to run past."
The court is skeptical of this reasoning but declines to explicity decide it is wrong:
... The traffic light analogy poses the question whether it is fair to punish parties to an agreement to engage intentionally in apparently innocent conduct where the unintended result of engaging in that conduct is the violation of a criminal statute.
But this case does not call upon us to answer this question, and we decline to do so, just as we have once before. ...
Shearer, LB has cited caselaw (have you read the cases she's pointed you toward?) and provided copious explanation and analysis. And yet you "don't think the issue is as clearcut" as she says because you found something (that doesn't even really contradict what she's said, it's just inartfully phrased*) on what you yourself describe as "some random page on the internet"? Seriously, wtf?
* I could explain how to reconcile the two, but I both don't have the patience and don't believe you're even meaningfully engaging in this conversation; you're just nitpicking.
Well 116 was thoroughly pwned, I'll grant that.
Shearer, is your position that Bybee didn't know they would be waterboarding or didn't know waterboarding was a crime? The first seems implausible and the second is immaterial. If you think the language you've cited in 115 shows that the second is important, I'm almost positive you're wrong. The traffic light analogy goes more toward the first position (he didn't know they would be waterboarding, thought it was just words on paper=running past a traffic light of whose existence one is ignorant). They are talking about running past a traffic light of which you're fully aware in the belief that doing so is legal.
118: "are" in the last sentence should be "aren't".
114: I'm getting (1) on the basis of the torture statute and prior caselaw where we prosecuted Japanese torturers in WW II for waterboarding. I mean, to prosecute anyone for torture, we need the prosecutors to believe that what happened was torture, right? I didn't think that was a significant hurdle anymore.
116: Yeah, I shouldn't have encouraged the nitpicking above. In contexts where he's spotting clear cut stuff, it can be useful, but for this kind of thing it's exhausting and pointless.
Look we know that waterboarding is torture and that waterboarding was committed. If somehow everyone manages to avoid criminal prosecution, because the lawyers were just giving their honest opinion and the torturers where just doing what the lawyers said they can do, something is seriously wrong with the justice system.
It seems to be that this kind of case should come up often. Big companies keep lawyers in house to tell them what is legal and illegal, and certainly those lawyers must be frequently pressured to justify the actions that the CEO wants to take anyway.
It seems to be that this kind of case should come up often. Big companies keep lawyers in house to tell them what is legal and illegal, and certainly those lawyers must be frequently pressured to justify the actions that the CEO wants to take anyway.
Thing is, outside of the tax realm, it's a bullshit defense to criminal liability -- my inexpert sense is that it's weak enough that no one would bother trying. If you're asking your inhouse lawyers whether you're at risk of criminal prosecution if you do something, you mostly want a straight answer: pressuring them to come up with bullshit doesn't get you anything. (You might want something creative but legally valid, but you don't want bad law.)
118
Shearer, is your position that Bybee didn't know they would be waterboarding or didn't know waterboarding was a crime? The first seems implausible and the second is immaterial. If you think the language you've cited in 115 shows that the second is important, I'm almost positive you're wrong. The traffic light analogy goes more toward the first position (he didn't know they would be waterboarding, thought it was just words on paper=running past a traffic light of whose existence one is ignorant). They are talking about running past a traffic light of which you're fully aware in the belief that doing so is legal.
The issue is whether you can be found guilty of conspiracy without acting "with knowledge that one's conduct is unlawful and with the intent to do something which the law forbids." as in the jury instructions quoted in 53.
123
Thing is, outside of the tax realm, it's a bullshit defense to criminal liability -- my inexpert sense is that it's weak enough that no one would bother trying. If you're asking your inhouse lawyers whether you're at risk of criminal prosecution if you do something, you mostly want a straight answer: pressuring them to come up with bullshit doesn't get you anything. (You might want something creative but legally valid, but you don't want bad law.)
So if you are a lawyer for a repo agency and you make a mistake about what is legal and the repo agency relying on your opinion steals a car you are guilty of criminal conspiracy to steal cars. I am not convinced.
125: IANAL, but I'm guessing it depends on whether the local prosecutor wants to send you to prison or not. My amateur impression is that conspiracy charges are the choice of overzealous prosecutors precisely because they can turn a seemingly innocent, good faith action into membership in a criminal conspiracy.
But we're not even talking about good faith, here. The relevant comparison is not the sadly mistaken lawyer for the repo company, but a greasy mob lawyer who draws up a purchase & sale agreement "all nice 'n' legal like" for a mafia squeeze-out of a small business. If the lawyer is willfully blind to the furtherance of the criminal act, he's guilty of conspiracy. (This was true even before RICO gave prosecutors even more powerful legal tools.)
So if you are a lawyer for a repo agency and you make a mistake about what is legal and the repo agency relying on your opinion steals a car you are guilty of criminal conspiracy to steal cars. I am not convinced.
Dude, you're not convinced because you don't trust my (Anderson's, potchkeh's, Brock's, I'm not sure that Charley weighed in on this issue precisely but if so Charley's) expertise. That's fine -- you don't have to (internet, dog) -- and I haven't claimed to have more than a civil litigator's knowledge of criminal law, I don't deserve a lot of deference here. But that means you're not going to learn anything from talking to me about it.
I know I'm not going to learn anything from you on this issue unless you happen on a link to a source that's authoritative and convinces me, and if that hasn't happened yet, it's probably not going to. No offense meant, but you transparently don't know how to read this stuff professionally, and there's no reason why you should.
At which point what's the use of us continuing to discuss the issue? If you're interested, you need to go find lawyers you trust to ask about it, or to read more extensively.
126: Oh, certainly if the memos were written in bad faith, that's a conspiracy slam dunk. I've been arguing that if conspiracy doesn't have a heightened level of mens rea requiring accurate knowledge of the law to be violated, which I think it doesn't, good faith error as to the state of the law doesn't help.
127
... But that means you're not going to learn anything from talking to me about it.
This does not follow at all. Of course I am more likely to learn something if things are patiently explained rather than abruptly asserted as Landers did in 116.
I have bad experience with experts telling me I am wrong but they don't have time to explain why.
In this we aren't even really disagreeing, you said above you could be wrong and I will agree that you could be right. I also think the law is sometimes indeterminate. Like the umpire who said regarding balls and strikes they aren't anything until I call them, sometimes the law isn't anything until the Supreme Court rules.
Shearer, 116 didn't assert anything. And 117 and 118 followed it in response to your 115.
[This comment was also inadvertently posted to another thread.]
Another curious fact about the Levin report: a lot of the redactions are pretty obvious (chiefly where the blacked out passage is the three-letter abbreviation "CIA"), and others are not exactly obvious, but pretty suggestive (such as where it appears that a foreign ally was named).
But you know what else seems to be blacked out of all the documents released to date? The names of M.D.'s who observed the torture or who were otherwise implicated. I think it's pretty obvious that the point of the redaction was not to protect "sources and methods" or any other information with national security relevance, but to protect these doctors from having their medical credentials revoked. Or, alternatively, it could be to make sure that the doctors are never the target of a malpractice suit by any of the torture victims. This kind of lawsuit might be harder to suppress with a state secrets claim than, say, the NSA wiretapping suits.
118: Jesus, James, you ought to be able to read your own 53 and understand how the court was using that precedent:
Moreover, the jury charge, taken as a whole, repeatedly and emphatically instructed the jury that it had to find that Robles intentionally engaged in the charged scheme.
That phrasing is entirely consistent with "ignorance of the law is no excuse." As has already been pointed out, Robles' defense wasn't that he was unaware of the law, it was that he wasn't a knowledgeable participant in a situation in which being a knowledgeable participant was required for criminality.
If you disagree with the court's evaluation of the precedent, then you need to say why, beyond providing the court's own ellided quote of that precedent. What was that precedent case about? How was it decided? What was the language in the ellided parts of the decision? Why does the court that you quote draw a different lesson from that precedent than you do?
Do you grasp that these are significant questions?
Here's the issue being argued:
At the close of evidence, the Government requested a conscious avoidance instruction; i.e., an instruction to the effect that the Government could satisfy its obligation to prove Robles' knowledge of the unlawful source of the information by proving that he deliberately avoided acquiring that knowledge. Over Robles' objection, the district court granted the Government's request and included a conscious avoidance instruction in the jury charge.5
This, again, is completely consistent with "ignorance of the law is no excuse." In this case, the law itself required knowledge of the nature of the action, not knowledge of the nature of the law.
But this has all been said. You are repeating a quote that was clearly not presented in the context you are using it for. Why don't you go hunt down the actual original context and report back to us?
130
Shearer, 116 didn't assert anything. And 117 and 118 followed it in response to your 115.
You assert:
... that doesn't even really contradict what she's said, ...
and
I could explain how to reconcile the two, but I both don't have the patience ...
132: I actually don't think Shearer's misreading the language of the jury instruction he's quoting -- I think the jury instruction stated an improperly high standard for conspiracy ("Willfully", as defined in the quoted instruction, does require knowledge of the law), and it didn't get addressed in that case because knowledge of the law wasn't a salient issue. Telling him to reread the case isn't going to help, he needs to read something else.
132
If you disagree with the court's evaluation of the precedent, then you need to say why, beyond providing the court's own ellided quote of that precedent. What was that precedent case about? How was it decided? What was the language in the ellided parts of the decision? Why does the court that you quote draw a different lesson from that precedent than you do?
I believe the court was quoting the jury instructions in the case under appeal (not a precedent) and that the jury instructions included the willfully language I quoted above.
Like U.S. v. Cohen:
On appeal, Cohen asks this Court to consider the following six issues: (1) whether the Government was required to prove a "corrupt motive" in connection with the conspiracy in this case; (2) whether the district court properly instructed the jury to disregard the safe-harbor provision contained in § 1084(b); (3) whether Cohen "knowingly" violated § 1084; (4) whether the rule of lenity requires a reversal of Cohen's convictions; (5) whether the district court constructively amended Cohen's indictment in giving its jury instructions; and (6) whether the district court abused its discretion by denying Cohen's request to depose a foreign witness. We will address those issues in that order.
I Corrupt Motive
Cohen appeals his conspiracy conviction on the grounds that the district court instructed the jury to disregard his alleged good-faith belief about the legality of his conduct. He argues that People v. Powell, 63 N.Y. 88 (1875), requires proof of a corrupt motive for any conspiracy to commit an offense that is malum prohibitum, rather than malum inse. We disagree, and we hold that whatever remains of Powell does not apply to this case.
In 1875, the New York Court of Appeals ruled in Powell that a conspiracy to commit an offense that was "innocent in itself" required evidence of a "corrupt" or "evil purpose." Id. at 92. The Powell defendants were commissioners of charities for Kings County and had been convicted of conspiring to violate state law by purchasing supplies without first advertising for proposals and awarding a contract to the lowest bidder. Id. at 89-90.
The Powell Court upheld an appellate court's reversal of the trial court, which had ruled that ignorance of the law was no defense to conspiracy. Id. at 89. In doing so, the Court concluded that a conspiracy offense, by nature, required some form of corrupt motive, even if its underlying substantive offense required only an intent to commit the prohibited act. Id. at 92. The Court stated that "[p]ersons who agree to do an act innocent in itself, in good faith and without the use of criminal means, are not converted into conspirators [] because it turns out that the contemplated act was prohibited by statute." Id.
The Powell doctrine was echoed in federal cases from the first half of the last century, but many circuits have since, in effect, moved away from the doctrine. Compare, e.g., Landen v. United States, 299 F. 75 (6th Cir. 1924) (applying Powell to drug wholesalers' conspiracy to sell intoxicating liquor for nonbeverage purposes without the necessary permit), with United States v. Blair, 54 F.3d 639 (10th Cir. 1995) (involving, as does this case, offshore bookmaking in violation of § 1084); United States v. Murray, 928 F.2d 1242 (1st Cir. 1991) (involving an illegal gambling business in violation of 18 U.S.C. § 1955); United States v. Thomas, 887 F.2d 1341 (9th Cir. 1989) (involving trafficking in wildlife that the defendant should have known was taken in violation of state law).
Although this Court has long expressed its discontent with the Powell doctrine, we have done so in dicta in cases involving conspiracies to commit acts that were not "innocent in themselves." See, e.g., United States v. Mack, 112 F.2d 290, 292 (2d Cir. 1940). In Mack, Judge Learned Hand criticized the Powell doctrine as "anomalous" and questioned "why more proof should be necessary than that the parties had in contemplation all the elements of the crime they are charged with conspiracy to commit." Id. He nevertheless found "'corrupt motive' in abundance" in connection with the defendant's conspiracy to employ unregistered alien prostitutes. Id.; see also United States v. Eisenberg, 596 F.2d 522, 526 (2d Cir. 1979) ("It being clearly established that requisite knowledge was proved for conviction of the substantive offense, it now follows that the same knowledge is enough as well to establish the conspiracy to commit the substantive offense."); Hamburg-American Steam Packet Co. v. United States, 250 F. 747, 759 (2d Cir. 1918) ("[W]e are satisfied that as to the crime of conspiracy,... it is not necessary to show that the defendants who are alleged to have conspired to do an act which is only malum prohibitum had knowledge of the unlawfulness of the act.")
The American Law Institute has expressly rejected Powell in its commentary to the Model Penal Code. See Model Penal Code § 5.03 note on subsec. 1 & cmt. 2(c)(iii) (1985). The Institute noted that the "melodramatic and sinister view of conspiracy" upon which Powell was premised is no longer valid. Id. at cmt. 2(c)(iii). It further observed that Powell now has "little resolving power in particular cases" and instead "serves mainly to divert attention from clear analysis of the mens rea requirements of conspiracy." Id.
In the Institute's view, the Powell doctrine was essentially "a judicial endeavor to import fair mens rea requirements into statutes creating regulatory offenses that do not rest on traditional concepts of personal fault and culpability." See id. The Institute itself disagreed with that policy, however, concluding that it was a function better left to the statutes themselves. Id.
In United States v. Feola, 420 U.S. 671 (1975), the Supreme Court, in another context, rejected the notion that a federal conspiracy conviction required proof of scienter. We conclude that the Powell doctrine does not apply to a conspiracy to violate 18 U.S.C. § 1084.
132 was me.
So if you are a lawyer for a repo agency and you make a mistake about what is legal and the repo agency relying on your opinion steals a car you are guilty of criminal conspiracy to steal cars. I am not convinced.
James, if the lawyer advised that it's okay to steal cars, then he's in trouble - even if he really is that incompetent. If the lawyer advised that taking a car to which you have no legal claim is not stealing, then he's in trouble - even if he really is that incompetent. Anybody relying on that advice is also in trouble.
But nobody is that incompetent. This is where I differ with max - you can have that lawyer in court all day claiming his stupidity, but he still needs to be taken to court. If a jury buys it, so be it.
Bybee advised that torture is legally permissible. If he's right, then he's okay. If it's debateable, then maybe it's okay. I haven't seen a plausible defense of the idea that torture is permissible, but like I said, I'd be content if he were removed from the bench and put in front of a jury. That's all I'm asking for.
I believe the court was quoting the jury instructions in the case under appeal (not a precedent) and that the jury instructions included the willfully language I quoted above.
Sigh, quite right, James. Please go through my previous unsigned comment and substitute "jury instructions" for precedent.
And now I really need to start doing the work I get paid for.
Shearer, is there a proposition you are seeking to forward here? As far as I can tell, all your effort is going to establish that whether or not ignorance of the law is a defense to conspiracy is not as clear-cut as LB has asserted. Am I missing some important point that you think follows from that? She has conceded that she's not an expert on criminal law, although it should I think strike you as curious that every lawyer here agrees with her. But suppose this legal ambiguity were granted. So what? Would that somehow make Bybee less culpable in your eyes?
It seems to me that the following language from the Cohen case is even more to the point--it does not matter that he knew something was illegal, it only matters whether he did the acts constituting the offense.
The district court was correct; it mattered only that Cohen knowingly committed the deeds forbidden by § 1084, not that he intended to violate the statute. See Bryan v. United States, 524 U.S. 184, 193 (1998). Cohen's own interpretation regarding what constituted a bet was irrelevant to the issue of his mens rea under § 1084.
136
Much as I hate to admit it, it appears LB is likely correct. The Cohen case seems on point. And footnote 3 of the case I cited in 53 suggests "willfully" was in the jury instructions because it was required by one of the underlying offenses.
Good lord, I convinced you of something. Time to knock off for the day and go have a drink.
131: It occurs to me now that there is probably a simpler explanation for the redaction of the doctors' names: they are clandestine CIA employees. That's what this WaPo article says, anyway. Which is not to say that the motives surmised in 131 weren't subsidiary goals of the redaction.
If true, this would also raise the question of whether they used CIA contractors because the military doctors were too conscientious, as with the JAG officers who did the right thing in this sordid drama.
144: Quick, argue for single payer health care while you've got him on the ropes!
LB @ 98:Now, I get that you disagree with me. Do you disagree about the mens rea required for conspiracy (that is, you have some legal authority that ignorance of the law rendering the object of a conspiracy illegal is an excuse)? Or is there some other basis? Because it feels like we're talking past each other -- if you tell me that "I understand what you're saying, but I'm convinced that you're wrong about what you need to show to get a conspiracy conviction," I'll drop it.
I don't know what, precisely, they will wind up being charged with, I don't know precisely what the statute requires for mens rea, but much more importantly, I don't what effective standard is going to wind up being applied in court.
Since many many many Republicans (many of whom have been lawyers) have been honing their defense for this stuff on TV for many years, and any trial would occur in federal court, where many of the judges are hardcore members of the Federalist Society, my suspicion is that effective standard that's going to be applied is going to be very strict. (And if the strictist standard isn't applied at the trial, it will be applied on appeal.)
So, my strategic perference would be to torpedo the 'waterboarding isn't torture' and the 'they were ignorant of what was going on' arguments in advance of trying to indict these people. What I mean by that is that I am 99.9% sure that BYB have said more than enough in private to prove that they were acting in bad faith, and I think that if we wait about 90 days, that particular piece of evidence [whatever that evidence actually is] is going to pop out, providing that the Obama DOJ is willing to allow it to see the light. It may have popped out already in terms of the mosaic of BYB's public statements. And that, to reference Brock @ 110:
If you can show this (and show that the OLC was in on it), you're effectively showing bad faith, and then sure, the conspiracy charge follows naturally. But how easy is this going to be to prove?
will make it very easy to prove indeed.
I don't think it's so much that we're talking past each other, it's that I have a much more jaundiced and cynical view of the legal system and the federal judiciary than you do (LB). And by 'jaundiced and cynical' I mean that I think that not only can a prosecutor get a ham sandwich indicted, I think a prosecutor could get a poor black person indicted for being a ham sandwich and be almost assured of a conviction, even though the person in question would 1) not actually be a ham sandwich and 2) being a ham sandwich is not violation of the law. In this situation, where the persons committing the crimes are rich/UMC lawyers who held high positions in a Republican administration, the situation, it seems to me, is almost reversed.
And BTW, I heartily endorse 102:
I care very strongly that torture be understood to be a straightforward violation of law rather than a policy question, and that people now and in the future know that if they torture, they will be punished, or at the very least regarded as pariahs and outcast by all decent people. I get exercised about deterrence (and incapacitation -- I want their careers ended), not so much about punishment.
Amen.
max
['Sorry if I annoyed you.']
p.s. Since it didn't get posted or it got deleted, this to 27:
Remember the claim (I can't remember who made it, but Labs had a post linking to it in the archives somewhere) that waterboarding was humane because no one could possibly withstand it, so you only had to do it once for a minute or two to get total compliance from the prisoner.
The post Labs linked to (this link goes there) was from FrontPage(mag).
Me:I don't think it's so much that we're talking past each other, it's that I have a much more jaundiced and cynical view of the legal system and the federal judiciary than you do (LB).
Statement By Senators Graham, McCain, And Lieberman
(Editor's Note: This statement was provided by the office of Senator Lindsey Graham on April 22, 2009.)
Washington, D.C. - U.S. Senators Lindsey Graham (R-SC), John McCain (R-AZ), and Joseph Lieberman (ID-CT) today sent the following letter to President Obama strongly urging him not to prosecute government officials who provided legal advice related to detainee interrogations, and to move forward in a constructive fashion to address the significant challenges our country faces on the detainee issue: "We write with concern about proposals to prosecute previous administration officials for their legal analysis related to the CIA interrogation program. Pursuing such prosecutions would, we believe, have serious negative effects on the candor with which officials in any administration provide their best advice, and would take our country in a backward-looking direction at a time when our detainee-related challenges demand that we look forward.
"We agree with your position that CIA interrogators, carrying out operations that had been deemed lawful by the Attorney General, should not be the subject of prosecution. Indeed, we addressed such a possibility in the 2005 Detainee Treatment Act, which holds that "good faith reliance on advice of counsel should be an important factor, among others," when considering whether CIA interrogators had good reason to believe that their activities were legal.
"We disagree, however, with Administration statements suggesting that the lawyers who provided such counsel may now be open to prosecution. Some of the legal analysis included in the OLC memos released last week was, we believe, deeply flawed. We have also strongly opposed the overly coercive interrogation techniques, including waterboarding, that these memos deemed legal. We do not believe, however, that legal analysis should be criminalized, as proposals to prosecute government lawyers suggest. Moving in such a direction would have a deeply chilling effect on the ability of lawyers in any administration to provide their client - the U.S. Government - with their best legal advice. Providing poor legal advice is always undesirable, and the Department of Justice is currently conducting an internal ethics review of the OLC memos, but that is a quite a different matter from making legal advice with which we may disagree into a crime. "Given the great challenges that face our country in dealing with detainees currently held at Guantanamo Bay, Bagram Airfield, and elsewhere, along with detainees that will undoubtedly fall into U.S. custody as the result of future operations, we have every interest in looking forward to solutions, not backward to recriminations. That is why we do not support the idea of a commission that would focus on the mistakes of the past. "As you have made clear, we are a nation at war. Appreciating that reality, we look forward to working with you on the panoply of detainee issues, ranging from interrogation standards to the disposition of detainee cases, which will engage our country going forward. In the interest of national security, it is the future, rather than the past, on which we believe America's gaze must be fixed."
147, 148: but that's (mainly) a jaundiced and cynical view of the political will to prosecute, which I wholeheartedly share. If I thought the discussion was about whether these guys would be prosecuted successfully, my answer would have been that they won't be prosecuted at all. The question I thought we were discussing was whether, given what we know, these guys are guilty of conspiracy to torture, the answer to which appears to be yes (or at least not no as a matter of law). (Also, it occurs to me, aiding and abetting, but IANACrimL.)
We do not believe, however, that legal analysis should be criminalized, as proposals to prosecute government lawyers suggest.
So they think the Judges' Trial was an oopsie?
Moving in such a direction would have a deeply chilling effect on the ability of lawyers in any administration to provide their client - the U.S. Government - with their best legal advice.
Non Sequitur of the Month. Fear of being prosecuted for offering incredibly shitty advice that a 2L would be embarrassed to hand in on an exam ----> inability to provide "their best legal advice"?
Quoted in 148:
would take our country in a backward-looking direction at a time when our detainee-related challenges demand that we look forward
You have to admit that "detainee-related challenges" is a great phrase.
Torture articles breaking out all over this morning
I'm hoping this means that what I said in the other thread about the new stories not coming out with enough impact was wrong.
I don't see any novel legal issues, just a bizarre factual hypo.
You really think that if you were Bybee's lawyer you couldn't point to any factors about his case that meaningfully differentiate it from a bread-and-butter conspiracy prosecution?
I mean, I haven't sat down and thought through this, so I can't articulate off the top of my head what exactly those factors would be or why they'd be important, but the situations seem different enough to me that I feel reasonably confident I'd be able to drum up something. I'm not sure they'd be winning arguments, but I don't think they'd be phantom arguments either. I think there are real issues that would need to be worked through; it's not a rubber-stamp case.