Legal Analysis Should Not be a Partisan Plaything

First published on BlogCritics on 27 April 2009

There is an old legal maxim,

When the facts are on your side, pound on the facts.
When the law is on your side, pound on the law.
When neither is on your side, pound on the table.

Sometimes this works, but more often it fails. The table is being pounded upon, very heavily and very noisily, but neither the law nor the facts appear to be on the side of the principal pounders.

The Geneva Convention provides various protections for "prisoners of war," as defined in Article 4. In relevant part, Article 4 provides

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Such protections are not provided for people not meeting the definitional requirements.

However, it is argued that the portions of the U.S. Code dealing with "torture" are to be read independently of the Geneva Convention and its various protocols. I think this is incorrect. Nevertheless, assuming arguendo a lack of interdependence, "water boarding" and other forms of "harsh interrogation" still do not seem to violate, or in the the past to have violated, the U.S. Code. 18 U.S.C. Section 2441(d)(1)(A) defines "torture" as follows:

The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind. (emphasis added)

In subsection (d)(2), applicable following the 2006 enactment of he Military Commissions Act a few changes are made including that the term "severe" is replaced by "serious,", :

the term “serious physical pain or suffering” shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves—

(i) a substantial risk of death;

(ii) extreme physical pain;

(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and

(E) the term “serious mental pain or suffering” shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term “severe mental pain or suffering” (as defined in section 2340(2) of this title), except that—

(i) the term “serious” shall replace the term “severe” where it appears; and

(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears.

Hence, some definitions were different after the the Military Commissions Act of 2006 was enacted, and some were not. Water boarding appears not to have taken place subsequent to 2006, and I am unaware of any legal basis for applying definitions in criminal statutes retroactively. However, it seems as though even well before 2006, substantial efforts were made to avoid the intentional infliction of "severe" or even "serious" physical or non-transitory mental harm, prolonged or otherwise.

Nevertheless,

Manfred Nowak, who serves as a U.N. special rapporteur in Geneva, said Washington is obligated under the U.N. Convention against Torture to prosecute U.S. Justice Department officials who wrote memos that defined torture in the narrowest way in order to justify and legitimize it, and who assured CIA officials that their use of questionable tactics was legal.

"That's exactly what I call complicity or participation" to torture as defined by the convention, Nowak said at a news conference. "At that time, every reasonable person would know that waterboarding, for instance, is torture."

One of the functions of an attorney is to advise his client how to achieve his lawful goals legally, and one aspect of this function is to base his advice on statutory definitions and case law. It is not a proper function of an attorney representing a client to elevate his own notions of morality, or of what "every reasonable person would know," to a position of superiority over what the law says or over the lawful goals of his client. Should he feel compelled to do so, he should cease representing the client, because he can not in those circumstances provide adequate representation.

As a reading of the quoted portions of Title 18 U.S.C. Sections 2441 and 2340 should suggest, statutory construction can be a tedious process. Should it be desired to make changes, that should be done by amending the pertinent statutes to provide, with adequate specificity, what is desired, for prospective application. For the meaning of laws to be second-guessed long after the fact by those who seek to elevate and apply retroactively their own notions of morality above the definitions provided by statute, is confusing and pernicious. Here, it has led to arguments driven by partisan politics and the associated desire for revenge -- which sometimes backfires; that may be happening. A recent poll indicates that

Only 28% of U.S. voters think the Obama administration should do any further investigating of how the Bush administration treated terrorism suspects.

Fifty-eight percent (58%) are opposed. Democrats are evenly divided over whether further investigation is necessary. Seventy-seven percent (77%) of Republicans and 62% of voters not affiliated with either major party are against more investigating.

Sizable majorities of Republicans and unaffiliated voters say the release of the CIA memos about the interrogations hurts national security. Democrats are evenly divided on whether the release hurt national security or helped the image of the United States abroad.

Here is a fascinating editorial from the Wall Street Journal. Here is another, a commentary by Peter Hoekstra, minority leader of the House of Representatives, and finally, we have an article from the Weekly Standard. The articles pertain to the recent controversy over "torture," and their thrust is that President Obama, by reversing direction and suggesting the further public and adversarial ventilation of what went on with "torture" several years ago would open an enormous can of worms, from which neither Democratic Party leaders nor Republican Party leaders nor -- of far more importance -- the United States, would escape unscathed.

It is now becoming quite clear that the leadership of the Congress, from both sides of the aisle, was kept well informed of what was going on and offered no objections.

Porter Goss, former CIA Director and past chairman of the House Intelligence Committee, blasted the Obama administration for releasing Justice Department memos on harsh interrogation techniques. "For the first time in my experience we’ve crossed the red line of properly protecting our national security in order to gain partisan political advantage," Goss said in an interview.

Goss, a former CIA operative, has made few public comments since leaving his post as DCI in September 2006. In December 2007, he told a Washington Post reporter that members of Congress had been fully briefed on the CIA’s special interrogation program. "Among those being briefed, there was a pretty full understanding of what the CIA was doing," Goss told the Post. "And the reaction in the room was not just approval, but encouragement."

Mr. Gross' comments are further reflected in an April 25, 2009 editorial in the Washington Post here. It is also becoming clear that the materials recently released by the Obama administration were redacted to leave out information outlining the effectiveness of the mild forms of "torture" which were used on a very few high value subjects, and the likelihood that many U.S. citizens who are now alive might otherwise now be dead. This is claimed to have been normal editing, for purposes of brevity. Right. There are those who argue that harsh interrogation can and does produce valuable information, and there are others who argue to the contrary. Unless important decisions are to be made in the abstract, which seems unwise, information as to the consequences of such interrogations should be made public. There are at least two sides to the story, and the public release of a manifestly one-sided report mandates the public release of the other side.

There may be some who would abstractly prefer more dead Americans to a very few water-boarded and otherwise harshly interrogated terrorists, on the ground that the United States should not engage in what they classify as "torture," for any reason and regardless of the consequences of not doing so. I find this position very difficult to understand and even more difficult to accept. I wonder how many of them would feel the same way were they permitted to travel forward in time and see alternative scenarios in which they and their loved ones were, and were not, killed violently and painfully depending on whether "torture" had been employed. Some might view the killings with equanimity, but I doubt it; slaughter does not occur in the abstract. Perhaps lacking the benefits of such time travel, they are excessively intent upon demonstrating their own moral superiority in a context where they and their loved ones are not in immediate danger from their choices, except in the abstract.

This recent Blogcritics Magazine article apparently seeks to have show trials and thereby make a mockery of justice and of national security.

We have every right to see in the public limelight what the world saw after World War II when Nazi criminals were tried and punished on the world stage.

Attempting to create an equality of "torture," in ways previously determined to be lawful, to gain badly needed intelligence, with the blatant crimes committed by Nazis during World War II, is on a par with referring to a city sanitation agency as engaging in a "war" on litter. It grossly dilutes the meaning of both "war crimes" and "war." The comparison to Nazi war criminals and their slaughter of many Jews and others in concentration camps is absurd, and "tortures" both history and common decency.

Although President Obama seems to be trying to "clarify" his administration's position on whether to have some sort of "truth commission" on "torture" by changing that position as the winds shift, substantial confusion has resulted, possibly causing the persistent economic problems facing the country to recede in perceived importance. For example, Chrysler appears to be in imminent danger of bankruptcy, and "the Treasury has an agreement in principle with the United Auto Workers union to protect pensions and retiree health care benefits as a condition of the bankruptcy filing. . . ." GM plants are to be closed for the Summer, following a multi-billion dollar bailout and the replacement of a CEO, which one supposes may have been intended to prevent that sort of thing, as well as the default on a one billion debt and GM's very likely ultimate bankruptcy. Some U.S. banks may well need another trillion dollar bailout on top of what they have already been given. These difficulties are in danger of being displaced from view by a "torture" distraction or something else, perhaps worse.

What does all of this mean? It may suggest that the party now in power is feeling its oats after having regained control of the Congress two years ago and of the Presidency this year, and senses a need to have its modestly disaffected left side coalesce around it's middle to carry out programs more attractive to its left side than to anyone else. Like a pubescent child newly discovering the pleasures of sex, it may just want to get laid, right now, without regard to the consequences. Or, it may suggest that having screwed up royally on the recent "stimulus package," which it pushed through without understanding either its import or its consequences, it wants to divert attention from its past fiascoes and move on to new ones. Or it may simply mean that despite President Obama's great audience appeal, he is seen as well over his head in multiple messes with which neither he, nor his confidants, are able to appear to deal effectively without creating interesting but unrelated and damaging distractions.