'Fighting terrorism' vs. the rule of law

By Alan Shapiro

To the Teacher:

Few would deny the threat of terrorist acts against Americans. But in responding to that threat, has our government undermined the rule of law?

For nearly five years, the U.S. Justice Department's Office of Professional Responsibility investigated whether two Bush administration lawyers, John Yoo and Jay Bybee, provided legal advice that gave a green light to unlimited presidential power and to "enhanced interrogation techniques" that are commonly understood to be torture. In February 2010, the investigators announced their judgment in the case.

The Yoo-Bybee case is the subject of the two student readings below. The first reading explores how Bush officials reacted to 9/11, including some of the legal advice given. The second reading summarizes the Justice Department's recent finding of "professional misconduct" by Yoo and Bybee, which was later watered down to "poor judgment"--and reactions to that finding. Suggested class discussion questions, a small-group discussion, and a writing assignment follow.

Student Reading 1:
Legal advice and presidential power after 9/11

"What about ordering a village…to be massacred? ... Is that a power that the president could legally--"

"Yeah."

An investigator for the government's Office of Professional Responsibility (OPR) was questioning John Yoo, a lawyer in the Office of Legal Counsel from 2001 to 2003, the first years of the Bush administration. Both offices are part of the in the US Department of Justice.

John Yoo and Jay Bybee, who had been Bush's Assistant Attorney General at the Office of Legal Counsel, were under scrutiny for their ethical conduct and legal opinions on presidential power after the 9/11 terrorist attacks. The Office of Legal Council's duty is to provide objective legal advice for the executive branch.

Now OPR investigators wanted to know: Did Yoo and Bybee deliberately slant their legal advice to give Bush officials the counsel they wanted to hear on how to respond to 9/11?

Bush administration response to 9/11

The 9/11 attacks generated fear among the Bush officials responsible for national security and a driving determination to get information that could avert another attack. Just days after 9/11, Vice President Dick Cheney commented, "We have to work on the "dark side [and] if we're going to be successful…it's going to be vital for us to use any means at our disposal, basically, to achieve our objective." ("Meet the Press," NBC, 9/16/01)

But would those who used "any means" to get information from suspects be subject to criminal prosecution for their acts? John Rizzo, the CIA's general counsel, was concerned about that. Agency officers were about to proceed with "enhanced interrogation," including waterboarding, and other abusive tactics in their questioning of Abu Zubaydah, then considered a high-level al Qaeda operator (an assessment that was later abandoned). According to a report in Newsweek, "Rizzo wanted the Justice Department to provide a blanket letter declining criminal prosecution," which would essentially provide immunity for the CIA to use "enhanced interrogation." (Michael Isikoff, "Yoo Said Bush Could Order Civilians 'Massacred,'" Newsweek, 2/20/10)

Presidential advisors created a new vocabulary: "enhanced interrogation techniques" for interrogations that most people would consider torture; "enemy combatants" for prisoners of war; "war on terror" for war.

Legal advice from Yoo and Bybee

Some of the legal advice Yoo and Bybee provided to President Bush and his advisors in the weeks after 9/11 has become public.

January 9, 2002: Yoo co-authored a memo to William Haynes II, general counsel for the Defense Department, stating that the Geneva Conventions did not cover non-state organizations like Al Qaeda. The Geneva Conventions also didn't apply to Afghanistan under the Taliban because it was a "failed state" whose territory "had been largely overrun and held by violence by a militia or faction rather than by a government."

The Geneva Conventions, which were created in 1949 by the United States and other nations, state: that "Prisoners of war must at all times be humanely treated." (Article 13) "No physical or mental torture, nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever." (Article 17) The US War Crimes Act of 1996 defines a "war crime" as "a grave breach" of the Geneva Conventions.

August 1, 2002: Bush's White House Counsel, Alberto Gonzales, asked Bybee for a memo defining torture. In response, Bybee wrote that "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Yoo, who is described in the OPR report as the main force behind the memo, added: "As Commander-in Chief, the president has the constitutional authority to order interrogations of enemy combatants." Anything that interfered with that authority would be unconstitutional, he wrote, including any laws passed by Congress. CIA officers who might later be accused of torturing prisoners could claim they were following presidential orders.

When one of Yoo's associates, Patrick Philbin, questioned this opinion, Yoo replied, "They want it in there." Philbin told OPR investigators he did not know who 'they' was but assumed it was whoever requested the opinion. That would include the CIA's Rizzo, but also the White House, as the OPR report makes clear.

Provided with this legal advice, Gonzales wrote to President Bush. The ban on torture, he said, "does not apply to the President's detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority." Therefore officials could not be prosecuted for torture if "they were carrying out the president's Commander-in-Chief powers."

Two legal memos

Two additional memos Bybee wrote in August 2002 describe acceptable interrogation techniques.

1) Waterboarding: The individual is tied to an inclined bench, a cloth placed over forehead and eyes, and water is then applied to the cloth. "Air flow is slightly restricted for 20 to 40 seconds….This causes an increase in carbon dioxide level in the individual's blood [and]…stimulates increased effort to breathe. This effort…produces…the perception of drowning….In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture."

2) Confinement with Insects: "You would like to place [Abu] Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him" --but would in fact put a harmless insect like a caterpillar in the box. Since "the boxes will be without light, placement in these boxes would constitute a procedure designed to disrupt profoundly the senses." But it would not constitute torture, according to Bybee.

The OPR was unable to access batches of emails to and from Yoo. "We were told that most of Yoo's email records had been deleted and were not recoverable," reported Senate Judiciary Committee chairman Senator Patrick Leahy, a Vermont Democrat. Leahy demanded to know what happened to these email messages. The Justice Department said that it would try to find out.

John Sifton, a researcher for Human Rights Watch and a reporter, spent five years investigating deaths that resulted from the Bush administration's interrogation techniques. He found that an estimated 100 detainees died during interrogations. Some were "clearly tortured to death," according to a story about Sifton's findings. He also found that the Bush Justice Department had failed to investigate and prosecute these deaths, even when the CIA inspector general had referred a case. (www.thedailybeast.com, 5/5/09)

For discussion

1. What questions do students have about the readings? How might they be answered?

2. What is the function of the US Justice Department's Office of Legal Counsel?

3. According to Yoo's legal reasoning, why does a president have the authority to order the massacre of a village?

4. What does Article II of the Constitution say about presidential power? Does it support Yoo's opinion? Why or why not?

5. What question about Yoo and Bybee was the OPR investigating? What did the 9/11 attacks have to do with this question?

6. What did Rizzo want from the Office of Legal Counsel and why?

7. Why did presidential advisors produce new vocabulary after 9/11?

8. What are the Geneva Conventions? Why did Yoo find it necessary to write a memo about them?

9. How did Bybee define torture? Would you define it differently? If so, how? If not why not?

10. What did Yoo add to the Bybee definition and why?

11. What advice did Gonzales give to President Bush? Why?

12. Why did Bybee regard waterboarding and the use of insects as acceptable actions for interrogators of terrorist suspects? Do you? Why or why not?

13. What evidence from this reading would you use and why to support or to oppose a "yes" answer to the OPR question about Yoo and Bybee?

14. How would you explain the failure of the Bush administration's Justice Department to investigate whether anyone had been murdered as a result of the administration's interrogation techniques?

Student Reading 2:
"Professional misconduct" or "poor judgment"?

The OPR judgment

In February 2010, following its investigation and much debate, the Office of Professional Responsibility made a judgment about Yoo and Bybee: They were guilty of "professional misconduct." The OPR found that John Yoo's professional misconduct, unlike Bybee's, was "intentional" because "he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice, according to written rules."

The report also said that both men had ignored legal precedents, provided sloppy legal advice to the president, and may have violated international and federal laws on torture. OPR recommended that both be referred to bar associations for disciplinary measures.

The OPR report indicated that the legal opinions Yoo and Bybee had given in response to CIA general counsel Rizzo's request were virtually decided in advance. Rizzo "candidly admitted [to OPR investigators] the agency was seeking maximum legal protection for its officers" against criminal prosecution. However, Rizzo objected to the way his request was described in the report.

The OPR report said of the period after 9/11: "Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective, and candid legal advice, even if that advice is not what the clients want to hear."

The Department of Justice judgment

A senior Department of Justice lawyer, David Margolis, disagreed with the OPR's conclusion, overriding it. In his report, Margolis said Yoo and Bybee were working in a "context" of great urgency. Though their legal advice was "flawed" and sometimes inadequate, it did not amount to "professional misconduct"--a finding that could have resulted in disciplinary action against the two men. Instead, Margolis said, they had demonstrated only "poor judgment." However, he said, his decision "should not be viewed as an endorsement of the legal work that underlies" the Yoo-Bybee memos.

Margolis said, "It is a close question" whether Yoo "intentionally or recklessly provided misleading advice to his client" when he legally supported torture. However, he said, the Yoo-Bybee advice was wrong and "extreme."

The result of this advice was that President Bush, as well as top administration and CIA officials, at first justified such interrogation techniques as waterboarding, severe sleep deprivation, and wall-slamming. The US had long condemned these acts as torture when they were used by other nations. The Bush administration itself officially dropped the use of these techniques in 2004.

Competing opinions

Dana Perino, President Bush's press secretary, and Bill Burck, a former Bush deputy counsel, hailed Margolis' revision of the OPR report in a National Review article. They wrote that it "officially exonerated" Yoo and Bybee and was "a vindication of an important principle that, prior to the reign [of Attorney General Eric Holder], had been adhered to across administrations: honestly held legal and policy opinions are not cause for prosecution or professional discipline."
(www.nationalreview.com, 2/22/10)

In a Wall Street Journal op-ed, John Yoo wrote: "Rank bias and sheer incompetence infused OPR's investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR's preferred outcome....Decades of Justice Department opinions and practice [uphold] the president's commander-in-chief power." The OPR investigators "concocted bizarre conspiracy theories…for which they had no evidence." (www.wsj.com, 2/24/10)

The New York Times editorialized (2/25/10): "'Poor judgment' is an absurdly dismissive way to describe giving the green light to policies that have badly soiled America's reputation and made it less safe….The White House decision to brutalize detainees already had been made. Mr. Yoo and Mr. Bybee provided legal cover….Eric Holder should expand the investigation into 'rogue' interrogators he initiated last year to include officials responsible for facilitating torture. While he is at it, Mr. Holder should assign someone to look into the disappearance of Mr. Yoo's emails."

Wrote Glenn Greenwald, a constitutional lawyer and author, in Salon: "Yes, we implemented a worldwide torture regime that we justified with lawyers' memoranda that were false, wrong, shoddy, lawless, sloppy and extremist, but…they probably believed what they were saying at the time, so we're going to declare that we had the right to do what we did and are shielded from all consequences, even though we've signed treaties agreeing to prosecute anyone who authorizes torture and demanded that other nations prosecute their own torturers. Besides, we have important things to do and thus want to Look Forward, not Backward." (www.salon.com)

Immediately after his inauguration, President Obama prohibited "enhanced interrogation" techniques and in April 2009 released the memos reprinted in the first reading. But he also supports "reflection, not retribution." He said with regard to questions about investigating top officials in the Bush administration responsible for the torture policy that we need "to look forward, not backward."

Yoo is now a law professor at the University of California, Berkeley. After Bybee left the Office of Legal Counsel, President Bush appointed him to be a federal judge on the United States Court of Appeals for the Ninth Circuit, which has jurisdiction over district courts in nine western states.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Summarize in your own words the OPR judgment of Yoo and Bybee and the Margolis judgment. What differences are there between them? Similarities?

3. Consider each of the competing opinions on the results of the Yoo-Bybee investigation:

• Yoo and Bybee were "officially exonerated." (Perino-Burck)
• OPR investigators "concocted bizarre conspiracy theories…for which they had no evidence." (Yoo)
• "Mr. Yoo and Mr. Bybee provided legal cover" for the White House. (New York Times)
• "We implemented a worldwide torture regime that we justified with lawyers' memoranda that were false…." (Greenwald)
  

4. What is President Obama's response to any proposed investigation of top Bush administration officials? How do you explain his decision? Do you agree with it? Why or why not?

Small-group discussion

Divide the class into groups of three or four students to discuss their views of the competing opinions about the Yoo-Bybee judgment.

Give each student, in turn, one minute to speak. Announce when time is up. Provide another ten to fifteen minutes for a group discussion. Students in the group should select one person to summarize the views expressed for the class.

Following the reports, invite further class consideration of questions and issues raised.

For writing

Select one of the following as the subject for a well-developed paper with an introduction, several paragraphs of reasoned and evidence-based discussion, and a conclusion.

1. The decision on Yoo and Bybee
2. The conflict between responding to the terrorist threat and the US rule of law
3. The Obama decision not to investigate top Bush officials

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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