I think disbarment would absolutely be appropriate. The difficulty with prosecution is establishing intent. When a lawyer makes a stupid legal argument, it's always possible that s/he is not malicious, just a terrible lawyer. When you've narrowed the options to criminal intent or complete ineptitude, you have not got enough to prosecute. You have, however, got enough to disbar someone, since while total ineptitude is not an indictable offense, it is a good reason not to let someone go on practicing law.Indeed, but we should still prosecute them.
If Yoo, Bybee, and Bradbury did not write their memos in order to provide a shield for criminal activity, then I think they had to be completely inept as lawyers. Their job, remember, was to interpret the law for their clients, and to advise them on what was legal and what was not. By getting the law spectacularly wrong, they exposed their clients to serious legal liability, and in so doing completely failed to meet their obligations to their clients. Moreover, they made some fairly stunning mistakes, like failing to cite any of the cases in which the US government had prosecuted people for waterboarding when those cases were plainly relevant.
If they really did nothing wrong, then they ought to defend themselves against the charges in a court of law.
That's what courts are for. As high-profile lawyers and one a sitting judge, I'm sure they understand how the system works.
Political prosecutions of lawyers for giving legal advice because some people don't agree with their opinions is an incredibly bad idea.
ReplyDeleteDisbarment is another matter if the appropriate bar associations think their actions warrant it. Professional associations are entitled to set the standards by which their members operate. But I doubt that's going to happen in this case, because it will still set a bad precedent.
Unless Bush and other former high-ranking officials start claiming legal malpractice on the part of their lawyers, it's going to be pretty hard to disbar people for acting on behalf of their clients.
"because some people don't agree with their opinions" is an egregious mischaracterization of their indefensible legal reasoning.
ReplyDeleteBut Bush administrations wanted these bogus justifications, so of course they aren't going to complain about malpractice.
They want what they did to be seen as legal, because otherwise they themselves are in trouble.
And it shouldn't be a political matter; it's a matter of justice.
So again, if they can defend their actions, let's have them do so. In a court of law. It's what they're for.
""because some people don't agree with their opinions" is an egregious mischaracterization of their indefensible legal reasoning."
ReplyDeleteThe fact that you think their legal reasoning is "indefensible" doesn't make it so. They can obviously defend it, and so do plenty of other people. My characterization is correct.
"And it shouldn't be a political matter; it's a matter of justice."
Trying to criminalize legal advice for political reasons has nothing to do with justice. The only reason people are even suggesting action against the lawyers is that they are seen as an easier witchhunt target than a former president.
"So again, if they can defend their actions, let's have them do so. In a court of law. It's what they're for."
The courts aren't there to entertain frivolous accusations against people who committed no crimes. We don't put people on trial for giving legal advice. It's not even clear that they violated the rules of their profession -- since they have not been disbared -- let alone committed any crimes. No grand jury with an ounce of rationality is going to indicte them for anything.
The reasoning in these memos is legally indefensible. It's not me "thinking so", but in evidence to almost every learned person who's read them with a critical mind. I only see partisans arguing otherwise.
ReplyDeleteThe accusations are not frivolous, and if you think you can know what a rational grand jury will do upon investigation then you're a damn fool. I suspect the worst, but I don't fucking know. It's a grand jury's job to look at evidence and testimony and we simply don't have enough public knowledge to know either way. All we have our suspicions of the worst, because the Bush administration has given few signs that they acted in good faith, by e.g. not even citing previous cases against waterboarding.
If you think the majority of the independents who want this investigated are doing so for "political reasons", then your understanding of politics is fucking stupid. This isn't about them wanting to giving the opposition any political advantage. It's about truth and justice, and I'll not let the claim stand.
Moreover it is not about criminalizing the giving of bad legal advice, it's about investigating whether the bogus reasoning was:
A) merely inept
B) a deliberate effort to shield criminal acts that were supposed to remain secret
I don't know whether (B) was the case, but since the reasoning is so bizarrely bogus, the lawyers' and administration's intent must be investigated if we are to find out.
You don't want to find out the truth; you just want to prejudge the result of a 'rational grand jury investigation'? So the hell do we need even grand jury investigations for then if we can just go by your opinion without any testimony or diligent examination of all evidence that isn't publicly available?
Finally, you're plenty knowledgeable enough know that the techniques in these memos constitute torture. You're not one of the many idiots on the right who insists a regimen of waterboarding and accompanying techniques isn't torture. So why, when the Bush administration authorized interrogations that are clearly against US and international law, are you prepared to defend the legality? I understand that you're a proponent of torture, but you're one of the ones who has repeatedly said it should be done secretly and without regard for "legalism". So why are you defending the bogus legal justifications for what you know and acknowledge was illegal? Your position is absurd.
Here's one example of bad faith that we don't know who was responsible for.
ReplyDelete"The reasoning in these memos is legally indefensible."
ReplyDeleteObviously it isn't.
It's not me "thinking so", but in evidence to almost every learned person who's read them with a critical mind.
You must be joking. Most of the people who take that postion are hysterical opponents of torture. They are reading them not with a "critical mind," but with a completely prejudiced mind.
I only see partisans arguing otherwise."
You must not be looking very far. And the same arguments can be made pretty much any time any lawyer makes a creative legal argument. Those who disagree always say that the legal reasoning is crazy, indefensible or whatever.
"The accusations are not frivolous"
Obviously I disagree. They are not only frivolous but aimed at the wrong targets. Trying to prosecute Bush or Cheney may be stupid and counterproductive, but at least they are actually responsible.
"It's about truth and justice, and I'll not let the claim stand."
Oh please. I find that completely laughable. Going after lawyers on the basis of their legal advice has nothing at all to do with justice. And truth has little to do with criminal prosecution or trying to get people disbared. Most of the people in that camp are consumed with BDS.
"Moreover it is not about criminalizing the giving of bad legal advice"
That's exactly what it's about. You are trying to criminalize advice given by lawyers because you don't like the actions of an administration. Therefore you want to attack their lawyers for legal advice.
"You don't want to find out the truth"
There's nothing to find out. We know what their advice was.
"So the hell do we need even grand jury investigations for"
To decide whether indictements should be brought? That doesn't mean every accusation about anything goes to a grand jury. Are we going to start hauling ACORN members before grand juries because many Republican activists think they participated in voter fraud?
"Finally, you're plenty knowledgeable enough know that the techniques in these memos constitute torture."
Which of course none of the lawyers participated in. They simply did their job and gave legal advice when asked. In other words, they worked on behalf of their clients.
"So why, when the Bush administration authorized interrogations that are clearly against US and international law, are you prepared to defend the legality?"
I'm not defending the legality. But I am saying that the illegality is nowhere near as clear-cut as you seem to think. I can think one thing, and yet still recognize that someone else has a legitimate differing position.
"Your position is absurd."
No, I recognize that my particular opinion on the legal reasoning of the Bush administration is merely my opinion, not some sort of unchallengeable truth.
> "You must be joking. Most of the people who take that postion are hysterical opponents of torture. They are reading them not with a "critical mind," but with a completely prejudiced mind."
ReplyDeleteMe joking? You're the one who's insane. One does not have to be an hysterical/prejudiced opponent of torture to understand that what these memos authorized was illegal. One could be an emphatic proponent of torture, as you are, and still recognize the fact that the legal analysis in these memos doesn't withstand any basic scrutiny under US or international law.
> "I'm not defending the legality. But I am saying that the illegality is nowhere near as clear-cut as you seem to think. I can think one thing, and yet still recognize that someone else has a legitimate differing position."
What is clear cut is that these lawyers made very little effort to consider legitimate differing positions and previous case law, ergo they are guilty of malpractice and should be disbarred. That much is clear cut.
What's not clear cut is whether there were any criminal motives--and this is what should be investigated if we are to ever know. (rather than pretend we know there's "nothing to find out", as you do)
"to understand that what these memos authorized was illegal."
ReplyDeleteExcept that we have the lawyers themselves, the administration, and a solid minority all arguing that they were not illegal. So again, you are confusing your particular opinion with fact.
"One could be an emphatic proponent of torture, as you are, and still recognize the fact that the legal analysis in these memos doesn't withstand any basic scrutiny under US or international law."
I think that their legal reasoning was shaky. And I personally don't think they should have gone that route. But, their reasoning depends quite a bit on the definition of torture. And the defintion of torture is subjective. They were operating in a gray area and taking the most favorable position legal position for their client -- something lawyers do all the time.
"What is clear cut is that these lawyers made very little effort to consider legitimate differing positions and previous case law, ergo they are guilty of malpractice and should be disbarred. That much is clear cut."
No it isn't. If that were the case, lawyers would constantly be getting disbarred.
"whether there were any criminal motives"
Criminal motives for what? The idea that they had some sort of criminal motives for coming up with a legal theory is just crazy. The Bush administration wanted to use coercive interrogations, including waterboarding. Rather than just do it and take responsibility, they decided to try to cover themselves legally. So they asked their legal counsel for advice. The lawyers came up with a legal theory about how they could do it legally. Even if they were wrong they did nothing illegal, and probably nothing even unethical.
> "Except that we have the lawyers themselves, the administration, and a solid minority all arguing that they were not illegal. So again, you are confusing your particular opinion with fact."
ReplyDeleteWould the lawyers themselves and vested partisan minorities ever argue that they were illegal? Ever? Extremely unlikely. So I'm ignoring their irrelevant self-servicing opinions and looking to independent judgment.
I'm also ignoring your ridiculous notion that there's no possible way this was a criminal conspiracy to generate bogus secret legal justifications for secret torture. Plenty of evidence flies in the face of this, for instance Yoo himself recently suggested that any crimes should be jury nullified, which is actually a cogent position that recognizes the possibility of criminality. Yet you--omniscient partisan that you are--insist there is no possible criminal case while the people involved are obviously concerned about it. Your position is absurd.
"Would the lawyers themselves and vested partisan minorities ever argue that they were illegal? Ever? Extremely unlikely. So I'm ignoring their irrelevant self-servicing opinions and looking to independent judgment."
ReplyDeleteNo, you are looking to judgment that you agree with. There are two sides to the issue.
"I'm also ignoring your ridiculous notion that there's no possible way this was a criminal conspiracy to generate bogus secret legal justifications for secret torture."
No possible way? Anything is possible. It's possible they were conspiring with space aliens too.
"Yoo himself recently suggested that any crimes should be jury nullified, which is actually a cogent position that recognizes the possibility of criminality."
He recognizes the possibility that the witchunters might actually be able to generate a political prosecution.
"insist there is no possible criminal case"
Except I didn't say that. A criminal case is always possible. People can be indicted for anything. There are ridiculous indictments all the time. I said there was no crime or evidence of criminal motives.
"Your position is absurd."
There's nothing the slightest bit illogical about my position. You just don't like it.
False dichotomy. There are not only two sides to every issue. There are partisans on either side, I am ignoring them both and drawing my own conclusions. I am not, as you falsely claim, looking for judgment that I agree with merely because I want to agree with it. That is in fact what you are doing by citing the opinion of the lawyers themselves and vested partisan minorities. And it's every bit as unpersuasive as citing a company's PR for their own product as if it were a fair opinion.
ReplyDelete> No possible way? Anything is possible. It's possible they were conspiring with space aliens too.
Accepting the implied equivalence, arguendo, your your argument against future investigation of criminality would be equally persuasive as an argument against SETI. Which is to say, not at all.
> I said there was no crime or evidence of criminal motives.
But there is ample cause for investigating more evidence. The only objections are either partisan or against the rule of law. Your position remains legally absurd.
"False dichotomy. There are not only two sides to every issue. There are partisans on either side, I am ignoring them both and drawing my own conclusions."
ReplyDeleteSince you want prosecutions, that kind of makes you a partisan on one side.
"But there is ample cause for investigating more evidence."
There isn't. The only people who think there is, think so for political reasons. The entire issue is political. And I don't mean just Democrat vs. Republican. When have we ever gone back and prosecuted members of a past administration for national security decisions? And the people in question weren't even responsible.
"The only objections are either partisan or against the rule of law."
The partisans want prosecutions. The objections are basic common sense. We don't prosecute lawyers for giving legal advice that we don't like. Anyone who isn't partisan should be able to see that such an action would set a terrible precedent.
> "Since you want prosecutions, that kind of makes you a partisan on one side."
ReplyDeleteA partisan for justice, not politics as you have claimed. I do not pre-judge, I only ask for judgment. If an investigation does not find a case, or if the case it does find is deemed wanting in court, then let it be so. What I'm not willing to do is "just keep walking" like Peggy Noonan.
> "The only people who think there is, think so for political reasons."
There you go again with your political reasons BS. Fuck you for insisting that I'm a political partisan incapable of putting justice before political partisanship. You and your blanket disregard for all the reasons these bogus memos and resulting illegalities merit investigation are the only partisan in this conversation.