1 Boring Old Man

The Torture Memo

^{The Justice Department is investigating the lawyers whose memos gave the Bush Administration the legal support it needed for waterboarding and other brutal interrogation techniques. We are "examining whether the legal advice in these memoranda was consistent with the professional standards that apply to Department of Justice attorneys," H. Marshall Jarrett, counsel for the Justice Department’s Office of Professional Responsibility, wrote to two Democratic senators in February.}

^{The torture memos from 2002 were mainly the work of Jay Bybee, then head of the Office of Legal Counsel (OLC) and now a federal appellate judge in San Francisco, and Bybee’s deputy, John Yoo, who has since returned to teaching law at the University of California, Berkeley. This month the Pentagon released a long-rumored torture memo from 2003 written solely by Yoo, which is even more adamant in its embrace of unfettered presidential power…}

^{The press tends to overlook the lawyers when scandal breaks, focusing instead on their clients. That’s understandable, but in public and commercial life no serious move is possible (no corporate maneuver, no new financial instrument, no war, no severe interrogation tactic) without legal approval. Even if the advice proves wrong, the client, if sued or indicted, can claim reliance on counsel…}

^{The Justice Department recognized the incompetence of the torture memorandums when Bybee’s successor, Jack Goldsmith, retracted an August 2002 memo that had construed the Convention Against Torture and the federal statute forbidding torture to permit interrogation tactics just shy of homicide. And that memo was actually an improvement on the OLC’s earlier work, which, in advising on "the effect of international treaties and federal laws on the treatment" of detainees from Afghanistan, entirely overlooked the torture convention and statute…}

^{Well, anyone can make a mistake, right? And don’t lawyers disagree all the time? Of course, but that’s not the point. The present criticism cites the utter shoddiness of the work. Take another example. Although the OLC memos broadly construed presidential power in foreign affairs, they ignored the Supreme Court’s landmark 1952 "steel seizure case," which greatly restricts that power and contradicts the OLC’s expansive claims. It would be like advising a client on school desegregation law and ignoring Brown v. Board of Education. Yale law dean Harold Hongju Koh called this omission "a stunning failure of lawyerly craft" and "a stain upon our law and our national reputation"…}

^{… Who was the client? The lawyers told the President what he wanted to hear, but the nation was their client, and its sole interest was in thorough and independent legal analysis. Neither the President’s political agenda nor the authors’ views of what the law should say can be allowed to slant the OLC’s work. So maybe the best and brightest lawyers got it so wrong because they forgot whom they served…}

John Yoo spoke for us. His Memos said, "it’s okay with the people for you to do this." It is our Constitution that’s being represented – what we are made of:

con·sti·tu·tion /ËŒkÉ’nstɪˈtuʃən, -ˈtyu-/

Pronunciation[kon-sti-too-shuhn, –tyoo–]

–noun

1.	the way in which a thing is composed or made up; makeup; composition: the chemical constitution of the cleanser.
2.	the physical character of the body as to strength, health, etc.: He has a strong constitution.
3.	Medicine/Medical, Psychology. the aggregate of a person’s physical and psychological characteristics.
4.	the act or process of constituting; establishment.
5.	the state of being constituted; formation.
6.	any established arrangement or custom.
7.	(initial capital letter) Constitution of the United States.
8.	the system of fundamental principles according to which a nation, state, corporation, or the like, is governed.
9.	the document embodying these principles.
10.	Archaic. character or condition of mind; disposition; temperament.

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[Origin: 1350–1400; ME constitucion edict, ordinance < AF < L constitÅ«tiōn- (s. of constitÅ«tiō). See constitute, -ion]