An interesting Q and A ..  and some surprising conclusions about what to do next at the end of the piece.

Jim..

http://writ.news.findlaw.com/dean/20090501.html

Q & A Session on Bad Advice: Bush's Lawyers In The War On Terror

By JOHN W. DEAN

Friday, May 1, 2009

Harold Bruff is a former U.S. Department of Justice Office of Legal Counsel (OLC) attorney; currently, he is a professor of law (and former Dean) at the University of Colorado (Boulder) Law School. In his new book, Bad Advice: Bush's Lawyers In The War On Terror, Bruff has taken a critical look at the legal advice provided to President Bush and Vice President Cheney to deal with their "war on terror." His findings, as reported in the book, are not pretty. (I discovered Professor Bruff's book when browsing the University of Kansas Press catalogue. The Press is the future publisher of a work-in-progress that I am co-authoring with a young historian about the Watergate cover-up trial.)

Part I of Bad Advice examines the role of lawyers who are advising presidents. This material is timeless. Part II looks at the post-9/11 legal advice Bush was given regarding dealing with terrorists and terrorism. In particular, it addresses advice on matters such as the legality of warrantless surveillance by the National Security Agency, the indefinite detention of enemy combatants, evading the Geneva Conventions, conducting military (not civilian) trials of detainees, and employing aggressive interrogation techniques. This material could not be timelier.

Given Harold Bruff's considerable experience and professional credentials, not to mention the objectivity and candor of his analysis, his findings are disquieting to say the least. Rather than review his book, however, I thought it might be more interesting to seek answers from him to a few of the questions that had occurred to me when I was reading the book. The University of Kansas Press arranged for me to contact Professor Bruff, and our exchange went as follows:

QUESTION: At the outset of your book, after noting its timeless nature of problems in advising the powerful, you raise the question regarding what behaviors and you use the plural should be expected, if not demanded, of lawyers serving an "insistent" client, and in the context of your study, a client who is a head of state?

ANSWER: The most important behavior is adherence to the simple ethical rule that governs all American lawyers. They must "exercise independent professional judgment and render candid advice" to the client. Important and insistent clients, such as Presidents, may put heavy pressure on their lawyers to provide advice that serves policy goals, whatever the law might be. Accordingly, the lawyer really has two quite difficult tasks. First, he or she must have the courage, and the detachment from policy agendas, to say what the law requires, even if that advice is unwelcome. Second, the lawyer needs to have the skill to persuade a powerful client that this advice should be received and considered, even if the client is under no obligation to seek or follow the lawyer's advice.

QUESTION: Let's turn to Part II of your book, where you address the "bad advice" Bush received from his lawyers. Appropriately, much of your attention focuses on the post-9/11 "War Council," which was made up of White House Counsel Alberto Gonzales and his deputy Tim Flanigan, Dick Cheney's counsel David Addington, Defense Department General Counsel Jim Haynes, and John Yoo from OLC. Tell me about the War Council. Was it really giving legal advice, or was it, more often, advocating? If the latter, what happened to OLC that it would join in advocacy, rather than following its long tradition of offering the most solid legal advice that might be found within the Executive Branch government? Did fear cause this, meaning did the terrorists manage to terrorize these key government lawyers, causing them to overreact? Or was it OLC pleasing the White House, giving them whatever they wanted? What do you mean by saying it gave "bad" advice? It strikes me that you could mean inadequate, if not wicked or evil or all of them. Would you explain what you mean by bad advice?

ANSWER: The War Council's role is revealed by its name. It never showed any detachment from the policy goals of its clients. It became an advocate for any theory of law, no matter how implausible, that would allow what the administration wanted to do, for example harsh interrogation. It is clear that this attitude resulted from fear of another terrorist attack and the resulting pressure that was felt throughout the administration to do anything that might prevent one. The bad advice did not result from bad or evil intentions. Instead, these were patriotic lawyers striving in good faith to help win the terror war. But they lost sight of the essential nature of the lawyer's role. Another reason the War Council became so extreme was that it short-circuited normal bureaucratic checks that subject proposed legal advice to review by senior officials, such as the Attorney General, who can be expected to display good judgment. Instead, a group of junior lawyers, headed by a White House Counsel who was new to these issues, formed advice in a hothouse environment that excluded external influences.

QUESTION: Is there a common thread that runs through the bad advice that Bush's lawyers provided him for dealing with terrorists?

ANSWER: Yes, many of the memos followed the same four-part strategy. First, they used only legal precedents relating to war and foreign policy, because those precedents support broad executive power, although the terror war has domestic aspects as well. Second, they read constitutional provisions that empower the President extremely broadly, and provisions that might constrain him very narrowly. Third, they used the same approach to statutes, reading those authorizing executive action very broadly and those constraining the executive very narrowly. And fourth, they invoked legal canons of construction in ways that supported the preceding two parts of the strategy. The overall effect was to claim almost unlimited executive power, and to minimize the potential role of the other two constitutional branches of government.

QUESTION: As you note in the book, the envelope was pushed and then pushed some more regarding warrantless electronic surveillance after 9/11 with the Bush Administration all but ignoring the Foreign Intelligence Surveillance Act. In this situation, however, the bad advice that the government lawyers were giving was accepted by several legal departments of telecommunications companies, who actually did the dirty work. How do you explain the willingness of non-government lawyers to join government lawyers in acting outside the law?

ANSWER: The Administration put the lawyers for the companies in a very difficult position. The companies were told that the President considered this operation vital to national security, that the reasons for this judgment were state secrets and could not be revealed, and that the program had been determined to be legal by the Administration's lawyers. Lawyers for the companies had little choice other than to accept these assertions.

QUESTION: As you know, John Yoo had written a number of law journal articles about the very subject he would find himself writing legal opinions on after 9/11 when he happened to have returned to government service. Per chance did you look at his law journal articles to see how much cut-and-pasting he did, taking material from his journal articles and inserting them into his opinions?

ANSWER: John Yoo has held his extreme theories of executive power since he was a law professor before joining OLC, and has never recanted. Comparison of his OLC memos with the position he took in his academic book, The Powers of War and Peace (which summarizes his earlier articles) and his revealingly titled memoir, War by Other Means, shows complete consistency of viewpoint. What he did not reveal to his government clients, however, is that his positions enjoy little support from other scholars, and that there is a great weight of authority against them. Within OLC, Yoo seems to have received little supervision from Jay Bybee, his nominal superior. Yoo had been working at OLC for months when Bybee arrived, and had already written some important memos. Although some memos show editing that was presumably from Bybee, John Yoo's influence remained dominant throughout his time at OLC.

QUESTION: Did you read anything in the U.S. Supreme Court's decisions dealing with the efforts of the Bush government to keep detainees out of the reach of American courts, more specifically Hamdi v. Rumsfelf, Rasul v. Bush and Rumsfeld v. Padilla, that suggested the Court was sending a message to government lawyers that they had crossed the line?

ANSWER: An early OLC memo concluded that American courts could not issue writs of habeas corpus to the base at Guantanamo, Cuba, because it was outside the jurisdiction of the federal courts. The Supreme Court rejected this position in Rasul, but the question was not an easy one and this OLC advice was a competent and balanced treatment of the issue. Hamdi rebuked the Administration for arguing that the detainees were not entitled to any process at all to determine whether they were actually enemy combatants or innocent civilians. The OLC memos never directly grappled with the question of minimal process for the detainees, and they should have done so.

QUESTION: Not all government lawyers were giving bad advice. What should or could -- those lawyers who knew that the War Council team was giving bad advice do that they did not do? Or did they do all they could?

ANSWER: Government lawyers who knew the advice was bad resisted as best they could. Uniformed lawyers in the military were especially brave and forthright in their resistance. The War Council either excluded them or steamrolled them. It got the power to do so from the support of Vice President Cheney.

QUESTION: Of late, the bad legal advice that has been getting the most attention has been contained in newly-released OLC opinions regarding "alternative interrogation techniques" sometimes better known as torture. These documents were released after your book was published, although you discuss the legal advice regarding interrogation at some length. Was there anything in these new memos that changed your views, by which I mean was the advice better or worse or more of the same?

ANSWER: I had some of the memos giving general legal advice about interrogation, such as the notorious "torture memo" of August, 2002. I did not have the memos giving detailed and dismaying advice about particular techniques, such as waterboarding. The general conclusions of the detail memos could be inferred, however, from what happened to the detainees. What makes these newly released memos even worse than the others is that the lawyers were clearly letting their advice be driven by techniques interrogators asked to use. There is no sign of lawyerly restraint.

QUESTION: Do you believe any of these lawyers should be prosecuted, either here or abroad, for war crimes?

ANSWER: The recently-disclosed memos suggest that the lawyers were accomplices in actions that they knew were illegal. Nevertheless, when prosecutors decide whether to charge anyone, they should consider the serious risks that criminal liability would deter desirable behavior in the future. Much legal advice to Presidents occurs under severe time pressure that limits the opportunity to provide thorough legal analysis. For many of the issues, there are few clear precedents to guide the lawyers. Also, the lawyers know that they will be judged with all the unfairness of hindsight. Therefore, it would be easy to make the President's lawyers too cautious for the good of the nation when they are asked to give advice under great pressure of time and uncertainty.

QUESTION: Based on your detailed review of the legal advice given Bush to deal with terrorists, if you were the head of the Office of Professional Responsibility at the Department of Justice (which is, in fact, about to issue a report) what would you recommend, if anything, regarding the conduct of the lawyers involved in all this bad advice?

ANSWER: The Office is authorized to refer its recommendations to state bar associations, which have jurisdiction to impose sanctions on lawyers who fail to give candid and independent legal advice. There is a wide range of available sanctions, from reprimand to disbarment. Because of the problem of over-deterrence, the bar authorities should not take action unless serious and repeated ethical lapses are shown. Since regulation of lawyers by state bars is usually regarded as rather weak, the over-deterrence problem should be minimized. At the same time, there is a need to buttress the central obligation to provide independent legal advice against the constant pressure to say yes to anything.

when you begin to prosecute the previous administration for policy decisions as an incoming administration....
you begin a snowball effect of partisan counter attack that could roll into political war
with no concessions one side prosecutes the other


should obama be prosecuted for releasing the "torture" papers.....for compromising our national security and emboldening our enemies?

when you begin to prosecute the previous administration for policy decisions as an incoming administration....
you begin a snowball effect of partisan counter attack that could roll into political war
with no concessions one side prosecutes the other


When you declare that criminality is a mere "policy decision" and thus set the executive above the law, you begin the slippery slope to tyranny.

When you declare that criminality is a mere "policy decision" and thus set the executive above the law, you begin the slippery slope to tyranny.


**********************

you mean like socializing a free society...and decriminalizing slavery (taking from one citizen the product of his labor and giving it to another citizen) in the name of "fairness" instead of recognizing the right of private property ownership as is described in the constitution and federalist papers and other founding documents?

you mean that kind of tyranny

the tyranny of government ownership of the means of production in marxist fashion?

that kind of tyranny?

removing the "equal protection under the law" described in the constitution by taxing citizens differently based on income or wealth?

************************
one citizen one vote

one citizen one tax rate

You're talking about laws you disagree with. I'm talking about an administration violating laws on the books.

Apples and oranges.

should obama be prosecuted for releasing the "torture" papers.....for compromising our national security and emboldening our enemies?

Torture papers gillis? What torture papers? POTUS Bush said America does NOT torture. How can a country that does NOT torture have torture papers?

should obama be prosecuted for releasing the "torture" papers.....for compromising our national security and emboldening our enemies?

First of all, since the power of classification emanates from the President, so does the power to declassify.

Second, your claim that this declassification compromised our national security and emboldened our enemies is unsupported and I would contend unsupportable. But even if it were true, there is no statute that makes that a crime. there are statutes making a number of the things done by the Bush administration crimes.

Until a case has been tried in a court of law, there is no way of determining what bad advice is. And even when tried in court, some decisions are incorrect. For example, the Court of Appeals may reverse a lower court and the Supreme court may reverse the Appellate court.

So you are assuming that the Obama opinion is the correct5 opinion only because it is Obama's opinion. The opinion of what constitutes torture has not been decided in the highest court of appeal.

BTW you do know that each act of torture must be deci8ded on its own merit, don't you?

MUSLIMS: 'WE DO THAT ON FIRST DATES'
April 29, 2009


Without any pretense of an argument, which liberals are neurologically incapable of, the mainstream media are now asserting that our wussy interrogation techniques at Guantanamo constituted "torture" and have irreparably harmed America's image abroad.

Only the second of those alleged facts is true: The president's release of the Department of Justice interrogation memos undoubtedly hurt America's image abroad, as we are snickered at in capitals around the world, where they know what real torture is. The Arabs surely view these memos as a pack of lies. What about the pills Americans have to turn us gay?

The techniques used against the most stalwart al-Qaida members, such as Abu Zubaydah, included one terrifying procedure referred to as "the attention grasp." As described in horrifying detail in the Justice Department memo, the "attention grasp" consisted of:

"(G)rasping the individual with both hands, one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the individual is drawn toward the interrogator."

The end.

There are rumors that Dick "Darth Vader" Cheney wanted to take away the interrogators' Altoids before they administered "the grasp," but Department of Justice lawyers deemed this too cruel.

And that's not all! As the torments were gradually increased, next up the interrogation ladder came "walling." This involves pushing the terrorist against a flexible wall, during which his "head and neck are supported with a rolled hood or towel that provides a C-collar effect to prevent whiplash."

People pay to have a lot rougher stuff done to them at Six Flags Great Adventure. Indeed, with plastic walls and soft neck collars, "walling" may be the world's first method of "torture" in which all the implements were made by Fisher-Price.

As the memo darkly notes, walling doesn't cause any pain, but is supposed to induce terror by making a "loud noise": "(T)he false wall is in part constructed to create a loud sound when the individual hits it, which will further shock and surprise." (!!!)

If you need a few minutes to compose yourself after being subjected to that horror, feel free to take a break from reading now. Sometimes a cold compress on the forehead is helpful, but don't let it drip or you might end up waterboarding yourself.

The CIA's interrogation techniques couldn't be more ridiculous if they were out of Monty Python's Spanish Inquisition sketch:

Cardinal! Poke her with the soft cushions! ...
Hmm! She is made of harder stuff! Cardinal Fang! Fetch ... THE COMFY CHAIR!

So you think you are strong because you can survive the soft cushions. Well, we shall see. Biggles! Put her in the Comfy Chair! ...

Now -- you will stay in the Comfy Chair until lunchtime, with only a cup of coffee at 11.

Further up the torture ladder -- from Guantanamo, not Monty Python -- comes the "insult slap," which is designed to be virtually painless, but involves the interrogator invading "the individual's personal space."

If that doesn't work, the interrogator shows up the next day wearing the same outfit as the terrorist. (Awkward.)

I will spare you the gruesome details of the CIA's other comical interrogation techniques and leap directly to the penultimate "torture" in their arsenal: the caterpillar.

In this unspeakable brutality, a harmless caterpillar is placed in the terrorist's cell. Justice Department lawyers expressly denied the interrogators' request to trick the terrorist into believing the caterpillar was a "stinging insect."

Human rights groups have variously described being trapped in a cell with a live caterpillar as "brutal," "soul-wrenching" and, of course, "adorable."

If the terrorist manages to survive the non-stinging caterpillar maneuver -- the most fiendish method of torture ever devised by the human mind that didn't involve being forced to watch "The View" -- CIA interrogators had another sadistic trick up their sleeves.

I am not at liberty to divulge the details, except to mention the procedure's terror-inducing name: "the ladybug."

Finally, the most savage interrogation technique at Guantanamo was "waterboarding," which is only slightly rougher than the Comfy Chair.

Thousands of our troops are waterboarded every year as part of their training, but not until it was done to Khalid Sheikh Mohammed -- mastermind of the 9/11 attack on America -- were liberal consciences shocked.

I think they were mostly shocked because they couldn't figure out how Joey Buttafuoco ended up in Guantanamo.

As non-uniformed combatants, all of the detainees at Guantanamo could have been summarily shot on the battlefield under the Laws of War.

Instead, we gave them comfy chairs, free lawyers, better food than is served in Afghani caves, prayer rugs, recreational activities and top-flight medical care -- including one terrorist who was released, whereupon he rejoined the jihad against America, after being fitted for an expensive artificial leg at Guantanamo, courtesy of the U.S. taxpayer.

Only three terrorists -- who could have been shot -- were waterboarded. This is not nearly as bad as "snowboarding," which is known to cause massive buttocks pain and results in approximately 10 deaths per year.

Normal human beings -- especially those who grew up with my older brother, Jimmy -- can't read the interrogation memos without laughing.

At Al-Jazeera, they don't believe these interrogation memos are for real. Muslims look at them and say: THIS IS ALL THEY'RE DOING? We do that for practice. We do that to our friends.

But The New York Times is populated with people who can't believe they live in a country where people would put a caterpillar in a terrorist's cell.



COPYRIGHT 2009 ANN COULTER
DISTRIBUTED BY UNIVERSAL PRESS SYNDICATE
1130 Walnut, Kansas City, MO 64106

Without any pretense of an argument, which liberals are neurologically incapable of ...

Yeah, Ok ... I'm "neurologically incapable of" argument.

PFFFTTT!!

PFFFTTT!!


*******
she was wrong! what a great argument.....PFFFTTT!!


hahahahaha

she was wrong! what a great argument.....PFFFTTT!!

I'm happy to rest on the full body of my posts on the net, should anyone care to evaluate whether I'm "neurologically capable" of argument. I submit I do a more consistent job of constructing arguments than you do, gillis. Certainly a better job than Ann Coulter does.

billy boy clinton was dis barred for tap dancing around the law. the same should be the minimum done to these jamokes. They have the ethics of the corporate/Mafia lawyer in the example. "What does the law say about this?" "What do you want it to say?"

"If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." -- Thomas Jefferson

We live in a society exquisitely dependent on science and technology, in which hardly anyone knows anything about science and technology. - Carl Sagan

I believe that every right implies a responsibility, every opportunity an obligation; every possession, a duty. - John D. Rockefeller, Jr.

gillis:  how was Coulter's piece any kind of response to the opening post?

Jim..

And in the end ....

QUESTION: Do you believe any of these lawyers should be prosecuted, either here or abroad, for war crimes?

ANSWER: The recently-disclosed memos suggest that the lawyers were accomplices in actions that they knew were illegal. Nevertheless, when prosecutors decide whether to charge anyone, they should consider the serious risks that criminal liability would deter desirable behavior in the future. Much legal advice to Presidents occurs under severe time pressure that limits the opportunity to provide thorough legal analysis. For many of the issues, there are few clear precedents to guide the lawyers. Also, the lawyers know that they will be judged with all the unfairness of hindsight. Therefore, it would be easy to make the President's lawyers too cautious for the good of the nation when they are asked to give advice under great pressure of time and uncertainty.

QUESTION: Based on your detailed review of the legal advice given Bush to deal with terrorists, if you were the head of the Office of Professional Responsibility at the Department of Justice (which is, in fact, about to issue a report) what would you recommend, if anything, regarding the conduct of the lawyers involved in all this bad advice?

ANSWER: The Office is authorized to refer its recommendations to state bar associations, which have jurisdiction to impose sanctions on lawyers who fail to give candid and independent legal advice. There is a wide range of available sanctions, from reprimand to disbarment. Because of the problem of over-deterrence, the bar authorities should not take action unless serious and repeated ethical lapses are shown. Since regulation of lawyers by state bars is usually regarded as rather weak, the over-deterrence problem should be minimized. At the same time, there is a need to buttress the central obligation to provide independent legal advice against the constant pressure to say yes to anything.

I believe the administration knew they were pushing just beyond the edge of acceptability, but weighed the costs of doing so against the risks of not doing so ... to protect our backs.  None of us has access the intelligence those making these decisions do.  I know the majority of you will never agree with me, but I give them the benefit of the doubt for doing what they felt they must.

 

I believe the administration knew they were pushing just beyond the edge of acceptability, but weighed the costs of doing so against the risks of not doing so ... to protect our backs.  None of us has access the intelligence those making these decisions do.  I know the majority of you will never agree with me, but I give them the benefit of the doubt for doing what they felt they must.

*******************************************

I agree with you up to a point Carolyn.  "just beyond the edge of acceptability" bothers me... because that really ain't the question.

The question was:  What is the job of the OLC?  It ain't to give easy or convenient answers.

I like the idea of transparency, and I think our Founders did too.

Jim..

I like the idea of transparency, and I think our Founders did too.

Jim..


**************

so the nuclear codes should be published?


silly question?

of course...but where is the national security line? what can/should be public...what cannot/should not be public?
troop locations?
weapons ?
techniques?
war battle plans?
limits to our willingness to execute enemy dispatch?
this is not a whimsical ponder....it is serious and truly jeopardizes our men in uniform and our home front if we don't answer these questions correctly

.

silly question?

of course...but where is the national security line? what can/should be public...what cannot/should not be public?
troop locations?
weapons ?
techniques?
war battle plans?
limits to our willingness to execute enemy dispatch?
this is not a whimsical ponder....it is serious and truly jeopardizes our men in uniform and our home front if we don't answer these questions correctly 

******************************************

of course it is a "whimsical ponder" ...  what I am talking about is "policy" ... not the crap that you purvey.

Jim...

So now we know that Congress was briefed on the torture that was proposed for the terrorists. So let the trials begin and let's start with the Democrats.

But don't you believe that it would be a good idea to pass a law as to define torture before we decide who violated it? Of course we should, but the shallow Obama hasn't told you that there was no law about torture, or those who advised the methods of torture would have known it was against the law.

Shallow minded liberals.

gosh golly ignorant potese, is not a treaty the law of the land, does not the Senate pass it? Is not torture defined in treaties the US has signed?

Do try to keep up, little mush skull, your party is almost all the way to the sanitary sewer and you are the reason why.

"If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." -- Thomas Jefferson

We live in a society exquisitely dependent on science and technology, in which hardly anyone knows anything about science and technology. - Carl Sagan

I believe that every right implies a responsibility, every opportunity an obligation; every possession, a duty. - John D. Rockefeller, Jr.

Wow, J2, if water boarding had been specifically spelled out, everyone would have known it, wouldn't they? since it was not clearly defined, any lawyer can render an opinion. BTW it is an opinion and only an opinion until it is tried before a court or some accepted Judaical authority that specifically names water boarding as forbidden torture.

BUT you do not keep up because Democrats never care for the rule of law. they just find the right people and put them in power regardless the corruption surrounding them.

So who decided that it was torture? Obama. Is he your King?

...did was MUCH worse than what Nixon did, and Nixon lost his job for his crimes.   The entire Bush administration needs to be investigated and then PROSECUTED for their war crimes.  The neoCONs are merely doing EXACTLY what the Republicans did in the 70s with Watergate......attempting to play down the crimes of their own Party's politicians.   It merely proves they have no morals whatsoever, imo.

What Bush & Co......
May 8 2009, 11:31 PM

...did was MUCH worse than what Nixon did, and Nixon lost his job for his crimes. The entire Bush administration needs to be investigated and then PROSECUTED for their war crimes. The neoCONs are merely doing EXACTLY what the Republicans did in the 70s with Watergate......attempting to play down the crimes of their own Party's politicians. It merely proves they have no morals whatsoever, imo.


*********************

careful....we are all listing Obama's "crimes"...that when he leaves office ...the prosecutorial axe may swing......

do you see that this will damage our republic?...using the current administration to prosecute the previous one?

it never ends.
it will destroy America
if we don't get back to focus on the future instead of the past

MOVE ON

Obviously the best thing to do is investigate the Bush Administration. That ways the next administration can investigate the Obama administration.

Gee, do you not see that the Obama Administration is typical of the third-world mentality. They are taking us to the third world and Jamjie hate NeoCons because she prefers the third world dictatorships.

Yes, Janie the writing is on the wallo for all to see. But drawing you pictures makes no difference because you are too dense to understand.

Obviously the best thing to do is investigate the Bush Administration. That ways [sic] the next administration can investigate the Obama administration.

The Bush administration DOES need investigating since we KNOW that they used torture (forbidden by LAW), and we also KNOW that the Iraq war was illegal.    Can you tell me why the Obama administration "needs" to be investigated and for what?