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In today's Washington Post, Saul Jay Singer, the senior legal ethics counsel for the D.C. Bar has a letter to the editor arguing that if a client instructs his lawyer,

I want to perform a certain act; find me a legal way to do it,

the lawyer's professional duty is to find a good-faith basis in the law to meet the client's needs while carefully advising the client of the risks of pursuing such a course of action.  http://www.washingtonpost.com/...

I guess this torture apologia shouldn't be surprising coming from the D.C. Bar, which has held me under investigation for more than 5 years now for advising that a U.S. citizen should be afforded his rights, and disclosing to the press when this did not happen.

But Mr. Singer and other "legal experts" quoted by the MSM in support of the torture lawyers evading bar discipline are flat-out wrong.

On Wednesday, Senators Whitehouse and Durbin are holding a hearing on "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration" at 10:00am.  I will be submitting written testimony about why assertions like that in the next paragraph are wrong.

Waterboarding is a perfect example.  A lawyer may personally believe that such a practice constitutes torture, but there is, at the very least, a good-faith argument to be made that it is not--as evidenced by the fact that even now respected authorities argue that this is not torture.  --Saul J. Singer

Just to be clear:  Waterboarding is considered to be torture by the vast majority of authorities, including legal experts, politicians (including President Obama and Attorney General Holder), war veterans, CIA intelligence officials, military judges and human rights organizations.  Who are the fringe "respected authorities" that are arguing otherwise?

And even though some on the Supreme Court think that international law doesn't count, waterboarding is unequivocally illegal torture under international law.

Mr. Singer cites no ethics rules in support of his broad and dangerous assertion that if a client instructs his lawyer that the client wishes to engage in controversial conduct, the lawyer must find him a way to do it.

Lest lawyers gain an even worse reputation than they already have, as a legal ethicist myself, here is the most applicable rule:

Rule 2.1 "Advisor":

A client is entitled to straightforward advice expressing the lawyer's honest assessment.  Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. . .A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. Comment [1}.

Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as const or effects on other prople are predominant.  Purely technical legal advice, therefore, can sometimes be inadequate.  It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice.  Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively infludnece how the law will be applied.  Comment [2]

A client may expressly or impliedly ask the lawyer for purely technical advice . . . When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations.  Comment [3].

This is pretty straightforward.  And it does not say, as Mr. Singer asserts, that when a client wants to perform a certain act, it's your job to find him a legal way to do it.  A lawyer acting in the traditional role as advocate has different legal duties than a lawyer acting as an advisor.  The lawyer-as-advocate can spin out any creative, one-sided argument as long as it's not frivolous.  The lawyer as advisor must exercise independent professional judgment and render candid advice, even when that advice may not be what the client wants to hear.

I feel like I'm shouting into the wilderness (except at Daily Kos), but maybe at some point the MSM will hear voices like mine, rather than servineg as a mouthpiece for endless torture apologias.

 

Originally posted to Jesselyn Radack on Mon May 11, 2009 at 05:29 AM PDT.

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Comment Preferences

  •  Tip Jar--to educate the MSM. (176+ / 0-)
    Recommended by:
    JekyllnHyde, Timaeus, mattman, rincewind, meg, lysias, Mnemosyne, RFK Lives, dhl, grndrush, Justina, bronte17, 88kathy, wvtrailerdweller, quake, chuckvw, Patricia Taylor, phild1976, Boxers, Jesterfox, wader, Moody Loner, TexDem, CitizenOfEarth, pat bunny, Pohjola, Matt Esler, tomjones, vacantlook, Daddy Bartholomew, Josiah Bartlett, rmx2630, sawgrass727, Latum, Julie Gulden, luvmovies2000, rapala, Dirk McQuigley, chumley, paige, ExStr8, Simian, marina, radarlady, salmo, Treg, Jeffersonian Democrat, rlteiken, Halcyon, sc kitty, PBen, Superpole, frandor55, truong son traveler, fixxit, Pam from Calif, rlochow, Skid, skrekk, FunkyEntropy, Silence is Complicity, Ekaterin, Snud, berko, martini, gwilson, Patriot Daily News Clearinghouse, myboo, cybersaur, whitewidow, Yellow Canary, duckhunter, mooshter, victoria2dc, Prognosticator, kestrel9000, EthrDemon, SarekOfVulcan, triv33, funluvn1, imabluemerkin, Caoimhin Laochdha, armadillo, bleeding heart, Preston S, Turbonerd, AllanTBG, NonnyO, One Pissed Off Liberal, beaukitty, drational, dov12348, Boxer7, lightfoot, A Mad Mad World, donnamarie, gloriana, rgjdmls, LillithMc, ezdidit, Calvin Jones and the 13th Apostle, DWG, malharden, akdude6016, Moderation, Librarianmom, Rumarhazzit, leonard145b, Zydekos, willb48, TomP, Empower Ink, VA Breeze, MKinTN, rogerdaddy, Clio2, davidseth, hulagirl, scooter in brooklyn, Youffraita, dadadata, elwior, Lujane, pamelabrown, home solar, mnguy66, mofembot, temptxan, Horsefeathers, LaFajita, costello7, luckylizard, BYw, Tross, Athenocles, dont think, billybam, rhutcheson, Diogenes2008, FudgeFighter, Hound Dog, 1BQ, Rhysling, ewmorr, RustyCannon, athensga, obscuresportsquarterly, kevinpdx, Massconfusion, reesespcs, Just Bob, BigVegan, Its the Supreme Court Stupid, nsfbr, blueingreen, UTvoter, kjoftherock, fidellio, on board 47, dagnome, polar bear, sullivanst, horizontalrule, legalarray, washunate, MsGrin, Actbriniel, Colorado is the Shiznit, heart of a quince, SuperBowlXX, Amayi, m00finsan, randy80302, muddy boots, merrily1000, MPociask

    The Canary in the Coalmine is available for purchase at patriotictruthteller.net

    by Jesselyn Radack on Mon May 11, 2009 at 05:30:01 AM PDT

  •  Loopholes within loopholes? (15+ / 0-)

    I must agree that when a person goes to ask a lawyer if something is legal, it is not up to the lawyer to look for a loophole to make something that is currently illegal to become legal.  That is madness.

    'Media' is the plural for 'mediocre'. - Rene Saguisag

    by funluvn1 on Mon May 11, 2009 at 05:32:23 AM PDT

  •  Humphrey Bogart once said "you are either a pro- (20+ / 0-)

    fessional or you are a bum" and there were plenty of bums in this story to go around. Jesslyn, you were one of the few professionals!

  •  i will be watching this (12+ / 0-)

    "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration"
    May 13, 2009 10:00 AM
    http://judiciary.senate.gov/...

  •  In so many ways, the MSM was/is complicit (15+ / 0-)

    They helped sell Bush's war. They helped sell the meme that it's OK for Americans to torture people after 9/11. They're in this up to their necks, too - not that anything will ever happen to them. But in order for the MSM to do the right thing here, it needs to take a long hard look in the mirror and, sadly, I'm not holding my breath that'll happen.

    This ain't no party. This ain't no disco. This ain't no foolin' around!

    by Snud on Mon May 11, 2009 at 05:41:10 AM PDT

    •  Remember when Rumsfeld was mocking the (7+ / 0-)

      stress positions as no big deal because he stood at his desk all day long? Well, the difference was that he COULd have sat down if he chose to. The press reported his comments w/o remarking how absurd they were and until Abu Gharib, the Trad Media virtually ignored our war crimes policy until it was so blatantly obvious that a five year old could tell it was illegal but the GOP and the Trad Media still could not.

      •  Rumsfeld is an ass (6+ / 0-)

        I'm betting most people don't think that sitting still is painful either.

        I have a rare disorder (won't bore you with the details) but what basically happens is I get paralyzed sometimes.

        I was supposed to meet a friend for lunch once, and got stood up.  I sat in that chair for three hours - but I was paralyzed, and unable to move a single muscle.  One thing about sitting is that we automatically (and unconciously) shift our position when we get uncomfortable.  We don't even think about it.  I wasn't able to do that.

        My arms fell asleep, the metal part of the chair was digging into my back, and I couldn't move at all, until a friend happened to walk by.  When he helped me get moving again, it took a long time before I could walk correctly, because my entire body was stiff or asleep, and wracked with pain.

        And that was nowhere NEAR what they do with "stress positions".  So yeah, I firmly believe they are torture.  Even my relatively mild experience tells me that.

        "Spread happiness... share it with all those who seek it." - Keith Olbermann

        by Diogenes2008 on Mon May 11, 2009 at 06:27:13 AM PDT

        [ Parent ]

        •  I experienced "sleep paralysis" twice (3+ / 0-)

          And both times were one of the most terrifying things that ever happened to me. I woke up but couldn't move anything at all. It was as though I was stuck in my body and helpless as a baby.

          It won't do you any good, but you have my profound sympathies because I know it must really suck.

          Good luck!

          This ain't no party. This ain't no disco. This ain't no foolin' around!

          by Snud on Mon May 11, 2009 at 07:53:00 AM PDT

          [ Parent ]

          •  Thanks (1+ / 0-)
            Recommended by:
            Jeffersonian Democrat

            I'm actually more or less used to it - it has, after all, been part of my life for almost thirty years.

            The odd thing is, when I'm going into paralysis, there is this feeling of "so what".  You can't move, but you don't want to, either, because of the profound weakness.

            And by the time you want to move, you can't anyway.  That's when it gets difficult.  At least now, I can (mostly) feel it coming, and try to fight it off.

            "Spread happiness... share it with all those who seek it." - Keith Olbermann

            by Diogenes2008 on Mon May 11, 2009 at 08:34:03 AM PDT

            [ Parent ]

  •  a fundamental question - why have Bar Assocs (6+ / 0-)

       participated - in my humble opinion - in the assault by Big Tobacco, Pharma and insurance on the judicial process and lawyering in general.

      Perhaps, because I am in Texas, my view is skewed by our particularly sycophantic Bar - but there are almost no strong voices in the public marktplace of ideas that argue that our judicial system is the best in the world - and that yes, while mistakes are made, compared to everything else the American heritage of jurisprudence has been our single most shining institution.  

      Just about all voices in the public square intone gravely about "the rule of law"  - but somehow assume that denigrating lawyers is consonant with the "rule of law."  Certainly it is true that there is much about us that is easy at which to poke fun - but what we have seen is the picture in the public mind that the whole system is "frivolous"  and the ultimate cynicism of Republican judges speaking gravely about judicial restraint and then wildly legislating from the bench.  

      In my opinion - this new breed - let us call them Republican "lawyers" have fully embraced legal realism - where robes are a fig leaf that allows judges to use their power to say one thing and then rule only on the basis of helping friends and attacking enemies.

    •  Rule of Law only applies to consensual BJ's by a (8+ / 0-)

      woman old enough to consent. I had an argument with a former West Point grad who gave me the "move forward not backward argument." I asked about the GOPs obsession w/ the Rule of Law and he insists that Clinton was impeached for perjury and nothing else.

      Actually,  the perjury was non pertinent and immaterial to Jones V Clinton and that was confirmed by the judge hearing that case. Besides the lawyers planned and plotted for three years to get President Clinton to testify.

      What they did, IMO, was an attempted bloodless coup.  Moreover, in some countries, it would have been considered treasonous and the plotters all would have been hung.

      •  ain't it the truth - sex sells I guess (2+ / 0-)
        Recommended by:
        LaFajita, RustyCannon

          but all that serious and sober posturing over intruding into the sex lives of other people - seems particularly hollow - given how - quite literally - Republicans perverted the law to open a Pandora's box of perverted torturing.

          I have resigned myself to the conclusion that one of the distinguishing features of Republicanism is  that their sex lives are so empty that they must spend hours of their own type of dressed up voyuerism peering into the sex lives of others.

  •  So the profession of lawyering (14+ / 0-)

    allows someone the right to pre-emptively seek ways around the law?  Write me a legal opinion because I want to rob a bank, and I want to know in advance that I can get away with it.

    someone wants to evade accountability in advance of child abuse, so they call a lawyer and the lawyer sifts through the legal ephemera to come up with a solid defense in advance of a crime???????????

    This is what they are endorsing.  In which case, the law is turned on its head: the purpose of lawyering is to get a-r-o-u-n-d the law, and your ability to violate laws is limited only by your ability to pay lawyers who will help you set up the perfect crime.

    It certainly works for corporate America, and BUSH/CHENEY in their oil slimed world are probably used to functioning in this manner; bit OIL with its lawyers can stall and obfuscate anything, even preemptively decide in advance to violate laws and pay a pittance to "settle".  So this is the sorry state of law in our nation.  No more justice: just lawyering for the most $$$$$$$$ with no accountability.

    I already have a dim view of most lawyers, who overcharge, don't bother with pro bono any longer, and are more concerned with their pocketbooks.

    If this stands: why bother?

  •  This is an important clarification (2+ / 0-)
    Recommended by:
    mattman, Justina

    The lawyer-as-advocate can spin out any creative, one-sided argument as long as it's not frivolous. The lawyer as advisor must exercise independent professional judgment and render candid advice, even when that advice may not be what the client wants to hear.

    The general public's view of lawyers is generally so dim that the acting presumption is simply that lawyers do not work under any constraints, ethical or otherwise. And all that the tradmed reports on reinforces that idea; we never get to hear about counterexamples of the system working, because they're not deemed newsworthy. The heroic lawyer following ethical guidelines is a comparatively rare story. I don't think it's a question of "educating" the media but that (ironically enough) the current crop of reporters don't follow the older journalist guidelines covering responsible reporting. (PS, could you provide a source for those rules? Not sure what you're citing from.)

  •  Waterboarding a crime under AMERICAN law too (12+ / 0-)

    This should serve as a tutorial for the Supremes. The international law hook is a red herring. Since Geneva IV and UN CAT were both signed into law and ratified by the Senate both are American law. Moreover, torture is a crime under the Uniform Code of Military Justice.

    IMO, as a layperson and not a lawyer, what Yoo, Bybee, Bradberry and others did was tantamount to legal malpractice or gross incompetence or both. This is not something that is up for debate. You can't parse the law and our treaty obligations away with the stroke of a pen. This is not the same thing as when Ronald Reagan's administration declared that ketchup was now considered a "vegetable" so that the cuts to the federal school lunch program were in "compliance" with the law, but the idiot lawyers like Miers and Alberto V05would like you to believe there is no difference.

  •  Waterboarding (4+ / 0-)
    Recommended by:
    Justina, Patricia Taylor, marina, LaFajita

    Is also absolutely illegal under established American law.

    We have prosecuted people for it.  

    And even though some on the Supreme Court think that international law doesn't count, waterboarding is unequivocally illegal torture under international law.

    "Spread happiness... share it with all those who seek it." - Keith Olbermann

    by Diogenes2008 on Mon May 11, 2009 at 06:14:20 AM PDT

  •  OK, so let me get this straight (4+ / 0-)
    Recommended by:
    Justina, 88kathy, LaFajita, Diogenes2008

    If I cause someone to die by shooting them with a wooden arrow and I hire a lawyer that writes an opinion arguing that because I used a wooden arrow and not a bullet, the act of killing the person was not really murder, then it is open for debate?

    Let's bust them up in little pieces so they can't hold us hostage like this.

    by RustyCannon on Mon May 11, 2009 at 06:19:53 AM PDT

  •  a soldier in the field is expected to distinguish (5+ / 0-)

    legal orders from illegal orders, in the heat of battle, under pressure of chain of command.

    while lawyers sit in pretty offices and don't know an illegal order if it shot them in the face?  

    DoJ lawyers are working for the soldier in the field who needs to know legal orders from illegal orders.

    Freedom isn't free, but don't tax me. Fox 527 on your dial.

    by 88kathy on Mon May 11, 2009 at 06:24:12 AM PDT

  •  Is disbarrment enough? (3+ / 0-)
    Recommended by:
    Justina, skrekk, LaFajita

    Lawyers  who facilitate criminal behavior by letting the client  believe there are legal loopholes that allow it are participants in a criminal conspiracy. They should be prosecuted as war criminals, not just disbarred as lawyers.

    •  No (6+ / 0-)

      They should be charged with conspiracy to commit:

         * United States Code
               o TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
                     + PART I - CRIMES
                           # CHAPTER 113C - TORTURE

      U.S. Code as of: 01/19/04
      Section 2340A. Torture

           (a) Offense. - Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be    punished by death or imprisoned for any term of years or for life.
           (b) Jurisdiction. - There is jurisdiction over the activity prohibited in subsection (a) if -
             (1) the alleged offender is a national of the United States; or
             (2) the alleged offender is present in the United States,irrespective of the nationality of the victim or alleged offender.

           (c) Conspiracy. - A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

      My first wish is to see War, this plague to mankind, banished from off this earth. George Washington, 1796 farewell address

      by BOHICA on Mon May 11, 2009 at 06:41:48 AM PDT

      [ Parent ]

    •  I agree. But sadly we can't even agree on (3+ / 0-)

      whether to investigate or refer them to the bar, much less prosecute them.  

      The Canary in the Coalmine is available for purchase at patriotictruthteller.net

      by Jesselyn Radack on Mon May 11, 2009 at 06:42:10 AM PDT

      [ Parent ]

  •  Disbar and Prosecute the Torture Advocates! n/t (3+ / 0-)
    Recommended by:
    meg, LaFajita, Diogenes2008

    Convict Bush, Cheney and their torture cabal. Support single-payer health care and unions.

    by Justina on Mon May 11, 2009 at 06:44:26 AM PDT

  •  Jesselyn, please do not get discouraged, and (4+ / 0-)
    Recommended by:
    jotter, hulagirl, LaFajita, washunate

    never give up. I can only imagine how lonely you must feel at times, but your fight is our fight and, even though we may not be there physically, we are there with you. There are a lot of people out here who are very proud of you. You are not alone...

    "I haz thinkz, therefore I iz."

    by Rumarhazzit on Mon May 11, 2009 at 06:46:07 AM PDT

  •  I don't (3+ / 0-)
    Recommended by:
    meg, TracieLynn, Diogenes2008

    understand why this is such a difficult concept, either. Torturers broke the law-punishment should follow. How is this complicated?

    "Men never do evil so completely and cheerfully as when they do it from a religious conviction." Blaise Pascal ...

    by lyvwyr101 on Mon May 11, 2009 at 07:13:50 AM PDT

    •  Exactly (3+ / 0-)
      Recommended by:
      meg, lyvwyr101, Caoimhin Laochdha

      You can "debate" the issue until the day you die, but this is NOT DEBATABLE.

      TORTURE IS ILLEGAL.  It is illegal under American law, and under international law.

      And even if we do ourselves a disservice and just narrow it down to waterboarding, THAT is illegal.

      It's a simple construction.

      Cheney ordered torture, which is illegal.

      He belongs in prison.  Why do people keep trying to cloud the issue, and make it something for debate??

      I can tell everyone that robbing a bank isn't illegal, but it doesn't change the laws!!

      "Spread happiness... share it with all those who seek it." - Keith Olbermann

      by Diogenes2008 on Mon May 11, 2009 at 07:18:03 AM PDT

      [ Parent ]

      •  I know. (2+ / 0-)
        Recommended by:
        LaFajita, Diogenes2008

        This is such a simple concept.

        Politicizing it is a blatant attempt to "cloud the issue."

        This is not a "cloudy issue."

        It's very straightforward.

        If you break the law-you pay the price.

        None of this is a point to be debated. It's as straight forward as straight forward gets.

        If you break the law-and-as a result-you are not "subject to the law"-then you are "above the law."

        Supposedly-in this country-there is no such concept.

        No one is above the law. No one. Does it get any simpler?

        "Men never do evil so completely and cheerfully as when they do it from a religious conviction." Blaise Pascal ...

        by lyvwyr101 on Mon May 11, 2009 at 07:56:39 AM PDT

        [ Parent ]

        •  No (0+ / 0-)

          But what I don't get is why ANYONE other than Cheney and his disgusting group are trying to argue otherwise.

          "Spread happiness... share it with all those who seek it." - Keith Olbermann

          by Diogenes2008 on Mon May 11, 2009 at 08:31:36 AM PDT

          [ Parent ]

          •  You know (0+ / 0-)

            what else I don't get? Why are people actually listening to this argument as if it is CREDIBLE? Since when, is not being prosecuted for breaking the law "credible?"

            "Men never do evil so completely and cheerfully as when they do it from a religious conviction." Blaise Pascal ...

            by lyvwyr101 on Mon May 11, 2009 at 12:38:55 PM PDT

            [ Parent ]

  •  We need tapes (2+ / 0-)
    Recommended by:
    Caoimhin Laochdha, LaFajita

    CLIENT: Look, let's say hypothetically I want this asshole dead. You're a lawyer. Whadaya think?

    LAWYER: Well, if there were an unavoidable accident--

    CLIENT: Unavoidable?

    LAWYER. Sure, like someone is driving down the road nice and legal, and the asshole suddenly walks out from between two parked cars, say, and POW! Happens a lot.

    CLIENT: Hey, I like that.

    LAWYER: Or, uh, the asshole could have a blowout from hitting some unfortunate tack unforeseeably in the road, too bad, boo hoo.

    CLIENT: Unforeseeably?

    LAWYER: Yeah, that's the ticket is "unforeseeably." The idea is, nothing coulda been done, shit happens.

    CLIENT: Well, let's just say that hypothetically, I want him to suffer until his last breath, too.  Could that be, uh, unforeseeable?

    LAWYER:  Naw, that's different. That has to be unintentional.  

    CLIENT: You sure?

    LAWYER: Of course I'm sure. It's just what I told Dick Cheney.

    •  Rule 8.4 (3+ / 0-)
      Recommended by:
      meg, Caoimhin Laochdha, athensga

      It is professional misconduct for a lawyer to:
      (a) violate or attempt ot violate the rules of Professional Conduct, knowlingly assist or induce another to do so, or do so through the acts of another;...
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
      (d) engage in conduct that is prejudicial to the administration of justice

      The Canary in the Coalmine is available for purchase at patriotictruthteller.net

      by Jesselyn Radack on Mon May 11, 2009 at 07:25:09 AM PDT

      [ Parent ]

      •  I've been arguing with an idiot about this. (0+ / 0-)

        What he and many others ignore is that the lawyers in question were not private lawyers advising private clients or defending them in court. They were government officials helping to devise a policy.

        Through their memos, which were drafted and redrafted to cover the acts committed, they participated in a program to torture people and are thereby guilty of war crimes. There's no immunity for that.

        I'd much prefer a government-run bureaucracy than a for-profit bureaucracy. In the first I'm at least a stakeholder. In the latter I'm simply a cost. --digby

        by expatjourno on Mon May 11, 2009 at 10:59:17 AM PDT

        [ Parent ]

        •  As government lawyers, they have the same (0+ / 0-)

          responsibility to follow the rules of professional responsibility.  Under the McDade Amendment, Government attorneys are subject to the state laws and rules, and federal court rules, of the state where the attorney is practicing.
          Bybee and Yoo were practicing in DC, so they are subject to the DC Bar.

          They were not devising policy; they were acting as advisors of the law.  As such, they have a duty to provide candid and objective advice, not justify illegal actions.

          The Canary in the Coalmine is available for purchase at patriotictruthteller.net

          by Jesselyn Radack on Mon May 11, 2009 at 11:47:19 AM PDT

          [ Parent ]

          •  That, I'm sure, is their claim. (0+ / 0-)

            ...they were acting as advisors of the law.

            Justifying illegal actions, however, made them participants in the policy. Given how clear precedents are on torture prosecutions and given the U.S.'s treaty obligations, I don't believe that what they wrote can legitimately be called legal advice at all. Particularly not when the memos were drafted and redrafted to make sure that past actions were covered.

            But sure, they'll call it legal advice and they'll claim they were acting as lawyers.

            The additional problem with that is that then there is no such thing as the rule of law or separation of powers. Because all any president has to do is have one of his appointees give legal "advice" that ignores whatever Congress passes in order to make whatever he wants to do "legal."

            Richard Nixon would be thrilled.

            I'd much prefer a government-run bureaucracy than a for-profit bureaucracy. In the first I'm at least a stakeholder. In the latter I'm simply a cost. --digby

            by expatjourno on Mon May 11, 2009 at 01:40:21 PM PDT

            [ Parent ]

  •  Jesselyn - Your Place in History is Assured (3+ / 0-)
    Recommended by:
    Caoimhin Laochdha, ezdidit, LaFajita

    It might only be a relatively small place (!), but it's there for posterity. History is replete with examples of good people who stood up and spoke out and suffered as a result. From ancient China to relatively recent times (Pete Seeger during McCarthyism). These people are, literally, heroes. Not all of them lived to see the change that resulted from their actions. I'm sure you will. But future generations who read of what they did, marvel at their courage and decency, are thankful for their sacrifice and wonder if they themselves could come close if challenged similarly.

    Not a bad legacy!

    Thanks.

  •  This is as simple as it gets! Prosecute! (3+ / 0-)
    Recommended by:
    Caoimhin Laochdha, ezdidit, washunate

    If you tell me it is legal to rob a a bank when you know that it is not, and I do it, you are an accesory to a crime, are you not?

    Investigate/Prosecute.

    Thanks alot, Jesselyn!

    Cheers

    The object of persecution is persecution. The object of torture is torture. The object of power is power. Now do you begin to understand me?' - 1984

    by MinistryOfTruth on Mon May 11, 2009 at 07:38:40 AM PDT

  •  from analysis by Dawn Johnsen (3+ / 0-)
    Recommended by:
    Caoimhin Laochdha, ezdidit, LaFajita

    Let's get her confirmed already.

    OLC’s core function is to help the President fulfill his constitutional duty to uphold the Constitution and "take care that the laws be faithfully executed" in all of the varied work of the executive branch. OLC provides the legal expertise necessary to ensure the lawfulness of presidential and executive branch action, including contemplated action that raises close and difficult questions of law. To fulfill this function appropriately, OLC must provide advice based on its best understanding of what the law requires. OLC should not simply provide an advocate’s best defense of contemplated action that OLC actually believes is best viewed as unlawful. To do so would deprive the President and other executive branch decisionmakers of critical information and, worse, mislead them regarding the legality of contemplated action. OLC’s tradition of principled legal analysis and adherence to the rule of law thus is constitutionally grounded and also best serves the interests of both the public and the presidency, even though OLC at times will determine that the law precludes an action that a President strongly desires to take.

    Christy Hardin at FDL

    "Torture is the tool of the lazy, the stupid, and the pseudo-tough...the greatest recruiting tool that the terrorists have." Maj Gen Paul Eaton

    by whitewidow on Mon May 11, 2009 at 07:46:34 AM PDT

  •  doesn't bar assoc have to investigate complaints? (1+ / 0-)
    Recommended by:
    ezdidit

    Could a member of the public file an ethics complaint with the DC bar about a government lawyer?  

  •  CSPAN, Wednesday... (2+ / 0-)
    Recommended by:
    LaFajita, Lady Libertine

    "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration"
    Senate Judiciary Committee
    Subcommittee on Administrative Oversight and the Courts

    DATE: May 13, 2009
    TIME: 10:00 AM
    ROOM: Dirksen-226

    First they ignore you. Then they laugh at you. Then they fight you. Then you win. -M.Gandhi (see also, Republican strategy)

    by ezdidit on Mon May 11, 2009 at 08:13:05 AM PDT

    •  Or, more pointedly, "What went right?" (3+ / 0-)
      Recommended by:
      ezdidit, LaFajita, Lady Libertine

      The Canary in the Coalmine is available for purchase at patriotictruthteller.net

      by Jesselyn Radack on Mon May 11, 2009 at 09:25:33 AM PDT

      [ Parent ]

      •  in THEIR minds... (1+ / 0-)
        Recommended by:
        ezdidit

        they got away with it.

        So far.

        .

        tap. tap. tap. tap. tap. tap.

        Buy the ticket, take the ride. ~HST

        by Lady Libertine on Mon May 11, 2009 at 09:30:48 AM PDT

        [ Parent ]

      •  ...so wrong for far too long... see here::: (2+ / 0-)
        Recommended by:
        TracieLynn, skrekk

        Glenn has an excellent diary up now.

        Beginning in 2001, the U.S. held Al Jazeera cameraman Sami al-Haj for six years in Guantanamo with no trial of any kind, and spent most of that time interrogating him not about Terrorism, but about Al Jazeera.  For virtually the entire time, the due-process-less, six-year-long imprisonment of this journalist by the U.S. produced almost no coverage -- let alone any outcry -- from America's establishment media, other than some columns by Nicholas Kristof (though, for years, al-Haj's imprisonment was a major media story in the Muslim world).  As Kristof noted when al-Haj was finally released in 2007:  "there was never any real evidence that Sami was anything but a journalist"; "the interrogators quickly gave up on asking him substantive questions" and "instead, they asked him to spy on Al-Jazeera if he was released;" and "American officials, by imprisoning an Al-Jazeera journalist without charges or meaningful evidence, have done far more to damage American interests in the Muslim world than anything Sami could ever have done."

        First they ignore you. Then they laugh at you. Then they fight you. Then you win. -M.Gandhi (see also, Republican strategy)

        by ezdidit on Mon May 11, 2009 at 10:06:47 AM PDT

        [ Parent ]

  •  Obama may be accused of aiding and abetting (1+ / 0-)
    Recommended by:
    LaFajita

    criminals.

    Holder cannot let this pass. WE CANNOT LET THIS PASS.

    First they ignore you. Then they laugh at you. Then they fight you. Then you win. -M.Gandhi (see also, Republican strategy)

    by ezdidit on Mon May 11, 2009 at 08:14:26 AM PDT

  •  Well (1+ / 0-)
    Recommended by:
    LaFajita

    certainly I agree that your role is not purely, find a way to do it as an end all be all.

    I DO agree with him that you should look at the law and if you ethically find a way that your client can do an act without breaking the law, or if you can find a reasonable interpretation of an act that it is not breaking the law, you should:

    a. tell him of that way
    b. explain to him/her the risks of going that way

    In other words, you lay out how it could be correct, how it couldnt, and for want of a better word, the percentages of each.

    Now if the percentage is 1% then probably that means it's illegal and you should tell your guy hey look this is illegal or very likely illegal and you shouldnt do it counting on that 1% to save you.

    But if it's a bit larger, where a minority interpretation or opinion holds it legal, then I think you offer both choices, give your opinion, tell the risks, and then let the client make the choice.

    Now obviously I and most others at Kos agree with you that this was pretty much a no brainer, that it was clearly torture and clearly illegal.

    I think they should be disbarred personally.

  •  Can lawyers secretly rewrite our laws? (3+ / 0-)

    The weird, Alice in Wonderland quality of the whole so-called "torture debate" seems to rest on the strange belief that DOJ lawyers, writing secret memos, can somehow make illegal acts legal.

    "When the people fear their government, there is tyranny; when the government fears the people, there is liberty." Thomas Jefferson

    by rmwarnick on Mon May 11, 2009 at 09:18:46 AM PDT

  •  You're a great patriot, Jesselyn (3+ / 0-)

    ..and someday I hope you get the accolades, respect, megaphone and considerable back-pay that you are due.

    I saw you on TV awhile back, and you were great.

    How we know Daffy Duck is Republican: "It's mine, understand? Mine, all mine! Get back down there! Down down down! Go go go! Mine mine mine! Mwahahaha!" --BiPM

    by rhetoricus on Mon May 11, 2009 at 09:27:19 AM PDT

  •  Two people stand out for me (2+ / 0-)

    as honorable individuals who stood up and spoke out for the rule of law and honor, in the face of immoral and illegal acts by the Bush Administration.  Both have suffered, although both are right.

    One was Lt. Ehren Watada, the Marine who refused to deploy to Iraq on the grounds that the war was illegal.  His case has languished for years, but just last week, the Army announced it was dropping its efforts to retry him.

    The other is you.  As discouraged as you may be, I urge you to stay strong and keep speaking the truth.  

    Despite the MSM's blatant propagandizing, the truth is coming out about torture, the conspiracy to begin the illegal Iraq war, and the atrocities committed in our names.  The truth will out, no matter how they try to bury it.  

    I support you, as do thousands of Kossacks, and as more people learn the truth, I believe that justice will be done.  I'm just sorry it's taking so long.

  •  Maybe this is being too complicated. (1+ / 0-)
    Recommended by:
    Caoimhin Laochdha

    If I'm asked as a lawyer to render an opinion about something like torture techniques, I have to research and mention each and every statute and treaty that the torture techniques appear to contravene, and I have to then decide whether I can distinguish the requirements of the statutes/treaties.  If I cannot offer a legitimate distinction, a reasonable argument for extension or inapplicability of the law, to argue the statutes/treaties don't apply, I think the ethical rules require me to say to the client, "Sorry, this is a violation of the many authorities I found, and that is my opinion.  I cannot find a way that these authorities don't apply to what you're describing.  Any argument otherwise won't pass the laugh test."

    If you look at the released memos about torture, I don't think you find that sort of simple, direct, truthful analysis.  You find all kinds of nonsense that nobody in good faith could think was the law or that distinguished the statutes/treaties.  That, I think, is what makes these memos ethical violations.

    Am I oversimplifying things too much??

    •  You have it right. (2+ / 0-)
      Recommended by:
      skrekk, Caoimhin Laochdha

      The memos did not give even a plausable argument that torture was legal.

      The memo asserts that the federal criminal statute prohibiting torture applies only where a government official specifically intends to and actually causes pain so severe that it

      rise[s] to . . . the level that would ordinarily be associated with . . .death, organ failure, or serious impairment of bodily functions.

      This claimed standard is bizarre and wrong.  Organ fairure is not necessarily associated with pain at all.  Additionally, this legal standard is lifted from a statute wholly unrelated to torture--a Medicare law setting out the conditions under which hospitals must provide emergency medical care.  The memo gives interrogators wide latitude to cause any kind of pain short of that associated with death.

      The memo also minces the federal anti-torture statute.  It discusses two affirmative defenses (necessity and self-defense) that could justify an interrogator's decision to torture.  The self-defense option is unconventional because the interrogator would not engage in torture to prevent harm to himself and the prisoner to be tortured would not actually be in a position to harm anyone.  The memo does not warn that such an affirmative defense would likely fail.  As for the "necessity" defemse, the memo never mentions that the Convention Against Torture proscribes such a defense.  Nevertheless, the memo leaves the reader with the false impression that it is likely a torturer will be able to avoid a conviction by claiming this defense.
      The memo is also wrong in its discussion of presidential authority.  It asserts an expansive view of inherent executive power, but the memo does not even mention (let alone address) something one of my first-year law students would identify: Youngstown Sheet & Tube Co. v. Sawyer, the leading Supreme Court case on this aspect of separation of powers.

      The Canary in the Coalmine is available for purchase at patriotictruthteller.net

      by Jesselyn Radack on Mon May 11, 2009 at 10:07:31 AM PDT

      [ Parent ]

      •  Thanks for writing that - Goldsmith said he (0+ / 0-)

        withdrew the memos because they were flawed, but I've rarely seen an analysis of exactly why they were wrong.

      •  The incompetence of these memos is important (1+ / 0-)
        Recommended by:
        Caoimhin Laochdha

        primarily to demonstrate that they weren't intended as legal analyses.  They were intended to provide a patina of "legalistic cover" for the Bush administration to claim after the fact that the White House committed these acts "under the advice of counsel," and therefore they are innocent (or at least less culpable) for any resulting criminal violations.

        In other words, these shouldn't be considered as legal memoranda (however incompetent) at all. To the contrary, they were acts of complicity by lawyer hirelings using the power of their positions to participate in the encouragement and justification of the underlying crimes of torture, just as Bush/Cheney et al. used the powers of their own offices to further the offenses.

        This accounts for the failure of the memos to address relevant laws and caselaw.  An honest analysis would have done so.  To ignore relevant law and caselaw so consistently and glaringly reveals an intention by the writers to gin up support for a predetermined position.

        I do disagree, however, that disbarment is sufficient.  We should focus on the underlying crimes these lawyers were helping to commit.  We don't just disbar people for committing torture and murder (or abetting same).

        We should jail them in the same cells as Bush & Cheney.

        "Tired of defending helpless corporations against predatory widows and orphans."

        by RdRnr2k on Mon May 11, 2009 at 11:51:55 AM PDT

        [ Parent ]

  •  As I commented in your last diary, (2+ / 0-)
    Recommended by:
    Caoimhin Laochdha, polar bear

    the grounds for discipline you cite seem clear.

    But there are many others. All lawyers have a fundamental duty of honest, including a duty of candor toward tribunals, whether or not they are deemed to be acting as advisers or as advocates. The torture memos grossly distort and misstate existing law. When the stakes are so obviously high, I think that by itself is a disciplinable offense.

    The old ABA rules used to have a comment to the effect that nearly all legal ethics problems arise from conflicts between a lawyer's duty to clients, his duty toward the tribunal (the administration of justice), and his duty toward himself (that is, the right to earn a decent wage for his work).  If I were sitting on an ethics panel (and I have served on bar ethics panels), I would also find that the torture lawyers should be disciplined for unjustifiably favoring their personal self-interest over their duties as an officer of the court toward the administration of justice.

    And more. They ALL should be disbarred.

    Thanks for continuing to write on this. I can't believe the Holder DOJ is so craven.

  •  Outstanding diary. (1+ / 0-)
    Recommended by:
    Caoimhin Laochdha

    Really well-written and concise delineation of the crucial issue.  Lawyers acting as advisors are not supposed to have their litigation hats on.  This can be hard to remember and often leads to clients rolling their eyes in that "oh, you're always covering your ass" way.  Well, that reaction is a result of our cynicism.  There was a time when practicing law was a noble profession.

    The festive scenes of liberation that Dick Cheney had once imagined for Iraq were finally taking place -- in cities all over America -- Frank Rich

    by Mother of Zeus on Mon May 11, 2009 at 10:36:58 AM PDT

  •  The lawyers violated Rule 4-1.2(b) (1+ / 0-)
    Recommended by:
    Caoimhin Laochdha

    Caveat:  I am a former director of lawyer regulation for the Florida Bar, so the rules to which I cite are from the Rules of Professional Conduct of the Florida Bar. There is probably a similar rule for every state bar in the country.

    Rule 4-1.2(d) states:

    (d) Criminal or Fraudulent Conduct. A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent. However, a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.

    Pertinent comments to Rule 4-1.2(d) follow:

    A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct.

    However, a lawyer may not assist a client in conduct that the lawyer knows or reasonably should know to be criminal or fraudulent. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. (Emphasis Added).

    The last sentence of subdivision (d) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.

    A clear and convincing case (the burden of proof in most disciplinary cases) can be made that these lawyers violated this rule by presenting evidence that they (1) did not give an honest opinion about the actual consequences that likely would have resulted from torturing prisoners; and, (2) were not "presenting an analysis of legal aspects of questionable conduct," but instead were instead recommending the means by which the crime of torture might be committed with impunity and were thus assisting the client in conduct (torture) that the lawyer knew or reasonably should have known to be a crime.

    It seems equally clear that a strong case can be made that these lawyers were not trying to assist the client in challenging the validity or interpretation of the statutes or laws prohibiting torture by engaging in "civil disobedience."  

    Rule 4-1.13 may also have been violated.  This rule governs a lawyer’s conduct that represents an organization (including a government agency) as a client. Generally, when the attorney knows that an employee of the organization intends to engage in criminal conduct and that conduct would be reasonably imputed to the organization and is likely to result in substantial injury to the organization, it is the lawyer’s duty to proceed as is reasonably necessary in the best interest of the organization.  Proving a violation of this rule may be more difficult because it has to be determined whom the client is.  Is the client the agency (CIA), or the Executive Branch? There may also be specific federal statutes or regulations that govern the actions of a government lawyer that have to be considered in applying this rule. I believe a prima facie case could be made that these lawyers violated Rule 4-1.13.

  •  Put Bush Torture Officials on Trial (0+ / 0-)

    We can prosecute these guys if we put enough pressure on.

    Accountability Petition Amendment.

  •  do we support the rule of law? (1+ / 0-)
    Recommended by:
    Caoimhin Laochdha

    My fascination with this kind of stuff hasn't so much been the apologists on the right. Their whole method of ruling is premised upon destroying the rule of law. That's expected; that's what they believe. They believe their calling is to rule others, not to serve them. A democratic system can tolerate wacky minority perspectives just fine.

    What I've found really interesting is how much Democrats seem willing to enable and assist when it comes to weakening and undermining the rule of law. That's never made sense to me, from either a winning elections kind of pragmatic argument or a principled, ideological kind of argument. It's the apologists for things like war, torture, secrecy, executive power, etc, who aren't Republicans that confuse me.

  •  semi off-topic: how about doctors? n/t (0+ / 0-)

    The universe we observe...has...the properties we...expect if there is...no design, no purpose...nothing but blind pitiless indifference. - Dawkins

    by chezandrew on Mon May 11, 2009 at 11:56:19 AM PDT

  •  If the lawyer's advice is used in furtherance (0+ / 0-)

    of an illegal act, as these memos were, then the lawyer is also guilty of the illegal act.

    These memos were used to override lawful objections to carrying out "illegal orders."  If any of the authors were aware that the memos would or could be used that way (and it is unthinkable that they were not aware) then they were participants in torture, not mere advisors.

    In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican. - H.L. Mencken

    by Simian on Mon May 11, 2009 at 11:58:48 AM PDT

  •  "Respected" does not = credible or correct (0+ / 0-)

    in Mr. Singer's world.

    Waterboarding is a perfect example.  A lawyer may personally believe that such a practice constitutes torture, but there is, at the very least, a good-faith argument to be made that it is not--as evidenced by the fact that even now non-credible respected authorities argue that this is not torture.

    This is a perfect example of opinion devoid of facts.

    Waterboarding is torture. There are no grey areas here. It's against the law, it violates our treaties and we have always known it to be for what it is: torture.

    To suggest otherwise, does not mean one is making a "good faith argument." Not by a long stretch either. Suggesting that torture, is "not torture," means one is being dishonest; or it means one is displaying the depths (heights?) of their extreme ignorance.  This is not a area of good faith disagreement. It is legally and factually bulletproof -- there is no debate.

    There can be a "good faith" debate about whether we should torture.  And, by "good faith," I mean some people might be legitimately foolish enough to actually think that it's in their best interest to be a torturer. However, that is different than claiming that tortureboarding/waterboarding is anything other than what it is.  It is torture. It is illegal. There is no gray area, particularly for (honest) attorneys

    Singer's quote about "respected authorities" claiming that torture is not torture is pure horseshit. His authorities may be "respected," but there are no credible authorities who support this bogus sophistry. There certainly are no "authorities," who understand the laws against torture, who would ever take that position.  

    There is no good faith argument about the meaning of torture. The only argument taking place right now (although sometimes it is disguised as an "is it or isn't it" debate), is the argument over whether we need to be torturers. That is also a losing argument.

    sláinte,

    cl

    Religion is like sodomy: both can be harmless when practiced between consenting adults but neither should be imposed upon children.

    by Caoimhin Laochdha on Mon May 11, 2009 at 12:49:08 PM PDT

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