(1 pm. – promoted by ek hornbeck)
From day 1, the Bush cabal has relied upon the defense of legal advice of counsel to avoid prosecution. Step 1 was to obtain a legal opinion from OLC to “authorize” torture because its ops carry the force of law within the executive branch. Bush officials then maintained that torture was “authorized”. Step 2 was enacting a law that advice of legal counsel was a defense to torture charges. But, what happens if the OLC memos do not constitute legal advice of counsel because Bush Team and the torture lawyers rigged the OLC process to render fraudulent opinions? Then the main defense from torture prosecutions is bye bye.
Dickie may be a little panicked because Obama plans to release the Office of Professional Responsibility (OPR) report this summer, maybe even next month. If the cumulative findings of misconduct in this report show that the torture lawyers acted as advocates rather than advisers, then the memos did not constitute appropriate OLC legal advice.
Thus, the Lizzie/Dickie campaign may be their preemptive strike to make their case before the OPR report is publicly released. The stakes are high for Dickie because if the legal advice defense is eliminated, then he will have the impossible burden of proving that the prisoners were not tortured unless he has a Plan B defense.
We have already seen hints of Plan B: Bush was the Unilateral Decider and I just followed orders in my subordinate role! Cheney and Rice have already shifted gears, pointing fingers at Bush and the “administration”, respectively, as having authorized the torture rather than relying on the torture memos as “authority” provided by advice of counsel.
The Advice of Counsel Defense
In 2005, Bush succeeded in obtaining a major CYA law of advice of counsel defense that applies to any civil or criminal prosecution against government officials based on “specific operational practices” (or torture, etc) that were “officially authorized and determined to be lawful at the time that they were conducted” involving the “detention and interrogation” of terrorist suspects:
[I]t shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.
So, Bush Team figures that they can just whip out the torture memos as advice of counsel. After all, the OLC is authorized to provide “advice and opinion on questions of law when required by the President.” The OLC opinions are “authoritative legal advice” and binding precedent on what the President “can and cannot legally do.”
As Bush told Larry King one week before leaving office, the torture was legal because it was backed by legal opinions:
No. No. Everything we did was — you know, it had legal — legal opinions behind it. Look, you’re sitting there, you’ve captured Khalid Sheikh Mohammed. He’s the guy that ordered the September the 11th attacks. And we want to know what he knows in order to protect the United States of America.
And I got legal opinions that said whatever we’re going to do is legal.
Bush Team had every right to be cocky and confidant before because “questionable conduct backed by a favorable OLC memo will almost always pass muster” because the OLC memos “serve as law in the executive branch.” However, AG Holder stated in confirmation hearings that “favorable OLC opinions” would not shield government officials from liability if the op was not “appropriately and in good faith drafted.”
More and more facts show that the torture memos do not constitute valid legal advice. Therefore, this defense should not be applicable to the very persons who twisted the process to reach a predetermined outcome contrary to law.
(1) The lawyer’s role as adviser versus advocate show torture lawyers did not provide legal advice to Bush.
The OPR conducted an investigation of the torture lawyers to answer several issues, including whether Bush’s torture lawyers issued an opinion of legal advice to Bush or engaged in legal advocacy to create a “roadmap to committing crimes and getting away with it.”
Among the questions it is expected to consider is whether the memos were an independent judgment of the limits of the federal anti-torture statute or were deliberately skewed to justify the use of techniques proposed by the C.I.A.
This issue touches on the distinction between the two primary roles that lawyers have with clients of adviser or advocate and how the lawyer’s work as adviser is different from advocacy work.
When lawyers advise clients by preparing legal opinions, lawyers conduct objective analysis. When a client asks, can I do X, the lawyer often does not know the answer even in a specialized practice because there are so many statutes and judicial opinions to analyze in the context of the facts of a client’s particular case. So, lawyers are charged with a research mission to find the governing statutes and relevant cases and then analyze that law with the particular facts presented by the client. This objective analysis is designed to protect the client by advising of potential risks as well as enable the client to reach a fully informed decision. As noted in a Congressional hearing on the OLC, it is the “objective analysis of the controlling law” that should have been presented in the torture memos.
However, the torture memos are based on subjective analysis or advocacy that is not the role of OLC lawyers. In subjective analysis, the lawyers are essentially in battle-station mode. The lawyer has already performed legal research to determine the law, the client has agreed with the legal theories presented by the lawyer, and now is the time to persuade opposing parties or the courts that our legal argument should prevail. Subjective advocacy is used when writing legal briefs, for example, where the goal is to create ethical and legal arguments to reach a desired outcome for our clients. However, subjective advocacy is generally limited to those situations where other parties can question and challenge the legitimacy of the arguments.
The OLC lawyers used an unethical form of subjective advocacy when they twisted the statutory law and ignored relevant judicial opinions to jam a square peg into a round hole in order to “authorize” torture. Thus, one issue the OPR investigators focused on was “whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted.”
(2) The failure to cite and analyze torture precedent.
It is precisely because the “OLC opinions are controlling on questions of law within the Executive Branch” that the DOJ best practices for OLC opinions issued in 2005 by Bradbury mandates that the “opinions be clear, accurate, thoroughly researched, and soundly reasoned.”
Thorough research and analysis is part of the objectivity governing a lawyer’s role as adviser. This requires doing legal research to find the published judicial opinions that have discussed whether certain methods constitute torture or whether government officials may be held liable for torture.
However, one apparent finding of the OPR report is that the torture memos did not cite torture case law precedent from the US or internationally. For example, it only took a few minutes on Google to find a 1936 US Supreme Court case holding that murder convictions based on confessions forced by physical torture were constitutionally void. There is also the 1983 federal court case upholding the convictions of a county sheriff and deputies for interrogating prisoners with water torture to compel confessions.
These cases should have been discussed, and distinguished to show that Bush Team had legal reasons why the cases did not constitute controlling authority. Instead, the torture memos simply left relevant cases out of the opinions, rendering the opinions neither “thoroughly researched” nor “soundly reasoned.”
(3) The OLC does not issue opinions on the “legality of past conduct.”
The OLC best practices states “opinions of the Office should address legal questions prospectively; OLC avoids opining on the legality of past conduct.” However, the CIA requested and obtained “authorization to torture prior to the issuance of the DOJ memos that are the claimed “authority” for torture.
The CIA requested approval to torture Abu Zubaydah in May 2002 or 3 months before “authorization” was provided by the DOJ torture memos in August 2002. Rice “personally conveyed the administration’s approval for waterboarding of Zubaydah, a high-level detainee, to then-CIA Director George Tenet in July 2002.” It was Gonzales who provided the “authorization” for torture. Another little problem arises because Gonzales was not the AG then but only Bush’s lawyer who did not have authority to “authorize” torture by the CIA.
(4) The OLC lacks authority to issue policy decisions.
The Bush Team continually cite the torture memos as the document that “authorized” torture as legal. However, the OLC performs a “purely advisory role” of legal advice and analysis to “inform the decisionmaking of its clients, the legal advice is not itself dispositive as to any policy adopted by an agency” because the OLC “lacks the authority” to make “any policy decision.”
The Bush Team simply wanted the torture memos as a CYA shield to protect them from prosecutions. However, not even Mr. Unitary Executive believed that a DOJ memo was needed to vest him with “authority” to order the torture prior to the issuance of the torture memos.
Thus, all roads lead back to the rule of law: Can a president unilaterally order torture that violates US and international law.