Are these people really lawyers?

What struck me about the reports today and yesterday on memos from the Justice Department and the Defense Department arguing that U.S. prohibitions on torture might not apply to the treatment of prisoners in Iraq or Guantanamo was not so much their moral implications -- I'm beyond the capacity for shock -- but their glib, loose, bull-session tone. The memo from the Office of Legal Counsel is not available, and if Ashcroft has his way, it won't be, but based on the quotes in the Times and the Post, it just doesn't sound remotely like an actual legal argument, much less "a scholarly effort to define the perimeters of the law." It seems to be just a series of assertions, such as, "in order to respect the President's inherent constitutional authority to manage a military campaign . . . [the prohibition against torture] must be construed as inapplicable."

One reason to release the memo is to find out if it is really this vacuous. The lawyers at the Office of Legal Counsel and the White House Counse's office are the best the Federalist Society has to offer. They've gone to the best law schools, clerked for Thomas or Scalia -- they can be expected to put together an argument that, even if wrong, at least appears to be grounded in a well-researched analysis of the law and precedents. Instead, these memos read like, at best, a bunch of drunk right-wing freshmen arguing about what they think the law should be.

We do have the full texts of the January 2002 memos from White House Counsel Alberto Gonzalez, and the response/edits from the State Department Legal Advisor, and the contrast in tone is as illustrative as the contrast in content:

Gonzalez: "The war against terrorism is a new kind of war...this new paradigm renders obsolete the Geneva Convention's strict limitations on questioning of enemy combatants and renders quaint some of its provisions that captured enemy be afforded such things as commissary privileges..." No reasoning is given for why prisoners captured in these wars need not be fed, or how being "quaint" makes these provisions inapplicable.

Powell (via Legal Advisor): [I couldn't find a single quote that best illustrated the different tone of the Powell memo. Basically, it begs Gonzalez to present both the pros and cons of declaring that the Geneva Convention inapplicable to the entire conflict in Afghanistan, asking Gonzalez, among other things, to at least inform the President that "the OLC opinion is likely to be rejected by foreign governments and will not be respected in foreign courts or international tribunals."

It is as if the interns from the speechwriting department are running the show

Comments

[Hedley Lamarr]

Re Gonzales' remarks: Whenever I see
someone mentioning a "new paradigm",
I check the location of my wallet.

[gorjus]

Decembrist,

Your analysis that the speechwriting department is running the show is mostly correct. The Gonzales Memo is notable for its lack of grounding in law AT ALL--at best, it is a semi-crackpot memo of encouragement, the kind that comes when the boss says "find a way around this problem."

It "finds one," which is to say that "this is a new type of war," since apparently terrorism didn't exist in 1949. This strains credibility, and is EXACTLY the sort of thing a young lawyer writes his boss when given a ridiculuous assignment. Yet normally the boss throws it back in their face and says "well, never mind. We tried, but we ain't got nothin'." I know, because it's happened to me a dozen times. Then you trudge back to your office and start down the other path--the real one, the one you didn't like because it cost too much money or was too hard.

Those brakes aren't on this Mexican-built Chevy. From the shallowness, style, and tone of the memo, I'd say Gonzales was asked to find an end-run around Geneva, and he came up with a pathetic attempt (arguing that the U.S. adhered to Geneva during the '89 Panama conflict only for "policy reasons" is shallow at best; at worst, a lie).

Yet this administration is more than happy to have someone say yes to it; that's where not enough Nixon paralells have been looked at--the "yes-man" groupthink of this administration. A good counsellor looks at the law and advises their client accordingly; a bad one looks at it and sees how they might exploit or cheat it. Gonzales is the latter.

[Nell Lancaster]

I'm no lawyer myself, but given Gonzales' history with Bush (wasn't he the one who did the quickie analysis for death penalty cases when W was governor?) and the partisan, hyper-loyal nature of WH Counsel in general, I'm more seriously perturbed by Justice Department memos that set the framework for "legal" torture.

Release them all and let the lawyering-up begin....

[Angry Bear]

I believe speechwriting interns running the show was a them in a late 2003 West Wing episode. Can we get Bartlett in for Bush now?

AB