The Big Picture and the Closeup

Next I Read The News Entry

Seems Like Old Times in Afghanistan 

They say that President Obama is meeting with platoons of advisors to determine whether and if so how to carry on that conflict.  To those of us old enough to remember Vietnam, it all seems eerily familiar. 

Take one Democratic president, elected with a mandate to further a liberal agenda, but with one reservation.  In Kennedy, and then Johnson’s case, whatever they might have wished to do domestically, they had to fight world Communism, which in its day was regarded as fearfully as radical Islam is today.  Add some generals who swear they cannot honor that paramount presidential priority unless they escalate an unpopular war.  Add the fact that the opposite side is a popular guerilla insurgency with a more or less safe haven in another country.  Then top it off with a corrupt local government that has used the shelter of U.S. military protection to avoid reforming itself and behaving honestly. 

In retrospect Vietnam was clearly unwinnable.  Afghanistan has a lengthy record of humbling foreign occupiers including the British and the Russians at the height of their respective imperial powers.  (Shades of the French at Dienbienphu.)  In the words of Dirty Harry, “You got to ask yourself one question: Do I feel lucky?”  Because luck will be required in large doses to overcome the Afghanistan jinx.

I for one do not feel lucky.

Copyright (c) Jack L. B. Gohn

Next I Read The News Entry

            This effort to try to extradite Roman Polanski seems like a bad idea.  However bad what the Polanski of 1977 did may be, you cannot punish him.  He no longer exists,  worn away by half a lifetime of subsequent experiences and choices. 

Moreover, at least one of the traditional reasons for imprisoning people, to prevent them from offending again for a while, seems pointless.  While I don’t follow celebrity careers closely as a rule, and I haven’t done it with Polanski, it seems that he hasn’t raped any more 13 year-olds.  If it made any sense to imprison a man of 44 to teach him not to do it again, that rationale is unavailable against a man of 76 who has apparently not raped anyone for 32 years.  He obviously has learned his lesson.

Nor do I agree with those who feel that we must do this to prevent the law being mocked.  We allow the law to be mocked every day, one way or another.  It is all a question of prosecutorial discretion.  For instance, the law is mocked every day that the criminals who committed torture in this country’s name are not prosecuted.   

And by the same token, the notion that Polanski’s celebrity should not drive prosecutorial choices rings hollow when we allow the political celebrity of criminals like the torturers of the previous administration to shield them from justice.  What they did was at least as bad as what Polanski did. 

Moreover, it seems clear that there were considerable improprieties in the way the judge handled Polanski’s case, and no easy mechanism to fix them; I would be uncomfortable imprisoning him unless there was a retroactive fixing of those errors to balance the retroactive nature of what the prosecutors seem to want to do here. 

And finally, those who feel that there is a special insult or danger to women from failing to ensnare and imprison Polanski after all these years seem to be ignoring the views of the woman involved, who does not want him further punished.  Surely her views ought to matter.

It just seems like a bad idea all around.

Picking Up the Flag 

            As the newspapers and newsmagazines shrink physically and cover less, they and the broadcast and cable news have also been doing it worse.  One media critic who’s been sounding the alarm particularly sharply is Eric Boehlert.   I’ve had occasion in these pages to cite his book Lapdogs: How the Press Rolled Over for Bush (2006), a detailed scolding of the mainstream media for consistently failing to challenge either disinformation from the conservative propaganda machine or the lies the White House used to sell the Iraq conflict to the American people. 

            It turns out, though, that someone has been doing journalism right.  That would be the netroots bloggers, heroes of Boehlert’s new book, Bloggers on the Bus: How the Internet Changed Politics and the Press (2009).  Boehlert focuses here on the few years leading up to the last election.  He shows how the netroots time after time successfully wrested control of the national narrative away from both conservative propaganda machine and the mainstream media, fiercely practicing what was proudly called reality-based journalism.  Through viral videos, rapid-fire exchanges on blogs where the stories were pieced together like mosaics, and old-fashioned reporting, the mostly left-leaning online community in effect picked up the flag that the mainstream media were in the process of dropping.  Then, through social media, the netroots organized much of the ground war that elected Barack Obama. 

            Some examples: 

•           Bruce Wilson, a blogger who covers the religious right, broke the story of a fecklessly anti-Semitic sermon by televangelist überpastor John Hagee, forcing John McCain to repudiate Hagee’s long-sought endorsement shortly after it was received; 

•           Mayhill Fowler, who reported on Obama’s remarks that some small-town voters were “bitter” and “cling to guns or religion,” and who also reported Bill Clinton’s attack on Vanity Fair reporter Todd Purdum, gave first Obama’s campaign, then Hillary Clinton’s, very bad news days; 

•           The netroots massively rebelled against Congressional efforts to grant telecoms retroactive immunity for their cooperation in NSA’s warrantless wiretaps of Americans, and long delayed its enactment;[Note 1] 

•           Impressive reportage by Alaskan bloggers broke “Troopergate,”exposed Sarah Palin’s claim to have rejected money for the “Bridge to Nowhere,” established Palin’s history with Alaskan secessionism, and, along with the disastrous Katie Couric interview, demolished Palin’s public image over the course of about a month. [Note 2]

            The netroots can accomplish much.  But hold the cheering.  Although the stories just mentioned were legitimate news reporting with legitimate impact, the three most important investigative news stories during the period covered by Bloggers on the Bus were Abu Ghraib, the hidden CIA prisons, and the NSA warrantless wiretap program, broken respectively by CBS News, the Washington Post, and the New York Times.  This was not an accident.  Bloggers are generally not paid at all for what they do; Fowler, for instance, was a volunteer.  Mainstream media all maintain paid news staffs with the time and resources, including legal counsel, to dig up and handle these more explosive and sensitive stories.  Sensitive news is often costly news. 

            But cost comes at a cost.  Large aggregations of capital are necessary to create a network or a major metropolitan daily.  And there are two problems with this.  First, as media critic Mark Crispin Miller and others have been warning us for some time, capital requires capitalists, who never find the priorities of true news consumers to generate adequate returns, and second, market logic impels consolidating media holdings, with the predictable and often intended effect of diminishing the diversity of viewpoints able to be heard.  News generation is fitted with blinders, then lashed to a waterlogged and sinking corporate ship. 

            In the contrasting galaxy of a million stars which is the blogosphere, we have witnessed the coalescence of really only one blog, The Huffington Post, which has news-gathering power equivalent to that of newspapers, and one blog, Politico, which does inside-the-Beltway reporting that renders it a sort of Washington equivalent of the Wall Street Journal.  News generation institutions within the blogosphere to rival those of newspapers and networks are still in their fragile beginnings. 

            The robustness one can see in the blogosphere lies elsewhere, in influencing public opinion and mobilizing public action.  If you want to see serious and informed commentary on news issues of all sorts, the blogs are the best place to go, not a last resort.  And if you want to get organized, the blogs and social networks are the places as well.  These are functions of great consequence – and consequences, as Boehlert’s book makes clear.  See his accounts of the way the netroots’ firestorm over Chris Matthews’ scornful and sexist remarks about Hillary Clinton after the Iowa caucuses tipped the New Hampshire primary her way, and of the brilliant ways in which the Obama campaign harnessed the joint power of social media like Facebook and MySpace to solicit contributions and to create environments where supporters could organize rallies and get-out-the-vote campaigns.  

            But reporting?  Not so much. 

            It is tempting to view the stories told in Boehlert’s two books, one chronicling the failure of the mainstream media to report the news and the other revealing the success of the blogs in doing so, as being parts of the same story.  Maybe the mainstream media would not be failing from a business perspective were they not, most of the time, failing from a news-reporting perspective as well.  Maybe the blogs would not be succeeding, albeit under their mostly profit-agnostic criteria, were they not beginning to seize the standard of bona fide reporting falling from the grasp of the mainstream media as they tumble lifeless upon the field of economic battle.  

            Either way, we could soon find ourselves with the blogs as our most important news source.  That could be bad.  Not only will the blogs have to find a way to succeed as true news-gatherers within what is for now a cash-starved business model, but the whole world of news might need to change. 

            If every blog is the press, for instance, and everyone can start a blog, then everyone potentially is a member of the press.  First Amendment protection will probably not be a big issue[Note 3], but access and ethics problems will most likely be formidable.  Who gets to sit in the limited seating of the White House press briefing room?  Will blog journalists respect the on-the-record/off-the-record distinctions that are meaningful with and observed by a better-defined press corps?  (Fowler’s scoops on Obama and Bill Clinton suggest otherwise.)  What happens to the law of defamation in a world where the boundaries between fact and opinion are so fluid, and speakers are so often anonymous?  Without conventional editors, who will oversee proper sourcing of stories?  Without the template of newspapers, how easily will readers be able to locate desired coverage?  We don’t know. 

            We may soon find out, though.

^{[Note 2]} See Boehlert, Chapter 13 at 223-43.  Useful links here.

^{[Note 3]} See, e.g. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488 (1986) and Leathers v. Medlock, 499 U.S. 439 (1991) (cable provides news, information and entertainment, and hence is the press for First Amendment purposes).

Copyright (c) Jack L. B. Gohn

What the Client Wanted To Hear

            First, so the official story has gone, there were the lawyers, people with names like John Yoo, Jay Bybee and Stephen Bradbury.  Consulted by their clients in the Oval Office, the CIA, the Pentagon and the Vice President’s Office about whether Muslim men could be imprisoned without the protections of the Geneva accords, denied habeas, and tortured, the lawyers generated reams of detailed memos saying what could and could not lawfully be done.  Mostly, of course, what could be done.

            The story continues that the clients, having been advised in proper form, then issued orders to do what the lawyers had blessed, and when the orders were followed, everything that was done was therefore perfectly lawful.  Or maybe it wasn’t lawful, but if not, how were the poor clients to know? 

            The story has factual holes, to be sure.  Most interestingly, it is now reported that, per a report unreleased as of August 24, 2009, issued by the Office of Professional Responsibility, the Justice Department’s ethical watchdog, the conclusions in the memos, ostensibly the independent product of the lawyers, may have actually been dictated in the White House.  As the e-mails that show how the memos were really written emerge, we may need to dispense with the notion that the lawyers actually came first.[Note 1]   We may learn that Yoo and Bybee went far beyond telling the clients what they wanted to hear and actually lent their names to the process of the client telling the client what the client wanted to hear.

            But let’s stick with the official story, which poses enormous questions of its own.  If a lawyer describes objectively criminal behavior as lawful, and the client commits the crime, is the lawyer abetting a crime? 

            The wording of 18 U.S.C. § 2(a) certainly suggests as much: “Whoever commits an offense against the United States or … counsels … its commission, is punishable as a principal.”  However, I cannot locate a single reported case in which this language was applied to punish a lawyer who blessed the client’s crime.  That said, there is some law out there that suggests this may be a reasonable way to apply the statute.

            There exists, for example, a crime/fraud exception to attorney-client confidentiality.  A lawyer may reveal client confidences to prevent the client from killing or harming people or committing financial fraud.  Tellingly, in the official Comment to Rule of Professional Conduct 1.6, it is stated that “the lawyer may not counsel … the client in conduct the lawyer knows is criminal or fraudulent.”  It would seem consistent with these principles that when a lawyer is counseling the client to commit a crime, the lawyer is not engaged in the permitted practice of law, and hence any policy considerations protecting the lawyer from sanction are as weak as those protecting the lawyer’s communications with the client.

            A reasonable objection might be raised that a court following this logic could subject a lawyer to criminal sanctions for giving good faith advice.  To which I’d respond that the advice we’re talking about, even if not dictated by the White House in advance, doesn’t look much like good faith.  Space does not permit a blow-by-blow account of the yellow lights the memo-writers blew past, but it can be gleaned from the detailed account in the Senate Armed Services Committee report released this April on the treatment of U.S. detainees.  As the Department of Defense generated questionable instructions based on the torture memos, the lawyers from the various service branches, to their everlasting credit, kept pushing back and forcing the withdrawal of one set of instructions after another.  Given the insular circle these lawyers occupied, there is very little probability the original memo-writers were unaware of the strong contrary views of lawyers elsewhere in their circle, good conservatives all.

            As discussed in an earlier column, the shallowness and callowness of the memos argues a lack of the perspective necessary to practice law.  But the impervious response by Yoo et al. to the intramural criticism also argues a wilful moral blindness that the criminal laws should not protect.  Yoo, a Justice Thomas clerk, was a product of a system unique at the Court to Thomas’ chambers: prescreening by former clerks for utter ideological purity.[Note 2]   An angry refusal to listen is bad in Supreme Court justices and their chambers, and worse in the unreviewable world of secret OLC opinions; it certainly should not be protected as if it amounted to good faith.

            One court seems to be proceeding directly to that conclusion: Judge Jeffrey White of the Northern District of California ruled on June 12 in a civil suit by Jose Padilla against Yoo, refusing to countenance Yoo’s claim of conditional immunity.[Note 3]   Padilla’s theory there is that Yoo is the principal architect of the legal theories under which Padilla, a U.S. civilian citizen, was unlawfully detained on U.S. soil by the military and tortured according to the Guantanamo protocols blessed by Yoo.  A defense available to government officials so sued is that, under established law, a reasonable official could have believed his conduct was lawful.  Yoo invoked that defense.  The court held, however, that the unlawfulness of the apparent constitutional abuses to which Padilla was subjected looks pretty well established (as opposed to the extreme and unprecedented expansions of Presidential authority upon which Yoo had hung his hat).

            In the end, the strongest argument against immunity for the memo-writers is that it is terribly important that the lawyers who opine at the highest levels protect the country from violating its values, uphold our constitutional system, and, in short, not always tell the President what he wants to hear.  The advice may be delivered to the President and his closest advisers.  It may be delivered in secret.  Nonetheless, we are the client – we, and everyone, friend or foe, American or foreign, who will predictably be touched by that advice.  We all have an interest in the nation doing the right and lawful thing, in war and in peace.

            In the face of that overwhelming responsibility, it simply will not suffice for the lawyer to close his eyes, plug his ears, and fail even to give serious consideration to dissenting voices.  To do so is so far from being the appropriate practice of law that it does not deserve immunity or impunity.  If the lawyer counseled that the whole force of our nation be brought to bear to commit crimes, and those crimes were committed, the lawyer was a criminal too.  Wispy constitutional plausibility should not shield him.

            At Nuremberg, we tried influential government lawyers for actions that, formally at least, were taken in the legitimate practice of their profession.  Through a series of laws, regulations, and judicial decisions formally sufficient under the German constitution but inimical to its spirit, they had transformed the legal code and the courts of Nazi Germany into instruments of oppression and murder.  As General Telford Taylor, the prosecutor, said in his opening statement: “The temple must be reconsecrated…. It is more than fitting that these men be judged under that which they, as jurists, denied to others. Judgement under law is the only just fate for the defendants.”[Note 4]

            Precisely.

On Advice of Counsel

            In discussing whether we should prosecute the people who ordered or committed torture, I’ve been drawing some artificial distinctions for clarity.  I’ve contrasted the working torturers, the folks who slammed other folks into walls and poured water over their airways, with the Pentagon and Langley brass who merely ordained it after it was blessed by counsel – as if only the latter had read what counsel had to say.

            Actually, the advice of counsel, the “torture memos” by the likes of Jay Bybee, John Yoo, and Stephen Bradbury, or at least the analysis underlying them, seem to have percolated well down the chain of command.  Some of the briefings and protocols on interrogation techniques provided to the working torturers contained legal analyses.  And many of the torturers, it now emerges, are being looked at by the Justice Department because their mistreatment of detainees exceeded even the harshness secret memos had countenanced.  So the reality here will be complex.

            We can be certain, though, that if anyone ever is prosecuted, we are going to witness a test of the “advice of counsel” defense in a context where at least U.S. law has never tested it before.

            Traditionally the “advice of counsel” defense applies only to specific-intent-to-violate-the-law crimes, i.e. crimes where an element of the crime is awareness that the conduct in question is illegal.  With crimes where such specific intent is not an element, by contrast, no amount of lawyerly advice about the legality of the act will matter one way or another.  Under U.S. law purporting to enforce the international Convention Against Torture, torture is a general intent crime.  That is, 18 U.S.C. §§ 2040-2040A, passed in 1994, does not require a specific intent to violate the law (though it does require a specific intent to cause severe pain and suffering).  Hence advice of counsel would appear not to amount to a defense.

            Into this apparently simple legal situation, however, was injected the McCain amendment to the Detainee Treatment Act of 2005.  In Section 1004,[Note 1]  it provides:

In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it 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.

Codified at 42 U.S.C. § 2000dd-1(a).

            Care to venture a suggestion what this all means?  Your guess is as good as mine, because there seem to be no reported cases construing it yet.  What I take away is that in order for the conduct to pass muster, it must first of all have been signed off on by government lawyers for use against our detainees.  After that, it seems to be a defense that the accused did not know the acts were unlawful and  a person of ordinary sense and understanding would not know that either.  Finally, advice of counsel is evidence on the previous point.

            It is interesting that the statute implicitly acknowledges that the conduct can be unlawful even if “determined to be lawful.”  In other words, the Office of Legal Counsel saying it don’t make it so.  But having heard the Office of Legal Counsel saying what ain’t so can still be evidence that one failed to appreciate the illegality.  Not conclusive proof, but evidence.

            On the other hand, what do we make of the contrast with the person of ordinary sense and understanding “not know[ing] the conduct was illegal”?  And by what yardstick?  Remember, as we have seen in earlier pieces, the Office of Legal Counsel withdrew some of the secret memos as soon as there was a change at the top.  John Yoo’s Disbarable Incompetence (4/26/08).  The International Committee of the Red Cross was (not for publication) calling what was going on torture and hence illegal under international law for a long time – and under international law, the ICRC’s word is supposed to be authoritative.  Various Circles of Hell (4/28/09).  At the same time, in public, the Bush Administration was busy using all its still-considerable moral influence to proclaim its own moral innocence. 

            Now ordinarily, when statutes talk of persons with ordinary sense and understanding, they are appealing to some kind of consensus.  Here, in part because so much data and discussion were non-public, persons of ordinary sense and understanding were all over the lot on this issue.  And we know that the U.S. was or at least became an outlier, if not an utter pariah, among nations for its approach to these issues.  One person with ordinary sense and understanding would have “known” our interrogation techniques amounted to torture, another would have “known” the opposite.  And as what point in time would that assessment have been made?  While the detentions were still popular?  Today?

            In short, the “person with ordinary sense” criterion is ineffable, if not utterly unworkable.

            All we know is that McCain, in his haste to make peace with George Bush’s constituency en route to a presidential run in which he felt he needed their support, lent legitimacy to a move to fashion advice of counsel into some weird kind of defense to criminal and civil torture claims, where under the ordinary rules of criminal statutory construction, it would not have been one.  For McCain of all people to have done this is incredible.  And sad.

            As a practical matter, then, we cannot predict with confidence whether, if prosecuted on charges relating to the torture they ordered, the brass and/or the torturers would have a viable defense because counsel told them they were in the clear.  Even assuming a broad meaning for the defense, its applicability might be narrow.  As Anthony Romero, Executive Director of the ACLU, commented in a recent open letter to Attorney General Eric Holder, “[P]ersons who might not be covered by the ‘advice of counsel’ defense include:  persons who engaged in torture or abuse prior to the issuance of the OLC opinions; persons who did not rely on the OLC opinions; persons who knew the OLC opinions did not accurately reflect the law; persons who are lawyers or were trained as interrogators on applicable law; persons who acted outside the scope of the OLC opinions; or any persons who ordered the OLC opinions drafted specifically for the purpose of providing a defense.”[Note 2]  That’s a long list.

            Next time we’ll think about the lawyers who gave the advice.

© Jack L. B. Gohn

[I]t can never be maintained that a military officer can justify himself for doing an unlawful act, by producing the order of his superior.

Chief Justice Taney, Mitchell v. Harmony, 54 U.S. 115, 137 (1851)[1] 

          Last time, we started with the premise that the MPs who abused the detainees at Abu Ghraib have been punished.  We asked then whether, for consistency, the bosses at the Pentagon who had ordered the MPs to commit that abuse should be held accountable too.  This time, I want to contemplate, as President Obama would prefer, taking that premise off the table.  Instead of dragging everyone else involved down to the fate of the MPs, Obama, along with CIA Chief Leon Panetta and most of the Republican establishment, would prefer to hold no one accountable at all.  (And maybe even, for consistency, pardon the MP grunts?)

          Let me start by noting our new Commander-in-Chief’s own undoubted if unspoken premise.  He knows it is politically unpopular; according to a recent CNN/Opinion Research poll, six in ten Americans oppose prosecutions.[2]   On the other hand, two of three Democrats are in favor, and they, not the Republicans, are the political vanguard right now.  Obama and his programs could withstand the controversy. 

          Nor do I believe that if the CIA or military interrogators are sanctioned for having tortured, that will diminish the Company’s morale – not unless morale is measured in continued willingness to “do whatever it takes,” which always seems to mean violating the law and the national conscience.  Unless we want the CIA to hang onto that kind of morale, I think we can afford to sanction the torturers.  The question, then, is not whether we safely can; it’s whether we should.

          Approaching that question intelligently requires recognizing that not everyone is, as we lawyers say, in pare delicto on this: sanctioning the torturers is different from sanctioning their bosses who were relying on the notorious legal memos.  And both kinds of prosecutions would differ from sanctioning the lawyers who wrote those memos.

          This time, I want to focus only on the torturers, the guys and gals with the electrodes and the damp cloths in their actual hands.  As I said a couple of months ago, they cannot seriously maintain that what they did was legal, either under U.S. law or under the law of nations.  Their main legal defense, if they have one, is that they were following orders.

          The precedents on this defense are not voluminous, but they are clear, and not helpful to lawbreakers.  Since the time of the Nuremberg trials, the post-World War II tribunals that tried Nazi war crimes, “just following orders” has not been viewed as a legitimate defense.  It was specifically rejected in the Charter of that tribunal, Article 8 of which read: “The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”[3]  

          The Nuremberg Principles were endorsed by the General Assembly of the UN in December of 1946.  The defense has been rejected in the Israeli trial of Adolf Eichmann and was ruled inapplicable in the trials of war crimes in former Yugoslavia.[4]   And there is of course that line of Justice Taney’s quoted above as well.  (Albeit Taney was articulating tort law, and without having heard of the conditional immunity modern government tortfeasors shelter behind.)

          Obama, Panetta, and the Cheney types all are uneasy with the notion of following the Nuremberg Principles.  For Cheney, the reason is obvious: he wants impunity for the torturers because he supports what they did – and may well have fears of a personal reckoning if the precedents are followed.  Obama and Panetta, however, claim to abhor what the torturers did, but want to grant them the benefit of the discredited Nuremberg defense anyway.  Apart from their political jitters, which I have already said I think are overblown, what could motivate this?

          It’s not all that profound, surely.  Obedience to orders, irrespective of one’s own philosophical or legal views, and even at the hazard of one’s own life, is normally indispensable to military organizations and paramilitary ones, like the parts of the CIA that probably did the torturing.  Generals or agency chiefs are supposed to weigh morality and law, and everyone else is supposed to leave that kind of thinking to them.

          If the footsoldiers started making their own policy decisions about things like the morality and lawfulness of orders, it would arguably validate a critical attitude toward the chain of command on other issues.  Good order and discipline could be lost as every private would second-guess the generals on more and more things, and chaos would ensue. 

          It does sound scary.  But it also sounds way too theoretical.

          In real life, as we know, there are enormous pressures to conform, especially in military and paramilitary organizations.  Some of them are as informal as peer pressure, others – e.g. courts martial for insubordination – quite the opposite.  The cost of following one’s conscience in the teeth of an order to torture a presumed national enemy is likely to be high. Under those circumstances, only the morally hardy would likely stand up.  Good order and discipline would survive, and respect for the law would usually come in second.

          One can argue, of course, that the cost of insubordination should not be so high, and that there ought to be conscientious objector status within the organizations for people who believe that specific orders are directing them to violate the law.  We could even make a virtue of questioning, not unquestioning, obedience.

          I happen to agree, but those remain separate and unrealistic questions.  In real life, torture refusers would probably find themselves between rocks and hard places.  No matter; life sometimes places us there.  If we choose to do evil, the Nuremberg Principles teach that the fact we sinned under orders, even orders backed by powerful incentives and wrapped in patriotic sentiments and fears about national security, lessens only our punishment, not our guilt.

          That being the case, there would be an enormous value to having public trials in which: a) the truth – so much of which is still unknown – was revealed; b) the United States acknowledged in action and not just in words that what it ordered was wrong; and c) precedent would be clearly laid down that there is no safe haven in following grotesquely illegal orders.  If we really want to discourage torture or other war crimes by U.S. forces, such precedent would be the way.

          Word is that some CIA operatives have been covertly disciplined or fired.  But sanctions without publicity are insufficient.  Word also is that the Justice Department, to which Obama has publicly pledged independence,  is still considering some prosecutions.[5]   It can only be hoped that Justice will bite the bullet.

          And what about the honchos who got the legal memos?  Next time.

 Note 1 http://supreme.justia.com/us/54/115/case.html

 Copyright (c) Jack L. B. Gohn

 “A Few Bad Apples”

            On October 19, 2003,[1]  Specialist Sabrina Harman of the 372nd Military Police Company picked up a Sony Cybershot camera and began taking photographs of life on Tier 1A at Abu Ghraib prison.  She documented naked prisoners being stacked like cordwood, prisoners being threatened by attack dogs, hooded prisoners, beaten prisoners, prisoners handcuffed in stress positions, prisoners strung up to electrodes.  The perpetrators of this mistreatment were members of her own unit, including herself.

            She and her fellow military police did not understand themselves to be in the interrogation business, but they were unambiguously given to understand that they were “setting the conditions of interrogation.”  Tiers 1A and 1B were devoted to “military intelligence holds,” and MI and CIA personnel were later found by Major General Antonio Taguba’s official investigative report to have directed the MPs to humiliate, keep awake, and otherwise torment the prisoners there, in order to facilitate interrogation.[2]   These directions were invariably oral, never in writing.

            But there was a writing that the interrogators were following when Harman picked up the camera.  It  was known as “CJTF-7 Interrogation Rules of Engagement (October 9, 2003),[3] ” commonly called the IROE.  It included things like stress positions, military dogs, and sleep deprivation.  Since the military and CIA interrogators were recognized to be too few in number to live up to all of the demands of implementing the IROE on the large Abu Ghraib population, it was explicitly contemplated within the ranks of the interrogators that the MP contingent would have to act as an auxiliary force, and not merely as jailers.  Harman and her mates did many things contemplated in the IROE at the direction of the interrogators.

            Accordingly, the members of the 372nd felt free to log their activities, performed them in full view of JAG Corps lawyers who frequently stopped by, and were commended in official counseling forms for their activities.[4]   The International Committee of the Red Cross had visited 1A less than two weeks before Harman’s first photos, had seen the same things, and had been told that the MP corps were acting at the direction of MI.

            Theirs was indeed only an auxiliary role.  The worst abuses were carried out by MI and CIA.  Harman photographed (and was photographed with) one notorious example: a prisoner they nicknamed Gilligan, who had been beaten to death by the CIA and packed in ice.

            The IROE had been issued on the authority of Lieutenant General Ricardo Sanchez, the ground commander in Iraq.  It was an updating of a policy he had issued a month before, on September 14, 2003.  Sanchez later claimed he had had no idea the IROE was ever implemented (which begs the question why he bothered to issue it).  It is true that the policy called for his prior approval each time one of the heightened interrogation techniques was used on “enemy prisoners of war,” and he claims he regarded the 1A detainees as POWs, and was never asked for permission.  But he acknowledged knowing from Major General Geoffrey Miller that the MPs had been tasked to “set the conditions for productive interrogations”[5]  – interrogations which at least in theory could include the torments prescribed in his IROE.

            Regardless, there is no disagreement among the various investigative reports that the IROE was in practice the charter for everything that was done in the Abu Ghraib interrogations.[6]   The IROE’s prior approval language and the detainees’ POW status had no practical effect.

            Sanchez’s September 14 policy and IROE, according to Sanchez, were in turn based on guidance issued by Secretary of Defense Donald Rumsfeld on April 16, 2003 for interrogations at Guantanamo.[7]   To read it, one might conclude that Rumsfeld had reviewed recommendations for a wide variety of torments, and endorsed only the milder techniques – far milder than what Sanchez permitted in ostensible reliance on that memo.

            But there had been another strand of memos.  In a bewildering series of publications and rescissions (largely attempts to accommodate the unsung resistance of the service branch lawyers), the Defense Department approved and then withdrew approval for the harshest techniques.  In such circumstances, however, rescissions were seldom effective because the original policy would keep being republished after the initial publication was technically inoperative.  That was the case here.

            Specifically, the Senate Armed Services Committee concluded that another source of Sanchez’ IROE was “the [Special Mission Unit Task Force] in Iraq’s interrogation policy.”  The SMU TF was reportedly a group of Navy SEALS who had killed a couple of interrogees at Bagram, and then brought their lethal group of techniques to Iraq.[8]   Their harsh policies were formalized in a February 2003 document that their commander neglected to sign, leaving it technically unofficial for Iraq.  That unofficial policy, however, simply rebranded for the Iraq theater an official January 10, 2003 interrogation policy for Afghanistan.  And that January Afghanistan policy, the Senate Armed Services Committee found, had in turn been drafted largely in reliance upon a December 2, 2002 memorandum by Secretary Rumsfeld.[9] 

            Rumsfeld’s December 2, 2002 memo technically applied only to Guantanamo.  Again, that memo inclined toward milder techniques under consideration (if one includes stress positions and isolation among the milder ones).  However, a) the actual interrogation regime at Guantanamo was tougher than that Rumsfeld had formally approved, and b) the December 2, 2002 memo was revoked on January 15, 2003.[10]   Hence SMU TF’s memo in Iraq  was simultaneously based on an actual highly aggressive practice and (at one remove) on a revoked policy memo.

            It will be apparent, then, that the chain of command that led from the MPs on 1A back to Rumsfeld was full of “cutouts”: links that would not implicate the link above or acknowledge linkage to the one below.  The CIA and MI personnel who ordered the things Harman photographed never put anything in writing, and tended not even to use their names.  Sanchez, upon whose blanket authority the interrogators relied, claims in his preposterous memoir Wiser in Battle (2008) to have been shocked, shocked that anyone was actually using the techniques he prescribed.  And he inconsistently a) insists that Harman’s photos captured a one-time event, and b) hints that the MPs were acting at the direction of General Miller, whom the Pentagon had “parachuted” into Abu Ghraib in mid-2003 to restructure interrogation routines there.  (That’s routines, not one-time events.)  Rumsfeld, whose memos indirectly inspired Sanchez’ IROE, could point out that those memos referred only to Guantanamo, only to non-POWs, and that in any case by the time anyone in Iraq relied on them, they had been revoked.

            For what it is worth, however, former Brig. General Janis Karpinski, commander of the Abu Ghraib MPs in 2003, told the Santa Clarita Signal in 2004 that she had seen an unreleased Rumsfeld memo specifically approving these techniques for Iraq.[11]

            Sanchez was also accurate that the Pentagon’s point man in the Iraqi torture chambers was Miller.  It was Miller who at Guantanamo had pioneered the use of military police to soften detainees for formal interrogation.[12]   And the trail for Miller runs right back to the Pentagon anyway.  He had been sent to Iraq at the specific direction of Undersecretary of Defense for Military Intelligence Steven Cambone and Donald Rumsfeld to “Gitmo-ize” interrogation there[13] .  And upon his return, he delivered an off-the-record personal briefing to Cambone and Deputy Secretary of Defense Paul Wolfowitz.[14] 

            In short, no matter how effectively the Pentagon had covered its tracks, the MPs were carrying out Pentagon policies.  It is improbable but possible no one above Generals Sanchez and Miller specifically knew of or ordered the abusive involvement of the MPs in the Abu Ghraib interrogations, but Harman and her mates had been authoritatively recruited to implement policies the chain of command had ordained, albeit with “cutouts,”  winks and nods.

            On January 13, 2004, one of the MPs could bear it no more, and delivered a disk containing several hundred of Harman’s photos to the Army Criminal Investigation Division.[15]   The Army tried to keep the inevitable resulting investigation out of the public eye.  This became impossible, however, after a relative of one of the MPs leaked the photos to CBS in April 2004.

            In addressing the resulting furor, the Pentagon dispatched Undersecretary of Defense Curtis Gilroy, head of military recruiting, to label the MPs “bad apples”[16]  and suggest that they were examples of quality control problems, probably recruits with criminal histories.  And Rumsfeld said the following about those who had followed what were his own orders in all but name: “I take full responsibility. It is my obligation to … make sure those who have committed wrongdoing are brought to justice….  To those Iraqis who were mistreated by members of U.S. armed forces, I offer my deepest apology.  It was un-American.  And it was inconsistent with the values of our nation.”[17] 

            The MPs were in fact “brought to justice.”  Nine of them were duly punished for acting “inconsistently with national values.”  One is still in the brig today.  As to the “full responsibility” Rumsfeld claimed to take, however, we are still waiting on that.

            The immediate question this raises is not the large one about whether the people who directed our torture policies should face accountability.  It is, rather, whether any government boss who allows subordinates to go to jail and have their military careers destroyed for following his own policies should escape a similar accounting.  Shouldn’t we treat the contaminated barrel the same way we treat the bad apples inside?  In fact, wouldn’t it be fair to impose heavier penalties on the Rumsfelds, Cambones, and Millers, who gave the orders, than on a Sabrina Harman (six months in prison and a bad conduct discharge),[18]  who was just obeying them?  And why should we punish the MPs who merely tormented the detainees, and not the interrogators who directed those torments – and who beat “Gilligan” to death?  Shouldn’t there be some consistency?

            Just asking.

Various Circles of Hell

Jack L. B. Gohn

            Because of the agonizingly slow leakage of information concerning the previous administration’s practices of internment and interrogation of Muslim men, it is only recently that the Central Intelligence Agency component has come into focus.

            When the Abu Ghraib photos were first leaked to a stunned world, the explanations that accompanied and followed them largely related to activities more or less under Department of Defense jurisdiction.  We now know that the “techniques” on display there had been by approved in writing by Secretary of Defense Donald Rumsfeld on December 2, 2002 and again on April 16, 2003.[Note 1] 

            It later emerged, however, that there were a separate group of “high-value detainees” under CIA jurisdiction.  As much to keep them out of the grips of the FBI and military intelligence as to “disappear” them (the “War on Terror” not being immune to turf battles),[Note 2]  the high-value detainees had been held in a chain of secret prisons in countries like Poland and Thailand.  And their ordeals, by contrast, had been carefully thought through and planned out, and had a different flavor. 

            In the past three weeks we have come into possession of three very separate bodies of data on the CIA interrogation regime.  One comes from the detainees themselves, courtesy of a leaked long-suppressed International Committee of the Red Cross summary of their accounts.[Note 3]   Another comes from the CIA theoreticians in the form of four Office of Legal Counsel opinions on the subject, three of them by a hitherto obscure Office of Legal Counsel lawyer named Steven Bradbury, the fourth by Jay Bybee, now of the 9^th Circuit Court of Appeals.  The third is a Senate Armed Services Committee report, released April 22.  One might expect these perspectives to differ, but the picture they paint is amazingly homogeneous.  The CIA detainees went through hell thanks to the interrogation techniques described in both sources, but it is a different circle of hell from that endured by the general populations at Abu Ghraib and Guantanamo.  Perhaps a better class of hell in some ways, a worse one in others.

            As little controversy as the new sources leave as to what happened, they have nonetheless touched off a firestorm over the larger questions whether the memos, and by extension all of the other data relating to the CIA and DOD interrogations, should have been released, and whether the behavior they reveal should be punished.

            Michael Hayden, former Director of Central Intelligence, and Michael Mukasey, former Attorney General, have deplored the release of the CIA documents in a major op-ed piece carried in the April 17, 2009 Wall Street Journal.  And there they try to pre-empt critics like me by observing that “Disclosure of the techniques is likely to be met by faux outrage.”  So I shall attempt to avoid expressing outrage, since Hayden, Mukasey and those who think like them are primed to dismiss all outrage as “faux.”  In addition, I shall try to give the devils their due, by conceding most of Hayden and Mukasey’s premises and treating their arguments with respect.

            The Red Cross and the memos alike reflect that the CIA planned to and did use a list of “interrogation techniques”:  dietary manipulation to create bland, low calorie meals; forced nudity; the “attention grasp” which draws an individual toward the interrogator by the lapels; slamming the subject into a wall; holding the subject’s head immobile during interrogation; slapping the face; slapping the abdomen; locking an individual inside a cramped space for as much as 8 hours at a time, 18 hours in a day; forcing the subject to stand facing a wall; “stress positions” to “induce temporary muscle fatigue”; dousing the detainee with cold water; sleep deprivation for up to 11 days; and waterboarding.  These techniques would be used on subjects day after day, in combination, or separately.

            To be sure, as the Bradbury and Bybee memos reflect, the CIA professed to plan using these techniques in ways that might inflict less pain or injury than fear.  For instance, when the subject was slammed into a wall, it was to be a specially-built wall that would injure little but would make a tremendous sound when the subject was forced into it.  And if a waterboarded subject appeared to be vomiting, there would be a physician standing by to perform a tracheotomy.  In theory, with all the various provisos and protocols, these techniques would march right up to the edge of torture within the meaning of the prohibitions against torture in U.S. statutes and/or treaty obligations – without stepping over the boundary.

            However, the practice undeniably slid over the edge.  Here is how torture expert Mark Danner summed up part of terrorist Abu Zubaydah’s ordeal under these techniques:

A naked man chained in a small, very cold, very white room is for several days strapped to a bed, then for several weeks shackled to a chair, bathed unceasingly in white light, bombarded constantly with loud sound, deprived of food; and whenever, despite cold, light, noise, hunger, the hours and days force his eyelids down, cold water is sprayed in his face to force them up. [Note 3]

Enough said.

            In the totality of these circumstances, this was torture.  The convening authority of the Guantanamo military commissions under President Bush admitted it was torture.  The International Committee of the Red Cross states in its hitherto-suppressed memo that this is torture – and the ICRC is the body directly charged with assuring compliance by the Geneva Convention signatories with treaty prohibitions against torture.

            Should the memos sanctioning CIA torture have been released?  The general outlines of the CIA program became generally known when the ICRC memo was finally leaked.  The only truly new material here was the details of how the CIA claimed to be trying to pull punches so that detainees would be more frightened than harmed.

            Hayden and Mukasey acknowledge that President Obama has disavowed all of these techniques in favor of those set out in the Army Field Manual.  But they point out that al Quaeda trains its fighters on how to beat Army Field Manual interrogation, and now they will know some useful things about how to beat these new techniques if some future administration tries to revive them.  (For instance, knowing that the wall you are slammed into has more bark than bite may fortify you during the slamming.  But note: To credit accounts in the ICRC report, many of the walls used in practice were probably ordinary walls.)  Hayden and Mukasey argue that Obama has in effect ruined these techniques for any future administration.  That surely overstates the case; perhaps these techniques would be somewhat less effective – but ruined?  Wouldn’t waterboarding still be pretty persuasive?

            Perhaps more tellingly, Hayden and Mukasey assert (following a claim in one of the memos) that these techniques sometimes led to actionable intelligence.  The claims in both sources are circumspectly worded, but if they mean what they seem to mean and are believed, it would appear that torture of Khalid Sheik Mohammed led indirectly to the foiling of the plot to blow up airliners over the Pacific, and that torture of Zubaydah yielded identification of Mohammed as the mastermind of 9/11 and provided significant aid in capturing him.  Remarkably, former Vice President Dick Cheney has demanded release of documents supposedly establishing these benefits of torture.

            In short, torture is claimed to have saved many lives.  This is dubious.  For instance, Ali Soufan, an FBI interrogator who participated in the early interrogation of Zubaydah, says that the significant information claimed to have been the fruits of torturing Zubaydah actually came from conventional interrogation that preceded the torture.[Note 5]  Too early to call this one; with all we now know about techniques, far too little is known for certain about the content of the torture interrogations. 

            But let us take the claim of torture’s efficacy at and maybe beyond full face value.  Yet then let us remind ourselves that it is torture we are talking about – something expressly forbidden by domestic and international law alike, and by conscience.  The heart of all of the Bush Administration legal memos is the stance that law must always be interpreted to yield to national security and conscience must be bent to do the same.  This argument was wrapped by master Bush Administration theoretician John Yoo in the mantle of presidential war powers, but it boils down to the same thing.  So here is the dilemma: You put law and our principles on one side, and national security on the other: which should prevail?  Yoo and Bradbury say national security, but I say they are wrong.

            Bearing in mind that torturing terrorists arguably saved lives, maybe thousands of them, and acknowledging that it is easy enough for me to say, not being one who has been victimized by terrorists or lost a loved one to terrorism, I still take my stance with the law and our principles.  No matter the cost, which may indeed be excruciatingly high and which I pray I am never personally called upon to pay, I say that our country should never, ever again engage in torture.  Period.  We should not do it because survival can come at too high a price.  If we lose our commitment to law, if we sacrifice our consciences in such a fundamental way, then there is little point in saving ourselves.

            And there are other reasons.  The warriors of the previous Administration (including Hayden and Mukasey in their op-ed) always sneer when it is suggested that our adversaries can be charmed or shamed into better behavior by our treating them with respect or obeying laws that protect them.  Over the short term, I agree.  But a little patience is required.  American humility and observing legal prohibitions will make us friends over the long haul.  Besides, if we torture al Quaeda’s fighters, we can expect no leverage with crucial third parties when al Quaeda’s friends torture our soldiers.  The Geneva Conventions are there to protect us too.

            Accordingly, Hayden and Mukasey’s argument that this trove of torture techniques is a weapon whose potential for reinstatement in our arsenal should be preserved seems just wrong to me.  I doubt the ruination, but, if ruination there be, so much the better.

            Disclosure in this instance had an additional salutary effect: it complied with the Freedom of Information Act.  That could be another column unto itself.  I will content myself here with observing that it is refreshing to see the Executive Branch complying with FOIA even when compliance may be awkward.  FOIA should be honestly administered.  It is dishonest to resist disclosure because of fear of embarrassment or fear of giving ammunition to the political opposition.  In releasing these memos, the Obama administration passed an important test.

            Of course, the other main reason Hayden and Mukasey argue against release is that it tends to facilitate sanctions against the theoreticians and the torturers and the people who directed the torture.  I’ll respond to those arguments next time.

Bonus Baby Befuddlement

           As a number of commentators have pointed out, the $165 million in AIG retention bonuses that have so preoccupied us all in the last couple of weeks are a mere distraction.  Our economy has huge problems to solve, and the bonuses are neither at the heart of the problems nor, in relative financial terms, even a drop in the bucket.  But unlike many aspects of the crisis, the bonuses are something most of us think we can wrap our minds around, and surely for that reason the politicians, tabloids, and other deep thinkers have dragged the rest of us into obsessing about them.   

          Most of us don’t credit ourselves with fully understanding the bonuses yet.  There are too many facts we don’t know as of this writing, like the names of the bonus babies, and exactly what they did to secure promises of such golden recompense for their labors.  We also don’t have a good grasp as of this writing on who in government knew, and  when, about the fact and the significance of the bonuses.  But we feel that the situation is potentially understandable – particularly if we drop into our mental summaries a few “black boxes,” i.e. things that we don’t have to understand how they work but only how they affect everything else, “black boxes” with names like credit-default swap and derivative. 

          But there’s more reason for the furor than the fact that this is a relatively comprehensible part of the present economic chaos.  The bonus babies in some ways challenge, in others rely upon principles about which right-thinking people are deeply concerned.  Settling on outrage as our only reaction may be understandable, but it is a cheap and facile way out.  For seldom have we seen situations where policies we rightly care about are more sharply in conflict.  It may hurt one’s head to think about it, but if we must obsess, we should do so honestly. 

          So let’s take a stroll:

 •        Distributive Justice.  Most of us feel that society’s wealth should be distributed with some modicum of fairness.  Not that everyone should get the same, but that everyone should at least get enough.  It goes without saying that right now lots of us aren’t getting enough.  Meanwhile many of the bonus babies at AIG are receiving what for most of us are enormous sums.

 And we know that the Babies are just the latest manifestation of something that’s been going more and more profoundly wrong in our society for some time: the rich getting richer and the poor getting poorer.  Reaganomics, practiced for a generation now, promised “trickle down,” backdoor distributive justice, if you will.  But “trickle down” simply didn’t happen.  What happened was tax cuts for the rich, huge pay for senior corporate officials and financial professionals, golden parachutes and games with options.  In practice a diminishing share of the enormous wealth that our corporations produced ended up in the pockets of shareholders, governments, or workers.  And this malign effect applied in good times and in bad.  Owing to guarantees like the ones the bonus babies at AIG received, the big guys profited immoderately whatever the financial results they produced for their enterprises.  In a phrase so common I cannot determine now who first coined it, we privatized our gains and socialized our risks.

 Under this arrangement, all potential downside was reserved for the rest of us.  Labor unions were systematically destroyed to keep down wages, companies boosted bottom lines by firing workers or shipping their jobs overseas, and shareholders who relied upon the companies in which they invested for their retirements found that they were generally the last and least paid.  As a result of this scheme of redistributing society’s wealth upward, people have been tumbling out of our middle classes amid foreclosures and bankruptcies.  Unemployment benefits have run out on untold workers whose actual state of unemployment has not run out.

 The recent election was surely a referendum on Reaganomics.  We’re going in a different direction now.  And surely under the new scheme, there will be much more searching scrutiny before an employer can promise staggering and nearly unconditional rewards like the AIG bonuses.  BUT …

 •        Fairness at the Cusp is a problem.  In general we feel that it isn’t fair to change the rules of the game once the play has started.  The bonuses in question were promised in April 2008, before the great recession got under way, and before the election that began the change of the rules.  When the bonuses were promised, distributive justice was not the rule of the economic road.  However much we dislike it, promises were made.  In general, we believe in keeping our promises.  AND …

 •        Impairment of Contract is something we really don’t like.  We hate it so much we wrote  into our Constitution a very explicit prohibition against state impairment of contracts.  Almost everyone agrees that contracts should be lived up to.  Everyone EXCEPT …

 •        Management-side employment lawyers who frequently find Reasonable Excuses for Nonpayment.  Among the many things we don’t know are the extent to which the AIG Financial Products employees lived up to the job requirements they promised to abide by.  On the face of the Employee Retention Plan, which is posted at http://www.scribd.com/doc/13395005/AIGs-Employee-Retention-Plan, it would seem likely that if their job was underwriting other people’s bets that subprime mortgages would hold up, then, yes, they lived up to their contracts.  One could argue, of course, that if following orders meant driving their company over the cliff, this might somehow be unacceptable performance no matter what the agreements said.  Many (although not Larry Summers) would think so.  HOWEVER …

 •        Nonpayment might not be prudent.  We all strongly support Salvaging Taxpayers’ Equity.  It’s said that even if the bonus babies made the wrong calls at one point, we have to remember how few people foresaw the systemic collapse we have all experienced.  It may not prove the Babies are worthless, and it certainly may not prove they’re dispensable.  Claims have been made that we can’t afford to lose these Masters of the Universe, that if they leave AIG and take their financial expertise with them, AIG will become far more of a worthless shell than it already is, because only they know how to unwind the complex toxic assets positions they helped create.  This is a factual call which further evidence will probably elucidate.

 Such claims are inherently dubious.  The Babies may in reality have little more savvy than the bond-broker’s kind of expertise so memorably demolished by Tom Wolfe in Bonfire of the Vanities (1987): “Daddy doesn’t build roads or hospitals, and he doesn’t help build them, but he does handle the bonds for the people who raise the money…. Just imagine that a bond is a slice of cake, and you didn’t bake the cake, but every time you hand somebody a slice of the cake a tiny little bit comes off, like a little crumb, and you can keep that…. If you pass around enough slices of cake, then pretty soon you have enough crumbs to make a gigantic cake.”  But maybe AIG’s obligations really are more like the doomsday weapon assembled by a James Bond villain, crafted by financial workers with highly specialized and unique skills, and you have to incentivize the bad guys to disarm it, because there’s no one else who can.  If so, then it might be a good idea to pay the extortion.  ON THE OTHER HAND …

 •        There’s the Moral Hazard to think about.  It’s not just AIG, after all.  It’s Bear and Lehman and Bank of America and Citi, and most of the A-List financiers.  It’s the geniuses at the hedge funds.  Our Best and Brightest, the products of Wharton and Darden and the London School of Economics, have failed us.  As President Obama put it, they drove the economy into a ditch.  Even if you think that in general the principle of distributive justice must take a back seat to incentivizing the Best and Brightest so they produce wealth for the rest of us, what do you do when the Best and Brightest lay an egg?  If they don’t get whacked hard, what will motivate them to stop laying eggs?  So paying the bonuses might be even more imprudent than not paying them.  BUT YOU NEED TO CONSIDER…

 •        The argument that these guys may really be only Whipping Boys.  Reaganomics wasn’t only about redistribution; it was also about hobbling government oversight of almost anything in which there was money to be made.  Sure AIG may have insured terrible bets on bad mortgages.  But it was government that had allowed the monster to grow: wiping out the boundaries between banks and insurance companies and brokerages, encouraging the unregulated growth of Fannie Mae and Freddie Mac and their loose ways with underwriting, looking the other way as brokers at Countrywide juked the numbers to qualify financially ineligible people for home ownership, failing to regulate the hedge funds or the rating companies at all, allowing banks to pile up toxic assets without proper reserves – and allowing irresponsible borrowers to victimize the rest of us with loans they should have known they could not repay.  The men and women who pumped up the froth at AIG were only doing what government policy was bent on having them do.  Where’s the fairness in penalizing them?

 Thus, in sum, the correct course of action here is – uh, I forget. 

      My only proposal: Take comfort that it’s just a sideshow.  We need to start lending up again, cut the deficit, cut unemployment, reignite the housing market, and re-regulate the economy.  As for the bonus babies, however we treat them, it’s all political theater.   I’m with Rhett Butler.  Frankly, my dear, I don’t give a damn.

 Copyright © Jack L. B. Gohn.   All rights reserved.

To Be A Lawyer and A Believer: A Two-Part Series

Part 2: Believer

 Originally Published in the Maryland Daily Record

            Last time I wrote about the impact of religious belief on the professional lives of lawyers, from the perspective of one who professes to be both a believer and a lawyer.  Now I want to turn to the obverse of that subject, i.e. the impact of legal training and experience on the lives of believers. 

            First, I need to, as the British would put it, declare an interest. I am what detractors would call a “Cafeteria Catholic.”  I turn to the faith in which I was raised for fundamental doctrine, I listen carefully to its teachings on moral principles, and I participate regularly in its rituals.  But I believe that God gave me a mind and a heart with which I am also expected to discern the truth, even though the truth they lead me to acknowledge, and the life I have led in consequence, do not conform entirely to Scriptural authority, ecclesiastical tradition, or the dictates of Church authorities.  To me, blind obedience and unthinking faith are a rejection of my God-given responsibilities, not the culmination of them.  I accept some but not all of what my church offers: hence the “Cafeteria” epithet, which I propose to use below merely as a descriptive label and not as a putdown.  To my observation, most lawyer-believers are Cafeteria. 

            To our religious belief and practice we Cafeteria believers, of whatever faith, apply the concepts, the outlook, the way of doing things that the rest of our lives teaches us will work. And as the law occupies a huge part of the lives of those of us who are lawyers, inevitably the lessons of our lives as lawyers get applied on a broad scale to our faith.  We lawyers immerse ourselves in the current of our times: government, economics, philosophy, mores, and outlook.  You could certainly argue that this worldliness is a huge mistake, a snare and a distraction, blinding us to the eternal truths of our faith.  To us Cafeterias, however, the distrust of the world urged by many faiths is the real mistake. 

            It used to be officially ok for my particular brand of believers, Catholics, to take their cues from the spirit of the times.  The very shape of the present-day Church was largely set by its decision, at around the time it evolved into the established church of the Roman Empire under the Emperor Constantine and his successors, to follow the governing model and way of doing things — in that era.  And the working model, the template, in that era was the Roman Empire itself: a centralized monarchy and bureaucracy with rules and standards and taxes imposed on the provinces by the monarch after only that degree of consultation which pleased the monarch. 

            Sadly, my particular Church has stuck to that ancient model through thick and thin rather than growing and developing together with its faithful as they and the world around them found ways better than Constantine’s.  Eventually, only the darkest and saddest places in the secular world were run the way my Church — to this very day — is run.  Whole books could be and have been written about the Church’s deterioration, and this is not the place to do more than mention a few examples: the decline in “vocations” to the clergy, the widespread promulgation of directives that command little respect or obedience, the frustration of the aspirations of women for leadership positions, the sex abuse scandals, and the rise of the competing model of Christian faith amongst evangelicals.  My Church is a mess, and the approach I inevitably apply to pondering it is a lawyer’s approach. 

            A lawyer learns that there are two fundamental organizational models that qualify as “best practices” within our civilization: public corporations and democratic governments.  Each form of organization contains strong elements of shared decision-making and accountability.  Corporations must hold regular shareholder meetings, put ultimate issues to a shareholder vote, disclose their important business data to the marketplace in carefully defined fashion, and are subject to various forms of liability to shareholders if fraud occurs.  Democratic governments incorporate checks and balances to prevent abuses of power, and are subject to recall or replacement at the hands of the electorate. 

            I said in my previous column that as a believer I cannot conceive that sacred and secular are separate spheres.  What we do as individuals and as societies, no matter how secular, is also spiritual.  And spiritually, we as a world have evolved from monarchy to democracy politically, and in the direction of public ownership and accountability in our economic affairs.  In the end every citizen and every investor has at least some say in the direction of the enterprise, and the accountability runs from the top to the bottom.  Why would God be leading us to that outlook in government and business, and to the opposite outlook in religion?  It does not add up. 

            Reinforced by my lawyer’s training and experience in this belief, I cannot readily turn it off when I enter a house of worship.  And I am totally unimpressed by any argument for ecclesiastical totalitarianism deriving its sole authority from the dicta of religious authorities that their church, or shul, or mosque is some kind of grand exception to the rules of accountability and consensus by which the rest of the world seeks to organize and govern itself. The dicta amount to a circular argument, corroborating one’s authority by reference to one’s authority. 

            In short, being a lawyer breeds a deep conviction that in matters religious “Cafeteria” is a good thing, if followed consistently, and not halted for, say, 16 centuries.  And it breeds a deep distrust of leaders claiming the right to dictate to others because – well, because they say so. 

            Along somewhat the same lines, lawyers tend to drink deep the Western World’s brew of continually growing pluralism and diversity.  This is always a tricky subject for any religion.  The default setting for most religions is typified in the words of the Muslim-slayer Roland in the 11^th Century French epic that bears his name.  Shortly before Roland falls in battle defending Charlemagne’s rear guard against Muslim soldiers, he utters this famous defiant phrase: “The Christians are right and the pagans are wrong, and bad example will never come from me.”   But take Roland’s saying, switch “Muslims” for “Christians,” and the resulting phrase is essentially the attitude of Osama bin Laden’s suicide bombers today. 

            We lawyers don’t play that, whoever’s speaking.  We accept that each denomination maintains that its own Scripture, theology, and moral code is the best.  But we also know that the world works best when the denominations don’t push the point.  This approach probably started out for pragmatic reasons.  A civil society cannot sustain too many St. Bartholomew’s Days (when the French Catholics massacred Protestants), or Kristallnachts (when the German Christians massacred Jews), or Salem Witch Trials, or, of course 9/11s.  Mutual religious tolerance and civil society are in fact inseparable for this reason.  

            But in the long experience with tolerance, a secondary consensus has grown stronger and stronger as well: the perception that all faiths are speaking of the same God, that God’s revelation to humanity is not exclusive to any one faith.  And, in short, that everyone has some piece of the Truth.  We do not forbid an established church in this country only because believers in other faiths would find it intolerable; we also do so because to establish one church alone would be bad for that church itself.  Churches need to be humble for their own good.

             Litigators can tell you that if there are a lot of witnesses to something, there is never total agreement among them on the details.  As you flip through the deposition transcripts, you see that being honest does not keep witnesses from contradicting each other.  Their chronologies differ, or their recollections of who said what.  And no one remembers that things went down the way the documents show.  And this is supposed to stop where the experience of God is concerned?  Remember, if you are a believer, what that experience is like: it is elusive, hard to pin down.  St. Paul (1 Cor. 13:12) says that in this life we see God as in a mirror darkly, and he’s ever so right.  Later on, Paul says, we’ll see God face to face.  Later, not now.  Right now, we have all these witnesses with similarly obstructed and unclear views and suspect recollection.  And their deposition transcripts, a/k/a scriptures, are inconsistent. 

            Given this reality, which is more probable: that one denomination would have flawlessly captured the truth about God and our proper approach to God, or that we are all a bit like the blind men encountering the elephant in the fable: each of them feeling and describing a different part, each of them right about what he feels, and none of them capturing the whole wonderful multifariousness of the beast? 

            It follows that when the unelected leaders of a faith tell us to go out and try to bend the political process and the laws to their concept of what God wants – say, outlawing abortion or gay marriage, or displaying 10 religious commandments as if they were the law of a secular land, or blocking condemnation of the violation of Palestinian human rights because the country doing the violating is someone’s religious homeland, or trying to impose Sharia on infidels and the unwilling, a person with my professional background is going to have two giant problems.  We will ask: who are these people to tell fellow-believers, in God’s name, no less, what their politics should be, and who are they to tell those outside the circle of their faith, those who do not share their outlooks, what the laws and politics should look like?  Silence and humility would be a much better response to all these leaders should know they do not know about God, or God’s will. 

            To a lawyer-believer, those faiths which are scripturally based — and this includes most of them — should be the humblest of all.  One thing we lawyers have learned how to do is read.  We parse texts, we ask rude best evidence questions, we want to know about the competency of the declarant-author.  When it comes to texts of any sort, we are the ultimate Doubting Thomases.  And if we subscribe to scriptures despite all that, we do it well aware we are dealing with documents that embody truth but not in the way a deposition transcript literally reports what was said. Scriptures are folk tales, scriptures are collections of epigrams, scriptures are poems, scriptures are feeble attempts to capture the ineffable experience of Divinity, scriptures are letters dashed out without methodical consideration in the heat of the moment, scriptures are codes of law reflective of less enlightened times.  Scriptures are built up in layers by different authors who may be writing at different times, for different audiences, for different purposes, even at cross-purposes. 

            Beyond that, the writers of scriptures didn’t know all that we know.  Neither Moses nor Jesus nor Mohamed nor the Buddha read Locke or Adam Smith or Darwin or Jefferson or Einstein.  They knew nothing of modern cosmology, economics, political science, psychology, or technology.  It is abusing scriptures to treat them as if they trump modern humanity’s knowledge and insights based on these sources.  For instance, as I said last time, a scripturally-based concern for the poor that treats the markets with disdain simply has little hope of aiding the poor, and, if it had any chance of being followed, would risk damaging everyone.  We understand markets in a way Jesus did not.  We understand the importance of lending at interest in a way that Moses, who forbade it (Deuteronomy 23:19), and Mohamed, who followed him in that regard (Koran, Surah al Baqarah, 275-280), did not. 

            That is not to say we ignore our scriptures, of course.  We build our faiths around them, and properly so.  But we should do so admitting how complex, how nuanced, how controversial, unprovable and eternally contingent our takes on those scriptures must be.  To try using state power or indeed force of any kind to inflict our scripturally-based views on those who believe differently or not at all shows insufficient humility before either God or humanity.  God rightly asks Job: “Where were you when I laid the foundations of the earth?”  (Job 38:4.) The certainty of fundamentalists of all stripes amounts to a claim that they were right there taking notes.  And that is gnostic foolishness. 

            I would imagine that there will be those who read this piece and the last and say that to be a lawyer and a believer along the lines I have reported is to carry cross-pollination to the extent where it might be better characterized as cross-pollution.  I respectfully differ.  I believe that what I have described is a position akin to that of most moderate men and women possessed of both bar cards and baptismal certificates (or whatever the equivalent might be in other faiths), and who take seriously the commitments implied in both documents.  I think they include some pretty good lawyers and some pretty good believers. 

            A lawyer’s worldliness is not the death of faith.  It may be the death of arrogant faith, of xenophobic or tribalistic faith, of fundamentalistic faith.  Of course one’s faith cannot emerge from the encounter unchanged, any more than one’s approach to one’s profession can.  Each will evoke a critique of the other.  This is not a cause for dismay.  To use the contemporary phrase, it’s all good.  If you do it right and consistently, everything gets improved. 

            And so I say: See you in court.  And at church.