Yesterday, the Subcommittee on Administrative Oversight and the Courts of the Senate Judiciary held a hearing on the topic “What Went Wrong: Torture and The Office of Legal Counsel in The Bush Administration.” Michael Stokes Paulsen, Distinguished University Chair & Professor of Law at The University of St. Thomas (and author of some sixty articles on national security, separation of powers, constitutional law and interpretation, and Attorney-Advisor in the Office of Legal Counsel of the U.S. Department of Justice from 1989-1991) submitted testimony. In scholarly and measured terms, he explained that in fact “nothing went wrong.” Unfortunately the full testimony is not available online but I will briefly summarize his argument.
Paulsen makes four points. First, he argues that the legal analysis of Jay Bybee and John Yoo was correct:
There exists a basic distinction in the law between what constitutes actual, legal “torture,” under applicable standards, and what may be harsh, aggressive, unpleasant interrogation tactics but not, legally, “torture.” Reasonable people will come to different conclusions as to where precisely that line is, but the Bush administration’s lawyers’ ultimate conclusions are certainly defensible. Indeed, I believe they are ultimately correct, both as an abstract, general matter and in their specific application (matters addressed in a variety of separate OLC memoranda). I do not necessarily agree with every particular point, or argument, . . . [but] [n]onetheless, I believe that OLC’s essential statutory conclusion that “torture” refers to a narrow, highly specific subcategory of coercive interrogation techniques, is correct. As a legal matter – that is, as a matter of the objective meaning of a particular statutory term-of-art – the term “torture” may differ from, and be more specific than, commonplace or public political usage. That is the distinction that the memoranda draw; and they draw that distinction on the basis of specifically legal analysis.
Second, he contends that,
even if one disagreed with the statutory and constitutional analysis in the OLC memoranda in question, or with the application of that analysis to specific facts, the OLC legal analysis and advice clearly falls within the range of legitimate legal analysis and the range of reasonable disagreement common to legal analysis of important statutory and constitutional issues. Not all lawyers agree on all legal questions. This observation is so obviously true as to be almost trite. Nothing is more common than for lawyers, each acting in entire good faith and employing sophisticated analysis, to reach differing conclusions.
Third, Paulsen argues “it is important to recognize the clear distinction between a lawyer’s opinion on questions of legalityand endorsement of a client’s actions themselves. The former in no way implies the latter.” Finally he contends:
I believe it is both shortsighted and foolish to seek to punish lawyers of a prior administration because of disagreement with the content of their legal advice. In addition to reflecting a basic misunderstanding of lawyers’ roles, such an approach unquestionably would have the effect (and probably already has had the effect) of chilling both valuable government service by talented attorneys and the candor, quality, and vigor of the legal advice provided by those who agree to serve as government lawyers in important roles. If a government attorney’s legal advice in the service of one administration is subject not only to being reversed in a subsequent administration of different views (as is common, reasonable, and sometimes to be expected), but, further, also made the subject of retrospective investigation, punishment (in various forms), and personal attacks, there is no question that the attorney’s advice will become more guarded, tepid, inhibited, over-cautious and – in many cases – ultimately unsound. This will be true of Democratic administrations as well as Republican administrations.
One need not agree with the first point to see that the second, third and fourth are virtually incontrovertible. One wonders on what basis then the Obama Justice Department is considering legal action against Bybee and Yoo. Perhaps the same mentality is at work which suggested the president should have passively accepted the Second Circuit decision ordering release of the inflammatory detainee photos.
One hopes that analysis receives a thorough review and appropriate skepticism and that the points raised by Professor Paulsen and others are duly considered. Ultimately, this is the president’s call and he, as he did in the detainee photo matter, has every reason to avoid a dangerous and explosive course of action.
