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A Defender of the Rule of Law Waits in Legal Jeopardy, While Abusers are Doing Well

By Jack M. Balkin

Mr. Thomas Tamm, a former employee of the Department of Justice, has lost everything and lives under the threat of criminal charges. He is in trouble for defending the rule of law.

We?ll get back to Mr. Tamm in a moment, but first a few words about abusers of the rule of law who are doing just fine. As Jack notes below, the Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody, chaired by Senator Carl Leven (D) and Senator John McCain (R), recently issued a summary of its Report. News accounts of the Report emphasize that it places responsibility squarely on Donald Rumsfeld and other higher ups.

But what really stands out about the report?what the report itself emphasizes?is the pivotal role legal opinions issued by the Office of Legal Counsel (OLC) played in the authorization of torture. This story has been told many times, but nowhere so explicitly by an authoritative, nonpartisan body.

The Report suggests--without saying so conclusively--that Jay Bybee and John Yoo of the OLC, prior to producing the "torture memos," had knowledge of the abusive techniques interrogators wished to use on detainees (Bybee admits general awareness; Yoo refused to answer the question, but Bybee indicates that Yoo was present at relevant discussions. p.xvi). The interrogators worried that these techniques violated legal restrictions against torture--a sensible concern since the techniques came out of SERE, a manual on torture. They wanted legal cover.

Below are three key findings taken from different parts of the Report that highlight the link between the memos and ensuing abuse:

1. "The first Bybee memo, dated August 1, 2002, had concluded that, to violate the federal torture statute, physical pain that resulted from an act would have to be 'equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.' Mr. Yoo?s March 14th memo stated that criminal laws, such as the federal torture statute, would not apply to certain military interrogations, and that interrogators could not be prosecuted by the Justice Department for using interrogation methods that would otherwise violate the law." (xxii)

2. "The Central Intelligence Agency?s (CIA) interrogation program included at least one SERE training technique, waterboarding. Senior Administration lawyers, including Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, were consulted on the development of legal analysis of CIA interrogation techniques. Legal opinions subsequently issued by the Department of Justice?s Office of Legal Counsel (OLC)[by Bybee and Yoo] interpreted legal obligations under U.S. anti-torture laws and determined the legality of CIA interrogation techniques. Those OLC opinions distorted the meaning and intent of anti-torture laws, rationalized the abuse of detainees in U.S. custody and influenced Department of Defense determinations as to what interrogation techniques were legal for use during interrogations conducted by U.S. military personnel." (xxvii)

3. "Department of Defense General Counsel William J. Haynes II?s direction to the Department of Defense?s Detainee Working Group in early 2003 to consider a legal memo from John Yoo of the Department of Justice?s OLC as authoritative, blocked the Working Group from conducting a fair and complete legal analysis?.Reliance on the OLC memo resulted in a final Working Group report that recommended approval of several aggressive techniques, including removal of clothing, sleep deprivation, and slapping, similar to those used in SERE training to teach U.S. personnel to resist abusive interrogations." (xxviii)

Bybee is a sitting federal appellate judge; Yoo is a law professor at one of the top law schools in the country.

Thomas Tamm, in comparison, lost his job, and has lived for more than two years in fear of prosecution by the Department of Justice. Department investigators have searched his home, interviewed in his family and contacts, and are contemplating whether to file criminal charges. He has been criticized ?as a renegade who took the law into his own hands and violated solemn obligations??

What were Tamm's heinous crimes? He blew the whistle on the Bush Administration?s illegal secret wiretapping program.

After being warned to silence by higher ups when he raised questions about the legality of the program, Tamm contacted a New York Times reporter and expressed his concerns that the Administration was violating the law. Tamm did not provide any details of the program (which he knew little about). A year and a half later, following an exhaustive investigation, two reporters broke the story that exposed the illegal program.

A Newsweek article about Tamm asks ?Is he a hero or a criminal??

Of course he?s a hero. Tamm risked everything to defend the law against an Administration that systematically engaged in violations of the law. He lost his career as a result?with his freedom still at risk. Fortunately, the new Administration will make the decision on whether to prosecute Tamm. Let?s hope they act with alacrity to remove the cloud hanging over him.

Law and order types might be outraged if Tamm is allowed to escape criminal sanction for his unauthorized disclosures. But what about the Bush Administration officials whose conduct to skirt the law provoked Tamm?s actions in defense of the law?

All signs suggest that the Obama Administration will not likely pursue criminal charges against Bush Administration officials who engaged in or facilitated illegal activities (much of which has been immunized anyway). To pursue such charges would be explosive and divisive, and might cripple the effort to move forward. As Jack suggests below, however, there is every reason to insist that these machinations be fully investigated and exposed.

The Obama Administration can also do something more positive. It can honor the individuals who heroically stood up for the rule of law against the Bush Administration. Thomas Tamm should be on that list, along with Alberto Mora, the Navy?s General Counsel, as well as a few others (including several stalwart conservatives).

Imagine the perfect symbolism if these individuals, several of whom sacrificed their careers to do the right thing, were to receive Presidential Medals for their conduct in resisting a president who acted above the law.

Full post as published by Balkinization on December 15, 2008 (boomark / email).