Florida

Judge Jay Bybee, Legal Scholar.

Hi kids!

This time I mean it literally.

Kids who are at work today with your parents, this is what your parents do when they go to the office. They waste time and slack off in front of the computer -- just like you!

Except when they are done, they type the following:

"2.9 -- Professional development -- review new legal opinions and local bar news and analyze same."

See how easy it is to be a lawyer??

I haven't written much on these torture memos, because there is so much good content out there already. In particular I'm talking about Glenn Greenwald's ongoing takedown over at Salon, as well as UM Law Professor and uber-nudge Michael Froomkin, who has written in my view the definitive short take on the matter at his overly busy, cluttered yet entertaining blog here.

Personally, I am endlessly fascinated by the August 1, 2002 memo by then-OLC lawyer and now sitting 9th Circuit Judge Jay Bybee(!).

It's fascinating not because it is a shamefully hackneyed effort to paper over torture methods already in use and which now apparently require official legal sanction. That's obvious.

Bureaucratic hacks in a government that is based in law and has at least a mild legal tradition have always written these types of memos. I'm thinking of British memos relating for example to suppression of the Mau Mau rebellion, Nazi-era memos such as the Wannsee report or "Night and Fog" decree, even legal decrees coming out of the old Soviet Union. Hail, you can throw in the Dred Scott decision while you're at it.

What's fascinating to me is how shockingly bad it is as legal scholarship. No discussion of contrary caselaw or existing historic and legal traditions relating to the proposed torture techniques, no analysis of legislative history, no effort at statutory construction, and conclusory in the extreme to the point of parody.

Professor Heller points out that there is direct precedent relating to Nazi lawyers who approved or failed to object to "legal" activities that were nonetheless crimes against humanity. Anyone who has saw Judgment at Nuremberg knows that lawyers and judges -- acting legally in some technical sense -- must nonetheless be held accountable for the rule of law to be vindicated.

The fact that certain torture methods may have "worked" is meaningless to me. That is not the test and never was. If raping a suspect's daughter in his presence "worked" would that make it right or appropriate? How about slicing off an ear -- of course, only if it "worked."

The slippery slope speaks for itself -- or should, especially for conservatives who make fun of Stanley Fish-style "situational ethics" and think absolute values endure regardless of time, place, or emergent conditions.

There, now I'm going back to dreaming of the princess.

Full post as published by South Florida Lawyers on April 23, 2009 (boomark / email).