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The End... and a new beginning.

Well, this blog ended some time ago, but I'll make it official. This is my last post. In a few weeks, I graduate from law school. Shortly thereafter I am told I have to take some sort of test.

Then, if all goes well and I jump through a bunch of hoops, I will make the following affirmation sometime in December: "I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability."

Seems simple enough. I do like the idea of pledging my allegiance to law above all else; there is no pledge to the country or its government. The oath is to the Constitution alone.

Unfortunately, in the past few weeks more has come out about members of my chosen profession failing (in my opinion) to uphold their oath. I am particularly saddened by the recently released torture memo signed by Jay Bybee, formerly head of the DOJ Office of Legal Counsel and current judge on the Ninth Circuit Court of Appeals. Relying on another memo he wrote, Bybee essentially authorized the waterboarding of Abu Zubaydah, which resulted in his being waterboarded at least 83 times in one month. A first-year law student should see the analytical mistake in the memos: they only present an advocate's view of the law of torture in an ostensibly objective legal memorandum. Further, scant attention is paid to the idea that while a single act may not be torture, repeated application or combinations of techniques can easily become torture (even if it were conceded that a single act of waterboarding is not torture, it is very hard to argue that simulating drowning almost three times a day for a month is not designed to provoke severe mental harm). But the substantive claims made are also wrong-headed, most notably the claim that a law attempting to restrict the President's ability to torture may be unconstitutional. The memos have been repudiated by subsequent Bush OLC administrations, but the damage - to America, to the profession, and to Abu Zubadaya's brain - has already been done.

But, there is also hope for the profession. Earlier this year Lieutenant Colonel Darrel Vandevelde, formerly of the US Army Reserve Judge Advocate General's Corps, filed this petition in support of the release of Mohammed Jawad, a Guantanamo detainee that Lt. Col. Vandevelde had been charged with prosecuting. He writes:

It is my opinion, based on my extensive knowledge of the case, that there is no credible evidence or legal basis to justify Mr. Jawad?s detention in U.S. custody or his prosecution by military commission. There is, however, reliable evidence that he was badly mistreated by U.S. authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad?s for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.

Lt. Col. Vandevelde goes on to describe his attempts over the course of more than a year to put together any sort of prosecution against Jawad, his eventual determination that Jawad was a minor at the time of his detention and incarceration, and his belief that he had suffered abuse at the hands of his American captors, including extensive sleep deprivation in Gitmo and physical abuse at Bagram, and that ultimately Jawad had been falsely accused of wrongdoing . Lt. Col. Vandevelde concludes:

Ultimately, I decided that I could no longer ethically prosecute Mr. Jawad or, in good conscience, serve as a prosecutor at OMC-P. I have taken an oath to support and defend the Constitution of the United States, and I remain confident that I have done so, spending over four of the past seven years away from my family, my home, my civilian occupation - all without any expectation of or desire for any reward greater than the knowledge that I have remained true to my word and have done my level best to rise to our Nation's defense in its time of need. I did not "quit" the Commissions or resign; instead, I personally petitioned the Army's Judge Advocate General to allow me to serve the remaining six months of my two year voluntary obligation in Afghanistan or Iraq. In the exercise of his wisdom and discretion, he permitted me to be released from active duty. However, had I been returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad in either of those hostile lands, where two of my friends have been killed in action and another one of my very best friends in the world had been terribly wounded, I have no doubt at all- none - that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecutor. Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand. I respectfully ask this Court to find that Mr. Jawad's continued detention is unsupported by any credible evidence, any provision of the Detainee Treatment Act of 2005, the MCA, international law or our own hallowed Constitution. Mr. Jawad should be released to resume his life in a civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.

I humbly hope that I may live up to Lt. Col. Vandevelde's expectations as to the importance of our oath. I hope you might help me along the way. Take care of yourselves,

Dave

Full post as published by Traditional Notions on April 27, 2009 (boomark / email).