Three Takes on the Torture Memos

Ohio State Law Professor Peter Shane served as Attorney-Adviser in the Department of Justice’s Office of Legal Counsel from 1978 to 1981.

Today, he provides three takes on the torture memos. He ends with:

When I read the just-released opinions, I felt like throwing up. As an American, as a lawyer, as an OLC alum, I cannot help but take this personally.

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    Shepherd Smith agrees (5.00 / 1) (#3)
    by otherlisa on Thu Apr 23, 2009 at 12:59:08 AM EST
    You gotta watch this clip on Fox News. Shep drops the F bomb. I couldn't agree more.

    wow (none / 0) (#9)
    by txpublicdefender on Thu Apr 23, 2009 at 09:55:02 AM EST
    I love Shepherd Smith for that.  And what a douche that Trace Gallagher looks like.  "You have to recognize there are two schools of thought . . . I'm not saying torture is right or wrong."  No, clearly, you aren't, you moron.

    I particularly loved how Shepherd Smith said that he didn't care whether it worked or not, torture was wrong and anti-American.


    The memos are not a serious attempt (5.00 / 1) (#8)
    by BobTinKY on Thu Apr 23, 2009 at 09:39:10 AM EST
    to find out what the law is.  The contortions set forth in the memos were necessary in order to arrive at what these lawyers were told the law should be, or needed to be.

    Until Professor Shane moves to impeach, disbar (none / 0) (#1)
    by jerry on Thu Apr 23, 2009 at 12:03:11 AM EST
    then I ain't so impressed with him, or *any* other lawyer who I read crying about the lawyers that wrote these memos.

    So far, I hear a whole lot of hot air, but not a single lawyer in the country has done one thing to disbar or impeach these guys.

    He takes it personally.  Blah blah blah.

    You must be new to the site (none / 0) (#5)
    by scribe on Thu Apr 23, 2009 at 04:31:41 AM EST
    because if you'd have been here the last three (or is it four) years you would know a whole bunch of us lawyers have been working toward just those sorts of resolutions.

    But, it would seem, you just have little clue about how difficult it truly is to (a) get an attorney or other professional disbarred or deliscensed, particularly when those professionals have the backing (to whatever degree) of the President and (b) to even get information out of the Bush administration.

    We've been hammering away at these issues for years now.  Where have you been?  You sound like a barroom philosopher who has all the answers and can solve all the problems of the world in five minutes or less.  That guy's solutions often resolve to "he'll do it or else", when it comes to some recalcitrant opposition.  Maybe you aren't that guy, but you sure sound like him.


    I have you all wrong then (none / 0) (#7)
    by jerry on Thu Apr 23, 2009 at 09:36:39 AM EST
    Exactly, specifically, what have you done to impeach or disbar Bybee or Yoo?

    Gosh, for someone who has so much (5.00 / 2) (#10)
    by Anne on Thu Apr 23, 2009 at 10:12:41 AM EST
    contempt for the lawyer/author of the cited article, for the legal profession in general, and still, I think, for scribe, I'm shocked that you have not attempted to really put us all to shame by  recounting all of YOUR efforts to get these guys impeached and/or disbarred.

    I'm pretty sure - any of the lawyers here can let us know - that one doesn't have to be a lawyer to make a complaint, or sign a petition - both FDL and Think Progress have one - or write a letter to the editor of your local paper, or the paper in whatever city the memo-writers are.

    So, spill, jerry - what are YOU doing???


    As an engineer not a lawyer (none / 0) (#12)
    by jerry on Thu Apr 23, 2009 at 11:59:45 AM EST
    I suggest that I go after engineers for malpractice and suggest that the lawyers, who are members of the profession, members of the bar, members of the ABA, peers in the courtrooms, peers in the law departments of the universities are best able to understand just how to go about getting these guys impeached and their law licenses yanked.

    What I've seen for years now is lots of crying by lawyers but I have not heard of a single petition being filed with the appropriate state bars or in any court.

    Is this talk talk talk left or will any of you crumbs get out of your chair and do something?

    Apart from signing all the relevant petitions, I have participated by trying to carry the specific legal analysis from one forum to another, that is, which state bar has power of Yoo and where to file that petition.  And while that petition could conceivably be written by an engineer unqualified in the law and living 1500 miles away, just think how much more power it would have should any of the zillions of lawyers who are shocked, shocked, at torture do one damn thing about it besides writing op-eds.

    Here is Professor Shane's bio:

    Professor Shane came to Ohio State in 2003 from Carnegie Mellon University's H. John Heinz III School of Public Policy and Management. He is an internationally recognized scholar in administrative law, with a specialty in separation of powers law, and has co-authored leading casebooks on each subject. He has served on the faculty at the University of Iowa College of Law and was dean at the University of Pittsburgh School of Law.

    In addition to his outstanding law teaching and scholarship, Professor Shane has received a National Science Foundation grant for interdisciplinary study related to cyberspace and democracy. At Ohio State, he provides strong leadership in interdisciplinary scholarship and teaching.

    The guy is a full professor, former Dean, internationally respected scholar, and almost certainly tenured.

    He is shocked, shocked to find their was torture going on.

    And scribe and many other lawyers have his back, tut tutting the whole way.


    Wonderful analysis (none / 0) (#2)
    by good grief on Thu Apr 23, 2009 at 12:06:15 AM EST
    I've been waiting to hear this:

    Lost in this nonsense is the actual role of government lawyering. Perhaps the most important reason we have government lawyers is to "take care that the laws be faithfully executed" even when laws are ambiguous and especially when no one is looking.

    The politicization of the Justice Department and of the rule of law was among the worst offenses of the Bush administration. How to make it right or "accountable"? I thought prosecution was the best answer until I heard Elizabeth de la Vega on KO's show today make a point about how a special counsel and grand jury might "close off the public narrative." How accountability is achieved she didn't say (she's a committed progressive), but she seems to think there is no slam dunk on indictments, just as happened with Libby whom Fitz got on perjury but nothing of substance. The whole Plame case went under the rug. Documents related to torture and illegal surveillance would fall under GJ secrecy as well, so we might end up blind and without any accountability at all.

    De la Vega believes this is happening now with special counsels looking into the CIA tape destruction and the US attorney firings. They are ways of taking these cases off the public front burner, shutting them up and burying them. A truth commission, however, seems to me toothless.

    This is mildly off thread, then yet again it opens an area right to the point that needs further debate as raised by Mr. Shane.

    I'm gonna look at Shane's new book on executive power, Madison's Nightmare: How Executive Power Threatens American Democracy, since it seems to me that's the big frame not being addressed as well as it should -- how to bring the Executive Branch back into the balance of powers. Obama doesn't seem to have much interest in righting this balance, so "we the people" have to do it -- somehow. Ha! Where are the Founding Fathers when we need them? We're awash in a gigantic Constitutional crisis with a hyper-political president who studied the Constitution in law school but apparently didn't take notes. It's worrisome.

    National Security... (none / 0) (#4)
    by Fabian on Thu Apr 23, 2009 at 03:59:29 AM EST
    A Truth Commission sounds like a good idea to me until I wonder how many times National Security would be invoked to keep documents and testimony from the public eye.  

    Perhaps if I hadn't seen it done time and time again in the past eight years, I wouldn't be so cynical.  The Bush administration was very keen on the Unitary Executive model and found ways to strengthen it and defend it.  Is the Obama administration is planning on dismantling or abandoning the Unitary Executive?


    good grief is on target (none / 0) (#6)
    by joze46 on Thu Apr 23, 2009 at 06:37:48 AM EST
    Ohio State Law Professor Peter Shane said?

    "This is an amazing performance . . . . In defining `severe pain' for emergency health insurance purposes, Congress was presumably creating a very narrow entitlement to fill a hole in a much more comprehensive scheme of health insurance. This has nothing to do with levels of brutality appropriate to military detainees. Looking at health insurance statutes to determine the meaning of torture is a little like defining the rules in a `court' of law by looking up the rules that apply to a basketball `court.'  It is more of a play on words than serious lawyering."

    Here is what jumps out at me with this Professor's statement and which seems that he is a person of compassion looking for "natural laws" that help the electorate. Showing American in this article how the government does create standards. Here, through torture, a forced principle to define insurance guidelines in the American free market! Yikes, Very extraordinary and is this the real reason for the defense of water boarding. Sheesh, likely America needs to look at all those government standards Bush and Company installed.  

    But when I  watch Joe Scarbough on MSNBC presenting his arguments  with what seems to be the attitude of ha, ha I know something you don't know. Which he does know, a great deal, and has known for some time. As in this latest issue of torture, the news organizations being embedded in the war  and making a definition, with forced interrogation is striking, astounding and morally diminishes the basic American dream. He is a fool for avoiding to  report this very important fact. Americas morality in the free market freedom of speech has breached the basic meaning this discussion, totally is evidence of how free speech treachery by corporate entities is wrecking America.    

    More over this coupled with the national election data bank information MSNBC and the two CNN, and FOX on a continuous bases showed during the election the American news networks ability to identify the economic categories  with very instant demographic reliable reports are definitely controlling the news. What I am trying to say is these reporting agencies these networks know what is happening in this inner circle of the political struggle yet always appearing to ask questions like they do not know what is ahead or what is going on. This is the perfect evidence of the networks complicity with powerful political connections to be able to govern through media persecution. They do it every day which is wrong.

    These network have brought America to this point in this crisis especially now defining insurance rules for emergency health care! My God, My God My God...these issues needs to be totally transparent, everyone involved needs to fess up. Thank you Jeralyn, and thanks to all on this blog to present this in a rational and functional way. This has to be that high stake Bush was taking about. Bush has to have the worse mind anyone in politics could have for centuries...

    This is a high stake issue based on torture? My God My God My God!!! This has to be the most evil thought I ever believed I would think about in a debate for the pursuit of happiness.  

    Where did I hear this? (none / 0) (#11)
    by nellre on Thu Apr 23, 2009 at 10:46:10 AM EST
    Years ago someone in the Bush administration said they made their own truths.

    They made stuff up as they went along to nourish their delusions.

    Law, Science, Intel... all of it.