Sunday, June 13, 2004

 

It depends on what the meaning of the word "law" is ... [updated 6/14]

When Bill Clinton was asked before a grand jury if telling his aides that he was not having an affair with Monica Lewinski was a lie, he made what will unfortunately be the most remembered response of his presidency.
It depends on what the meaning of the word "is" is. If the--if he--if "is" means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement....Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true.

As it turned out, "is" does mean is, even when rendered into the past tense, as in "Was that your penis in her mouth?" In the end, there was a lot more brouhaha about the "is" than about the penis. And I do not wish to deprecate Mr. Clinton in any way.

George Bush, unfortunately, has not learned from his predecessor. Don't parse questions! Especially if you're George Bush. Especially if you don't know what "parse questions" means.

But alas, I fear he has attempted the impossible, and I believe he's going to end up with a bigger one in his mouth than Clinton's—legalism, that is.

Since the nation, having gone into collective mourning for Ronald Reagan, was somewhat less than glued to President Bush's post-G8-summit press conference, I'd like to share what you may have missed. [Italics are mine.]
QUESTION [David Sanger, NY Times]: Mr. President, the Justice Department issued an advisory opinion last year declaring that as Commander-in-Chief you have the authority to order any kind of interrogation techniques that are necessary to pursue the war on terror. Were you aware of this advisory opinion? Do you agree with it? And did you issue any such authorization at any time?

THE PRESIDENT: No, the authorization I issued, David, was that anything we did would conform to U.S. law and would be consistent with international treaty obligations. That's the message I gave our people.
From this point in the press conference, Bush sticks to his one idea—It all depends upon what the definition of "No" means. But along the way he lets some information escape.

First, the President is acknowledging here that he issued at least one authorization, which in the context of the question must relate to the use of force in interrogation.

Now I do not believe for a moment that he was—or at least that his advisors were—dumb enough to issue a Presidential authorization going like this:
Under the authority of the President, anything is permitted. And while you're at it, kick some ass for me!

A more considered memo would say:
The President hereby authorizes all field commanders of the U.S. military, all other agencies of the U.S. government and any civilians under contract with the U.S. government to take whatever action necessary with regard to prisoners, so long as those actions are pursuant to U.S. law and consistent with international treaty obligations. Any question with regard to the legality of a particular action should be submitted for review to the Department of Justice.

Since you already know that Justice has said you have the authority to do whatever you damned well please, you have just created what is known as a "bureaucratic singularity," to borrow from black-hole theory.

Ah, but does Bush know about that Justice department opinion?
QUESTION [still Sanger]: Have you seen the memos?

THE PRESIDENT: I can't remember if I've seen the memo or not, but I gave those instructions.

So President Bush has made an authorization that contained instructions. As for his recollection of that Justice department memo, he pulls a "Reagan." But would Bush issue an authorization without running it by Justice? I think not.

Of course, that's not the same as saying that the authorization contains anything for which the Justice department memo would be relevant. It may be perfectly innocent. If you'll show me yours, I'll show you mine.

Later, a reporter presents a hypothetical question—
QUESTION: Returning to the question of torture, if you knew a person was in U.S. custody and had specific information about an imminent terrorist attack that could kill hundreds or even thousands of Americans, would you authorize the use of any means necessary to get that information and to save those lives?

THE PRESIDENT: Jonathan, what I've authorized is that we stay within U.S. law.

That's downright ominous if you think he's thinking what the Justice department is thinking.

Finally, the BBC gets to the point.
QUESTION: Mr. President, I wanted to return to the question of torture. What we've learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law. So when you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting. This is a moral question: Is torture ever justified?

[The reporter takes special care here to emphasize that he is asking a question about the morality of torture, not its legality.]

THE PRESIDENT: Look, I'm going to say it one more time. If I -- maybe -- maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out of -- from me to the government.

Here he's beginning to get weird. "You might look at those laws, and that might provide comfort for you"? As for answering the question "Is torture ever justified?"—he returns to his legalism.

At this point, President Bush attempted to leave, but was held by a question about Saddam's pistol, which I will leave for another day.

So far the media have done their usual shoddy job of pointing out the President's efforts at legalism.

CNN.com has one of the more accurate accounts, but it makes no effort to "connect the dots."

The Detroit Free Press opens with "President George W. Bush said Thursday that he ordered American troops to follow U.S. laws and international treaties banning torture, but he sidestepped a question about whether torture was ever justified." The casual reader of the article will take that as a Presidential reassurance. I fear that that sort of report is typical.

Anyway, we must hope that in the end, it's all going to depend upon what the definition of "law" is.

UPDATE

Late on Sunday, Washingtonpost.com carried a strange little story by Dana Priest that announced that the Post was putting the August 1, 2002 memo (PDF) by the Office of Legal Counsel online. This is one of the memos that Ashcroft refused to release to the Senate.

Priest writes,

The Office of Legal Counsel is the federal government's ultimate legal adviser. The most significant and sensitive topics that the federal government considers are often given to the OLC for review. In this case, the memorandum was signed by Jay S. Bybee, the head of the office at the time. Bybee's signature gives the document additional authority, making it akin to a binding legal opinion on government policy on interrogations. Bybee has since become a judge on the 9th U.S. Circuit Court of Appeals.

Another memorandum, dated March 6, 2003, from a Defense Department working group convened by Defense Secretary Donald H. Rumsfeld to come up with new interrogation guidelines for detainees at Guantanamo Bay, Cuba, incorporated much, but not all, of the legal thinking from the OLC memo. [Italics mine]

Clearly WaPo is hedging its bets here, since neither you nor I nor the Washington Post knows what an opinion "akin to a binding legal opinion" is.1

What impresses me, though, is that the Post seems to be turning up the heat. Dana Priest is a good reporter and covers the intelligence community, among other things.

I'm not suggesting that we pin all our hopes on the Post, but aside from the NY Times, it is about the only medium left with the power and connections to do serious investigative work into the government. Now let's hope that they have the will to do it.

Footnotes

1 The article ends by linking to the Post's version of the transcipt to which I linked above, with the odd remark in the final paragraph that
The Post deleted several lines from the memo that are not germane to the legal arguments being made in it and that are the subject of further reporting by The Post.
This was so intriguing that I compared the two transcripts rather carefully (using software), and could not find any differences other than format and banter. Then I realized that the critical word here is "memo." It is the Justice department memo from which they have removed some lines. [back]
"You might look at those laws, and that might provide comfort for you. And those were the instructions out of -- from me to the government".

not comforted at all. one can not be comforted by the words of a war criminal. especially one who maintains that after 9/11 he is the law.

good post. look forward to comments about the gun. however you viewed this illegal invasion in the beggining, it has all gone horribly south, as the best laid plans of mice and men oft do. i knew we were in big trouble when, invasion complete, tommy franks shows up in one saddams palaces to have hisself a post invasion cigar, and prop his boots up on the furniture.
Bush/Cheney 2004: Hubris which knows no Bounds
 
Not sure why everyone gets the Clinton quote circumstances so wrong. I guess that it's because a more accurate rendition wouldn't be so damning to his reputation.

He wasn't talking about anything he said himself. He was being asked why he didn't instantaneously CORRECT HIS ATTORNEY'S claim in the deposition, as if he had ANY obligation to correct Robert Bennett's statement in the first place, that there 'is' no relationship, when the 'relationship,' meaning sex play, had been over for a year and half. The way we might say truthfully, there is no USFL or XFL (now), not to deny their past existence, but to deny their continued existence to current times.

Clinton was pointing out, without torturing the language (even though he was entitled to order the torture of the language, per the Bush memos, LOL!), that he was being asked why he didn't 'correct' his attorney's actually (or at least arguably) accurate statement, and asked whether he agreed that Bennett's claim was true. By a standard usage we all can understand, and use ourselves, Clinton said what Bennett had said was true. He might have added, 'and since when am I under any obligation to correct my hired attorney's remarks, even if false, unless I'm asked about it at the time.' (He appeared to have nodded, but made no comment, pro or con Bennett's characterization at the time, nor was he asked to do so).
 
Anonymous,

Thanks for giving the detailed background on the Clinton quote. I relied upon Chatterbox's description at Slate (http://slate.msn.com/id/1000162/).

I might have investigated it further, but the circumstances were peripheral to my purpose in citing it.
 
When an administrative agency puts out written directions, that cover the administration and rules of the agency that they run, those directions carry the force of law, unless they are struck down by a court. Courts usually show great deference to administrative decisions.

I *think* that's what they meant
 

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