http://tpmcafe.talkingpointsmemo.com/2009/04/29/that_article_17_problem/That Article 17 Problem
By Scott Horton - April 29, 2009, 4:06PM
Today it looks like the international interest in prosecuting the Bush lawyers is heating up once again. The Spanish central criminal court has apparently decided, notwithstanding the Spanish attorney general's intervention, that it will charge forward in the case against the Bush Six. Indeed, it seems to be reading all the documents that come out of Washington as they break, because the investigating magistrate has expanded his case to take into account and he opinion reflects special attention to the OLC memoranda and to the Senate Intelligence Committee's play-by-play recounting of the steps involved in the creation of the OLC memos. At the same time, Judge Jay Bybee, who has kept quiet up to this point, has decided to answer a series of questions put to him by the New York Times. He wrote those opinions in good faith, he insists to the paper of record. He holds to the same views today.
My, Jay Bybee sounds an awful lot like his fellow memo writer, John Yoo. No apologies. Not even an "oops, I must have missed that case."
But there's a reason for all this. Jay Bybee and John Yoo are both good enough lawyers to realize that their best defense to the criminal charges that are now hurdling their way (first from Madrid, but perhaps from Washington a little later) is to argue "good faith." Namely, they must insist that the memos reflect their best effort at legal analysis and the views staked out in the memos are views they honestly reflect. And this is a point that civil debate will almost immediately concede to them.
Let me go on record.
I consider this "good faith" defense to be a sure looser. Why? Neither Bybee nor Yoo is an incompetent lawyer. But these memos are legally, professionally incompetent. And there is a reason why. Bybee and Yoo strained to give their friends in the White House (and the CIA) "clean opinions," unencumbered by a real discussion of the law. So even the 1983 Reagan administration waterboarding prosecution is suppressed, not to mention the long list of earlier cases (some of them meting out capital punishment to the offenders--something you think the reader might want to know, right?) Did Bybee and Yoo just miss this? Did the Department of Justice forget to pay its Lexis bills? Were all those volumes of case reports just checked out of the library? Fat chance.Karen Greenberg's book, Least Worst Place, gives us a very compelling answer. It's found in a passage in which Will Taft (who emerges from all of this as a minor hero who genuinely believes the values that he articulates) relays a discussion he had with John Yoo.
He didn't understand why there was such ferocious pushback against the Geneva Conventions--why not just accept and live with these standards? America had done so for fifty years. The room got quiet, and Yoo said, "We have an Article 17 problem."
That was a key point. Article 17 says, "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war," and John Yoo and the others did not want to have to agree to that. Taft understood what was going on, and he fought back. The State Department team wrote a memo calling Yoo's opinion "seriously flawed" and "fundamentally inaccurate." They were saying that John Yoo's lawyering was incompetent.
But we learn from Greenberg's book that there was a point to all of this.
Yoo's analysis of the law was dishonest. It was driven by a need to get a certain result--to introduce a system of torture of the prisoners. He was intent on twisting the law to get all the restrictions out of the way.
Good-faith opinion writing? I think not.
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