The most half-assed lawyering in the history of half-assed lawyering

>> Friday, July 16, 2010

In closed-door testimony before the House Judiciary Committee on May 26, the former official, Judge Jay S. Bybee, said the Central Intelligence Agency never sought approval for some practices detainees later said had been used on them, including dousing them with cold water to keep them awake and forcing them to wear diapers or soil themselves.

"Those techniques were not authorized," he said, according to a transcript released Thursday by the committee.

But Judge Bybee strongly defended the legal advice he did provide to the C.I.A. in 2002 that waterboarding, wall slamming and other methods used by C.I.A. were lawful.

"We took a muscular view of presidential authority," Judge Bybee said, "We were offering a bottom line to a client who wanted to know what he could do and what he couldn't do. I wasn’t running a debating society, and I wasn't running a law school."

-Charlie Savage and Scott Shane,
"Bush Aide Says Some C.I.A. Methods Unauthorized"
New York Times, July 15th, 2010 (emphasis added)

No, see, Judge Bybee, that's exactly where you and Professor Yoo fucked it up. You were supposed to tell the President what he could and couldn't do. Your then-client asked you for legal advice, which he was especially needful of because he wasn't a lawyer and because it was a time of national crisis, and you were supposed to give him the complete picture. No, you weren't running a debating society, but you weren't supposed to be telling him what you thought he wanted to hear, either. And if there were statutes explicitly prohibiting what you thought he wanted to do (and there were) and case law (there was) and an international treaty ratified by the United States (ditto) and simply what was in fucking dictionaries of the English language (duh), you were supposed to lay that out. And then whatever informed decision he made was entirely on him because you're right, you're technically not supposed to be advocating in a legal memo. (Though there's a whole moral and ethical dimension of the attorney's responsibilities as a counselor of law that we're gliding by in saying that, isn't there?)

But your staff didn't do that. Your staff--producing work you signed off on--left out most of the law that didn't support your boss' "muscular view of presidential authority" and engaged in some linguistic finagling to sideline the rest. And this, pretty much by definition, is unprofessional and incompetent lawyering, whatever else it might be in terms of inducing your client to authorize the commission of felonies under Federal law or crimes against humanity.

If I was on the grievance committee in whatever state gave you a license to practice, I'm not sure you and John Yoo would still be lawyers, Judge. Sorry if that would be something that affected you personally and professionally and had an impact on your family. You made a bad call and your client didn't just fail to pay some taxes or fees or misconstrue a building contract as a result--no, your client authorized the CIA to abuse the shit out of human beings. Some of those human beings, whether they were terrorists or not, were injured and some of them allegedly died as a result; and if anyone died as a result of torture, Judge, that's a death-eligible offense for the torturer and a possible life sentence for any co-conspirators.

You know, not many attorneys have the singular opportunity to give a client advice that's so bad, a former President Of The United States could hypothetically receive a life sentence in Federal Prison as a consequence... should be proud?


Steve Buchheit Friday, July 16, 2010 at 11:49:00 AM EDT  

Hell, on less important matters our Village Solicitor has been willing to tell us all we're screwed if we want to go forward with certain plans. And he hasn't prettied that up too much.

Eric Friday, July 16, 2010 at 12:38:00 PM EDT  

Yep--it's what a lawyer does. We're not even talking a good lawyer (and your Village Solicitor may be a great one): telling your clients when they can't do something (as well as what they can do) is the minimum level of competency expected by the profession.

Dr. Phil (Physics) Friday, July 16, 2010 at 12:40:00 PM EDT  

What I can't understand is that some people Who Should Know Better don't understand this. And I'm not even a lawyer and I get the concept.


Dr. Phil

vince Friday, July 16, 2010 at 1:35:00 PM EDT  

But I'm sure he is proud, just as Oliver North is proud of his illegal activities, and G. Gordon Liddy is proud of what he did, and North did, and Bush did, etc., etc., etc.

Jim Wright Friday, July 16, 2010 at 9:42:00 PM EDT  

Lawyers like this give torture a bad name...

They also give me a headache

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