"Because the Lawyer Said It Was."

 Hey, if Jay Bybee says it's legal, who am I to judge: 

Former President George W. Bush was asked during an interview last night why he believes waterboarding is legal.

"Because the lawyer said it was," Bush said. "He said it did not fall within the Anti-Torture Act. I'm not a lawyer, but you gotta trust the judgment of people around you and I do." 

 Exactly, I mean if the Fuhrer President Nixon Jay Bybee says it's legal, it by definition has the force of law.

Oh oh, I'm getting in a bad mood again.....

"We Will Be Going to Trial."

Nope, that's not Marc Nurik.

Instead that was David O. Markus, Buju Banton's counsel, at a hearing yesterday in Tampa:

`We will be going to trial,` top Florida defense attorney, David Oscar Markus, said Thursday at a bail hearing in Tampa federal court for the singer, born Mark Anthony Myrie.

`He did not commit the crimes he`s charged with. He was not in any conspiracy,` Markus added.

Earlier in court, the `Rasta Got Soul` singer, pleaded not guilty to conspiring to buy more than five kilograms of cocaine from an undercover law enforcement officer in Sarasota last month.

As is often the case, Banton faces detention anyway from immigration officials:

U.S. Magistrate Anthony Porcelli ordered the singer held without bail after Markus said he would not oppose the government`s request.

Markus told reporters after that if Banton is freed on bail he would be held by immigration officials. The attorney said he will focus now on fighting to have the detainer lifted before seeking bail on the criminal charges.

`There should be a presumption of innocence. Instead there is a presumption of guilt in immigration,` he said, adding there is `no question` his client would be allowed to post bail if not for the detainer.

In light of recent crazy polls involving support for torturing the underpants bomber, most people probably are surprised that non-citizens have any rights at all when charged with a crime in the United States.

John Yoo To Appeal To Judge Bybee?

Just two torture memo dudes, reliving the good times:

A federal jury in Miami convicted Padilla and two others of conspiring to murder, kidnap and maim people in a foreign country, along with two counts of providing material support to terrorists. He was sentenced to 17 years and four months in prison, a lighter sentence than prosecutors had pushed for.

He sued Yoo and various government officials, claiming he suffered abuse and torture during his nearly four-year detention at prisons in South Carolina and New York. He said he endured sleep deprivation, exposure to extreme light and temperatures, threats of physical abuse and torture, denial of adequate medical care, constant surveillance and prolonged isolation.

He claimed Yoo was personally involved in the government's decision to label him an "enemy combatant." He also cited several memos written by Yoo that allegedly justified the deprivation of his constitutional rights. The memos were crafted "with the specific intent of immunizing government officials from criminal liability for participating in practices that Defendant Yoo knew to be unlawful," Padilla claimed.

U.S. District Judge Jeffrey S. White denied Yoo's motion for dismissal on all but one claim, saying the complaint "alleges conduct that would be unconstitutional if directed at any detainee."

Yoo filed a notice that he would appeal the decision to the 9th Circuit in San Francisco. Government attorneys also said they were dropping out of the case, and that Yoo would be represented by an unidentified private lawyer.

Let's hope Judge Bybee has the good sense to recuse himself from this one when it reaches the 9th -- not that Bybee has shown a lot of good sense to date.

11th Circuit Has Not Yet Overturned Liberty 6 Convictions

So I checked the 11th Circuit website just to see if they have issued any orders yet overturning today's Liberty 6 convictions, but so far nothing.

But I did see this interesting opinion issued today regarding a man from Togo who was seeking withholding of removal and for relief under the United Nations Convention Against Torture.

Good thing 9th Circuit Judge Bybee was not sitting by designation because this crybaby barely got any "enhanced interrogation" and somehow the 11th still finds it to be torture:

He described his beating at the hands of the guards on the first day; he was
tied to a pole, raised two feet off of the ground and hit. After the beating, he was
“thrown in a hole where there were mice and rats” and nothing to eat or drink.
During his testimony, he described the same beating and then stated that he was
shoved in a “small cubicle.” He testified that he was not beaten on the second day.

That's it? Mice and rats ok, but no fake stinging insects? No carefully prescribed towel-wrapped smashes against a semi-flexible wall?

And this guy wasn't even waterboarded once, let alone 183 times like we do it here in America!

Togo, man, even their torture is third-rate.

Note to Miami Herald -- Torture Is Not A "Partisan" Issue.

Sorry but this stuff bugs the crap out of me:

Yet liberal activists Thursday delivered 250,000 petitions to Attorney General Eric Holder demanding an independent prosecutor. Liberals in Congress are calling for a commission. And Obama himself all week refused to rule one out, saying that a bipartisan, independent panel would be the best option.

Right now, the political oxygen in the nation's capital is being consumed by rancor over the interrogations. That's why several experts on Congress and previous high-profile investigations think that it's increasingly likely that Obama will call for an independent panel, outside Congress, similar to the 9/11 Commission that examined the 2001 attacks.

That could help tone down the partisan bitterness over the issue, especially if officials who testified were given immunity from future prosecution.

What lazy and hacktacular framing.

Listen, when President Obama and Senate Majority Leader Harry Reid both oppose investigating the United States officially incorporating torture methods as national policy, it's not simply a "left/right" issue. Believe me, we all know plenty of Dems played a role in allowing this fiasco to unfold.

It's a constitutional issue, an issue of the application and vindication of the rule of law, an issue of moral imperatives versus "pragmatic" or political compromise, an issue of our shared vision of what this country is or should be.

It's a right or wrong issue, draycups.

BTW, you can see more of the quite extraordinary artwork of Arthur Szyk here.

Judge Jay Bybee, Legal Scholar.

Hi kids!

This time I mean it literally.

Kids who are at work today with your parents, this is what your parents do when they go to the office. They waste time and slack off in front of the computer -- just like you!

Except when they are done, they type the following:

"2.9 -- Professional development -- review new legal opinions and local bar news and analyze same."

on their timesheet.

See how easy it is to be a lawyer??

I haven't written much on these torture memos, because there is so much good content out there already. In particular I'm talking about Glenn Greenwald's ongoing takedown over at Salon, as well as UM Law Professor and uber-nudge Michael Froomkin, who has written in my view the definitive short take on the matter at his overly busy, cluttered yet entertaining blog here.

Personally, I am endlessly fascinated by the August 1, 2002 memo by then-OLC lawyer and now sitting 9th Circuit Judge Jay Bybee(!).

It's fascinating not because it is a shamefully hackneyed effort to paper over torture methods already in use and which now apparently require official legal sanction. That's obvious.

Bureaucratic hacks in a government that is based in law and has at least a mild legal tradition have always written these types of memos. I'm thinking of British memos relating for example to suppression of the Mau Mau rebellion, Nazi-era memos such as the Wannsee report or "Night and Fog" decree, even legal decrees coming out of the old Soviet Union. Hail, you can throw in the Dred Scott decision while you're at it.

What's fascinating to me is how shockingly bad it is as legal scholarship. No discussion of contrary caselaw or existing historic and legal traditions relating to the proposed torture techniques, no analysis of legislative history, no effort at statutory construction, and conclusory in the extreme to the point of parody.

Professor Heller points out that there is direct precedent relating to Nazi lawyers who approved or failed to object to "legal" activities that were nonetheless crimes against humanity. Anyone who has saw Judgment at Nuremberg knows that lawyers and judges -- acting legally in some technical sense -- must nonetheless be held accountable for the rule of law to be vindicated.

The fact that certain torture methods may have "worked" is meaningless to me. That is not the test and never was. If raping a suspect's daughter in his presence "worked" would that make it right or appropriate? How about slicing off an ear -- of course, only if it "worked."

The slippery slope speaks for itself -- or should, especially for conservatives who make fun of Stanley Fish-style "situational ethics" and think absolute values endure regardless of time, place, or emergent conditions.

There, now I'm going back to dreaming of the princess.