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January 04, 2005

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It's a bit depressing to see Catholics on this thread once again soft-pedal torture. [Read More]

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Mark Shea

Should Catholics active in the Republican Party be leading the charge to oppose the nomination of Alberto Gonzalez to be Attorney General?"

Answer: YES. The guy is pro-choice and is one of the main voices seeking to inure the conscience of American's to the use of torture. IMO, Faithful Conservative Catholics who are really serious about their faith have to put faith before party with this guy or they will be heading off down the same road of prostitution to political ideology that claimed so many Catholic Democrats who became total abortion whores.

Sydney Carton

Um, not to beat the hammer on this issue, but this "Village Voice" article is mindless in its criticism. Gonzalez's memo specifically referenced the legal status of the terrorist detainees, which, as we all know, did not fight for any national army and hence were unlawful combattants that HAD NO STANDING UNDER THE GENEVA CONVENTIONS. He did not advocate torture in any event. Under the Geneva Conventions, unlawful comnattants can be summarily executed.

It is false witness to say that Gonzalez advocated torture or that he violated the Geneva conventions (not all of which the US is a party to, I might add). He specifically described the legal status of the detainees, who were not prisioners of war.

When discussing these matters, especially with respect to faith, it's important that one consider the credibility of left-wing rants from sodomistic rags like the Village Voice as one's guide.

Right now, I don't have an opinion either way on Gonzalez as AG. Whether it is him or someone else, unlawful combattants' legal status will not change.

Hunk Hondo

Yeah, false witness, Mark. Also "quaint."

Kevin Miller

According to an article on NRO today - recall that NR and NRO aren't known for being left-wing sodomistic rags - the memo AG commissioned says among other things that it isn't legally torture unless it involves severe pain or suffering.

Now, clear Catholic teaching - in Gaudium et Spes and the CCC - contains no such restriction. If it uses pain (mental or physical) to coerce - it's torture. Full stop.

If offering the advice that what from a moral standpoint is torture, is legal - without worrying one way or the other whether it's moral - isn't problematic for Catholics, then we have here yet another example of why Faithful Conservative Catholics, like their counterparts on the liberal end of the ideological spectrum, need to go back to school.

Hunk Hondo

Well said, Kevin. (Current temperature in the Inferno: -20).

Mark Shea

Sydney:

I'm so glad Gonzalez only advocates limited modified hangout versions of torture. That kind of nuance is just what we need for clear moral thinking. And I'm particularly gratified that, like Justice Blackmun, his argument was not founded on Catholic notions like "Humans deserve human rights" but upon "How much can we get away with in exempting human beings from the protection of the law? Hey! We can do whatever we like to people who are Geneva signatories!" Any resemblance between that and the logic of Roe is purely coincidental. And besides, the people we summarily execute or subject to non-lethal forms of torture are (probably) guilty of something, so it's all fine.

Yessirree, *that's* a line of reasoning Catholics should get behind 100%!

Mark Shea

oops:

"Hey! We can do whatever we like to people who are *not* Geneva signatories!"

S.F.

Kevin Miller,

You are wrong. Gonzales was asked to write a legal memo regarding the state of the law on prisoner interrogation. In that memo, he discussed the law on toture. The law (the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) defines torture, among other things, as "severe pain or suffering." Other conditions must also be met, of course.

You may want to notify the Vatican that this isn't the real definition of torture, because the Vatican officially ratified the Convention on June 26, 2002, calling it a "valid and fitting instrument."

Please correct your misstatement.

S.F.

Lets remember the commandment against false witness. Gonzales has never advocated an "anything goes" ethos towards unlawful combatants. In fact, as a lawyer, he has not advocated anything pro or con. He simply stated what was legal and what was illegal. It's up to policy-makers, not lawyers, to decide policy.

I'm not saying his legal research isn't fair game. Lets hope that he gets a fair hearing and he is allowed to express his opinions about his role as a lawyer versus the role of policy-makers. After that, we as Catholics (who are charged by the Catechism not to rashly judge others) can truly make a rational judgment. Holy Spirit, please give our Senators wisdom in this task.

BTW (I know I shouldn't criticize because me average post has 15.3 typos), but his last name is "Gonzales," not "Gonzalez"

Rich Leonardi

Mark indicated that Gonzales is "pro-choice"; what is his stance on abortion?

Brian Emmick

Catholics are going to find themselves alienated by both parties in the end.

JACK

Boy, people are sure quick to defend Gonzales on this thread. I'd be careful. Gonzales' nomination hearings are going to be ugly. This notion that lawyers don't make policy is b.s. He's a political advisor to the president, legal sounding title of "White House counsel" notwithstanding. And he's being appointed to an EXECUTIVE branch position, its association with the law notwithstanding. And there is substantial room to criticize his legal analysis. To criticize a man for memos he wrote and positions he endorsed, implicitly or explicity, is not to bear false witness. To suggest that his responsibility is only to report on what is legal and not also advise on what is prudent is news to me -- someone should have given me that memo when I worked for the Justice Department.

Sydney Carton

Mark,

Obviously, you know nothing about writing legal memos on the status of particular laws. You might as well rail against the unjustness of a lawyer writing on the status of unregistered companies under the Securities Act of 1933, since BY GOD, every company should publicly file their documents in accordance with the principle of public disclosure.

I'm not in the mood to debate with Mr. Straw Man, so I'll leave it at that, for now.

Mark Shea

Excerpted from Linda Chavez' deeply dishonest column Let's Talk About Torture", Chavez cites an article in Commentary magazine a few months ago, "Torture: Thinking About the Unthinkable," by Andrew C. McCarthy

Among the trial balloon floated by government apologists for torture:

"Would we have been justified in using whatever means necessary, if he might have led us to rescue Berg?"

Translation: Can we, since we are Good Americans, please have special license from God to say "Let us do evil that good may result?" After all, "whatever means" can include a great deal of creativity in the Pain Technician department.

Chavez writes:

"McCarthy suggests we need to create "controlled, highly regulated, and responsibly accountable conditions" to obtain information from enemy combatants. "Under such a system, the government would have to apply to a federal court for permission to administer a predetermined form of non-lethal torture," McCarthy argues."

McCarthy grounds all this on the extremely useful work of Gonzalez, who did a fine job of explaining that human rights are not for humans, but for *legal* humans (very like Blackmun). And since "enemy combatants" are not legally entitled to human rights, McCarthy thinks it would be dandy to subject them to "non-lethal" torture. Oh, but don't worry, it's all to be approved by the courts who will keep torture safe, legal and rare. And no US court has ever stripped human beings of their fundamental right to life or liberty and subjected them to inhuman brutality. Besides, if it doesn't kill you, it's not really torture, is it?

This is the sort of stuff that Faithful Conservative Catholics are being asked to acquiesce to and (to their shame) some are making excuses for it.

Victor Morton

Rich:

There are two pieces of evidence usually cited.

The first is a Texas state high court ruling, which Gonzales joined. The most detailed exposition that I can quickly find on the Internet of the actual legal issues at stake is here. (The somewhat legal-technical 2nd graf, beginning "On March 22" is the key descriptor.)

The second is a 2001 interview he gave the LA Times, where he said a judge's opinions on the per se morality of a law, with the example cited as his repugnance for abortion, should not affect his jurisprudence. Read grafs 5-7 beginning with "Brown pointed."

S.F.

JACK,

If he becomes Attorney General, I would agree with you that his job is more than just legal advice. Obviously, the AG is the head bureaucrat at the Justice Department and will set policy. Despite your uncharitable description of my opinion as "b.s.," it is in fact true that when a client asks for a legal memo, he is expecting his lawyer to state the law.

Sydney Carton

S.F.: "it is in fact true that when a client asks for a legal memo, he is expecting his lawyer to state the law."

The hell you say.

Somehow, I don't think the Scarecrow would agree. But since it's all straw to him anyway, what difference does it make?

JACK

S.F.:

Uncharitable? Goodness.

Of course, a client expects his lawyer to state the law. But let's not shy away from the fact that there are legitimate questions about the quality of lawyering involved here, in addition to whether as a matter of ethical competence he's required to go beyond that in his counsel. And I think that requirement is heightened by a lawyer who serves in a public law function, where the identity of his client is not so easily determined.

Kevin Miller

SF, et al.:

I made no misstatement.

First, that the Vatican approves of a law prohibiting "severe" torture doesn't mean that the Church teaches that that's the only kind of torture. See, again, GS, and the CCC - and Veritatis Splendor, while we're at it.

Second, I'm well aware of what AG was asked to do. And I deny that it's a lawyer's job to be an amoral positivist functionary, or that a Catholic should be happy to see a lawyer who so conceives of his job nominated for attorney general. Furthermore, I think you're hopelessly naive to think that when a lawyer so conceives of his job, this isn't likely to have anything to do with his actual views regarding the substantive moral/cultural issues at hand.

I repeat: Some of you need to go back to Catholic school.

JACK

Oh, do tell how my posts are straw men.

S.F.

Can someone help me? I don't understand the reference to Linda Chavez. I searched the article and Alberto Gonzales's name does not appear. I know they are both Hispanics and Republicans, but other than that, I don't see the connection to the current discussion.

The last time this issue was discussed with famous poster, I got the impression that he had never actually read the memos. I still get that impression.

For clarification, I don't believe Gonzales wrote the so-called "torture memos." I think that was from DOJ lawyers. Gonzales wrote the Geneva Convention memos. Despite false witness to the contrary, the memo nowhere states nor implies that illegal combatants do not have human rights.

Rich Leonardi

Thanks, Victor. Though there's no smoking gun - the Texas decision merely vacated the decision of the lower court and the L.A. Times comment would seem to address courts with a more limited judicial review function than that of the Supreme Court - the articles still made me squeamish.

You'd think that as a public figure there would be on-the-record statements defending the rights of the unborn if he were indeed pro-life.

Sydney Carton

"But let's not shy away from the fact that there are legitimate questions about the quality of lawyering involved here..."

I've heard nothing but praise about the quality of his legal work, even from partisans who may disagree with him on certain matters or who don't like him merely because he's Hispanic.

"in addition to whether as a matter of ethical competence he's required to go beyond that in his counsel."

Perhaps in other matters, but not here. A request to state what the law of X is, is pretty darn clear. It's your basic memo, and hardly involves ethical issues. Should I be forced to tell my client that wishes to avoid public registration of his company's secrutities how WONDERFUL public disclosure is? No.

"And I think that requirement is heightened by a lawyer who serves in a public law function, where the identity of his client is not so easily determined."

Gonzalez's position as White House attorney poses no special obligations on him anymore than it would if he were a prosecutor, district attorney, or attorney general. His client is the United States Executive. President Bush is the head of the Executive branch. He works for Bush.

David

For what it's worth, here's a link to Ramesh Ponnuru's take on Mr. Gonzales:

http://www.nationalreview.com/flashback/flashback-ponnuru021103.asp

And here's one to another piece:

http://www.nationalreview.com/ponnuru/ponnuru021103.asp

Kevin Miller

If you suggest (e.g. by omission - by reducing the question to one of positive law) that it's okay to torture them - you are ipso facto saying they don't have human rights. Mark is quite right, and the allegations of false witness are, well, false witness. An 8th-commandment violation in the service of a 5th-commandment violation, at that.

And ditto's to JACK's 3:34 comment, which he posted while I was typing mine.

Mark Shea

Jack:

He means me. Though I'm not sure what he means. The simple fact is, Gonzales was the court prophet who found the legal loophole for getting away with the immoral. He told his masters what they wanted to hear so they could get away with what they, in any event, wanted to do. He could have been a man and said "This is legal, but it's still wrong" (just as Faithful Conservative Catholics[TM] argue concerning, say, abortion or Nuremburg Laws). But he didn't. And now apologists for the Bushies are trying to paint criticism of this moral cowardice as "uncharitable".

Amazing how all the charity gets extended to the powerful and so little is left over for people who suggest that they should be held accountable for their minutely constructed and carefully chosen words.

JACK

Sydney:

Are you a trial lawyer?

I'm guessing so.

S.F.

Kevin Miller,

Although I didn't attend Catholic school (well, I did at university where I found the Lord), I'm sure that if I had, and therefore could go back, one thing I'd learn is that Kevin Miller isn't the pope.

Not only did Archbishop Martino call the Convention "valid and fitting." He also called it "ideal." The dictionary defines "ideal" as "standard of perfection, beauty, or excellence" or "an ultimate object or aim of endeavor."

If you can find for me something (anything) that indicates the Vatican signed the treaty with reservations, let me know. Martino's language at the time of the Vatican signed it sure is confusing if what you are proposing is true.

tom

I have a rule of thumb for how I evaluate the treatment of armed combatants, captured on a battlefield without uniform - if the treatment is no worse than what I was subjected to in Marine boot camp in the early 60's then it isn't torture. Sleep deprivation, being yelled at and called names, having my head covered (actually it was with a bucket and not a hood)and being threatened were part and parcel of the experience.
The worrst that can be said about our treatment of these armed combatants is that their period of detention is uncertain.

Hunk Hondo

SF, you might have a better case if AG had actually confined himself to telling Rummy "what the law was"; I agree that it can be a lawyer's duty to tell his client what the law is, rather than what he, the lawyer, thinks it ought to be. The trouble is, of course, that AG went considerably further than that. He employed language making it clear that his duty was also his pleasure. By mocking as "quaint" the kind of limitations his boss wanted to avoid, he pandered to the mentality that seeks to define torture down. And if you think that's not what this whole project was about, you're probably waiting by the mailbox for that million dallar check on its way to you from Nigeria.
And as for you, Sydney--don't let us keep you from your appointment in Paris.

Sydney Carton

Mr. Miller,

No one said that a lawyer must be an amoral positivist functionary. But when a lawyer writes a memo on the status of a law, he necessarily states the facts of the law, its precedents, where it has been applied in certain cases to test its limits, etc. Hence, the discussion involves not a discussion of HIS policy preferences, but more a history of what the law means, in relation to how it is applied, or interpreted, by OTHERS.

Apparrently, the business of lawyers isn't to tell clients what the law is, but to convince clients that the law is what the lawyer says it is, or should be. Now that might be fine for this discussion board, but if I were to do that I'd be liable for malpractice. Whether a client wants to know if X is legal under the Geneva Conventions, the Securities Act, the Sherman Antitrust Act, NAFTA, or whatever - the process of analysis is the same. Quite frankly, I'm astonished that several people seem not to understand that.

Furthermore, I find this "torture memo" tangent interesting in that it seems to want to avoid the very real fact that the primary responsibility for the Abu Ghraib humiliations resided with those who performed them. If there is any evidence that President Bush or Gonzalez or Rumsfeld or any other ordered those prisioners to be treated that way, it's news to me. What happened sounds like a classic case of someone submitting to temptation, and it's not a conspiracy. And yet here the known posters of the Catholic blogosphere would more readily see a conspiracy or a fault from a memo purporting to have a direct link to such actions, instead of the messy business of sin and temptation by those who did the deeds.

I find that curious.

Rich Leonardi

Just read the Ponnuru flashback in which Ramesh refers to Gonzales as being perhaps more of a "Bush loyalist" than a "conservative". There's also some mention that he clerked for several pro-life justices, which could mean he's just smart enough to jump through enough pro-life hoops to rise through the ranks.

How is it that this guy has risen so far without defining where he stands on this issue? Has he ever attended a pro-life fundraiser? written an op ed? made a speech that addressed this subject?

If Bush pulls a Cheney strategy on this, e.g., the guy who vets the candidates ultimately gets the job, this is one Catholic who will have a lot of questions to ask of candidate Gonzales, notwithstanding the torture memo discussion.

Otherwise, this is going to be a Souter strategy with a slicker candidate.

Sydney Carton

JACK,

No, I am not. I am a securities lawyer. But I find it fundamentally absurd that if a client of mine asks how he can avoid public registration, I'm supposed to lecture him about how wrong he is to avoid the law and tell him that it's wonderful to have public disclosure.

Because that's what this amounts to here. Gonzalez wrote a memo on the status of law X, and it's being seen as some nefarious evil because he should've written a lecture to Bush about why even asking about law X was bad. It boggles the mind.

Mark: "He told his masters what they wanted to hear so they could get away with what they, in any event, wanted to do."

Wow. There's so much in that statement that I don't know where to begin. From the subtle racist implication that Gonzalez is Bush's house slave, to the amazing ignorance that writing a point-of-law letter is somehow a whitewash, to the direct accusation that Bush directly wanted to engage in torture....

Mark, you need to get back to writing your book.

S.F.

I hate to confuse y'all with the facts, but here are some interesting ones.

Maybe I'm wrong, but I don't think that Gonzales wrote the so-called "torture" memos. Those was written by Assistant Attorneys General John C. Yoo, Jay S. Bybee and Robert J. Dulahunty. (Aug. 1, 2002, Jan. 9, 2002).

Alberto Gonzales wrote the memo (Jan. 25, 2002) to President Bush arguing that the Geneva Convention does not apply to members of al-Queda and the Taliban. He DID NOT WRITE THE SO-CALLED TORTURE MEMOS.

Again, read Gonzales' Geneva Convention memo. He does not in any way advocate any type of inhumane treatment. He simply states, (accurately, if truth matters to y'all), that the Taliban and al-Queda are not protected by Geneva. As his much maligned "quaint" quote shows. "In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring the captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments."

Victor Morton

Rich:

"Has he ever attended a pro-life fundraiser? written an op ed? made a speech that addressed this subject?"

I'm pretty confident in answering "no" to the second two. Certainly there are no quotes from said op-eds or speeches floating around the Internet, although I'll ask somebody who covers this later tonight.

The answer to the first is almost certainly "yes," but it really doesn't mean much. Anybody can *attend* a fund-raiser, if only on a date. The relevant question would be "has he ever been honored at such a fund-raiser or sat on the dais at one?" And on that, I refer the honorable gentleman to the reply I gave some moments ago.

S.F.

Hunk Hondo,

Alberto Gonzales *did not* write the so-called torture memos.

David

Here's a link to Gonzales' memo:

http://msnbc.com/modules/newsweek/pdf/gonzales_memo.pdf

And a link to Colin Powell's memo:

http://msnbc.com/modules/newsweek/pdf/powell_memo.pdf

JACK

Sydney:

Can we at least agree that your comparison of interpretation of securities law and international agreements regarding human rights is not exactly an apples-to-apples comparison? Your duties as a securities lawyer, I would suggest, are of a different nature than those of a public law professional. Just as, if you are an outside counsel, there are different expectations on you than if you were asked the similar question but as the general counsel of a company. I think you are failing to take into account such factors.

Mark Shea

I love it! The race card! Yeah. That's it. I was playing the race card. It's not that there's major rationalization of torture that's bothering me. It's that I suddenly developed a prejudice against Hispanics.

Fascinating to watch the Democrat-like pretzel shapes into which loyalty to ideology will twist arguments.

tk

"But when a lawyer writes a memo on the status of a law, he necessarily states the facts of the law, its precedents, where it has been applied in certain cases to test its limits, etc."

You make this sound like this is a totally objective process, that could just as well be done by an AI. As someone who hires and fires lawyers all the time, this is where the problem is. You always get back very different anwers to the same questions, colored by that lawyers ideology and experience.

S.F.

M.S.,

Again, Alberto Gonzales did not write the so-called torture memos.

Go to this site at George Washington University with all of the memos surrounding interrogation. As far as I can tell, only one was written by Gonzales. That is the Geneva Convention memo. It's only 4 pages. Go ahead and read it and then if you want to continue to accuse Gonzales of advocating torture, go ahead. I don't think you'll ge able to do so in good conscience.

http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/

David

Here's a link to a piece that claims that Gonzales was inclined to push the envelope on what was acceptable as an interrogation tactic and that he was inclined to accept John Yoo's theories about the president's powers:

http://msnbc.msn.com/id/6733213/site/newsweek/

Sydney Carton

Mark,

So you're saying you did not make a racial implication by using the word "master"?

If that sort of query bothers you, perhaps then you'd find it easier to explain your direct accusation that President Bush ordered the torture? Or would you care to discuss your amazing ignorance of the particulars of legal memos? Pick your fault. It's your own carelessness and ignorance on display, not mine.

And would it trouble you to consider that I might not necessarily have a loyalty to a party over my faith, and instead I don't like it when people profess as fact their astounding ignorance about the legal process as truth?

Sydney Carton

"You make this sound like this is a totally objective process, that could just as well be done by an AI. As someone who hires and fires lawyers all the time, this is where the problem is. You always get back very different anwers to the same questions, colored by that lawyers ideology and experience."

For the most part, it is an objective process. Reasonable people can disagree about the extent to which new limits or boundaries may be defined in the future, but it's a no-brainer when discussing the settled law.

S.F.

Sydney,

To second your post of 4:24. I'd also point out that if there is a dispute in the law, a good lawyer can objectively point out the various positions at dispute and list the strengths and weaknesses of each position. Gonzales does this in his Geneva Convention memo.

Sydney Carton

JACK,

You seem to be hung up on "duties." If a law student were to engage in the same point-of-law memo that Mr. Gonzalez did, and came to the same conclusions regarding the settled law, would there by any difference in what was done? Would it make a difference if the analysis was done by a lawyer working for a different branch of government, even if the result and conclusions were the same?

I'm assuming that you're aware that there are hundreds of law journals out there with thousands of student publications done every semester on countless issues. This sort of thing happens ALL the time. Discussing the status of a law, and speculating its application in hypothetical scenarious, is done every friggin' day.

Sydney Carton

"I'd also point out that if there is a dispute in the law, a good lawyer can objectively point out the various positions at dispute and list the strengths and weaknesses of each position."

Of course. That's part of writing a memo. I should've said as much here, especially since people here might not know that this is almost always done. Again, it'd probably be malpractice not to do so, unless a client specifically asked to avoid such an analysis.

JACK

I didn't know that AG was a law student or writing a scholarly piece.

S.F.

Hmmm......

The posts were coming fast and furious but seemed to have slowed down. It's been 3/4 of an hour since I pointed out the Vatican said the Convention against torture was "ideal." It's been 1/2 hour since I pointed out that Gonzales didn't even write the freakin' torture memos.

Hello? Anybody here? Where'd y'all go? Is there another blog where we can pretend Gonzales wrote something he didn't write and "ideal" means something other than "ideal"?

Sorry, that was mean. But funny.

Sydney Carton

Let me phrase my question another way: You seem to be stuck on what "duty" he owes to someone, as if his obligation to his client necessarily would taint his analysis of the law. Is that what you're suggesting? I cannot understand what else you'd mean otherwise.

The irony of this discussion is, I should be writing a point-of-law memo RIGHT NOW, instead of having this discussion. Hey! Maybe I can claim that if I were to do that, I wouldn't be faithful anymore! Free ticket to a vacation! Woo hoo!

David

Sydney,

there is something of a debate among scholars about whether or not torture (even under these new circumstances) passes constitutional muster.

See this debate between Seth Kreimer and Alan Dershowitz:

http://www.law.upenn.edu/journals/conlaw/issues/vol6/num2/kreimer.pdf

http://www.law.upenn.edu/journals/conlaw/issues/vol6/num2/dershowitz.pdf

http://www.law.upenn.edu/journals/conlaw/issues/vol6/num2/kreimer_surreply.pdf

Mark Shea

So you're saying you did not make a racial implication by using the word "master"?

Right. And since there's no history of Hispanic slavery in the US, I'm puzzled how anybody could read a racial connotation into it.

I'm saying, along with Hunk, that when you suck up to the Boss by describing critics of torture as "quaint", you are operating with an agenda of pleasing the Powers That Be.

Sydney Carton

S.F.

Never let facts get in the way of bashing "Faithful Conservative Catholics."

It's straw man rule #1.

Sydney Carton

"Right."

Well, that makes me feel much better.

What about your direct accusation that the President ordered the torture?

Faith

Dudes, You actually commented at the same time. (4:37) Wow

S.F.

Sydney,

It is funny, isn't it? The defenders of truth and justice can't even acknowledge basics facts as true. I provided the whole "quaint" quote. Not a damn word about torture. In the sentence or the whole damn memo. But hell's bells, we've got a man's reputation to ruin, so I can prove to all my friends that I'm a *real* Catholic. And *real* Catholics are allowed to malign other human beings. Torture? Denial of athletic uniforms? Same to me, as long as I can ruin a man's reputation with it.

Mike Petrik

First, it appears that Gonzales did not write the infamous torture memo. Does that matter to the detracters?

Second, it would be highly irregular for an attorney to place his personal views on morality in a legal memorandum. An oral discussion might be more practical if context allows.

Third, leaving aside whether they do apply, it is not clear to me that the standards of the Geneva Convention *ought* to apply to guerrillas, spies etc. Of course, this does not mean that anything goes.

Fourth, I would caution folks to not jump to conclusions re Gonzales and abortion. Perhaps he is shrewd enough to avoid a pro-life record (or a pro-choice record) precisely in order to be confirmable.

Fifth, the distinction between interpreting and applying law versus making policy is very important. Those who favor blurring the two should remember that Roe v. Wade is the unborn poster child for that unprincipled phenomenon. I am more interested in knowing Gonzoles's views on constitutional jurisprudence than his personal views on the morality of abortion. I have had enough of public figures who are personally pro-life but think (or so they say) that the constitution nonetheless protects a mother's choice in the matter. I'd rather appoint a judge who thinks that pro-choice is good policy, but not a constitutional right.

JACK

Sydney:

My point is simple: a lawyer's obligation to his client goes beyond telling him just what the law says.

Based on what you have posted here, you appear to think that is controversial. It isn't to many, even those within the profession. I know where tk is coming from. Everyone knows that you can shop for opinion letters because lawyers do influence their interpretations based on their risk tolerance and other factors. Ask any general counsel. But even outside of that question is the matter that lawyers, when functioning as counselors, are expected to use their analytical skills and tendency to identify risk factors for their client's advantage even to points that are not so "law" related. I'm suggesting that the President seeking counsel from the White House Counsel should be more like the counsel a CEO expects from a General Counsel than what a partner expects from a legal research memo written by a first year associate.

S.F.:

You might want to read one of the many news articles that report on the fact that Gonzalez, although he may not have penned the torture memo, is likely to have had influence on it. (See reports on the meetings he had regarding various CIA tactics and the fact that some of the DOJ drafters of that memo attended that meeting.) Only you seem to be suggesting that this matter turns on whether he typed the thing or not.

Mark Shea

What about your direct accusation that the President ordered the torture?

What direct accusation? I think it obvious the Administration was fishing around for ways to pursue torture as an option. I never said the President ordered torture for the simple reason that I don't know he did (and rather doubt it).

Speaking of Straw Man arguments....

S.F.

JACK,

Please. "News reports"??? News reports also had George W. Bush skipping out on his Guard Service.

The memos weren't drafted by Gonzales. I'm not arguing that the Senate Committee shouldn't ask him about his involvement. They should ask him all sorts of questions. These are legitimate areas of discussion.

What I object to is folks here pretending to be more Catholic than the next guy, because they are willing to tear Gonzales apart without a fair hearing, just so they can prove they are Catholics first, conservatives second. It's not right and it's objectively immoral. A man deserves his good reputation and he should at *least* get a chance to defend himself.

If he testifies before the Senate and defends torture, then I would hope the Senate rejects him.

Dan Crawford

So what kinds of torture are there? And what makes the approved list? Inquiring Catholic mind wants to know.

Mike Petrik

Jack,
How much of a fact is "the fact that Gonzales ... is *likely* to have had influence on [the memo]"? That strikes me as not much of a fact, especially given the striking inferential liberties you take in your parenthetical.

It is becoming increasingly obvious to me that blogging lends itself more to scoring debating points than exchanging ideas in pursuit of truth.

JACK

S.F.:

I suggest you read the news reports. If you want to reject their accuracy, fine. Your perogative. But they raise questions that go directly to your suggestion that, because AG didn't physically write the torture memos, it is unfair to criticize him for the analysis in those memos.

Look, frankly, I have no horse in this debate about AG that's going on in this thread. I mainly wanted to comment on what I thought was a very narrow view of what lawyering is.

You are certainly right people deserve their good name. But how is he being denied that here?

Sydney Carton

"What I object to is folks here pretending to be more Catholic than the next guy, because they are willing to tear Gonzales apart without a fair hearing, just so they can prove they are Catholics first, conservatives second. It's not right and it's objectively immoral."

AMEN to that. That's really the bottom line issue here.

Mark: "I think it obvious the Administration was fishing around for ways to pursue torture as an option."

I don't. You said Gonzalez told his masters what they wanted to hear so they could do what they wanted to do. Bush is his boss. In other words, you said Gonzalez told Bush what Bush wanted to hear because Bush wanted to engage in torture.

If that's not what you meant, you sure didn't issue any clarification. Perhaps because in your mind, it's so obvious that this evil was intended by the Administration. I don't think it was at all.

c matt

You make this sound like this is a totally objective process, that could just as well be done by an AI.

To a large extent, it might be done just as well by AI, if AI could ever get to the point of recognizing analogous situations well (which is 80% of legal analysis).

As someone who hires and fires lawyers all the time, this is where the problem is. You always get back very different anwers to the same questions, colored by that lawyers ideology and experience.

This is also quite true. Particularly in the litigation context. There are literally hundreds of judgment calls that need to be made - what facts would a jury believe, is this witness credible, what is this particular jurisdiction like, this judge's leanings, etc. - that could go in to a memo that "colors" the analysis. This type of information comes from experience, not law school.

I have not read the Gonzalez memo, and it is certainly not unethical for a lawyer to write an essay on what the current state of the law is with respect to a given set of facts (which, surprisingly, the law is not nearly as settled in many areas as one would expect). But lawyers are not just attorneys at law - they are also counselors at law and officers of the court. In additoin, as AG, Gonzo qould be a public offical (though appointed, not elected) which would give him responsibilities to the public, and not just the President. The disciplinary rules also place duties upon attorneys with respect to contemplated criminal conduct of their client - a lawyer can't just give advice on how to circumvent the law. Not that Gonzo did or did not do that in this instance.

Sydney Carton

JACK: "I'm suggesting that the President seeking counsel from the White House Counsel should be more like the counsel a CEO expects from a General Counsel than what a partner expects from a legal research memo written by a first year associate."

I don't think this would change anything about what Gonzalez did, and I didn't think that this is what you meant earlier. Still, even CEO's ask their General Counsels what is legal or in the bounds of regulation. Advising someone on the practicalities on a course of action is distinct from saying whether such action is within the law. As a rule, I think it's probably better for lawyers to stay out of such "business decisions" because ultimately it ends up complicating their ethical obligations. General Counsels certainly give advice on these matters, but if the law is tricky, it's usually with a hedge. In any event, I think that perhaps others were calling for something beyond that and couldn't even understand the difference between the 2 kinds of advice you're mentioning.

JACK

Mike:

I'm hoping your last point is not directly in response to me, because I'm surprised (and confused) if it was. I usually find you one of the most wise commentators in St. Blog's.

Obviously, I can only report what I have read in the papers. But it isn't hard to find. What is reported is that in July of 2002 a series of meetings were held to analyze various CIA tactics. In attendance were AG and Yoo, who wrote the memo in question, among others. At this meeting Gonazales is reported to have been concerned about following the law, but as Newsweek reports, also wanting to make sure they were being "forward-leaning" enough. The reporting implies that the Yoo memo's reasoning was consistent with and reflected Gonzales' own reasoning.

Am I suggesting that one should fry the man's reputation over these reports? No. But I do think they raise questions, and I'm less likely to dismiss concerns about this nomination as knee-jerk partisanship than I usually would be.

JACK

c matt:

You said it much better than I clearly have.

Fr. Brian Stanley

I think the president should withdraw Gonzales' nomination, and submit Mike Petrik's name for Attorney General. The esteemed attorney from Atlanta has Catholic bona fides all over the place. Draft Petrik!

Sydney Carton

Fr. Stanley,

Mike said that "it is not clear to me that the standards of the Geneva Convention *ought* to apply to guerrillas, spies etc...."

To some, merely saying this is being an "apologist for torture."

Otherwise, I think you're right.

Peter Nixon

I'm inclined to think that the issue of whether Gonzales actually wrote the memos is something of a red herring. My understanding is that one of the offending memos (the "Bybee memo:) was prepared at his request and there is no evidence that, prior to its coming to public light, he ever repudiated its conclusions, which clearly influenced Administration policy. A memo to the President dated 1/25 dealing with the Geneva Convention was authored by Gonzales. Gonzales would certainly seem to bear the same responsibility as a senior associate would for work commissioned by a junior associate which the senior associate subsequently used.

More detail can be found in this report from Human Rights First (formerly the Lawyers Committee on Human Rights).

The Post also has a piece today on a group of retired military officers who--largely organized by HRF-have "deep concerns" about Gonzales nomination.

This site, which comes across as fairly partisan, does have some helpful links to various articles about the Bush Administration debates over these issues in which Gonzales was involved. They also discuss Gonzales involvement in the administration of the death penalty in Texas, which is not an issue which posters here have yet commented on, but may wish to.

JACK

Peter:

What you report is consistent with what I have read. The Yoo memo to which I refer is the Bybee memo. (Bybee is a more senior member of the DOJ.)

Mark Shea

Sydney:

If you are asking, "Do I think it just as possible for Bush to fish around for specious justifications for doing evil that good may come of it as Michael Ledeen or Linda Chavez" then the answer is "Yes." Given that the same voices that bent over backward to justify Ledeen's call for "entering into evil" and "doing those things we know to be morally wrong" are now leaping to make excuses for Gonzales, I will disengage from this fruitless argument. I don't have the time and I'm not the Senate, so what I think will not ultimately make a difference. But I will say that I am disturbed by the consistent pattern of excuses from conservative Catholics for Ledeen's "shoot the wounded" piece in NRO, just as I was disturbed by Chavez' excuse-making for torture. If Conservative Catholics bend over for this because the Right wants to do it, I will be as outraged as Liberal Catholics bending over for abortion. If that makes me "holier than thou" (as Catholics for a Free Choice has long labeled Catholics who insist they are wrong), then so be it.

Phil

Gonzales is a smart lawyer who knows how what his boss wants. He is a good apparatchik, but this is not what we want in an AG. Although he should not be our next AG, he probably will be. The way he handled the death penalty cases in Texas and the way he handled the torture issue in the White House leave a lot to be desired. Because of the attitude of the White House the intentional mistreatment of prisoners (even when not legally "tortured") became much more acceptable even when not officially condoned, and that, as a former US Army grunt, shames me.

-----

Full disclosure: I'm not writing this as a "good Catholic." I don't make the grade. For example, I'm prolife, but, as I admitted before, I frankly don't see embryos and babies as belonging in the same plane (in other words, the killing of an embryo is not as morally reprehensible as the killing of a baby), and that's why for me abortion is not a litmus test in a politician.

Hunk Hondo

S.F.,
What's this about AG being denied a fair hearing? It's not as though the story about the memos just broke. He said nothing to dispel these fears at the time, and apparently thought the thing would eventually blow over (as it might have, had he not been nominated). Neither Mark, nor I, nor anybody in this thread has argued that he should be denied the chance to present his case. If it turns out his behavior admits of an innocent explanation, fine; I'll recant my opposition to him. The problem so far is that he doesn't seem to realize that an explanation is needed.
As for his authorship of the memo, I am of Jack's mind. Even if DOJ wrote the torture memos, he obviously knew about them, and if he disagreed with them he has done a good job of keeping quiet about it.
As for the memo he did write--well, I'll acknowedge your famous victory here; he said that the limits on "strict interrogation" were not "quaint" but merely "obsolete." For those who find that distinction comforting, I wish them joy of it. But I have to admit, no doubt he did keep the detention centers from
becoming health spas.
Kevin's point against you still stands. The Vatican's ratification of the convention is no proof that it understood that definition of torture to be exhaustive. As for Cardinal Martino's obiter dictum, my own dictionary says that"ideal" means "a standard of perfection, beauty or excellence." Note the disjunctive; calling the provisions excellent does not imply that they could not be surpassed or improved upon. In any event, English dictionaries are of limited use here unless the Cardinal was speaking in English, which seems improbable.
Sydney, I must have missed the place where Mark accused the POTUS ("directly" or otherwise) of actually ordering torture. It seems to me he was saying that the inquiry implied that its use was fairly debatable, which was depressing enough. In the end, the POTUS publicly rejected the use of torture, and I hope sincerely ( I voted for the man, after all). But it still troubles me that the rejection followed, rather than preceded, a firestorm of criticism over the memos.
JACK, you let Sydney off rather lightly on the question whether a lawyer should offer his client advice beyond a bare tatement of what the law permits. He didn't say that such was "controversial"; rather, he called it "absurd." For my own part, while acknowledging that it should not be a routine practice (a lawyer should ordinarily presume that his client is as capable of making moral judgements as himself), I can imagine exceptions. If a client came to me with an inquiry about doing something that was clearly legal but also shockingly evil, and I knew or strongly suspected he was inclined to do it, I hope I would be up to "lecturing" him about it. If the thing were bad enough, I might even tell him that in the future, he should employ some other lawyer. "Just writing a memo" does not invariably cover a multitude of sins.

Sydney Carton

Mark,

If all you can see are people making excuses for an evil they want to participate in, then we should all be disturbed. But frankly, many people who take their faith seriously do not think that is the case, and as a reasonable person you shouldn't be so quick to condemn others for merely disputing your conclusions.

I read a lot in the blogosphere, and there are people who have no hope that the West can ever win this war against the Islamists, because they think we don't have the will to fight. There is a possibility that this conflict could go on for years and years, and our grandchildren could be discussing the fight against radical Islam, if we don't lose it in the interval and become their slaves or die in a nuclear armegeddon. Seeding the hope of democracy in the Middle East might work, but as Gandalf once said, even the best courses of action can be a fool's hope. I'm a huge advocate of internal criticism so we remain true to our ideals, and to avoid committing the crimes that the enemy so often engages in. I'm content that for the moment the Administration and Congress seem to have been re-elected on the basis of their record in dealing with the Islamist threat, and that the defeatists, appeasers, suicidal pacifists, and naysayers have been defeated, for now. I believe that, as the Bishops must do with respect to the priestly sex-scandals, America can remove those from influence who would needlessly engage in evil in their misguided attempt at stopping an evil. But it would be nice if we recognize that this messy business comes down to an ultimate need of Grace, since in these harried times as like any other, temptations and human failings exist which open the door to sin. And none of us, in war or in our daily lives, is alone strong enough to resist it fully.

Sydney Carton

Hunk,

I'd reply to you (I already said to JACK that I didn't think that was what he meant earlier), however, I'm too busy with my appointment in Paris....

Mark Shea

If all you can see are people making excuses for an evil they want to participate in, then we should all be disturbed.

That would be true--if it were all I could see. As it is, I don't claim that anybody who supports Gonzales is only making excuses for evil. However, I do think that many of the people I've run into in cyberspace are doing exactly that, most notably, SF, who divides his time between concocting the most far-fetched excuses possible for Ledeen's pleas to "enter into evil" and "do those things we know to be morally wrong" and his patented Martyr to Charity schtick when you point out that he is making far-fetched excuses for Ledeen. In the same way here, he's divided his time between heart-wringing pleas for "charity" on behalf of Gonzales when he waves away limits on "strict interrogation" as "obsolete" and gloating sneers at people who don't instantly reply to him (all in that famous Charity for which he is known).

This pecular pattern of Martyrdom to Charity when it comes to defending right wing finessers of torture, coupled with strange forgetfulness of charity toward critics who, at the end of the day, have little power to affect Gonzales fortunes, yet are still portrayed as a Horrid Mob of Terribly Unjust Mr. Strawmen is but one of the reasons I reserve large quantities of skepticism, not for every defender of Gonzales, but for guys like SF. If he were a more consistent Martyr to Charity I could take him more seriously. As it is, he just looks like he's making excuses for prominent champions of his particularly ideology, be it Ledeen or Gonzales.

S.F.

What's this? Mark says he's leaving this fruitless argument (at 5:33) and by 6:20 he's back in.

Oh, well, I'll ignore the personal attacks. I know that I don't defend torture, and I trust in the Just Judge on that one.

If anyone cares, please note that Mark still has not acknowledged that Gonzales didn't write the so-called torture memos. Pointing that fact out doesn't make me a Gonzales apologist.

Again, again, again, I hope the Senators do ask Gonzales questions about his involvement in those memos and their meaning. It's all legitimate. The only thing I object is trashing the man's reputation when it isn't warranted. Not a sthick, the truth.

S.F.

Hunk,

Do you know the protections afforded to POW's when it comes to interrogation under Geneva? There's a reason that when the Geneva Convention was signed these protections did not apply to illegal combatants. Because that's bad for the civilians they target.

Under Geneva, you cannot *at all* coerce a detainee into giving information. AT ALL. No insults even. No different treatment. In other words, not the slightest sleep deprivation (you can't wake a guy up at 2 AM and demand answers), not a bland diet, etc. You can't even annoy him. I think we can all agree that there are legitimately moral coercive techniques used in order to illicit information. Any parent who has grounded Billy to his room for 2 hours until he tells the truth knows that one.

POW's are treated differently than illegimate combatants because they are part of an organized army, probably fighting a war at the behest of politicians (not their own doing), that follows the rules themselves. Terrorists are fighting illegitimately of their own free will and directly targeting civilian populations. They must be treated humanely but to seriously contend that this means they receive the same treatment as Geneva POW's is ridiculous.

Rich Leonardi

it is not clear to me that the standards of the Geneva Convention *ought* to apply to guerrillas, spies etc. Of course, this does not mean that anything goes.

Add to that list terrorists, which Mike may have been including under "guerillas". If we extend the same protections afforded by the Geneva conventions to nonuniformed combatants, i.e., terrorists, we create a disincentive for armies to police themselves by wearing uniforms.

And that means more noncombatants getting killed as every war (or at the very least more wars) turns into a guerilla war fought amongst civilians.

JACK

S.F.:

You are straining your argument's credibility with posts like your latest. Not only am I at a loss to figure out which post of Hunk's spawned your latest (assuming, for the moment, you actually are trying to respond to something he wrote), but you pose a straw man. Do you seriously think that any of us are talking about this ad nauseum -- and that this is a major issue for the political hearings -- because some of us think all interrogation techniques are immoral?

S.F.

JACK,

#1. I am responding to Hunk's post of 5:46, specifically, "As for the memo he did write--well, I'll acknowedge your famous victory here; he said that the limits on 'strict interrogation' were not 'quaint' but merely 'obsolete.' For those who find that distinction comforting, I wish them joy of it. But I have to admit, no doubt he did keep the detention centers from
becoming health spas."

#2. I didn't accuse anyone here of thinking all interrogation techniques are immoral. I simply told you that Geneva outlaws all interrogation techniques against POW's except for asking questions. It allows for no coercion. That's why treating terrorists as Geneva POW's is a bad idea. It's not wrong to defend Gonzales against calumny simply because he made this distinction correctly.

T. Marzen

Back up, folks. This isn't about whether Gonzales wrote a legal memo or whether it was colored by his personal views on torture and the standards of the Geneva Convention. This is about the first major appointment affecting important Catholic interests of the second Bush administration. And it is a severe disappointment, to put it mildly.

I say Gonzales should be opposed if there is any ambiguity about his positions on torture or on abortion or the death penalty -- as there most certainly is. I, for one, do not want someone as Attorney General about whom there is any doubt on these matters when it will be his job to defend the federal government's position in the courts on the Partial-Birth Abortion Ban Act of 2003, the Ashcroft Directive against use of controlled substances for assisted suicide, on torture, on the application of the Geneva Convention to non-state combatants, or on the death penalty (given the bloody-minded policy on the death penalty that prevailed in Texas on his watch). That Gonzales has been prominently mentioned as a potential Supreme Court appointment and that a job as Attorney General might well be intended as a stepping-stone in that direction exponentially magnifies the negative potential of this appointment.

Is there any question that we wouldn't be all screaming bloody murder about Gonzales if he were appointed by a Clinton or Kerry? The answer underscores the degree to which partisan politics has distorted this conversation.

Christopher Rake

Gonzales has made a number of anti-torture statements which have largely gone unremarked. One of them was the following, in a letter to the Washington Post Oct. 5 (I posted this in the comments section of a certain blog, or "web log," whose main focus was current events from the point of view of some Rome-centered religious organization). Anyway, the letter:

A Sept. 30 front-page article inaccurately reported that the Bush administration supports a provision in the House intelligence reform bill that would permit the deportation of certain foreign nationals to countries where they are likely to be tortured.

The president did not propose and does not support this provision. He has made clear that the United States stands against and will not tolerate torture and that the United States remains committed to complying with its obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Consistent with that treaty, the United States does not expel, return or extradite individuals to countries where the United States believes it is likely that they will be tortured.

ALBERTO R. GONZALES

Counsel to the President

Washington

Another one was in the 4-page "Geneva Convention" memo. This is the one he actually wrote, and which I suspect most of Gonzales's harshest critics with the initials MS have not. Gonzales wrote that even if the U.S. decided the Geneva Conventions did not apply to Al Qaida terrorists or the Taliban,

In the treatment of detainees, the U.S. will continue to be constrained by... its commitment to treat the detainees humanely...

For the .00005% of Gonzales-war-crimes experts who will actually read the letter, it's near the end.

Jimmy Mac

Kevin ... please define "sodomistic":

" - recall that NR and NRO aren't known for being left-wing sodomistic rags - "

Mike Petrik

Yes, Rich. You interpret me correctly; and I agree with you.

T Marzen, by "positions" do you mean "legal" or "personal/moral? Or do you think the distinction is without merit?

Mark Shea

please note that Mark still has not acknowledged that Gonzales didn't write the so-called torture memos. Pointing that fact out doesn't make me a Gonzales apologist.

Please note the fact, SF< that I have not said a word in this conversation about Gonzales authoring any memos. I said that he was one of the main voices seeking to inure the conscience of Americans to the use of torture. As Jack points out, the fact that he had some underling do the dirty work and then raised not one peep to suggest that, while there may be legal ways of getting away with certain things it would still be wrong, bothers me. It should bother you. But you seem to be too busy pointing out irrelevancies, gloating over the fact that you are boldly rebutting things I never said, and, of course, playing the martyr when you are criticised.

Zhou De-Ming

Dear Mark Shea,

So, you decided to take some time off from your book writing? I hope it is going well for you!

Zhou

RES

Sydney - "No, I am not. I am a securities lawyer. But I find it fundamentally absurd that if a client of mine asks how he can avoid public registration, I'm supposed to lecture him about how wrong he is to avoid the law and tell him that it's wonderful to have public disclosure."

I am a lawyer, too, and it's common for clients to want to know what they can legally get away with. I will tell them, but I have always felt a responsibility to persuade them to set their standards a little higher. I consider that an integral part of my role as a counselor.

Clients seek attorneys' advice on the law, but also our "wisdom" - which can include doing the right thing, PR implications, etc. My advice has been rejected a few times, and I've been fired by a handful of clients, but the vast majority of clients appreciate the "extra-legal" guidance and end up following it.

I haven't read AG's memo, so I don't have an opinion about it, but a good lawyer should have accurately described the law. Then, if the minimum legal standard was too low, he should have recommended that the administration take the high road, and included the very compelling extra-legal reasons why.

Leo

We certainly have a lot of lawyers here.

Like RES, I have often tried, sometimes successfully, to persuade my clients to fly a bit higher than "how much can I get away with." When a client is determined to push closer to the line than I am comfortable with, I am perfectly willing to fire the client, and sometimes - rarely - I get fired too, for not being "aggressive" enough.

That doesn't happen very often. I haven't read the AG's memo either, but I think RES has done an excellent job of describing the right way for an ethical lawyer to handle that issue - and every other issue as well.

tom

As a former senior executive I had a staff of attorneys that reported to me. I had recourse to them on a very frequent basis for legal advice. Almost without exception they provided excellent legal advice as to what the law premitted. Also almost without exception they had their eye on the potential for litigation and the case they could make in court or before a third party trier of fact. Although I had great respect for them and thir profession I did not employ attorneys to give me moral guidance. Their opinions in this realm were no more informed than mine or those of other subordinates and were never committed to writing. We can argue with whether or not Gonzalez' legal opinion was sound or not, but frankly his moral judgements would not be nor should they be committed to writing. They would be given in face to face conversations with the President. And those conversations as anyone should know are highly privileged.

Victor Morton

Re RES's advice:

This is, of course, exactly what Gonzales actually DID in the memo. Citation above from Christopher.


Rich:

I talked to our reporter who has covered Gonzales and he told me that what I wrote above about public statements of his on abortion is correct, to the best of his knowledge as well.

Thing that intrigued me (and him) is "why would the Dems oppose this guy?" for the high court (should it come to that) given that his record on abortion is so thin and ambiguous. It's not like they can be under any illusion they'll get William Brennan from Dubya. He is not Scalia or Bork (or even a McConnell or Janice Rogers Brown), eager to overturn Roe at the first opportunity. At worst (from their perspective), he'll blow with the wind, joining O'Connor in refusing to strike Roe but paring at the abortion license a bit here and adding back to it there, contemplating the mystery of the universe. And at best, he might be rerun of Souter -- a blank slate who "grows" in office. If Gonzales is not nominated to the high court, it'll be because of the pro-life movement, which is deeply suspicious of him, leaning on the White House behind the scenes.

Mike Petrik

tom is right. No lawyer would give moral advice in a written legal memo, or at least no lawyer should. Such advice, especially if not taken, could then be used to embarrass the client if later discovered. The breadth of attorney-client privilege is often greatly exaggerated, and good attorneys know this.

Peggy

I'm coming late to this..which means I should probably just stay out as I am not up to speed on all the details. I do not know the complicity of Gonzales in all the torture memos. It appears to be up ford debate.

Nonetheless, I do agree w/Tom's and Mike Petrik's most recent points. I would not expect a lawyer to provide moral advice in a legal advice memo. It may very well be legally correct that some extent of coercion is legally permissible under the Geneva Convention. That certainly is a different determination than whether it is moral to undertake such apparently legally permissible actions.

Hmmm...

"Until now, administration officials have been unwilling to provide details about the role Mr. Gonzales had in the production of the memorandum by the Justice Department's Office of Legal Counsel. Mr. Gonzales has spoken of the memorandum as a response to questions, without saying that most of the questions were his."

He's a lawyer.

Rich Leonardi

"why would the Dems oppose this guy?"

Hate, in this case of Bush and a "Bush loyalist", often gets the better of prudence.

Thanks for the follow up, Victor.

Rich Leonardi

And I think the "leaning" is in full force.

RES

Mike Petrik says,

"No lawyer would give moral advice in a written legal memo, or at least no lawyer should. Such advice, especially if not taken, could then be used to embarrass the client if later discovered. The breadth of attorney-client privilege is often greatly exaggerated, and good attorneys know this."

I respectfully disagree. If a client wants to go down a bad-but-legal road, it is perfectly acceptable - and wise - to include ALL the advice for the client.

This can be done tactfully, and normally after a thorough oral discussion of the issue with the client so that the client isn't blindsided by the memo.

I would never say in a memo, "You wanted to know how much you could get away with, and even though you can legally get away with this, I don't recommend it because . . .."

Rather, I would say something like, "You asked for my recommendations regarding XYZ . . . Legally, [blah blah blah]. Even though we can legally [torture a little bit], I would not recommend pursuing this course because [blah blah blah]."

One can speak to one's audience. My client may not be a Catholic, and so I may not get anywhere saying "I don't recommend XYZ because the Catholic Church says it is wrong." But, generally, there are lots of "secular" reasons one can do the right thing (image, PR, sending the wrong message to the Middle Eastern nations about the West, causing problems with our allies, etc.), and I wouldn't hesitate to use those where appropriate.

I'm a business lawyer, so my legal advice never pertains to "big issues" like torture or abortion. In a case in which a client asked my opinion about legal torture or a similar issue, I would think I'd be much more likely to explicitly cite moral considerations, including but not limited to the stand of the Catholic Church on the issue.

RE: attorney-client privilege, what would you rather have disclosed - (a) a memo saying merely that torture is ok because it's legal (PLEASE NOTE - I AM NOT SAYING THAT THE AG MEMO SAYS THAT!), or (b) a memo saying torture is legal but recommending that we set our behavior at a higher standard than the bare legal minimum?

I would probably have to go with choice (b).

S.F.

It's getting rather dirty in some parts here, but again, I'd like to repeat, that I have no opinion as of yet regarding Gonzales's fitness to be Attorney General. I *do* think all of these issues should be discussed in his confirmation hearings and he should explain (as best as lawyer-client privelege will allow) his role, his personal opinions, his views on torture, etc. etc. etc. are. The only thing I am opposing is the nasty (and that's the word) pre-judging of the man by some (claiming it's the Catholic thing to do, no less) on the flimsiest of evidence, some of which is plain untrue "facts." Such as that an underling wrote the so-called torture memos.

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