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H. Humbert
SFN Die Hard
USA
4574 Posts |
 Posted - 03/09/2009 : 12:14:16 [Permalink]
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Originally posted by Dave W.
If every lawyer who dreamt up a justification for why an illegal act were legal were charged as a criminal, we'd be out of lawyers already.
If Joe Schmoe gets charged with murder, and his lawyer tries to argue that it was self-defense (when it wasn't), does that make "a conspiracy to circumvent the law?"
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The difference as I see it, Dave, is that it is the job of a defense lawyer to mount a legal defense for his clients. But the job of the Office of Legal Counsel is not to dream up legal defenses for the PotUS. It's to protect the Constitution. As Ed Brayton said "His client was the constitution, not the president. His job was not to offer a legal rationalization for what the president wanted to do, it was to tell the president what the limitations were on what he could do." So a better analogy would be a defense lawyer who actively tries to sabotage the case of a client they were supposed to defend.
At the very least John Yoo et. al were acting outside the bounds of their mandate, although I don't see why a case couldn't be made for criminal conspiracy if it can be demonstrated that these lawyers were instructed to find a justification for illegal torture. Then not only would they simply be bad at their jobs, but part of a premeditated scheme to commit torture.
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"A man is his own easiest dupe, for what he wishes to be true he generally believes to be true." --Demosthenes
"The first principle is that you must not fool yourself - and you are the easiest person to fool." --Richard P. Feynman
"Face facts with dignity." --found inside a fortune cookie |
| Edited by - H. Humbert on 03/09/2009 12:17:10 |
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HalfMooner
Dingaling
Philippines
15831 Posts |
Posted - 03/09/2009 : 12:44:55 [Permalink]
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Originally posted by Dave W.
If every lawyer who dreamt up a justification for why an illegal act were legal were charged as a criminal, we'd be out of lawyers already.
If Joe Schmoe gets charged with murder, and his lawyer tries to argue that it was self-defense (when it wasn't), does that make "a conspiracy to circumvent the law?"
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Okay, okay, I know the following isn't really a good analogy, but I had fun writing it, so please bear with me.
Let's say that in Ourtown, USA, over a period of years, dozens of Jehovah's Witnesses have been turning up dead, with all of their bullet-riddled bodies found on the doorstep of a Mr. Smith.
The particularly inept local police have begun to act as though they are becoming suspicious of Mr. Smith, though they haven't put enough evidence together to charge him with murder.
Concerned, Mr. Smith goes to his attorney and asks her how he can continue to go about his usual business without legal complications. The lawyer suggests that if the bodies were dragged into Mr. Smith's home, it would appear to the crack Ourtown homicide detectives that they had been shot while attempting to force entry into Smith's home. This would make any future shootings seem completely justified, even leaving out the detail that these people were, after all, JW's.
Is Mr. Smith's attorney violating the law?
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“Biology is just physics that has begun to smell bad.” —HalfMooner
Here's a link to Moonscape News, and one to its Archive. |
| Edited by - HalfMooner on 03/09/2009 12:50:06 |
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Dave W.
Info Junkie
USA
26020 Posts |
Posted - 03/09/2009 : 13:49:11 [Permalink]
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Well, I am not a lawyer, Constitutional or otherwise. If the OLC's client is the Constitution, and not the President, then nothing they say to the President could be considered to be legal advice, right, because there wouldn't be any attorney-client relationship? But how could a "goddamned piece of paper" be a client, anyway?
When does one guy giving advice to another guy rise to the level of a criminal conspiracy? If I were to say, "Hey, HalfMooner, I think it'd be a good idea if you were to slaughter your whole family," and he did it, would I have conspired in multiple murders or would Mooner just be an idiot for listening to me? Would it make a difference if I were a lawyer? Would it make more of a difference if I were a lawyer and Mooner were my client? |
- Dave W. (Private Msg, EMail)
Evidently, I rock!
Why not question something for a change?
Visit Dave's Psoriasis Info, too. |
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H. Humbert
SFN Die Hard
USA
4574 Posts |
Posted - 03/09/2009 : 14:23:04 [Permalink]
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Originally posted by Dave W.
Well, I am not a lawyer, Constitutional or otherwise. |
Yeah, I think we can all admit as much. I present here only my opinions, which may be wildly off the mark.
| If the OLC's client is the Constitution, and not the President, then nothing they say to the President could be considered to be legal advice, right, because there wouldn't be any attorney-client relationship? But how could a "goddamned piece of paper" be a client, anyway? |
Well, no, I don't think this is true. Technically the OLC's client would be the American people, just as the PotUS is employed by the American people and sworn to uphold the Constitution. If it can be proved that both offices were in collusion to breach the American public's trust and violate the Constitution, then criminal charges should be issued.
| When does one guy giving advice to another guy rise to the level of a criminal conspiracy? If I were to say, "Hey, HalfMooner, I think it'd be a good idea if you were to slaughter your whole family," and he did it, would I have conspired in multiple murders or would Mooner just be an idiot for listening to me? |
While that would be for a jury to decide, you would be most likely charged with criminal conspiracy, or at the very least investigated. If Mooner was acting on your suggestion, you would be implicated in the crime, at least initially. You'd have to mount a defense that a reasonable person wouldn't be expected to act on your suggestion.
| Would it make a difference if I were a lawyer? |
Presumably, yes, since it would be assumed that you have a greater understanding of the law and should know better than to go around inciting people to violence.
| Would it make more of a difference if I were a lawyer and Mooner were my client? |
In this case, almost definitely, especially if it were in the capacity of your professional duties. If a bank manager tells a thief how to access the vault after hours, he is just as guilty of the robbery as those who end up stealing the money. Why wouldn't the same logic apply to lawyers who knowingly encourage their clients (or people they are supposed to be advising) to violate the law?
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"A man is his own easiest dupe, for what he wishes to be true he generally believes to be true." --Demosthenes
"The first principle is that you must not fool yourself - and you are the easiest person to fool." --Richard P. Feynman
"Face facts with dignity." --found inside a fortune cookie |
| Edited by - H. Humbert on 03/09/2009 14:25:32 |
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Dave W.
Info Junkie
USA
26020 Posts |
Posted - 03/09/2009 : 16:55:30 [Permalink]
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Originally posted by H. Humbert
Well, no, I don't think this is true. Technically the OLC's client would be the American people, just as the PotUS is employed by the American people and sworn to uphold the Constitution. |
Is the Attorney General also so sworn?| If it can be proved that both offices were in collusion to breach the American public's trust and violate the Constitution, then criminal charges should be issued. |
When does a failure to do one's job rise to the level of a criminal offense? Most incompetents just get fired.| While that would be for a jury to decide, you would be most likely charged with criminal conspiracy, or at the very least investigated. |
I think the investigators would most likely pepper Mooner with questions, like "why would you do something like this just because Dave thought it was a good idea?" rather than spend time investigating me. Unless he were to fabricate something about me paying him or blackmailing him or something like that, of course.| If Mooner was acting on your suggestion, you would be implicated in the crime, at least initially. You'd have to mount a defense that a reasonable person wouldn't be expected to act on your suggestion. |
No, actually, they'd need to come up with a reasonable explanation as to why Mooner should have been expected to act on my suggestion.| Would it make a difference if I were a lawyer? |
Presumably, yes, since it would be assumed that you have a greater understanding of the law and should know better than to go around inciting people to violence. |
Actually, that might make a difference in the sentencing phase, but not whether my suggestion is a crime or not. After all, a cop committing premeditated murder is not legally different a crime than a hobo committing premeditated murder. The cop might get a stiffer sentence if found guilty...| Would it make more of a difference if I were a lawyer and Mooner were my client? |
In this case, almost definitely, especially if it were in the capacity of your professional duties. If a bank manager tells a thief how to access the vault after hours, he is just as guilty of the robbery as those who end up stealing the money. Why wouldn't the same logic apply to lawyers who knowingly encourage their clients (or people they are supposed to be advising) to violate the law? |
I think your analogy is off. In this case, a vault consultant is telling the bank manager the way to break into the vault. Even if the bank manager demands this information (and pays for it), isn't the consultant's positive defense that he had no idea that the bank manager would rob his own vault? Even if he did have such an idea? |
- Dave W. (Private Msg, EMail)
Evidently, I rock!
Why not question something for a change?
Visit Dave's Psoriasis Info, too. |
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Dude
SFN Die Hard
USA
6891 Posts |
Posted - 03/10/2009 : 01:23:11 [Permalink]
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Originally posted by Dave W.
Well, I am not a lawyer, Constitutional or otherwise. If the OLC's client is the Constitution, and not the President, then nothing they say to the President could be considered to be legal advice, right, because there wouldn't be any attorney-client relationship? But how could a "goddamned piece of paper" be a client, anyway?
When does one guy giving advice to another guy rise to the level of a criminal conspiracy? If I were to say, "Hey, HalfMooner, I think it'd be a good idea if you were to slaughter your whole family," and he did it, would I have conspired in multiple murders or would Mooner just be an idiot for listening to me? Would it make a difference if I were a lawyer? Would it make more of a difference if I were a lawyer and Mooner were my client?
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I don't think this is about the giving of legal advice. I think it is about some lawyers who were instructed to create justifications for illegal actions, to deliberately muddy the waters and cloud the debate when these actions eventually came to light. Create a sort of reverse straw-man that they could argue for.
Politically its pretty fucking brilliant. US domestic spying laws, laws against torture, and who knows what else at this point, were freely discarded and there hasn't been a single person held to account yet.
(edited to add:) And that is why I think their actions are criminal as opposed to incompetent. They were not advising a client, they were conspiring to break the law and obstruct any investigations into the actual illegal acts.
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Ignorance is preferable to error; and he is less remote from the truth who believes nothing, than he who believes what is wrong.
-- Thomas Jefferson
"god :: the last refuge of a man with no answers and no argument." - G. Carlin
Hope, n.
The handmaiden of desperation; the opiate of despair; the illegible signpost on the road to perdition. ~~ da filth |
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| Edited by - Dude on 03/10/2009 01:26:19 |
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Dave W.
Info Junkie
USA
26020 Posts |
Posted - 03/10/2009 : 12:58:08 [Permalink]
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Originally posted by Dude
I think it is about some lawyers who were instructed to create justifications for illegal actions, to deliberately muddy the waters and cloud the debate when these actions eventually came to light. Create a sort of reverse straw-man that they could argue for. |
Some would say that you've described perfectly the job of a trial defense lawyer whose client is guilty. See, for example, Johnnie Cochran.| US domestic spying laws, laws against torture, and who knows what else at this point, were freely discarded and there hasn't been a single person held to account yet. |
And there probably won't be until Obama and/or Congress find the economic stuff to be slackening. The People aren't screaming about being tortured and spied on, they're screaming about their retirement savings vanishing. |
- Dave W. (Private Msg, EMail)
Evidently, I rock!
Why not question something for a change?
Visit Dave's Psoriasis Info, too. |
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HalfMooner
Dingaling
Philippines
15831 Posts |
Posted - 03/10/2009 : 13:48:52 [Permalink]
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Thanks, folks. I really appreciate when an argument becomes all about me.
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“Biology is just physics that has begun to smell bad.” —HalfMooner
Here's a link to Moonscape News, and one to its Archive. |
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Dude
SFN Die Hard
USA
6891 Posts |
Posted - 03/10/2009 : 14:48:58 [Permalink]
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Dave_W said:
| Some would say that you've described perfectly the job of a trial defense lawyer whose client is guilty. See, for example, Johnnie Cochran. |
So you are saying that Johnnie Cochran convinced a jury that it was actually OK for OJ to murder two people. That there was legal justification for a double homicide. Seriously?
A trial defense lawyer tries to demonstrate that his client did not commit a crime. It is never in question that the act their client is accused of is illegal.
Yoo et al were engaged in the covering up of crime(s), and its impossible to say they were unaware of exactly what they were doing.(from reading the text of their documents available so far) Their task was to prevent people for being charged/prosecuted for illegal acts.
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Ignorance is preferable to error; and he is less remote from the truth who believes nothing, than he who believes what is wrong.
-- Thomas Jefferson
"god :: the last refuge of a man with no answers and no argument." - G. Carlin
Hope, n.
The handmaiden of desperation; the opiate of despair; the illegible signpost on the road to perdition. ~~ da filth |
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Dave W.
Info Junkie
USA
26020 Posts |
Posted - 03/10/2009 : 14:56:58 [Permalink]
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Originally posted by Dude
So you are saying that Johnnie Cochran convinced a jury that it was actually OK for OJ to murder two people. That there was legal justification for a double homicide. Seriously? |
Apparently not. You're right. Don't know what I was thinking, there. |
- Dave W. (Private Msg, EMail)
Evidently, I rock!
Why not question something for a change?
Visit Dave's Psoriasis Info, too. |
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Dude
SFN Die Hard
USA
6891 Posts |
Posted - 03/10/2009 : 22:47:33 [Permalink]
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I get what you are saying about the idea that their job was to provide legal advice, but the extent of what they wrote goes beyong legal advice. They were justifying breaking laws, claiming that certain laws don't apply to the president and that certain laws can be ignored at the discretion of the president.
It is apparent that they did it as part of a large effort to prevent anyone who broke laws, when Bush ordered them to break laws, from facing consequences.
A real and thorough investigation would illuminate this, I think. Congressional dems and Obama don't seem to be interested in bringing criminals to justice though.
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Ignorance is preferable to error; and he is less remote from the truth who believes nothing, than he who believes what is wrong.
-- Thomas Jefferson
"god :: the last refuge of a man with no answers and no argument." - G. Carlin
Hope, n.
The handmaiden of desperation; the opiate of despair; the illegible signpost on the road to perdition. ~~ da filth |
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Dave W.
Info Junkie
USA
26020 Posts |
Posted - 03/10/2009 : 23:22:28 [Permalink]
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Originally posted by Dude
I get what you are saying about the idea that their job was to provide legal advice, but the extent of what they wrote goes beyong legal advice. They were justifying breaking laws, claiming that certain laws don't apply to the president and that certain laws can be ignored at the discretion of the president. |
Here's my deal: I could say, "the President can ignore laws," and with luck, anyone who hears it will blow me off as a nutcase. Some private-practice lawyer could say the same thing, and people should ignore him, too. Is it just the fact that these particular authors worked for the Attorney General that makes them culpable for the President's actions here?
I think that might set a dangerous precedent in which competent lawyers would seek to avoid civic employment, for fear that typos and/or political machinations would leave them on the hook for the actions of their boss' boss. So far as I know, Mafia lawyers only ever got busted when they falsified documents or were otherwise actually a part of illegal activities via direct action, and not just opinion memos.
Actually, here's the real deal: I don't think an opinion memo from the DOJ has the weight of law, and can't actually change the laws. These memos might have made the President think that torture or warrantless wiretapping were legal, but they really were not. The memos were dumb, and Bush was stupid for following them. But stupidity itself is not yet criminal. Bush's actions were.
There are plenty of lawyer-types around the Web claiming that it is legal to fail to file tax returns. It isn't, but the authors of this advice aren't generally facing criminal charges, it's the people who actually try to follow the advice who are finding themselves behind bars. |
- Dave W. (Private Msg, EMail)
Evidently, I rock!
Why not question something for a change?
Visit Dave's Psoriasis Info, too. |
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H. Humbert
SFN Die Hard
USA
4574 Posts |
Posted - 03/11/2009 : 00:01:17 [Permalink]
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Originally posted by Dave W.
I think that might set a dangerous precedent in which competent lawyers would seek to avoid civic employment, for fear that typos and/or political machinations would leave them on the hook for the actions of their boss' boss. |
But competent lawyers wouldn't have anything to worry about, because they wouldn't be advocating breaking the law.
Look at it this way. Say there is Occupational Safety and Health Administration inspector on a job site. A worker walks up and asks if he needs a license to operate a crane. The OSHA official tell him no, so the worker climbs into the crane and proceeds to drive it into a new building. Is the OSHA agent legally culpable for the damage caused by the worker? Sure, you could say that the agent's response was "unofficial" and that driving a crane without a license is against OSHA regulations despite whatever the agent said. But can the OSHA agent really excuse himself just by saying "I gave stupid advice but that's not a crime?" It's the OSHA agent's job to provide workers with accurate information about the safety standards. Similarly, a lawyer's job is knowing the law.
Now imagine that it has come out that the company owner told the OSHA agent before any work ever started that he needed to save money by looking into the possibility of allowing unlicensed worker to operate cranes on his construction site. Does the "bad advice" excuse still fly? Or can we now say there is good cause to believe the OSHA agent deliberately provided information he knew to be false?
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"A man is his own easiest dupe, for what he wishes to be true he generally believes to be true." --Demosthenes
"The first principle is that you must not fool yourself - and you are the easiest person to fool." --Richard P. Feynman
"Face facts with dignity." --found inside a fortune cookie |
| Edited by - H. Humbert on 03/11/2009 00:03:22 |
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Dave W.
Info Junkie
USA
26020 Posts |
Posted - 03/11/2009 : 05:47:25 [Permalink]
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Originally posted by H. Humbert
But competent lawyers wouldn't have anything to worry about, because they wouldn't be advocating breaking the law. |
Should innocent people allow warrantless searches of their homes, since they should have nothing to worry about?| Look at it this way. Say there is Occupational Safety and Health Administration inspector on a job site. A worker walks up and asks if he needs a license to operate a crane. The OSHA official tell him no, so the worker climbs into the crane and proceeds to drive it into a new building. Is the OSHA agent legally culpable for the damage caused by the worker? Sure, you could say that the agent's response was "unofficial" and that driving a crane without a license is against OSHA regulations despite whatever the agent said. But can the OSHA agent really excuse himself just by saying "I gave stupid advice but that's not a crime?" It's the OSHA agent's job to provide workers with accurate information about the safety standards. Similarly, a lawyer's job is knowing the law. |
And the OSHA official should definitely be fired, but is what he did a crime?| Now imagine that it has come out that the company owner told the OSHA agent before any work ever started that he needed to save money by looking into the possibility of allowing unlicensed worker to operate cranes on his construction site. Does the "bad advice" excuse still fly? Or can we now say there is good cause to believe the OSHA agent deliberately provided information he knew to be false? |
Perhaps a case could be made for criminal negligence in such a case, but I don't know what else to charge him with. |
- Dave W. (Private Msg, EMail)
Evidently, I rock!
Why not question something for a change?
Visit Dave's Psoriasis Info, too. |
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Dave W.
Info Junkie
USA
26020 Posts |
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More revelation about Bush' 'justice' memos
