“When it comes to these marijuana initiatives, I think among the kinds of things we will have to consider is the impact on children,” Holder told a House appropriations subcommittee. “We are certainly going to enforce federal law.”

At a National Press Club luncheon, Kerlikowske asserted that “neither a state nor the executive branch can nullify” federal anti-marijuana laws, adding that “using marijuana has public health consequences.”

But the impact on children, and the public health consequences, are likely to be bad if the Obama administration cracks down on the hundreds of marijuana businesses that Colorado and Washington are preparing to license, regulate, and tax.

Such action would likely backfire — warping both federal and state drug policy for years to come — by aggravating the harm to public health, especially to kids, and the leakage of marijuana across state lines that the administration and other opponents of legalization want to prevent.

How would a crackdown backfire? By producing — immediately in Colorado, and eventually in other states — an atomized, anarchic, state-legalized but unregulated marijuana market that federal drug enforcers lack the manpower to contain and the legal power to force the states to contain.

Consider how a federal effort to abort the state experiment would unfold in Colorado, where the voters (unlike those in Washington) chose to create both a state-regulated marijuana industry and another, largely unregulated, one.

In the state-regulated sector, marijuana growers and distributors must obtain licenses to do business, sort of like liquor licenses. They will pay many millions of dollars in state and local taxes and licensing fees. Colorado clearly covets the new sources of revenue, but a significant portion of that money will be spent on regulatory efforts that bolster the federal interest in discouraging exports across state lines while seeking to minimize sales outside the state-regulated system, sales to minors, unduly large quantities, impure and dangerously potent products, organized crime involvement, and other abuses.

The unregulated sector, which is already operating, comes from the initiative’s repeal of all penalties for growing up to six marijuana plants at a time at home (yielding roughly 1,000 marijuana doses per plant per year) and giving away up to an ounce (yielding roughly 200 marijuana doses) to anyone else.

If the administration exercises its broad prosecutorial discretion to allow the state-regulated market to operate without federal interference, that’s where most users will get their marijuana. Market forces will keep the grow-your-own-and-share market small.

But if the administration puts Colorado’s state-regulated marijuana sector out of business — as it probably could do, since that sector would consist of a limited number of easily identified operators — the grow-your-own-and-share market could well expand to huge proportions.

And there is no federal solution in sight to the public-health dangers posed by this grow-your-own-and-share market, or to its obvious potential for leaking into the criminal black market and across state lines.

In a nation with 4,400 DEA agents — one for every 3,000 regular marijuana users and one for every 170 state and local cops — it would be impossible for the federal government, acting on its own, to police more than a random handful of marijuana growers, or stop the considerable number who would sell some of it.

In addition, under the Supreme Court’s 10th Amendment precedents, the federal government has no legal power either to prevent states from simply repealing their own marijuana penalties or to require states to help enforce federal law.

The states can, in other words, simply stand aside and let the feds wage war alone on marijuana — which they lack the manpower to do.

So the result of an administration attack on state-legalized marijuana in Colorado would be to let millions of unregulated, unlicensed, untaxed, home-grown marijuana plants bloom, without state controls on quality, purity, or potency.

Importantly, such an attack would also spur leaders of the well-heeled marijuana movement to push for legalization without regulation both in Washington state (which currently bans all marijuana growing and distribution outside the regulated system), and in the other states (including Alaska and California) that appear likely to adopt partial legalization in the coming years.

These states might then emulate Colorado’s grow-your-own provisions, or simply repeal state penalties for small-scale marijuana cultivation and distribution as well as possession. (Federal law enforcers almost never go after mere users of marijuana.)

So if Holder and Obama want to do what’s best to protect kids, and public health, and to prevent exports across state lines, the path of federal-state cooperation is more promising than a doomed effort to crush the Colorado and Washington experiments. After all, the states want to protect public health and kids too. That’s what the regulations will be for.

And, as it happens, the federal Controlled Substances Act contains a statutory directive that the attorney general “shall cooperate” with the states on drugs including marijuana. It also authorizes him “to enter into contractual agreements … to provide for cooperative enforcement and regulatory activities.”

Given that leverage, federal-state agreements could be used to bind the states to detailed commitments to protect federal interests as well as to specify what state regulators and state-licensed marijuana businesses can and cannot safely do.

With almost 60 percent of the public saying that the administration should not enforce marijuana laws in states that permit its use (and with 52 percent favoring legalization), the time is ripe politically for the federal government to work with Colorado and Washington to prevent state-legalized marijuana from metastasizing into an uncontrollable free-for-all.

Meanwhile, the two states have been working on their new regulations for over five months with no guidance at all from Washington, D.C. The time for presidential leadership on marijuana is now.

The post Federal Crackdown on Legalized Pot Would Backfire appeared first on Stuart Taylor, Jr..

Rather, police — or more to the point of current debate, federal agents interrogating suspected terrorists — can skip the famous Miranda warnings and even use some degree of coercion to extract a confession, all quite legally. Indeed, you can even be jailed for refusing to answer questions after being granted immunity from any prosecution.

The problem for law enforcement — especially in the terrorism context — is that any statements obtained from an arrested suspect without Miranda warnings, or by directly coercing an involuntary confession, ordinarily cannot be used against the person in a criminal case.

A less familiar but perhaps more important problem is that current federal law also bars the use of most statements made more than six hours after a suspect’s arrest without first taking him to a magistrate judge for a "presentment" hearing. In a terrorism incident, such an interruption could derail a promising effort to get information about co-conspirators and planned attacks.

The combined effect is to force officials to make an unnecessarily difficult choice: They can put terrorism suspects through the kind of prolonged, uninterrupted interrogation that is their best hope of preventing future attacks. Or they can maximize the chance of a successful prosecution. But they can’t count on doing both, unless they get lucky.

This dilemma creates unhealthy incentives either to shun aggressive interrogation — which the Obama administration has sometimes seemed all too ready to do — or to subject suspects to the indefinite military detention, interrogation, and trial that the Bush administration favored.

The need to alleviate this problem — and to parry Republican political attacks in the process — is why Attorney General Eric Holder has announced plans to propose legislation making it easier for the feds to extract as much information as possible from captured terrorism suspects and prosecute them, too.

Civil-libertarian doves attack the incipient Holder proposal, which has not been publicly detailed, as a threat to constitutional freedoms. But any such threat is quite modest compared with the danger that the status quo poses to innocent lives.

Meanwhile, conservative hawks clamor for Holder and President Obama to hand suspected terrorists over to the military as enemy combatants. But they ignore the damage that this approach does to America’s image abroad; the large risk that any convictions by military commissions will crash on appeal; the dangers of subjecting possibly innocent people to decades of detention; and judicial decisions requiring that "enemy combatants" be given lawyers and other rights.

A Miranda primer: The decision was a very broad reading of the Fifth Amendment’s guarantee that "no person … shall be compelled in any criminal case to be a witness against himself." The Court found interrogations of arrested suspects to be inherently coercive. From this premise, it held that any confessions should be deemed "compelled" — and inadmissible in any criminal case — unless the authorities first dispel the coercive atmosphere.

The Court’s prescribed method for doing this was to tell suspects that they have a right to remain silent and to have a lawyer present during any interrogation, and that anything they say can be used against them in court.

But Miranda‘s holding that it is illegal to use a suspect’s un-Mirandized statements to prosecute him did not make it illegal to extract such statements in the first place. The reason that most people have long assumed the opposite is that the primary purpose of interrogating a suspect has almost always been to obtain evidence to prosecute that person. So the ban on using un-Mirandized statements in court has, in practice, been treated as a ban on interrogating a suspect without Miranda warnings.

But what if the arrested suspect — such as the U.S. citizens accused of seeking to blow up an airliner over Detroit on Christmas Day and to set off a car bomb in Times Square on May 1 — may have information that could save lives by thwarting planned attacks or leading authorities to confederates?

In such a case, the primary goal should be to extract as much information as possible as fast as possible to protect public safety. And as long as this information is not used to prosecute the suspect, there is no violation of either the Fifth Amendment self-incrimination clause or Miranda, because there is no compulsion "to be a witness against himself." The Court made this clear in a 2003 case, Chavez v. Martinez.

Other decisions suggest that it would also be legal for federal agents to seek potentially lifesaving information by grilling suspects for hours using such coercive methods as yelling, bright lights, sleep deprivation, and death-penalty threats.

Such coercion would, like Miranda, make the information obtained inadmissible in court. But under the logic of a 1998 decision, County of Sacramento v. Lewis, the coercion itself would violate the Fifth Amendment’s due process clause (not the self-incrimination clause) only if it were so extreme as to "shock the conscience" or "intended to injure in some way unjustifiable by any government interest."

The bottom line is that the justices might well uphold the constitutionality of a few hours or days of un-Mirandized interrogation of a suspect deemed by the government to have information that could save lives. But Miranda, or the presentment rules, or both would probably bar use of some statements from such a suspect to prosecute him.

To be sure, a 1984 decision called New York v. Quarles created a "public safety" exception to Miranda to admit into evidence a gun that police had found after spontaneously asking a suspect who was wearing an empty holster when he was arrested after a chase through a supermarket where he had hidden his weapon.

Officials invoked this public safety exception to avoid immediately Mirandizing Faisal Shahzad, who is accused of bringing the car bomb to Times Square, and Umar Farouk Abdulmutallab, who was caught trying to blow up the airliner over Detroit. But officials proceeded to give Miranda warnings relatively quickly, apparently out of concern that courts might refuse to extend the public safety exception to interrogations lasting for hours or days.

Holder wants Congress to expand the exception to include lengthy interrogation of suspected terrorists who may have actionable intelligence, without Mirandizing them. Some experts predict that the justices will balk. I think that they might defer, as they should, to the elected branches’ judgment that national security calls for some stretching of the public safety exception.

Holder’s second goal is to modify federal laws that bar use of evidence obtained without bringing the suspect before a magistrate within six hours of arrest, and perhaps to also create an exception to a Fourth Amendment precedent that sets a presumptive outer limit of 48 hours after warrantless arrests.

The need to relax these hearing requirements may be even more pressing than the necessity to expand the public safety exception to Miranda.

Many talkative suspects, including Shahzad, just keep talking even after agents quickly recite Miranda warnings, experts say. Suspects are more likely to shut up after a courtroom presentment appearance, which includes Miranda-like warnings, a defense lawyer, and other formalities. The especially chatty Shahzad repeatedly waived his right to a presentment hearing until two weeks after his arrest. But others may not.

The main purpose of presentment hearings is to prove to the courts that suspects arrested without warrants (the usual situation) are not being arbitrarily detained. Holder’s proposed legislation may seek to provide a similar assurance without interrupting the interrogation by bringing the suspect into court. One approach, suggested by Brookings Institution scholar Benjamin Wittes, might be a high-level certification that there is probable cause of a terrorist crime and strong evidence that the suspect may have potentially lifesaving intelligence in a national security emergency.

Such a certification might also overcome a more formidable obstacle to prolonged, uninterrupted interrogation: the 1991 ruling in County of Riverside v. McLaughlin that the Fourth Amendment requires another type of preliminary hearing — to determine whether there is probable cause that the suspect committed a crime — within 48 hours of any warrantless arrest.

I’d be surprised, however, if Holder proposes to delay a terrorism suspect’s first appearance before a judge by more than a week or two, except perhaps in extremely rare circumstances. The actionable-intelligence benefit of any information extracted from a captured terrorist by incommunicado interrogation shrinks, and the civil-liberties cost grows, with each passing day.

By striking a judicious balance in this precarious area, a new law just might help avert attacks so numerous or catastrophic as to drive the government to measures far more drastic and dangerous to liberty than anything we have seen so far.

This will be my last National Journal column. I thank the magazine for publishing these columns since 1998. I will continue as a contributing editor for National Journal and Newsweek, and will write for other publications as well.

This article appeared in the Saturday, May 22, 2010 edition of National Journal.

The post Holder’s Promising Interrogation Plan appeared first on Stuart Taylor, Jr..

I agree that waterboarding is torture as colloquially understood by many of us and that it should be banned.

But that does not mean that the CIA’s proposal — eventually endorsed by officials up to and including Present Bush — was illegal under the extremely narrow definition of "torture" that Congress wrote in 1994 when it made the practice a federal crime.

Indeed, the recently released report by Associate Deputy Attorney General David Margolis, the senior Justice Department expert on legal ethics, implicitly contradicts the strikingly superficial analysis underlying Holder’s assertions that waterboarding is illegal torture.

And while Margolis did not directly rule on the legality of the CIA’s interrogation methods, his 69-page analysis more strongly supports the view that the kind of waterboarding that the agency proposed in 2002 was not illegal torture.

You would hardly guess this from the media coverage after Justice released the Margolis report and related documents on February 19.

The report’s central conclusion absolved Jay Bybee and John Yoo — the Bush-appointed Justice Department lawyers who prepared two key "torture memos," both dated August 1, 2002 — of unethical conduct. Margolis firmly rejected a pervasively slanted, and unethically leaked, effort by Holder protégés in the Justice Department’s Office of Professional Responsibility to subject Bybee and Yoo to discipline from the bar. (The OPR is not to be confused with the Office of Legal Counsel, known as the OLC, which Bybee headed in 2002 with Yoo as a deputy.)

But Margolis did criticize Bybee and (especially) Yoo for "poor judgment" in portions of their memos. He also asserted that his decision "should not be viewed as an endorsement of the legal work that underlies" the torture memos.

The media have lavished attention on the "poor judgment" part but rushed right past the report’s implicit contradiction of both Holder’s waterboarding analysis and others’ assertions that the CIA-proposed techniques were clearly illegal. Reporters also paid little attention to Margolis’s expert evisceration of the OPR lawyers’ sometimes shoddy legal analysis, disregard for their office’s own rules, and shifting rationales in attacking Bybee and Yoo.

These aspects of the Margolis report — written by a widely respected career lawyer who has heard appeals from OPR targets for 17 years — are consequential.

They should shake the near-consensus in many circles that the entire Bush interrogation program was not only brutal and excessive, as I believe, but also illegal torture. And they pose a test for Holder and the congressional Democrats who have so fervently denounced the Bush team for employing waterboarding and other brutal methods.

If anybody violated an ethical standard, it would be whoever leaked a draft memo attacking Jay Bybee and John Yoo.

If these Democrats really want to make it clear that any future U.S. interrogators who use brutal techniques should be prosecuted, then they should propose tough, clear new legislative language — and take the political heat for it. Failure to do that will suggest that their attacks on Bush "torture" are driven more by political opportunism than by fidelity to law or human rights.

Let’s compare Holder’s January 15, 2009, Senate confirmation testimony and subsequent answers to written questions about waterboarding with relevant portions of the Margolis memo.

Holder: "If you look at the history of the use of that technique, used by the Khmer Rouge, used in the [Spanish] Inquisition, used by the Japanese, and prosecuted by us as war crimes — we prosecuted our own soldiers for using it in Vietnam… waterboarding is torture…. It is clear, and has historically been uncontroversial, that waterboarding is a form of torture."

Margolis: The "historical examples of ‘water torture’ " used by the OPR to condemn Bybee and Yoo, including those cited by Holder, "are distinguishable from the [CIA’s] proposed technique and were not analyzed under language similar to the torture statute."

In other words, Holder’s historical examples prove nothing. They cited tortures far more brutal than the technique that the CIA proposed in 2002. They also involved laws that predated the 1994 legislation and imposed broader criminal prohibitions.

And, as Margolis could have added, those not-very-relevant examples have been almost the only scrap of legal analysis that Holder has ever offered to support his condemnations of the CIA’s waterboarding.

Holder also dismissed, in May 2009 House testimony, the fact that thousands of military trainees have been waterboarded without suffering the "severe physical pain" or "prolonged mental harm" that would violate the anti-torture law. The training experience was "fundamentally different" from waterboarding a prisoner, he said.

Margolis, however, found the training experience "directly relevant" to the Bybee-Yoo determination "that the waterboard did not cause severe physical pain or suffering" (Margolis’s emphasis). He also found that despite the difference in the likely psychological effects on prisoners, the training experience would also "be relevant to the threshold question of whether everyone subjected to the waterboard suffers severe mental pain or suffering."

Margolis’s only criticism of Bybee and Yoo’s analysis of waterboarding was that its phrasing at one point could be read as erroneously suggesting that the absence of severe effects on trainees "alone virtually eliminated the need for an individual assessment" of how Abu Zubaydah, the first prisoner whom the CIA wanted to waterboard, might be affected. But this "was not critical to the approval of the techniques on Zubaydah," Margolis added, because another portion of the same memo noted that a CIA psychological assessment had already found that Zubaydah "would not experience any mental harm."

More broadly, nothing in the Margolis report says or implies that waterboarding or any other technique, with the limitations that the CIA proposed to Bybee and Yoo, was illegal. It must be noted that CIA operatives in the field later went far beyond those limitations — so far as to veer into illegal torture, in my view. (See "CIA Torture — and a Spanish Inquisition," NJ, 4/4/09, p. 12.)

Margolis arguably implied that the CIA’s policy on waterboarding may have been legal, when he wrote that "colloquial uses of the term ‘torture’ have little relevance to determining whether a particular technique violates the torture statute."

Then there is the striking, widely ignored fact that even the OPR found no ethical violation or poor judgment when it assessed the subsequent approval of techniques that included waterboarding by Steven Bradbury as head of the Office of Legal Counsel years after Bybee had taken a federal Appeals Court seat. This exoneration refutes Holder’s assertion that waterboarding is clearly illegal torture.

Indeed, no fewer than 14 other senior Bush administration lawyers eventually concurred in the Bybee-Yoo conclusion that the CIA-proposed waterboarding did not violate the torture law. The available evidence suggests that most of them did a more careful legal analysis than Holder has given any indication of doing.

It’s important to understand that there were two Bybee-Yoo torture memos that were dated August 1, 2002. The first, a general discussion of the torture ban, executive power, and possible defenses to prosecutions, was so flawed as to be repudiated by the Bush Justice Department in 2004. Not so the second memo, which was more important because it detailed the 10 CIA-proposed interrogation techniques and the reasons for approving them.

Margolis’s criticisms of this second memo were relatively minor: the above-noted point about needing an individualized psychological assessment, and a comment that the memo "would have been more complete" had it discussed how the CIA would keep detainees awake when using sleep deprivation.

Margolis’s only tough criticisms of Bybee and Yoo were aimed at their more general, less important memo.

He wrote — much as I did in June 2004 — that this first memo took an extraordinarily aggressive, "expansive view of executive authority and narrowly construed the torture statute while often failing to expose (much less refute) countervailing arguments and overstating the certainty of its conclusions." (See "The Torture Memos: Putting the President Above the Law," NJ, 6/12/04, p. 1835.)

Bybee and Yoo thus showed "poor judgment," Margolis wrote, and Yoo’s work "reflected his own extreme, albeit sincerely held, views of executive power."

At the same time, Margolis explained that the first memo’s flaws "were not likely to cause prejudice because the [more restrictive second] memo… approved specified techniques against a specific individual and advised that the advice would not necessarily apply if the facts changed."

Again, no hint that Margolis considered any of these techniques illegal.

His bottom line was that Bybee and Yoo did not "knowingly or recklessly provide incorrect legal advice or [act] in bad faith" and thus violated no ethical standard.

But somebody else did violate an ethical standard. That would be whoever leaked last year the conclusions of the confidential, now-overruled OPR draft attacking Bybee and Yoo. When will the attorney general order an internal investigation of that?

This article appeared in the Saturday, February 27, 2010 edition of National Journal.

The post Brutal, Yes ‘Torture,’ Probably Not appeared first on Stuart Taylor, Jr..

But many still hope to drive from the legal profession the Bush administration lawyers who advised that waterboarding and other brutal interrogation methods were legal.

And Attorney General Eric Holder is endlessly mulling a 200-plus-page draft report recommending (according to news leaks) referral of former Justice Department lawyers Jay Bybee and John Yoo to state bar authorities for disciplinary proceedings.

The Justice Department’s Office of Professional Responsibility presented the draft to Holder’s predecessor, Michael Mukasey, in December after a five-year investigation. It focuses on two lengthy, August 1, 2002, memos that Bybee and Yoo, then his deputy, co-authored. They helped open the door for the CIA to use brutal interrogation techniques by construing very narrowly the 1994 law that makes "torture" a federal crime.

Holder should unambiguously reject this recommendation, as Mukasey reportedly did in a still-unreleased memo before leaving office. Even if these "torture memos" were wrong, the relevant rules clearly provide that the only grounds for the OPR or state bar officials to discipline Bybee or Yoo would be proof that they acted in bad faith by knowingly misstating the law, or were incompetent.

There is nothing remotely like such proof. Nobody who knows Bybee, now a federal Appeals Court judge, or Yoo, a leading scholarly advocate of sweeping presidential war powers who teaches law at the University of California (Berkeley), doubts that they believed in their own interpretation of the anti-torture law.

Nor does the sometimes sloppy reasoning in the two memos prove incompetence. These were highly capable lawyers working under severe time pressure with little guidance from case law, amid pervasive fears that another mass-murder attack might be imminent unless the CIA could force captured terrorists to talk.

I was among many critics who denounced the first of the Bybee-Yoo "torture memos," a general analysis of the anti-torture law and related issues, as deeply flawed when it was leaked in 2004. Soon thereafter, Jack Goldsmith, a Bybee successor as head of the Office of Legal Counsel, repudiated that memo on behalf of the Bush Justice Department, thereby infuriating the White House.

It makes no sense to seek to atone for the nation’s sins by singling out individuals for bar discipline or other punishment.

The most troubling aspect of that first memo was its sweeping and poorly supported claim that the Constitution empowered a wartime president to, in effect, nullify the 1994 law by ordering wholesale use of torture.

Although the White House had requested such an analysis, President Bush never purported to invoke it. For this reason, the second Bybee-Yoo memo was the more important one. Released by President Obama in April, amid widespread denunciations, it approved the legality of 10 specified CIA interrogation techniques. While also somewhat flawed, in my view, this "techniques memo" was more carefully reasoned and more plausible in its legal analysis than most critics and the media have suggested.

Indeed, at least a dozen high-ranking Bush administration lawyers implicitly or explicitly accepted the techniques memo as a correct legal analysis. These included Goldsmith and former Deputy Attorney General James Comey — widely respected figures who repeatedly proved their independence from White House pressure to toe the line.

The record is also clear that leading members of Congress, including Nancy Pelosi (before she became House speaker), raised no legal objections after being briefed in detail about waterboarding and the other interrogation methods that Bybee and Yoo approved.

This is not to deny that these techniques — waterboarding, slamming detainees against walls, confining them in dark boxes, depriving them of sleep for as long as 11 days, and more — are so viscerally horrifying that many of us would call them torture.

But that does not make the memo’s legal analysis indefensible.

First, in passing the anti-torture law, Congress chose quite deliberately not to outlaw all of the "cruel, inhuman, and degrading" treatment that international law forbids and that I (for one) see as torture. Instead, it outlawed as "torture" only the subset of brutalities that are "specifically intended" to cause "severe" physical pain, or mental pain so extreme as to cause "prolonged mental harm."

Bybee and Yoo interpreted these vague terms quite narrowly. But at least two federal Appeals Courts have adopted similarly narrow interpretations of international treaties against torture.

Take the much-criticized Bybee-Yoo argument that physical pain is "severe" only if "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Although "organ failure" was an execrable word choice, the heart of the Bybee-Yoo definition was not so different from the one in a Senate report quoted by the U.S. Court of Appeals for the District of Columbia Circuit in 2002: "A deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering."

Critics including Holder have also assailed Bybee and Yoo for claiming that an interrogator lacks "specific intent" to torture if he has a "good faith belief" that his actions will not inflict severe physical pain or prolonged mental harm — even if they will.

But the U.S. Court of Appeals for the 3rd Circuit adopted something close to this interpretation in a 10-3 decision in June 2008, saying that an official would have "specific intent" to torture only if he knew that severe pain was certain and he also had "the additional deliberate and conscious purpose" of inflicting it.

Second, Bybee and Yoo were entitled to rely on the information provided by the CIA about how it would use the specified techniques and the impact that similar techniques had had on military trainees being taught how to resist interrogation.

Take waterboarding, the most traumatic (and apparently most effective) technique approved by Bybee and Yoo. It is widely seen as a form of torture, and the U.S. prosecuted people for water tortures used by U.S. troops in the Philippines and by the Japanese during World War II.

But those water tortures — such as pouring large amounts of water down a prisoner’s throat and then stomping on his stomach — appear to have been far more painful and harmful than what Bybee and Yoo approved. The CIA had presented detailed evidence that its use of waterboarding would not cause severe physical pain or prolonged mental harm.

A simpler approach would be to offer the nation’s apology to the innocent victims of torture and urge Congress to pay them compensation.

The Bybee-Yoo techniques memo said that the CIA had described "the waterboard" as repeatedly pouring water "in a controlled manner" onto a cloth over the nose and mouth of a bound detainee to produce "the perception of drowning" and panic. The memo said that trained medical personnel would be standing by and that although waterboarding and other techniques could be repeated, the repetition "will not be substantial."

This still seems excruciating. But Bybee and Yoo relied heavily on assurances by their client (the CIA) that in thousands of waterboarding sessions designed to teach military trainees how to resist brutal interrogation, the trainees did not experience substantial physical pain and only a handful had mental health problems attributable to waterboarding.

We now know that some CIA interrogators — especially before 2003 — used waterboarding and other techniques in ways considerably more harsh and prolonged than the limited uses that Bybee and Yoo had approved. The lawyers probably should have warned more firmly against such excesses, but their failure to do so hardly proves bad faith.

Of course, when all is said and done, there is little doubt that some CIA detainees were tortured. This is a stain on our nation’s honor that should never be repeated. But the responsibility was so widely diffused, across such a large number of honorably motivated officials who tried (and sometimes failed) to stay within the law, that it makes no sense to seek to atone for the nation’s sins by singling out individuals for bar discipline or other punishment.

This is especially true when those individuals have already suffered greatly from being trashed as "war criminals," picketed at public appearances, stalked by grandstanding Spanish judges, and otherwise harassed across the country and around the globe.

There are better ways to account for and remedy our sins of torture. The sort of fact-finding "truth commission" that many have advocated could report on what was done and the lessons learned — although it could do more harm than good if such a panel conducted the sort of adversarial hearings that would become a public circus.

A simpler and risk-free approach would be for the president to offer the nation’s apology to the innocent victims of American torture and urge Congress to pay them compensation. Why hasn’t Obama done that?

This article appeared in the Saturday, September 12, 2009 edition of National Journal.

The post Torture: Stop Harassing The Lawyers appeared first on Stuart Taylor, Jr..

Your speech commemorating Black History Month by calling America "a nation of cowards" because we "do not talk enough with each other about race" — a topic about which we talk incessantly — was unworthy of the admirable public servant I believe you to be.

The speech was, as others have pointed out, embarrassingly misinformed, hackneyed, and devoid of thoughtful contributions to racial dialogue.

You can do much better. Please use your bully pulpit in the future to cut through the usual cant and state some politically incorrect truths about race in America that would carry special weight if they came from you. That would require mustering the courage to take on the Democratic Party’s powerful racial-grievance lobby. But it would do the country a lot of good.

The one point that you developed in a bit of detail in the February 18 speech was especially silly: "Black history is given a separate, and clearly not equal, treatment…. Until black history is included in the standard curriculum in our schools and becomes a regular part of all our lives, it will be viewed as a novelty, relatively unimportant and not as weighty as so-called ‘real’ American history."

Bosh. The reality is that our high schools and universities are quite clearly focusing disproportionate attention on black history.

The proof includes a poll published last year in which 2,000 high school juniors and seniors in all 50 states were asked to name the 10 most famous Americans, other than presidents and first ladies. The top three finishers were black: Martin Luther King Jr. (67 percent), Rosa Parks (60 percent), and Harriet Tubman (44 percent). So is the only living finisher, Oprah Winfrey (22 percent).

As for the universities, "the almost obsessive emphasis on race, class, and gender in the humanities and social sciences means that, if anything, black history is overrepresented in college history curricula," in the words of professor KC Johnson, a distinguished scholar of American history based at Brooklyn College. (We co-authored a 2007 book on the Duke lacrosse rape fraud.)

It’s true that college black-studies courses are often "separate." But the reason is hardly to slight black history. It is to satisfy demands for hiring more black professors, who tend to specialize in black studies. Some of them also use their platforms to spread the lie that America is still pervaded by white racism.

Your unelaborated assertion that "this nation has still not come to grips with its racial past" is also way off base, Mr. Attorney General.

To the contrary, this nation has adopted numerous civil-rights laws. It has replaced the once-pervasive regime of discrimination against blacks with a benignly motivated but nonetheless wide-reaching regime of discrimination against whites, euphemistically known as "affirmative action." It sometimes seems more interested in teaching children about slavery and segregation than about math and science. It has elected a black president.

The country has replaced the once-pervasive regime of discrimination against blacks with a benignly motivated but nonetheless wide-reaching regime of discrimination against whites known as "affirmative action."

For all of its flaws, this nation is "the least racist white-majority society in the world; has a better record of legal protection of minorities than any other society, white or black; [and] offers more opportunities to a greater number of black persons than any other society, including all those of Africa," black sociologist Orlando Patterson wrote in 1991.

You also said this, Mr. Attorney General: "On Saturdays and Sundays, America in the year 2009 does not, in some ways, differ significantly from the country that existed some 50 years ago [and] is voluntarily socially segregated."

Rubbish. It’s true that social self-segregation persists — especially, as Patterson has written, among "Afro-American students and young professionals." But as Abigail Thernstrom points out in National Review Online: "In 1964 only 18 percent of whites said they had black friends; the figure today is 87 percent." And the share of blacks with close white friends soared from 21 percent in 1975 to 82 percent in 2005. Sixty percent of whites report having black neighbors, up from 20 percent 50 years ago. A 2006 poll showed that half of the black respondents had dated whites and almost 40 percent of the whites had dated blacks.

Not to mention the black president, attorney general, former secretaries of state — one of whom served as chairman of the Joint Chiefs of Staff — power brokers, authors, entertainers, athletes, multimillionaires, and current and former CEOs at some of America’s biggest companies.

You said, "It is not safe for this nation to assume that the unaddressed social problems in the poorest parts of our country can be isolated and will not ultimately affect the larger society." True. But you offered not a clue about how to address those problems.

As I think you know, and should acknowledge, Mr. Attorney General:

• The major causes of these problems do not include contemporary white racism, which has been driven to the margins of society and has not been a serious obstacle to black advancement for at least two or three decades.

• The dominant cause is, rather, our tortured history: slavery and past discrimination, of course, but also the misguided welfare policies and cultural trends that did so much to destroy work incentives, foster irresponsible child-bearing and dependence on the dole, and break up poor families in the latter half of the 20th century.

Indeed, even as legal barriers to blacks fell and discrimination receded, the percentage of black children born out of wedlock soared from an estimated 15 percent in 1950 to 69 percent in 2000. (There was a similar but far less dramatic trend among whites.) "You name the social problem — poverty, crime, substance abuse, doing poorly in school, dropping out — and it correlates with growing up in a home without a father," in the words of conservative lawyer-scholar Roger Clegg.

• The most-important remedies for the problems plaguing many African-Americans are not more racial-grievance talk or civil-rights lawsuits. They are education, hard work, and the cultural renewal necessary to overcome the views of many black students that studying is "acting white." The average black high school graduate has learned no more in school than the average white eighth-grader. Spending more money on schools won’t change that unless we also adopt major reforms opposed by powerful Democratic interest groups: firing bad teachers, rewarding good ones, encouraging school choice, and tearing down the legal rules that make it so difficult to get disruptive students out of classrooms.

• On the subject of preferential treatment in college admissions and employment, as well as other racial affirmative-action programs promoted by your party, your speech offered nothing of substance — only a cryptic comment that although there can be "very legitimate debate," the subject is "too often simplistic and left to those on the extremes."

If you really want an honest conversation and if you don’t share the opposition of the vast majority of Americans (including me) to large racial preferences, please clarify specifically why you disagree. Also, please come to grips with the fact that these preferences do very little for truly poor people; that a substantial percentage of them go to middle- and upper-class blacks at the expense of less affluent Asians and whites; and that preferences harm some of their intended beneficiaries.

On this last point, please address the social-science research showing that virtually every selective college and university in the country discriminates so heavily in admissions that most black students cluster toward the bottom of the class and the best black students see their accomplishments stigmatized — and that alarming percentages drop out. And that more than half of entering black law students never pass the bar and never become lawyers. And that many blacks might do much better and get better educations at the less selective schools they would attend if the racial preferences were not so large. And please state whether you support the racial-preference lobby’s efforts to deny researchers access to the empirical databases that would cast more light on the magnitude of these problems.

One especially egregious reverse-discrimination case of which you are surely aware — because it is pending before the Supreme Court and politically explosive — is a lawsuit by white firefighters in New Haven, Conn., who were denied promotions they had earned. The reason was that powerful political figures wanted to promote some blacks who had done much less well on tests of firefighting skills and expertise.

The most important contribution that your Justice Department could make to a serious conversation about race in the near future would be to file a friend-of-the-court brief supporting those white firefighters. The deadline for doing that is February 26, the day this column goes to press. Here’s hoping that you do the right thing, and that your brief writers do a better job than your speechwriters.

Update: The Justice Department’s brief writers did do a better job than Holder’s speechwriters. While they stopped short of supporting the white firefighters, they did urge the justices to vacate a lower court’s ruling against the whites. They argued for sending the case back to determine whether the city’s claimed reason for denying the promotions — fear of liability to black firefighters — was "a pretext for intentional racial discrimination" against the whites.

Updated at 12:09 p.m. on Feb. 27.

This article appeared in the Saturday, February 28, 2009 edition of National Journal.

The post Let The Honest Talk About Race Begin appeared first on Stuart Taylor, Jr..