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April 17, 2009

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I think that a focus on definitional issues tends to blur the larger point. None of these documents represents the giving of well thought out “legal advise” and was certainly never seen as “guidance” by the torturers and their masters. Clearly, the participants in this kabuki performance cared not at all whether the memos were well crafted examples of the lawyer' art or something that would get a first year law student a failing grade. The torturers simply wanted assurances that they would not be prosecuted for their evil.

It would have been much simpler and infinitely more honest if George W. Bush had simply given each of his torturers a letter reading: “The person with this letter has acted under my orders for the good of the United States”. If for no other reason then that we would have been spared all of this silly parsing of the various treaties and domestic laws about torture.

Fortunately for us, America had the good sense to elect a former professor of constitutional law able to speak with eloquence and power about the “rule of law” even as he pisses on it. But is the ability to more eloquently immunize torture and other war crimes in the name of “moving forward” really change you want to believe in?

It would have been much simpler and infinitely more honest if George W. Bush had simply given each of his torturers a letter reading: “The person with this letter has acted under my orders for the good of the United States”.

Yes, but that would have required him to take personal responsibility for his policies.

Clearly, that was not gonna happen, then or now.

From David Neiwert's book, In God's Country: The Patriot Movement and the Pacific
Northwest
:

When he was a young man, he told us, he served in the U.S. Army as part of the occupation forces in Germany after World War II. He was put to work gathering information for the military tribunal preparing to prosecute Nazi war criminals at Nuremberg. His job was to spend time in the villages adjacent to one concentration camp and talk to the residents about what they knew. The villagers, he said, knew about the camp, and watched daily as thousands of prisoners would arrive by rail car, herded like cattle into the camps. And they knew that none ever left, even though the camp never could have held the vast numbers of prisoners who were brought in. They also knew that the smokestack of the camp's crematorium belched a near-steady stream of smoke and ash. Yet the villagers chose to remain ignorant about what went on inside the camp. No one inquired, because no one wanted to know. "But every day," he said, "these people, in their neat Germanic way, would get out their feather dusters and go outside. And, never thinking about what it meant, they would sweep off the layer of ash that would settle on their windowsills overnight. Then they would return to their neat, clean lives and pretend not to notice what was happening next door. "When the camps were liberated and their contents were revealed, they all expressed surprise and horror at what had gone on inside," he said. "But they all had ash in their feather dusters."

When the history books are written, all of us get the blame. Not just the GOPers responsible for Bush and Cheney.

Time will tell how this will play out. Hilzoy's piece quotes part of the statute, as do most of the other other bloggers, but does not address the balance, which will impact significantly any criminal prosecution:

“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering; [or]
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

The subjective elements of "severe physical pain or suffering" and "disrupt profoundly", or more to the point, the qualifiers "severe" and "profound" inferentially concede that there are levels of torture which fall outside the statute, i.e. if the suffering is not "severe" or if the disruption is not "profound", then no offense was committed. Moreover, the mens rea, which has to be proved beyond a reasonable doubt, is that the person inflicting or ordering the torture "intended . . . severe pain or suffering . . . [or] intended . . . profound personality disruption."

This is no easy burden of proof and any defendant prosecuted under this statute will have more than able counsel.

The statute is silent on prosecuting lawyers who attempt to construe it and apply it to prospective or hypothetical situations. Almost certainly, none of the lawyers who addressed this statute are subject to criminal prosecution, at least not under this statute.

Much has been written by people who agree with Hilzoy that the rule of law was absent during the Bush administration. The rule of law will not tolerate the state prosecuting people under a statute where the state cannot carry its burden of proof, or demand that lawyers construing a statute be prosecuted for doing so.

Like it or not, criminal statutes are strictly construed and proof of every element of an offense beyond a reasonable doubt is mandatory.

Over time, if the Obama administration seeks and obtains indictments, the defenses of 'necessity' and 'justification' will be raised. These will resonate well in many quarters. Partisans on the right will call any prosecution a witch hunt. If the Obama administration proceeds to trial and can't make its proof on the elements of the offense and is instructed out at the close of the evidence--or if the jury acquits-- the claims of witch hunt will gain real credence.

Baloney, mckinneytexas.

The problem rightwing apologists for this disgrace have is twofold. First, the torture memos dates; it is apparent certain detainees were being tortured before Bush's DoJ issued their infamous and disgusting memos seeking to redefine torture.

Second, the memos themselves. People just aren't going to accept the notion starvation, sleep deprivation, waterboarding, etc. cause no physical or mental pain.

None of these documents represents the giving of well thought out “legal advise” and was certainly never seen as “guidance” by the torturers and their masters. Clearly, the participants in this kabuki performance cared not at all whether the memos were well crafted examples of the lawyer' art or something that would get a first year law student a failing grade. The torturers simply wanted assurances that they would not be prosecuted for their evil.

This is basically what a former high ranking CIA official said in my presence when Rizzo was up for CIA general counsel. Remarking that people were going to try to "pin" the torture on Rizzo: CIA asked the DOJ if it was legal for them to do X to the people in their charge, the DOJ said it was, and that was enough for CIA.

mckinney: Was that a defense of torture or a defense of the defense on torture?

Almost certainly, none of the lawyers who addressed this statute are subject to criminal prosecution, at least not under this statute.

Maybe someday we'll find out how much daylight fits through that "almost".

Is DaveC posting as ddddave? Compare this with this.

I don't like typing this, at all, because the problem reeks, but mckinneytexas isn't pointing at nothingness in regard to prosecuting the authors of those memos.

I support their prosecution (definitely as well as the prosecution of those who gave the orders at the top), because the memos - these "legal opinions" - were crafted to enable what was done. I like an image I had last night, of an exercise in stepping only on the cracks in the sidewalk all the way across town. The object was to make these things seem legal and seem not to be torture. The handling of the laws and precedents is plainly insincere, screamingly at times. The culpable intent to enable illegal torture to continue is evident. The need to deter this sort of evil magic trick in the future is plain. BUT.

How is this line to be drawn? What is the line? How do you say, "in this regard they were across it"? Is moral idiocy about confusing the need for an accurate legal assessment with the need for an enabling legal "flyer" argument to serve clients criminal? What is the right language to do this in?

Considering what this is, they deserve to be hanged. But a real answer to this legal question is needed.

The people who most need to be prosecuted are the higher ups who put this policy in place and wrote these memos (including, that is, the President and Vice President).

A kind of political game of chicken is being played here, in which the Bush Administration moved responsibility so far up the chain of command that they're counting on DoJ and Congress to refuse to go there. And everyone lower down (i.e. the entire CIA) can just repeatedly intone "Befehl ist Befehl," which is apparently an acceptable defense in Washington these days.

(Frankly if we really want to clean house, it might not be a bad idea to simply find that the CIA is a criminal organization--as has been done with other organizations in the past--and rebuild our intelligence infrastructure from scratch.)

I am struck by a "professional" ethic, or a version of one, befouling the water in this case as elsewhere: that - as an uninflected statement - attorneys have the duty to do anything they can possibly do for their client. It is always a polluting ethic if and when edgeless, and it becomes worse when the "client" is the powerful State, as in remarkable levels of prosecutorial misconduct and a DOJ culture that has accepted them. And then in this case due diligence for the client's objectives actually meant, not just pooping in the pond, but saying that the poop was the pond.

If the sense of duty as an officer of the court can't bound this, fear of consequences had better. Which is why I really think we need to find a way in which these memo-writers can be brought to real justice.

If what these people did is legal, we need better laws drafted to prevent anything like this from ever being legal again. And then name the bills after the principle perpetrators so their names are not forgotten.

"If what these people did is legal, we need better laws drafted"

Here is the US Code that defines torture. Anchor links don't seem to be working reliably, so I'm just citing the full URL. Cut and paste will get you there.

http://www4.law.cornell.edu/uscode/18/usc_sec_18_00002340----000-.html

IANAL but it seems to me that what is needed in this context are crisp-ish definitions of "severe" and "prolonged".

Actually, we already have a contender for "severe", which is Bybee's "to the level of death, organ failure, or the permanent impairment of a significant body function".

Which, BTW, tells you the kind of sick f***s we are dealing with. Merely being reduced to groveling and begging for release is not enough, you have to be hurting like some major bodily system is failing.

So what we're lacking is "prolonged".

If you keep someone awake long enough to make them delusional or even psychotic ("procedures calculated to disrupt profoundly the senses or the personality"), how long do they have to be in that state before it's "prolonged"?

An hour?
A day?
A week?
Lifetime?

Even if it's lifetime, I believe we have a winner in Jose Padilla.

Maybe these guys will weasel out of it. More likely, nobody in this country will have the stones to bring charges, and they'll avoid international charges by taking their vacations at Disney World from now on.

In any case, a plain reading of the text of the US Code tells me what went on was torture. The OLC memos are nothing more than an attempt to CYA after the fact.

People have, literally, hung for this. We've hung some of them.

We'll see where this all lands, and that will tell us what, exactly, we are made of as a people.

I take your point about the burden of proof, mckinney, but if your comment is intended to be a defense, I'd say your good wishes are wasted on this lot. They don't deserve your support.

If the memos are trying to be passed off as "legal opinions," didn't the Executive Branch break some sort of law by taking on the actions reserved for the Judicial Branch?

In this sense, it seems as if the Bush Admin was acting as some sort of rogue government.

"If the memos are trying to be passed off as 'legal opinions,' didn't the Executive Branch break some sort of law by taking on the actions reserved for the Judicial Branch?"

No, of course not. The Department of justice writes legal opinions all the time. "Legal" does not mean "judicial."

Physicians for Human Rights has an admirably concise and to-the-point statement responding to the contents of the OLC memos. Excerpts:

[The memos provide] detailed confirmation of the intimate involvement of health professionals in designing, supervising and implementing the CIA’s “enhanced” interrogation program. Tactics used by psychologists and supervised by medical personnel, including physicians, clearly constituted torture and a grave breach of medical ethics. ... The health professionals involved in the CIA program broke the law and shame the bedrock ethical traditions of medicine and psychology. All psychologists and physicians found to be involved in the torture of detainees must lose their license and never be allowed to practice again. ... Strained legal rationalizations for torture techniques should provide no cover for health professionals who helped design and implement them. ... The timeline seen in these memos supports what other investigations have shown. A decision to use the SERE techniques was made at the White House level and the OLC memos were written after the fact to provide legal cover. Rather than serving as a shield to protect our values, the law was used as a fig leaf for torture.

PHR's forthrightness is refreshing enough on its own, but is a particularly timely antidote to President Obama's appalling statement accompanying the memos' release.

PHR statement via Valtin, a psychologist who has studied the role of the American Psychological Association and some of its leading members in researching and developing torture techniques for the organs of our national security state.


I'll repost the most significant part of the PHR statement for those who won't read to the end of the blockquote in my previous comment.

A decision to use the SERE techniques was made at the White House level and the OLC memos were written after the fact to provide legal cover. Rather than serving as a shield to protect our values, the law was used as a fig leaf for torture.

The evidence of the memos, in combination with other information in the public record and the Convention Against Torture, places on the U.S. government the positive obligation to act -- to investigate for prosecution those in the White House who made the decision to use torture techniques and those who provided "legal cover".

Attorney General Holder must appoint a special counsel to begin that investigation for prosecution. If he does not, Congress must revive the legislation authorizing a special prosecutor, and appoint one.

I rarely disagree with russell, but we do not need more or crisper definitions.

The health professionals, CIA operatives, and CIA officials lied about the effects of the torture techniques, the condition of the prisoners, the ways in which techniques were being combined, and the connection of torture with obtaining information (the goal of any legitimate interrogation).

The lawyers for the criminal clique in the Nuremberg-free zone that is the U.S. government's highest executive office fit the law to cover the crime. In doing so, they avoided drawing much on any actually existing, relevant law.

That's because the law is plenty clear and specific. As a result, actually evaluating the actions and proposed actions taken against the prisoners against actual law would make it impossible to justify.

The U.S. has prosecuted people for the exact same crimes as the CIA, U.S. military, and contractors had already committed against prisoners as well as those they were proposing to commit.

They simply became 'not-crimes' when committed by U.S.-directed personnel, according to the mob lawyers in the Bush White House.

Office of Legal Counsel:

[...] The Office of Legal Counsel (OLC) assists the Attorney General of the United States in his function as legal adviser to the President and all the executive branch agencies. (Hence the appellation "the president's law firm."[2]) The OLC drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the executive branch, and offices within the Department of Justice. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality. The decisions of the Office are binding on all executive agencies.

All executive orders and proclamations proposed to be issued by the President are reviewed by the OLC for form and legality, as are various other matters that require the President's formal approval.

In addition to serving as, in effect, outside counsel for the other agencies of the executive branch, the OLC also functions as general counsel for the Department of Justice itself. It reviews all proposed orders of the Attorney General and all regulations requiring the Attorney General's approval.

The Office of Legal Policy also writes loads of legal opinions.

"Attorney General Holder must appoint a special counsel to begin that investigation for prosecution."

Or he could write a legal opinion about the legal opinions and make the whole thing seem more illegal.

---

Nell: You are making too much sense.

Thanks for the clarification, Gary.

Valtin shows how Yoo, Bybee, and Bradbury not only ignored the mountains of evidence about the harmful effects of SERE techniques even on willing, voluntary, short-term participants, but went further and even cherry-picked the conclusions of SERE's own consulting psychologist, on whose views and study they based much of their memos.

"Fit the law to cover the crime" is exactly what I am seeing on these pages. The statute itself is very precise, and very difficult to prove. If you want 'the rule of law', you'll have to find something other than the torture statute to get you there. One possibility is 42 USC 1983 (deprivation of civil rights under color of law), but that still a huge stretch from a criminal law standpoint.

mckinneytexas,

"Fit the law to cover the crime".

Exactly, but in the sense to hide, not to enclose.

mckinney in texas: If the Obama administration proceeds to trial and can't make its proof on the elements of the offense and is instructed out at the close of the evidence--or if the jury acquits-- the claims of witch hunt will gain real credence.

Remind me to shake.

We have a ton or work to do to get anyone in this country to take this to trial before the perps die. Thank goodness Bush spent all that time on the treadmill!

Next step: release of the Justice Dept's Inspector General report on the quality of those Yoo, Bybee, and Bradbury memos. Which was sat on by Mukasey (may you rot in hell for all eternity, Chuck Schumer and Diane Feinstein).

A ton of torture went on before and beyond what is purportedly "authorized" by these cherry-picking, intellectually dishonest, law-avoiding memos. Specifically: all the abusive conditions of detention outside and between "interrogation" sessions (a footnote to one of the memos explicitly disclaims any effort to rule on those conditions): hanging by wrists, 24-hour lights, excessive heat or cold, sensory deprivation, isolation.

Then there's the fact that waterboarding didn't follow the procedures purportedly "legalized" in the memos: it was performed many times more often and with much, much more water, and was done even when the prisoner-victim was being "compliant".

The destruction of the tapes of Abu Zubaydah's and Al-Nashiri's torture sessions is itself a crime, and reveals consciousness of guilt.

By the time the perps make it to court, I'm not a bit worried about conviction for torture. It's not going to happen next month or next year. But it's going to happen.

Typepad's intermittent removal of links in comments is creepy, annoying, and apparently random (since links in an earlier comment of mine, and other commenters', are intact).

I've refreshed a number of times, and the link in my comment at 4:01, "Valtin shows ..." is not appearing. (

(link at 'shows' in case it disappears:
http://valtinsblog.blogspot.com/2009/04/sick-torture-memos-also-lie-closer-look_17.html

Likewise my link in the 'card-carrying member' thread to the ACLU's petition for a special counsel to investigate for prosecution for torture.

'petition':
http://action.aclu.org/site/SPageServer?pagename=Nat_Petition_SpecialProsecutor&s_src=UNW090001ACT&s_subsrc=homepage

If the Obama administration proceeds to trial and can't make its proof on the elements of the offense and is instructed out at the close of the evidence--or if the jury acquits-- the claims of witch hunt will gain real credence.

Yeah, not to pile on, but I second Nell's big yawn on this point.

No matter what anyone does about this, somebody's gonna scream about it, so we might as well suck it up and do the right thing.

If the cap fits, let them wear it.

My two cents.

Next step: release of the Justice Dept's Inspector General report on the quality of those Yoo, Bybee, and Bradbury memos.

Queue Marcie Wheeler:

http://emptywheel.firedoglake.com/2009/04/17/the-cia-ig-report-and-the-bradbury-memos/

I was late finding it to put in here - is anyone going to read this? - but the best answer to mckinneytexas' concerns about whether the authors of the memos can be prosecuted for how they construed the laws - no matter how heedless or dishonest that construal - appears to be United States v. Altstoetter, one of the Nuremberg trials.

http://balkin.blogspot.com/2006/10/when-lawyers-are-war-criminals.html

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