More On Cornyn

by hilzoy

Publius has already written about Sen. Cornyn's decision to delay Eric Holder's confirmation as Attorney General for a week. I just wanted to add a couple of points. Here's what Cornyn said about his reasons for the delay:

"Other GOP members of the committee, said Cornyn, are also concerned about the potential for prosecutions. The intent of the Military Commissions Act, he argued, was to provide immunity from prosecution if agents believed they were acting lawfully.

"Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was," said Cornyn.
"There were provisions providing immunity to intelligence officials based up on good faith and what they understood the law to be," said Cornyn. "I want to know if he's going to enforce congressional intent not to second guess those things in a way that could jeopardize those officials but also could cause our intelligence officials to be risk averse -- the very kind of risk aversion...that the 9/11 commission talked about when they talked about what set us up for 9/11.""

First, the Military Commissions Act does not immunize intelligence agents from prosecution for anything. In Sec. 6, it provides a list of things that can be prosecuted as war crimes. One of them is torture. Another is 'cruel or inhuman treatment'. Insofar as we can infer congressional intent from this statute, we have ought to conclude that Congress intended that people who torture someone can be prosecuted: after all, Congress passed a law that expressly provides for their prosecution. 

If John Cornyn and his colleagues meant to immunize intelligence officials for whatever they did, they should have passed a law saying so. If they wanted to immunize intelligence officials for doing anything that the Bush administration said was OK, however implausible the administration's claims might be, they should have passed a law saying that. And if they wanted to add a codicil saying: "For the purposes of this statute, the practice known as 'waterboarding' is not a form of torture", they should have done that.

But they didn't do any of these things. They passed a law saying that people who engage in torture can be prosecuted for war crimes. Eric Holder, like many people, and like our government before George W. Bush got hold of it, believes that waterboarding is torture. Nothing in the Military Commissions Act says otherwise. 

Second, because Eric Holder is not yet Attorney General, he has not yet had a chance to see what, exactly, people did to detainees over the last seven years. That being the case, it would be completely irresponsible for him to say whether he will or won't prosecute them. 

Imagine ...

 that when Joe Biden walked into the Vice President's office, he discovered that Cheney had created a small dungeon where his anteroom used to be, a dungeon in which he was able to personally watch as intelligence officials ripped detainees' fingernails off. Imagine that Cheney had all this videotaped, and that between that, analysis of the fingernails that littered the room, and other forensic evidence, there was no doubt at all about what had happened. 

Now imagine that interrogations of the intelligence officers in question revealed that while most of them knew perfectly well that this was illegal, despite the elaborate opinion John Yoo had written explaining why the loss of a mere fingernail, as opposed to an entire limb, cannot be considered to be torture, the one intelligence agent who had participated most enthusiastically was too dim to see this. Should anyone ask Holder to commit himself, in advance, and without knowing what he will find, not to prosecute such a person?

Obviously, this works the other way. Imagine that when Obama's appointees begin to dig through our interrogation policy, they discover that it was all a hoax designed to deter people from joining al Qaeda. Those records of apparent torture sessions were all in code: 'Harsh Ego Down', for instance, meant 'Subject received additional silken pillows, as per request; also, more Godiva chocolates.' Maher Arar is in fact a long-time undercover CIA operative who has been pretending to be a victim of extraordinary rendition. Whenever the detainees' lawyers visit Guantanamo, everyone pulls together to make them think the worst; afterwards, they head back to their carefully concealed beach resort and crack open another bottle of Chateau D'Yquem. Under those circumstances, even a hard-core advocate of prosecution such as myself would change her mind. 

These are, of course, ludicrously extreme examples. But the basic point stands -- that no responsible prosecutor ought to say whether or not he will prosecute a given individual before he knows where the evidence leads. If Holder were willing, at this point, to promise either that he would or that he would not prosecute people for war crimes, I would regard that as disqualifying him for the position of Attorney General.

John Cornyn ought to know this. He has a law degree. He served as a District Court judge for six years, on the Texas Supreme Court for seven, and as Texas' Attorney General from 1999-2002. Either he slept through most of his career, or he just doesn't care. In either case, he should be ashamed.

Comments

[publius]

The objection, I think, would be that the DTA does immunize this stuff. It basically establishes a "show a John Yoo memo" defense. The MCA (in Sect. 8) incorporates and expands this protection by reference -- and applies to anything relating to detention from 2001-05.

that said, I don't have a lederman/greenwald-level understanding of where exactly the statute's boundaries are. and you're right that torture is still a crime. it's just that there's a big chunk of defense that apply in "any criminal prosecution."

a real testament to america, those laws.

[publius]

Here's link to DTA.

Maybe I've read it wrong (and hopefully others can chime in... Katherine?). But i assume that's what cornyn the torture supporter is talking about

[jdog]

Chateau D'Yquem? A desert wine?

[Sapient]

Whether or not the DTA offers a defense to torturers has no bearing on whether or not they should be prosecuted in the first place. The defense is an affirmative one so the burden is on the torturer to present evidence proving good faith, not the prosecutor to determine in advance that all was done in good faith. Also, bogus legal opinions, even if accepted by a lower level torturer, shouldn't be immunized. The higher the position of the torturing conspirator, the less likely "good faith" should be accepted as a defense.

But all of this needs to be litigated, not determined in advance by a prosecutor unless the prosecutor simply decides that the defense will prevail and the prosecution will be a waste of judicial resources.

[Nell]

The intention of the Military Commissions Act was quite clearly to shield torturers from legal accountability, as was the loophole for the CIA in the Detainee Treatment Act. This was one of the several serious objections to those bills from human rights at the time they were being debated.

From Philippe Sands' 'The Green Light':

The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene./blockquote>

I'm not arguing with the contention that Holder should not be forced to say at this point either that he will or won't prosecute the crimes related to torture, only that Cornyn is not imagining the obstacles to prosecution that Congress has placed in the way of those who might prosecute torturers.

[Nell]

Oh, for pete's sake. Sorry. Hope I can end the blockquote.

Has the madness stopped?

[SeanH]

I'm no lawyer, but my objections to his objection are:
1. As a party to the UN Convention Against Torture we're bound by the treaty to prosecute torture and orders to use torture by anyone under our jurisdiction.
2. The Supremacy Clause makes treaties the supreme law of the land, trumping even the Constitution itself to some poorly defined degree.
3. Again, no legal training here, but unless I really misunderstand the supremacy clause, Congress has no power at all to contradict a treaty while we are still party to it.
4. We haven't withdrawn from the treaty and the treaty expressly forbids "following orders" excuses. Any congressional intent to the contrary is completely irrelevant.

All that goes for the President and anyone else in the country as well. I suspect that's the main reason Bush didn't bother sending out a peck of pardons. If nobody has the power to cross a valid treaty without withdrawing from it then the President doesn't have the power to pardon torture either. Also, what Sapient said.

[mythago]

Nell - the article you linked to is a Vanity Fair article about the reactions of a European judge and prosecutor to the reporter's interpretation of the Military Commissions Act.

Even assuming an immunity provision, Holder would have to look at the actual evidence to determine what happened, and whether those acts fall under the immunity provision. A blanket "No, I will not prosecute" is an ideological statement, and that's what Cornyn wants. He knows better.

[Sapient]

Thanks, SeanH. Do want to say though that treaties don't trump the Constitution.

[Gary Farber]

"The Supremacy Clause makes treaties the supreme law of the land, trumping even the Constitution itself to some poorly defined degree."

That's more or less an legal urban legend. I could give a lot of links proving this, but I'm busy right now. It's false, though. Look up "Bricker Amendment" in Wikipedia, and read why it was unnecessary.

[David44]

Mythago:

It might be relevant to note that the "reporter" in the Vanity Fair article is Philippe Sands, who is Professor of International Law at University College, London. Hence his interpretation of the law is likely to be rather better grounded than that of the average journalist.

[ral]

Who is Philippe Sands? I posted this in a prior thread; here it is again.

Re. torture investigation, Terry Gross just interviewed Philippe Sands (professor of law at University College London, author of Torture Team) on this topic.

Here is a related post by Duncan Hollis with many useful links.

[KCinDC]

Cornyn may not be a great senator, but isn't calling him a "More On" a bit harsh for ObWi?

[mythago]

David44 - even taking that into account, we are getting a journalist's account of a foreign magistrate's interpretation of what the journalist said. Now, Sands may be entirely correct, but this not exactly a first-hand interpretation of the text.

[Gary Farber]

I quoted at length from Dr. Sands book here a couple of weeks ago in a very long post about what to do about the torturers, quoting the NYRB.

[efgoldman]

Hilzoy:
John Cornyn ought to know this. He has a law degree. He served as a District Court judge for six years, on the Texas Supreme Court for seven, and as Texas' Attorney General from 1999-2002. Either he slept through most of his career, or he just doesn't care. In either case, he should be ashamed.

You answered your own question. He was a TEXAS judge, AG, etc. Remember Gonzo? He's the fruit of the same poisonous tree. Being an attorney, or a judge, or AG in Texas isn't proof that the person has even read the constitution.

[Gary Farber]

But Cornyn looks so good on horseback.

[dr ngo]

Chateau D'Yquem? A desert wine?

No, no, no.

Palm toddy is a desert wine.

Chateau d'Yquem is a dessert wine.

[John]

Cornyn's comments are a staggering comment on the quality of the US judiciary of which he was once an ornament. But then Gonzales was a judge once also. I wish I could say it was a unique TX phenomenon, but then you had the esteemed Judge Mukasey dancing around this subject and then there are frequently bizarre pronouncements of Justice Scalia who constantly talks about his committment to originalism while regularly rendering activist verdicts. The bottom line is you have school of legal thought where politics have taken over from the rule of law, due process and natural justice.

[Nell]

@mythago:

Nothing I said is in defense of Cornyn's ridiculous demand that Eric Holder say that he will or won't prosecute.

My point is that many members of Congress intended the Military Commissions Act, and the failure to cover only military personnel, not all U.S. personnel, in the Detainee Treatment Act, to be an obstacle to prosecution of those who committed (or authorized) torture before the Acts' passage.

Legal observers and human rights organizations objected to these effects, among others, at the time the bills were being considered in Congress. Legal analysts in the U.S. and abroad have read the MCA in particular as an effort to immunize torturers.

In the VF article Philippe Sands is directly quoting the European prosecutor, who made the comments in conversation with him. He has repeated the analysis in testimony before Congress, and in interviews.

Sen. Cornyn is aware of these views, and is aware of the risk of U.S. and/or international prosecution of those who committed and/or authorized torture. That's one reason he's trying to wring a commitment out of the next Attorney General. Of course Holder cannot and should not give such a commitment. But Cornyn is not imagining the threat of prosecution, nor imagining the intentions of those who drafted and introduced the Military Commissions Act.

[Gary Farber]

New OLC, yay.

[Nell]

Argh, confusingly written. I said the failure to cover only military personnel, not all U.S. personnel, in the Detainee Treatment Act.

I meant to say: the failure to cover all U.S. personnel, not only military personnel, in the Detainee Treatment Act

[jack fate]

Isn't Cornyn essentially bribing Holder? He's obstructing his appointment, contingent on receiving something of value - the commitment to not investigate or prosecute possible (probable) crimes committed by the previous administration.

Isn't that illegal?

[Gary Farber]

"Isn't that illegal?"

a) No.

b) If it were, it's been done approximately 1,000,000 times before.

[Nell]

Emptywheel points out that the statute of limitations on prosecution of Bush officials for the crime of eavesdropping on U.S. citizens without warrants runs out in seven weeks, on March 11.

The Republicans' efforts to delay Holder's confirmation may be at least in part an effort to run out the clock on that particular prosecution.

There's a raft of judicial proceedings in which the Obama DoJ needs to decide what position to take, and that department needs to start functioning now. So Leahy and Reid need to stop accommodating this b.s.