Later On

A blog written for those whose interests more or less match mine.

Using law to justify torture

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A very good article by Daphne Eviatar in the Washington Independent. It begins:

For months now, Atty. Gen. Michael Mukasey has refused to investigate whether Bush administration officials committed war crimes by authorizing the torture of suspected terrorists. His reasoning? Any actions were authorized by the administration’s lawyers, and so cannot constitute a crime. As he wrote to Rep. John Conyers (D-Mich.), one of 56 House Democrats who last month called on Mukasey to appoint a special counsel: “It would be both unwise and unjust to expose to possible criminal penalties those who relied in good faith on … prior Justice Department opinions.”

But can the alleged use of torture be so easily waived away? Since the so-called “war on terror” began, the Bush administration has, by its own admission, used “enhanced interrogation techniques” like forcing detainees to stand for 40 hours; simulated drowning and dousing detainees’ naked bodies with cold water in chilled prison cells. Former Defense Secretary Donald Rumsfeld formally approved the use of “stress positions,” attack dogs, sexual humiliation and physical violence. And these are just the officially sanctioned techniques the public knows about.

As the photos and written accounts of torture, sodomy and murder at Abu Ghraib have revealed, the American public may only know a limited amount when it comes to abuse of detainees in U.S. custody. Indeed, Human Rights First in 2006 found that in the previous four years, at least eight U.S. prisoners had been tortured to death.

The Democrats’ call for an independent investigation has received little attention – perhaps because the Justice Dept. has consistently denied that policymakers could be culpable. After all, they were acting on the advice of legal counsel.

Indeed, evidently anticipating the Democrats’ charges, in 2002 the White House, Justice and Defense Departments began creating a paper trail of legal memos in the hopes of insulating their actions. Thus the infamous “torture memos,” written by former Justice Dept. lawyers John Yoo and Jay Bybee, were drafted to define torture narrowly – and were careful not to rule it out. Last week, the legal commentator Stuart Taylor Jr. accepted Mukasey’s position without question. Taylor wrote in Newsweek that there was no sense in prosecuting government officials. President George W. Bush, Taylor argued, should pardon everyone; the matter of culpability should be dropped.

But do the administration’s legal memos put the matter to rest? Does soliciting a set of self-serving opinions actually shield senior government officials from prosecution?

Probably not, according to many constitutional scholars and lawyers. Indeed, the Justice Dept. itself would never accept, on face value, any suspected criminal’s defense that he had been relying on advice of counsel. Rather, legal experts say, that advice must have been a reasonable interpretation of the law, based on a thorough knowledge of the facts, and provided before the suspect acted. So when it comes to policymakers authorizing torture, the administration’s defense appears to fail on all grounds.

First, without an investigation establishing who advised whom, of what and when, we don’t even know if Mukasey’s claim is true. Sure, the White House has turned over legal memos written by the Justice Dept.’s Office of Legal Counsel. But at least 17 other memos, including the most recent, have not been released, on the basis of attorney-client privilege.

“We don’t know what these memoranda say,” said Scott Horton, a human-rights lawyer and professor at Hofstra Law School. “The ones operative now have not yet become public. We know that they go to the really rough stuff.” That includes “the harshest interrogation techniques ever used by the Central Intelligence Agency,” according to a New York Times report on a 2005 OLC memo.

For the Justice Dept. now to claim that an “advice of counsel” defense eliminates even the need to investigate is disingenuous at best. “Typically, in a white-collar case, DOJ is going to look to challenge your assertion that you have a viable ‘advice of counsel’ defense every way possible,” said a prominent criminal-defense attorney, who doesn’t want to be named because he frequently squares off against the Justice Dept. That means a suspect must reveal what he told his lawyer, and what his lawyer told him. In other words, he waives the attorney-client privilege that the government is now invoking.

Even if it turns out a lawyer did sanction criminal conduct, …

Continue reading.

Written by Leisureguy

23 July 2008 at 2:48 pm

Posted in Bush Administration, GOP, Government

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