Thursday, February 26, 2009

Re-establishing The Rule of Law in regards to Torture: USA

There is precedent for holding lawyers criminally liable for giving legally erroneous advice that resulted in great physical or mental harm or death. In U.S. v. Altstoetter, Nazi lawyers were convicted of war crimes and crimes against humanity for advising Hitler on how to “legally” disappear political suspects to special detention camps. - Marjorie Cohn


Source and paraphrases are largely from: Bill of Rights Defense Committee and Marjorie Cohn (President of the National Lawyers Guild). I will also soon be adding information from Andy Worthington (The Torture Files & ongoing website work),Stephen Grey (Ghost Plane & website),Philippe Sands (The Torture Team and interview with Bill Moyers),Center for Constitutional Rights and their call for a Special Prosecutor,Jane Mayer (The Dark Side, Recent articles & interviews), ABC, Newsweek and others.

CALL FOR A SPECIAL PROSECUTOR (and why a Truth and Reconciliation Commission - T&RC -is not strong enough):

In the short month since he took office, President Obama has instituted many changes that break with the policies of the Bush administration: that no government agency will be allowed to torture, that the U.S. prison at Guantánamo will be shuttered, that the CIA’s secret black sites will be closed down. However, among some concerns among human rights and constitutionally-concerned groups is that the new president, when asked whether he will investigate and seek prosecution of officials who broke the law, states:

“My view is also that nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen,” Obama said. “But,” he added, “generally speaking, I'm more interested in looking forward than I am in looking backwards.”

The Office of Professional Responsibility (OPR) has a drafted report that apparently excoriates former Justice Department lawyers John Yoo and Jay Bybee, authors of the infamous torture memos. OPR can report these lawyers to their state bar associations for possible discipline and may refer them for criminal investigation. Obama doesn’t need initiate investigations; the OPR already has - on Bush’s watch.

If the president and vice president told the "torture memo" lawyers to manipulate the law to permit torture - the question is, what is in law to defend them?

A Senate Armed Services Committee report stated that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Cheney finally admitted to authorizing waterboarding, which has long been considered torture under U.S. law. Donald Rumsfeld, Condoleezza Rice, George Tenet, Colin Powell, and John Ashcroft met with Cheney in the White House basement and authorized this and other harsh interrogation techniques, ABC News report. When asked, Bush said he knew about it and approved.

A representative of the Justice Department promised that OPR’s report would be released sometime last November. But Bush's attorney general Michael Mukasey objected to the draft. A final version has or will soon be presented to Attorney General Eric Holder. The administration will then have to decide whether to make it, and other items public.

Yoo redefined torture much more narrowly than U.S. law provides, and counseled the White House that it could evade prosecution under the War Crimes Act by claiming self-defense or necessity. He claimed in the Wall Street Journal that Bush “could even authorize waterboarding, which he did three times in the years after 9/11.”
Yoo knew or should have known of the Torture Convention’s absolute prohibition of torture. Yet, when the United States ratified the Convention Against Torture, we promised to extradite or prosecute those who commit, or are complicit in the commission, of torture.

We have two federal criminal statutes for torture prosecutions – the Torture Statute and the War Crimes Act (torture is considered a war crime under U.S. law). The Torture Convention is unequivocal: nothing, including a state of war, can be invoked as a justification for torture.

Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 favor criminal investigations. Rep. John Conyers has introduced legislation to establish a National Commission on Presidential War Powers and Civil Liberties. Sen. Patrick Leahy is calling for a Truth and Reconciliation Commission.

All that is good as far as it goes - yet is insufficient. TRC’s, according to Prof. Marjorie Cohn, are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice. Cohn,
are calling on Attorney General Eric Holder to appoint a Special Prosecutor to investigate and prosecute high Bush officials including the lawyers who gave them “legal” cover.

Obama is correct to say that no one is above the law. Accountability is critical to ensuring that our leaders never again torture and abuse people.


Four victims of extraordinary rendition, the practice of secretly transporting terrorism suspects to countries that allow torture for questioning, have sued Jeppesen DataPlan, Inc., the California company that flew them out of U.S. jurisdiction for interrogation. Last year, the Bush administration invoked the state secrets privilege and had the case thrown out of court.

In spite of pressure to reverse this "state secrets privilege" by the ACLU, which brought the suit as well as the editorial boards of The New York Times and the Los Angeles Times - the case is evidently to be dismissed - at this last look, February 25, 2009.

That this case was dismissed causes a redoubling of expert as well as grassroots efforts. The public simply can't expect the President alone to guard citizens rights and those of others with whom our nation interacts legally or illegally.

Therefore, it is the responsibility of the Judicial Branch (with strong expectations and demands from the citizens, leaders and legal professionals) to weigh the administration’s claims of state secrets against the value of holding responsible those who participated in any way with the torture or supposed "terrorists".

Congress is responsibile to create laws that check the power of the Executive Branch so that the state secrets privilege will not be allowed to cover up illegal and inhumane acts. Let the fact be known that we have signed on to laws such as the Geneva Conventions against torture which are as binding to us as any other law we have created solely within the US. And of course there are other rulings which apply as well - such as the Army Field Manual.

Finally, the citizenry are accountable for monitoring the workings of all three branches of government. We the people are responsible to speak out when the rights of citizens (and others) are imperiled. Persistent, educated advocacy is the key to the preservation of both our civil liberties and our reputation around the world.

Let's call on our congressional representatives to fulfill their responsibilities. Senator Patrick Leahy (D-VT) and Rep. Jerrold Nadler (D-NY) have introduced the State Secrets Protection Act (S.417 and H.R.984). The bill is currently in committee. There are six co-sponsors in each house who've signed on (maybe more by now?)

This bill is to provide guidance to courts on cases in which the government claims national security will be endangered by allowing the suit to go forward. The bill would keep courts from dismissing cases solely because the state secrets privilege has been invoked. Judges would still be empowered to do so after reviewing the information behind the claim and allowing the defense to make a counter-claim. The bill would also establish new safeguards for protecting classified information. Finally, this urgently needed bill would provide a way for judges to report on such cases to Congress.

Use all your networks to alert your contacts and to encourage your senators and representatives to support this bill.

SIGN THE PETITION to call for a SPECIAL PROSECUTOR: Go to Dems dot com and click on What's Hot - upper right column

Also, for more verification that this approach is the best way for the US, there's quite a bit at After Downing Street dot org such as the following from the left-hand column:

Investigations substituted for impeachment for two full years. A "truth and reconciliation" commission as a substitute for prosecution would be counterproductive, as argued by Jonathan Turley, Peter Dyer, David Swanson, and Bob Fertik. The Justice Department itself has argued for "state secrets" blocks on prosecutions on the grounds that commissions can substitute for enforcing laws. The American public prefers criminal prosecutions to commission investigations.




Organize local events AS RECOMMENDED BY THE BILL OF RIGHTS DEFENSE COMMITTEE for Sunshine Week (March 15-21) to put pressure on Congress and the President to uphold their oaths to “protect and defend the Constitution.” There is still much work to do; the time for grassroots action is now.
While our legislators may often trouble us on some issues, we may still encourage one another to thank them on others. For example, here is a letter sent by Rep. Heath Shuler of NC on torture:


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