rssTorture by Any Other Name
Friday, October 17, 2008 at 12:32 pm
- 88 Comments
Illustration by: Matt Mahurin
Before a packed crowd at the Netroots convention, Cass Sunstein, a law professor at Harvard and the University of Chicago and a legal adviser for Sen. Barack Obama, was asked how the next president should address the Bush administration’s potential war crimes. When Sunstein said the new adminstration must be cautious and not partisan in the use of the prosecutorial power, though egregious acrs should not be ignored, he was still met with a chorus of boos and angry rejoinders that the president and his Cabinet cannot remain above the law.
Since then, legal experts have generally agreed that the next administration is unlikely to prosecute Bush administration officials for authorizing the torture of suspected terrorists — no matter how many laws the government officials broke. But that hasn’t placated many others, like George Washington University Law Professor Jonathan Turley, or the constitutional lawyer and author Glenn Greenwald, who argue that holding policy-makers accountable for their actions is critical to restoring the reputation of the United States — not to mention respect for the rule of law.
Illustration by: Matt Mahurin
Indeed, how can a new president refuse to prosecute Bush administration officials for authorizing the same acts, like waterboarding, that the United States has previously prosecuted as contrary to U.S. and international law?
The Washington Post reported Tuesday that the Bush administration had issued secret memos in 2003 and 2004 explicitly endorsing the Central Intelligence Agency’s use of waterboarding and other harsh interrogation techniques — otherwise known as torture — against suspected terrorists.
Though Atty. Gen. Michael Mukasey still hasn’t said whether he believes waterboarding constitutes torture, the evidence of illegal conduct by senior administration officials is getting harder and harder to avoid.
In a recent address to the Assn. of Former U.S. Attorneys, Sen. Sheldon Whitehouse (D-R.I.), a former U.S. attorney, noted that waterboarding, which the Bush administration’s Office of Legal Counsel declared legal in 2002 (the Justice Dept. now claims the CIA no longer uses it as an interrogation technique), had long been considered torture. In fact, it had earlier been prosecuted by U.S. authorities.
“I was astounded that the research by the OLC, which supported determining that waterboarding was lawful, had huge gaps in it,” Whitehouse told The Washington Independent last week. “They went so far as to go find some Medicare reimbursement statute to serve their purpose. One strains to find the relevance of that to enemy prisoner interrogation.”
“There are a whole variety of far more relevant things they could have found if they had taken a look,” Whitehouse continued, noting that the U.S. itself prosecuted waterboarding of American soldiers after World War II; waterboarding by American soldiers in the Philippines, and “water torture,” as it’s also been called — most recently by a local sheriff in Texas.
Atty. Gen. Michael Mukasey (WDCpix)
Other legal experts — some still government officials — have made the same point. In the Columbia Journal of Transnational Law, for example, Evan Wallach, a judge on the U.S. Court of International Trade and expert on the laws of war, wrote: “Not so very long ago, the United States, acting alone before domestic courts, commissions and courts-martial, and as a participant in the world community, not only condemned the use of water torture, but severely punished as criminals those who applied it.”
Wallach declined to comment for this article, saying that these these issues could come before him or other federal judges. But in The Washington Post last year, Wallach noted that, among other instances, the U.S. initiated war crimes prosecutions against Japanese soldiers who water-boarded U.S. pilots during World War II.
However, John Yoo and his colleagues at the Office of Legal Counsel didn’t need to look back that far to learn that the United States has long considered the practice illegal. As recently as 1983, as Whitehouse reminded the former U.S. attorneys earlier this month, the Justice Dept. itself prosecuted a Texas sheriff who had used waterboarding to extract confessions from arrested suspects. Six former inmates testified that they had been waterboarded between 1976 and 1980.
Some lawyers who participated in that case are still at the Justice Dept. today. None returned calls for comment. In its written opinion affirming the conviction of County Sheriff James Parker, of San Jacinto County, and his deputies, the Fifth Circuit Court of Appeals in 1984 referred to waterboarding as “torture” a total of 12 times.
At a Senate Judiciary Committee hearing in July, Mukasey, responding to questions about the waterboarding case, U.S. v. Lee, said it wasn’t relevant because the officers were prosecuted under the civil-rights laws. “It was not a case that dealt with whether a technique is or isn’t torture under the torture statutes,” Mukasey said.
Peter Carr, a Justice Department spokesman, told TWI yesterday that the Lee prosecution “was fully consistent with the legal advice OLC provided to the CIA.”
Though “the attorney general has not reached any legal conclusion concerning the lawfulness of the technique as used by the CIA,” Carr added, “Prior to his confirmation, the attorney general made clear that if waterboarding were torture, it would be unlawful both under the Anti-Torture Statute and the Constitution. He subsequently reviewed the opinions of the Office of Legal Counsel as they apply to current techniques and found the opinions to be correct and sound.”
In other words, the Justice Dept is still dodging the question of whether waterboarding is torture — and, therefore, whether those who approved it violated the law.
In the Lee case, however, neither the court nor the federal prosecutors appear to have had any question about whether drowning a prisoner just up to the point of death was torture. As the federal appellate court described it, “Lee was indicted along with two other deputies, Floyd Baker and James Glover, and the County Sheriff, James Parker, based on a number of incidents in which prisoners were subjected to a “water torture” in order to prompt confessions to various crimes.”
The case, accessible online or in any law library, was easily available to the Justice Dept., lawyers insist. Yet when Yoo drafted his now-infamous “torture memo” in 2002, he ignored such relevant cases and instead drew on an obscure Medicare reimbursement statute to define torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
That extreme language was then used to justify waterboarding. The federal anti-torture statute adopted in 1994, meanwhile, defines torture far more broadly, as an “act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”
“Severe mental pain or suffering” is defined as “the prolonged mental harm caused by or resulting from,” among other things, “the intentional infliction or threatened infliction of severe physical pain or suffering;” “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,” or “the threat of imminent death.” It’s difficult to see how drowning until just before the point of death wouldn’t qualify.
Sen. Sheldon Whitehouse (WDCpix)
So how did Yoo miss the relevant law?
“Either the quality of their research was dismal,” said Whitehouse, who sits on the Senate Intelligence Committee, and therefore has reviewed many of the memos that remain classified, “or they did find it and they didn’t care to go through the intellectual exercise to distinguish it from the current situation. They wrote an 85-page opinion citing the Medicare statute, and none of the memos even mentioned these cases.”
Daniel Hedges, who was the U.S. attorney in the southern district of Texas leading Parker’s prosecution, recalled the case. “It was certainly a violation of the civil rights of these people, there was no question of that,” said Hedges. “The torture was certainly a part of it.”
Parker was convicted and sentenced to 10 years in prison. As The New York Times reported at the time, the sentencing judge told Parker that the sheriff had allowed law enforcement to “fall into the hands of a bunch of thugs….The operation down there would embarrass the dictator of a country.”
In fact, such actions a few years later led a U.S. federal court to hold Philippine President Ferdinand Marcos liable for $766 million, in part for having subjected political prisoners to waterboarding.
Sen. John McCain, who notes frequently that he was held prisoner by the North Vietnamese, has said of waterboarding: “It is not a complicated procedure. It is torture.”
Given the history of prosecutions, it’s hard to see how OLC, whose lawyers normally consult the relevant Justice Dept. lawyers, in addition to doing independent legal research, could have reached a different conclusion.
“Rather than bring people into the loop, they just made the decision between themselves and the vice president’s office,” said Whitehouse. “The vice president’s office clearly wanted a particular result and didn’t see the need to bring other people in who might disrupt the march toward that result.”
Jack Goldsmith, a Harvard Law professor who headed the OLC in 2003, has described his former office as a sort of “independent court inside the executive branch.” But not during much of the Bush presidency.
“As I absorbed the opinions,” he wrote in his book, “The Terror Presidency,” referring to the opinions issued by OLC after Sept. 11, 2001, “I concluded that some were deeply flawed: sloppily reasoned, overbroad and incautious in asserting extraordinary constitutional authorities on behalf of the president….I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations.” (Goldsmith declined to be interviewed for this article.)
To Whitehouse, the memos reveal “embarrassing, fire-the-associate quality legal research and analysis.” That’s “a sickening fall from grace for an office that’s always been a source of real pride.”
But to Bush administration officials, such shoddy lawyering may mean something far worse than embarrassment: the sort of deliberate misstatements of the law that will protect neither the lawyers nor their clients from subsequent prosecution.
In September, Secretary of State Condoleezza Rice provided new testimony, confirming that the White House was actively involved in talks over the CIA’s use of torture in the interrogation of prisoners in 2002 and 2003. That means that the responsibility for those practices, despite the legal memos justifying them, may well reach all the way up the chain of command.
It is going to be up to the next president to decide whether those commanders should be held in any way accountable.
88 Comments
Comment posted October 19, 2008 @ 11:55 am
This week Cheney was admitted to the hospital for a heart procedure. He's preparing to cop a plea of poor health if and when the time comes to face the music. Rumsfeld, Bush and the others will lawyer the thing to death and refuse to respond to subpoenas, and their allies in Congress will scream witch hunt. It will take enormous political courage and persistence for an Obama administration to hold these people accountable for their crimes. But that's clearly the right thing to do.
Comment posted October 21, 2008 @ 11:58 pm
This analysis shows clearly that UC Berkeley should revoke Yoo's tenure as a professor in the Law School (known as Boalt Hall), and that Yoo should be disbarred by every jurisdiction in which he has been admitted to the practice of law.
Yoo was recruited to the Office of Legal Counsel ostensibly because of his academic writings in support of wide-ranging unreviewable powers of the President in “time of [undeclared] war.” I attended a lecture by Yoo at the Charleston (S.C.) School of Law some time in the last year. The lecture laid out Yoo's theory of expansive nature of Presidential powers, based largely on executive acts by presidents who knew that those acts were highly questionable under the U.S. Constitution. These acts included FDR's unlawful wiretaps in violation of the 1934 laws against wiretapping and Lincoln's unilateral executive actions at the beginning of hostilities in the Civil War when Congress was not in session, such as his suspension of the writ of habeas corpus. FDR of course never even disclosed, much less tried to justify the wiretapping prohibited by statute as an exercise of his constitutional powers, he simply concealed the existence of the taps. Lincoln was a scrupulous defender of the Constitution, and as soon as Congress convened Lincoln sought and obtained Congressional endorsement of his emergency measures.
Yoo graduated Magnum Cum Laude from Harvard with a major in U.S. History. Whatever history he learned, however, his professors apparently did not require that he demonstrate any capacity for critical analysis or critical thought. Apparently the same was true of the faculty at Boalt Hall, which seems to have granted Yoo tenure based on “scholarly” analyses that rested on his arguments from historical examples that truly provided no support whatsoever for the radically anti-constitutional conclusions he drew from those examples.
I spoke with Yoo briefly after the lecture in Charleston, and he appeared to be a mediocre academic with virtually no force of personality. It is easy to see how David Addington, counsel to Cheney, could have imposed his own conclusions on Yoo's academic framework, without Yoo ever pausing an instant to question whether his own tenuous academic theories could be stretched far enough to justify calling the Geneva Conventions “quaint.” [My contact with Yoo was brief, but my money is on Addington as the author of the idea that the Geneva Conventions were "quaint" in any respect - such dismissive language to describe a long-standing International Treaty is not normally part of an intelligent academic's vocabulary, but a bully like Addington uses dismissive language routinely to undermine the confidence of anyone who is trying to uphold a law that gets in Addington's way.]
As Scott Horton has argued persuasively, Yoo and Addington may well be guilty of war crimes under the standards applied in the Judges Case in the Nuremberg trials. To the extent that Cheney knew how badly Addington and Yoo were mangling the applicable law, he also could be guilty of war crimes under similar analysis.
Sunnstein appears to have accepted for a long time that neo-con academics should be considered wo/men of good faith to be treated as colleagues. The extent to which legal academic writing has been corrupted by the bad faith outcome-oriented screeds of members of the Federalist Society is so extreme that the universe of academic legal discourse now countenances defenses of legal atrocities that have been universally condemned for centuries. (Remember, “the water treatment” was one of the torture techniques that was used on converted Jews and heretics by the Spanish Inquisition. This barbarity has a much longer pedigree as a tool of unscrupulous interrogators than just the last sixty or 120 years.)
Comment posted October 24, 2008 @ 11:25 am
There's a bit of ground between being”… held in any way accountable” and criminal prosecution and the interests of the country might be best served by the next administration's denouncement of the opinions and methods of the Bush administration.
Comment posted October 28, 2008 @ 6:36 am
Hundreds or maybe thousands of human beings are waiting for justice to be done. If we fail to truely investigate the war crimes of this administration we will have lost any moral authority in world affairs.
Pingback posted January 2, 2009 @ 10:41 pm
[...] I’ve written before, waterboarding in particular has for more than half a century been prosecuted by US authorities as [...]
Pingback posted January 9, 2009 @ 9:21 pm
[...] attorney, won’t prosecute the torture crimes committed. Although waterboarding has been classified as torture by the Geneva Convention, and prosecuted by the US against Japanese military for waterboarding [...]
Comment posted January 11, 2009 @ 7:13 pm
'They' are right. It would just be tooooooo painful to just keep looking backward, and prosecute ANYone for war crimes.
Why, that would be akin to following the rule of law, and we wouldn't want that, now, would we?
bush, cheney, pelosi, rockefeller, reid, feinstein, gonzales, rice?
should be in prison
Comment posted January 12, 2009 @ 3:13 am
'They' are right. It would just be tooooooo painful to just keep looking backward, and prosecute ANYone for war crimes.
Why, that would be akin to following the rule of law, and we wouldn't want that, now, would we?
bush, cheney, pelosi, rockefeller, reid, feinstein, gonzales, rice?
should be in prison
Pingback posted February 10, 2009 @ 5:20 pm
[...] anyone accused is sure to argue that their conduct wasn’t technically “torture” and try to use as a shield the infamous John Yoo “torture memos” from the Office of Legal Counsel – defining torture as [...]
Comment posted August 23, 2009 @ 5:58 am
Rumsfeld, Bush and the others will lawyer the thing to death and refuse to respond to subpoenas, and their allies in Congress will scream witch hunt. It will take enormous political courage and persistence for an Obama administration to hold these people accountable for their crimes.
Comment posted September 1, 2009 @ 5:45 pm
The Bush administration should definitely be prosecuted. Unfortunately, Obama and all future administrations will likely tip toe around this subject. Even if Bush and co. were charged with war crimes they could easily wiggle they way out of a conviction.
Comment posted January 21, 2010 @ 12:47 am
bush is gone and obama is here! he will fix it all! change FTW!!
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Comment posted February 7, 2010 @ 2:10 pm
It's amazing how they get away with this.
Comment posted February 10, 2010 @ 12:05 pm
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Comment posted February 19, 2010 @ 1:01 pm
what can I say except the liberal far left including your so called newspaper are precisely why the majority are going to take back America and provide our country with economic revival not Obama's lies and deceit. He speaks out of both sides of his mouth depending on the nature of the group. Torture is necessary and vital.Further more his cabinet is filled with people such as Janet Napolitano who are incompetent, liars, and evil.
Comment posted February 19, 2010 @ 6:01 pm
what can I say except the liberal far left including your so called newspaper are precisely why the majority are going to take back America and provide our country with economic revival not Obama's lies and deceit. He speaks out of both sides of his mouth depending on the nature of the group. Torture is necessary and vital.Further more his cabinet is filled with people such as Janet Napolitano who are incompetent, liars, and evil.
Comment posted March 25, 2010 @ 2:05 pm
I absolutely agree with every word the author has written in this article!
Comment posted April 3, 2010 @ 6:20 pm
Ok, but how many past administrations have had to deal with terrorism at this level?
Comment posted April 27, 2010 @ 12:58 am
The argument is not over. Mr Kiriakou concluded: “Water-boarding is probably something that we shouldn't be in the business of doing. We're Americans, and we're better than that.”
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Comment posted April 27, 2010 @ 9:07 pm
Torture is necessary and vital.Further more his cabinet is filled with people such as Janet Napolitano who are incompetent, liars, and evil.
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Pingback posted June 4, 2010 @ 1:29 am
[...] illegal | World news | guardian.co.uk Waterboarding Used to Be a Crime – washingtonpost.com Torture by Any Other Name Waterboarding – Wikipedia, the free encyclopedia Debate on waterboarding is artificial; it is [...]
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Comment posted August 18, 2010 @ 8:11 am
any question about whether drowning a prisoner just up to the point of death was torture. As the federal appellate court described it, “Lee was indicted
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Comment posted August 21, 2010 @ 5:51 am
bush is gone and obama is here! he will fix it all! change FTW!!
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Comment posted September 14, 2010 @ 10:45 pm
This week Cheney was admitted to the hospital for a heart procedure. He's preparing to cop a plea of poor health if and when the time comes to face the music. Rumsfeld, Bush and the others will lawyer the thing to death and refuse to respond to subpoenas, and their allies in Congress will scream witch hunt. It will take enormous political courage and persistence for an Obama administration to hold these people accountable for their crimes. But that's clearly the right thing to do.
Comment posted September 17, 2010 @ 12:58 pm
I concluded that some were deeply flawed: sloppily reasoned, overbroad and incautious in asserting extraordinary constitutional authorities on behalf of the president
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Pingback posted October 11, 2010 @ 5:22 pm
[...] 3.Torture by Any Other Name « The Washington Independent Yet when Yoo drafted his now-infamous “torture memo” in 2002, he ignored such relevant cases and instead drew on an obscure Medicare reimbursement statute to define torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, http://washingtonindependent.com/13453/waterboarding [...]
Comment posted November 1, 2010 @ 10:55 pm
Waterboarding is definitely a scary experience, from how I heard it described. But if they are doing it to war criminals and criminal masterminds, I find it hard to have sympathy for them. If the information is vital enough… well, who knows.
Comment posted November 2, 2010 @ 1:52 am
Rumsfeld, Bush and the others will lawyer the thing to death and refuse to respond to subpoenas, and their allies in Congress will scream witch hunt. It will take enormous political courage and persistence for an Obama administration to hold these people accountable for their crimes. But that's clearly the right thing to do.
Comment posted November 14, 2010 @ 1:53 pm
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Comment posted November 17, 2010 @ 12:24 pm
Why would water boarding an issue here? Why can’t these people focus on the real issues on government issues on poverty? Peace of mankind? Economy? Why water boarding???
Pingback posted November 19, 2010 @ 3:08 pm
[...] 8.Torture by Any Other Name « The Washington Independent Yet when Yoo drafted his now-infamous “torture memo” in 2002, he ignored such relevant cases and instead drew on an obscure Medicare reimbursement statute to define torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, http://washingtonindependent.com/13453/waterboarding [...]
Comment posted November 22, 2010 @ 12:42 pm
That means that the responsibility for those practices, despite the legal memos justifying them, may well reach all the way up the chain of command.
It is going to be up to the next president to decide whether those commanders should be held in any way accountable.
Comment posted November 26, 2010 @ 5:06 am
Why can’t these people focus on the real issues on government issues on poverty?
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Comment posted December 7, 2010 @ 8:29 am
It will take enormous political courage and persistence for an Obama administration to hold these people accountable for their crimes. But that’s clearly the right thing to do.
Comment posted December 11, 2010 @ 7:53 am
This is what most government mostly on military that commits certain atrocities to get information. They use torture to get answers from the enemies to save lives in return. This is the fact.
Comment posted December 29, 2010 @ 6:03 am
There’s a bit of ground between being”… held in any way accountable” and criminal prosecution and the interests of the country might be best served by the next administration’s denouncement of the opinions and methods of the Bush administration. They use torture to get answers from the enemies to save lives in return. This is the fact.
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Comment posted January 12, 2011 @ 8:11 am
Torture is an act of infamy. Civil rights are always on watch on this case for this is forbidden at this age. But some countries are doing this and it is quite alarming to see some does exist.
Comment posted January 12, 2011 @ 8:11 am
Torture is an act of infamy. Civil rights are always on watch on this case for this is forbidden at this age. But some countries are doing this and it is quite alarming to see some does exist.
Comment posted January 12, 2011 @ 8:11 am
Torture is an act of infamy. Civil rights are always on watch on this case for this is forbidden at this age. But some countries are doing this and it is quite alarming to see some does exist.
Comment posted January 25, 2011 @ 8:47 am
Former president Bush and Clinton did their job well and even if they are not the president now they still serve to the people to are in need. The good thing is the will fight against the poverty.
Comment posted March 10, 2011 @ 10:59 am
Torture is one way of getting information. But this inhumane act is considered violence. But some are doing this for national security measures. Some have useful uses and most are plain violence.
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Comment posted June 3, 2011 @ 5:34 am
That extreme language was then used to justify waterboarding. The
federal anti-torture statute adopted in 1994, meanwhile, defines torture
far more broadly, as an “act committed by a person.
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