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Volume
14, Number 8 |
Also in
this section:
Cracks
in the stone wall
by Nicholas M. Jackson April Fools Day this year was particularly bad for President George W. Bush. In what President Bush probably considers a perfidious act by a career Defense Department attorney, Acting General Counsel Daniel J. Dell'Orto has declassified and released a March 14, 2003 memo authored by John Yoo. At the time the 2003 memo was issued, Yoo was a Deputy Assistant Attorney General at the Justice Department's Office of Legal Counsel (OLC). The 81-page memo expands upon a previously secret "torture" memo issued by OLC on August 1, 2002 that Yoo authored and then-Assistant Attorney General Jay S. Bybee signed. This latest torture memo details the legal rationalizations for President Bush's wartime authority to authorize torture and offers defenses those involved in torture could raise if ever prosecuted under US federal law. Examining such interrogation procedures as assaulting, maiming, and subjecting detainees to mind-altering drugs, John Yoo's memo argued that many American and international laws were not applicable to interrogations conducted abroad. According to Yoo's legal reasoning, various harsh procedures considered torture under other circumstances did not amount to torture if the purpose of the interrogation was not INTENDED by the interrogator to be torture. The March 14, 2003 OLC memo was directed to the Department of Defense and was intended to specify legal foundations for authorized interrogation procedures to be used by military interrogators. Another still-secret memo issued by OLC on August 1, 2002 details what interrogation procedures are authorized for CIA interrogators. Generally, opinions of the OLC have the force of law over the entire Executive Branch unless overturned by the federal courts or rescinded by the President, the Attorney General, or a superseding OLC opinion. To classify and hide the torture memos for so many years essentially created a body of secret laws. Neither Congress nor ordinary citizens could challenge these secret laws, or the flawed reasoning behind them, because only a few elite Bush officials knew they existed. The misuse of the executive branch's power to classify government documents is frighteningly anti-democratic. And when one looks into the substance of the memos that the Bush administration relied upon, the clear contempt for human rights and democratic principles is palpable. One should also view the torture memos in context with a time line wherein the Bush administration withdrew its signature from the Rome Statute establishing the International Criminal Court (ICC) and then slipped themselves into the definitional section at 2013(4) of the innocuous-sounding American Service-Members' Protection Act. These acts bear witness that Bush administration officials sought immunity from war crime prosecution under either federal law or the ICC. With hindsight, it is clear these officials intended to violate serious criminal statutes from the beginning. It's time to shove Bush's Humpty Dumpty immunity off the wall. More that a year ago the Republican-controlled Congressional session expired before the Republican leadership could create a zone of immunity from prosecution under the federal anti-torture statutes. Despite all the statutory tinkering President Bush's friends in Congress did with the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, a pristine torture conspiracy provision quietly awaits invocation at 18 USC 2340A(c). Those convicted under this provision face life sentences. Yes, we all know in advance that the Bill O'Reillys and the Rush Limbaughs will shriek into their microphones that there was no conspiracy or that the torture conspiracy statute is inapplicable. Maybe they will even accuse lawyers who point out the anti-torture statute as engaging in "lawfare" or treasonous support of terrorism. But those of us who know the law and still hope to uphold our oaths of admission to practice law cannot abandon our sworn duty to support the Constitution and the rule of law. Upholding our oaths has nothing to do with treason or giving material support to terrorism. All those detainees at Guantanamo could be prosecuted in US District Courts under existing federal statutes. In fact, quite a few are going to be prosecuted in the president's Cuban kangaroo courts with conspiracy. What an ironic situation appears when comparing the anticipated conspiracy charges against the two classes of conspirators. One might suppose the conspiracy charges against the Guantanamo detainees would be easier to prove than the conspiracy charges that should be brought against the Bush torture co-conspirators. On the one hand, the detainees are faced with classified evidence, hearsay evidence, and evidence gathered through the use of torture. But, on the other hand, the Bush torture co-conspirators left behind signed memos identifying the very federal statutes they were agreeing to violate. To round out the other necessary elements of the Bush-sponsored crime, one can couple the autopsy reports with the corpses of those who were tortured to death based upon the authority of the torture memos. It's going to be much easier to prove conspiracy charges against the Bush officials than those against the Guantanamo detainees. On balance, Bush's military prosecutors in Guantanamo are going to be the people who look like paranoid "conspiracy theorists." In a first step toward holding President Bush accountable, Congress should begin impeachment proceedings. This is the most obvious, Constitutionally-authorized, check Congress has against continuing illegality committed by a sitting president. It is not important today whether there seems to be sufficient votes in the Senate to ultimately remove President Bush from office. What matters is that an impeachment investigation is the most legally difficult for Bush to impede. During impeachment hearings, the House of Representatives will be able to get the witnesses and documents it has long requested and President Bush will have no credible legal basis to ask federal courts to quash the Congressional subpoenas. Witnesses will testify or be jailed. The full extent of President Bush's crimes will be exposed, including a more complete list of the names of those who helped President Bush implement and carry out his torture policies. Votes may change in the Senate. And the gathered evidence can be turned over to a special prosecutor when the next president moves into the White House. As lawyers and ordinary citizens we already know President Bush wanted secrecy because he was covering up crimes. Just the torture memos we have seen so far show that. There was no practical or legal justification for these crimes. Bush's authorization of torture never prevented any "mushroom clouds" over any American cities. If Congress doesn't start impeachment hearings soon we should all fear whether Congress LIKES the newly expanded "powers" Bush and Cheney have brought to the White House. The real risk is that future presidents will inherit all Bush has created. Then we will have truly forfeited any claim to democracy. Also in this section: Editorial, Self-proclaimed terrorists are the least of our problems Bernal, Independent candidates Gandásegui, The economic crisis and the Panama Canal Leis, Education and democracy Avnery, Manifest Destiny? Committee to Protect Journalists, Iraqi photojournalist released after two years Pilgrim, Housing problems in the Caribbean Powdar, Colombia spreads insecurity around Green, Colombia's most fateful assassination Weisbrot, An isolated Bush cries "terrorism" McGillion & Morley, Washington blind to changes in Cuba Lerner, Obama's error Jackson, Cracks in the stone wall Letters to the editor News
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©
2008 by Eric Jackson email: editor@thepanamanews.com or phone: (507) 6-632-6343 Mailing
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