Tuesday, May 19, 2009

Coalition Wants Bush Lawyers Disbarred

File this in the "They Can't Let Things Go" category, a leftwing coalition is seeking the disbarment of Bush administration lawyers for performing their jobs. That is, they were giving legal analysis to past cases determining what constitutes torture and what is merely interrogation.

The complaints, filed with State Bars in the District of Columbia, New York, California, Texas and Pennsylvania, seek disciplinary action and disbarment. The others named in the complaints include former Office of Legal Counsel lawyers John Yoo, Jay Bybee and Stephen Bradbury; Michael Chertoff, former secretary of the Department of Homeland Security and head of the Justice Department's Criminal Division; Alice Fisher, also a former head of the Criminal Division; former Defense Department lawyers William Haynes II and Douglas Feith; former deputy White House counsel Timothy Flanigan; and David Addington, former chief of staff to Vice President Dick Cheney...

The complaints allege the lawyers violated the Constitution, domestic law and international treaties. As reported here by The Washington Post, the bar counsel would face steep hurdles in trying to sanction the lawyers. The state regulators, which are often strapped for resources, would have a difficult time gathering witnesses and evidence and would have to show lawyers violated their duty to a client. And it's unclear whether regulators in Pennsylvania, where Yoo is barred, could even initiate an investigation.

As I noted here there's plenty of evidence that critics of interrogation haven't even read the memos involved.
The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law's definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.

Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting "specific intent" in other criminal statutes...

Both memos noted that the legislative history of the 1994 torture statute was "scant." Neither house of Congress had hearings, debates or amendments, or provided clarification about terms such as "severe" or "prolonged mental harm." There is no record of Rep. Jerrold Nadler -- who now calls for impeachment and a criminal investigation of the lawyers -- trying to make any act (e.g., waterboarding) illegal, or attempting to lessen the specific intent standard.

The Gonzales memo analyzed "torture" under American and international law. It noted that our courts, under a civil statute, have interpreted "severe" physical or mental pain or suffering to require extreme acts: The person had to be shot, beaten or raped, threatened with death or removal of extremities, or denied medical care. One federal court distinguished between torture and acts that were "cruel, inhuman, or degrading treatment." So have international courts. The European Court of Human Rights in the case of Ireland v. United Kingdom (1978) specifically found that wall standing (to produce muscle fatigue), hooding, and sleep and food deprivation were not torture.

The U.N. treaty defined torture as "severe pain and suffering." The Justice Department witness for the Senate treaty hearings testified that "[t]orture is understood to be barbaric cruelty . . . the mere mention of which sends chills down one's spine." He gave examples of "the needle under the fingernail, the application of electrical shock to the genital area, the piercing of eyeballs. . . ." Mental torture was an act "designed to damage and destroy the human personality."

The treaty had a specific provision stating that nothing, not even war, justifies torture. Congress removed that provision when drafting the 1994 law against torture, thereby permitting someone accused of violating the statute to invoke the long-established defense of necessity.

Do these jerks even read the laws, legal cases and memos before trying to punish people performing their duties? Apparently not.
The memo to the CIA discussed 10 requested interrogation techniques and how each should be limited so as not to violate the statute...They observed that all the techniques, including waterboarding, were used on our military trainees, and that the CIA had conducted an "extensive inquiry" with experts and psychologists.

Unfortunately, there are those who, even now, are arguing that volunteering for waterboarding doesn't mean it isn't torture, just as consenting to sex makes it not rape (I'm not making this logic up). Of course, the very fact that we train our soldiers to withstand waterboarding is an argument that it is an interrogation technique, not torture. After all, we wouldn't use thumbscrews or other devices that caused permanent physical or psychological injury to our own troops. That is torture.
But now, safe in ivory towers eight years removed from 9/11, critics demand criminalization of the techniques and the prosecution or disbarment of the lawyers who advised the CIA. Contrary to columnist Frank Rich's uninformed accusation in the New York Times that the lawyers "proposed using" the techniques, they did no such thing. They were asked to provide legal guidance on whether the CIA's proposed methods violated the law.

Oddly, the coalition trying to publicly humiliate these attorneys aren't concerned about the complicity of Democrats in the use of interrogation techniques.

There is a term for people who are determined to punish others for doing their jobs, obeying the law, and being from the "wrong" political party: witch hunt.