Using Law to Justify Torture

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By Daphne Eviatar

Constitutional Scholars Say Advice of Counsel Is Probably Not a Strong Defense

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, no one gets a pass by saying they relied blindly on that advice. The reliance has to be reasonable. “They would have to subjectively believe what they were doing was not against the law,” said Michael Ratner, president of the Center for Constitutional Rights.

Could any U.S. official have reasonably believed torture was legal? “Given the history of the U.S. adherence to the U.N. Torture Convention, it’s a well-established fact that torture is unlawful,” stated Amrit Singh, a lawyer for the ACLU, who has sued the Defense Dept. to obtain documents regarding the treatment of prisoners. “To then plead innocence based on legal advice would eviscerate the whole purpose of these laws.”

The United States has even codified the international ban on torture into federal law, providing for the death penalty when the torture turns fatal. Notably, by March 2005 more than 108 prisoners in Iraq and Afghanistan had died in U.S. custody, most of them violently, according to government data provided to the Associated Press.

The United States is also a signatory to the torture prohibitions of the Geneva Conventions. These apply “not only to prisoners of war, but to all prisoners,” said Singh, a position the Supreme Court affirmed in the Hamdan case in 2006. The Geneva Conventions also outlaw “humiliating or degrading treatment.”

Not surprisingly, then, government officials have strongly disagreed about the legality of extreme interrogation techniques, like waterboarding. February 2003 memos from the Judge Advocate General’s Corps to the Pentagon opposed them unequivocally. A report last month by the Justice Dept.’s inspector general described White House meetings where the controversial methods were hotly debated.

“Many people in the government were nervous or upset about implementing the president’s post-9/11 counterterrorism policies,” writes Jack Goldsmith, head of OLC from October 2003 to June 2004, in his book, "The Terror Presidency: Law and Judgment Inside the Bush Administration." That included some in the CIA “who were reportedly anxious about the special interrogation program for high-value detainees.”

John Rizzo, acting general counsel of the CIA in 2002, confirmed this in Congressional testimony last year. "There had been some concerns that were expressed" by CIA interrogators who feared prosecution, he said.

After Goldsmith took over OLC, he rescinded the now-infamous Aug. 1, 2002 “torture memo” that defined torture as inflicting pain as intense as "the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The memo refused to rule out such torture for interrogation purposes.

“The message of the Aug. 1, 2002 opinion was clear,” writes Goldsmith. “Violent acts aren’t necessarily torture; if you do torture, you probably have a legal defense; and even if you don’t have a legal defense, the law doesn’t apply if you act under color of presidential authority.”

The CIA had been through this before. Most notoriously in 1975, when the Senate's Church Committee, headed by Sen. Frank Church, publicly scrutinized and penalized the agency for using illegal methods. So CIA officials desperately wanted what Goldsmith calls the “golden shield” to protect them from future prosecution -- which they hoped the torture memos would provide.

It turns out, with good reason. New Yorker writer Jane Mayer, in her new book, "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals," writes that the International Committee of the Red Cross issued a secret report to the CIA concluding that interrogation techniques it had used on suspected Al Qaeda members, dating back to before August 2002, were “categorically” torture and “constituted war crimes, placing the highest officials in the U.S. government in jeopardy of being prosecuted."

One such case involves the 2002 interrogation of Qaeda operative Abu Zubaydah, whom the administration has admitted was subjected to waterboarding. Former Atty. Gen. John Ashcroft acknowledged the problematic timing of the Zubaydah interrogation just last week, when he testified to the Judiciary Committee that Zubaydah was likely mistreated months before such actions were legally sanctioned. According to Mayer, Zubaydah told the Red Cross that he was waterboarded "at least 10 times in a single week and as many as three times a day."

“I think the evidence is quite strong that the torture program began almost immediately after 9-11,” said Ratner of the CCR. “So the memos don’t help them there.”

In fact, if lawyers wrote the memos approving torture techniques at the request of officials who had already used them, the lawyers themselves could be guilty of conspiring to commit war crimes. “If the lawyer’s opinion is seriously wrong," said Horton, "then the lawyer risks being tied into the criminal conduct.”

Indeed, after World War II, the U.S. military tribunal at Nuremberg prosecuted a group of German lawyers who had advised the Nazis on its wartime policies -- including the treatment of prisoners. “They were held criminally liable," said Horton, "on account of legal advice they gave.”

Lawyers are still held criminally accountable today. For example, Horton noted, the Justice Dept. is now prosecuting a prominent attorney in Miami, whose clients have included former Vice President Al Gore, for allegedly approving payments of legal fees that derived from illicit drug proceeds.

But legal experts say that authorizing torture rises to a whole other level of criminality. “The prohibition on torture is not just one rule among others, but a legal archetype – a provision which is emblematic of our larger commitment to non-brutality in the legal system,” Jeremy Waldron, professor of law and philosophy at New York University Law School, wrote in the Columbia Law Review.

That’s certainly how it was viewed in the Nuremberg era. As the U.S. Supreme Court wrote in 1944: “There have been, and are now, certain foreign nations with governments ... which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.”