Thursday, May 07, 2009

Letter From the Editor: Bush Lawyers Who Crafted Illegal Torture Policy Must Be Held Accountable

Bybee, Yoo and Bradbury Ignored More Than a Century of Court Precedents in Formulating Legal Opinions That Warterboarding Is Not Torture -- When, in Fact, It's a Crime Under Both U.S. and International Law; To Not Hold Them Accountable Would Be a Gross Miscarriage of Justice

photoJay Bybee

Previously-secret Justice Department memos written by former Bush administration lawyers John Yoo (left), Jay Bybee (right) and Steven Bradbury (not pictured) spelled out the legal justification for the administration's highly controversial harsh interrogation techniques, including waterboarding, against terror suspects -- techniques since declared torture under both U.S. and international law. Former Bush officials are pushing hard for the lawyers not to be prosecuted. But after journalist Jason Leopold's expose -- posted by The 'Skeeter Bites Report on Monday -- that Yoo, Bybee and Bradbury ignored decades of court precedents firmly establishing the illegality of waterboarding, it is clear that they must be held accountable. (Photos: Woo -- Los Angeles Times; Bybee -- U.S. Ninth Circuit Court of Appeals)

(Posted 5:00 a.m. EDT Thursday, May 7, 2009)


So now the ugly truth has finally come out.

The Bush administration lawyers who approved harsh interrogation techniques, including waterboarding, of terror suspects ignored over a century of court cases that firmly established that the techniques were -- and are -- illegal under both U.S. and international law.

Justice Department investigators say Bush administration lawyers John Yoo, Jay Bybee and Steven Bradbury should not face criminal charges. The 'Skeeter Bites Report sharply disagrees with that recommendation and emphatically demands that they be held accountable to the fullest extent of the law.

There is evidence that Yoo, Bybee and Bradbury formulated their legal opinions with such blatant disregard for legal precedent and the rule of law that an investigation of possible criminal negligence on their part is absolutely necessary. Waterboarding is a crime and those responsible for approving it cannot be allowed to get away scot-free.

According to a draft report by the Justice Department to be released today (Thursday), two of the three former Bush attorneys -- Yoo and Bybee -- are likely to be referred to the bar associations of their home states for possible disciplinary action. Both now live and work in California.

Yoo, now a law professor at the University of California at Berkeley, is a member of the bar association of Pennsylvania. Bybee, now a judge on the San Francisco-based U.S. Ninth Circuit Court of Appeals, is a "judicial member" of the bar associations of Nevada and the District of Columbia.

The Justice Department draft report was still undergoing revisions as of Wednesday.Some Democrats and liberal activists have demanded Bybee's resignation from the Ninth Circuit Court -- or his impeachment, if he refuses to step down.


That the Justice Department is reportedly going to recommend that there be no criminal investigation of Yoo, Bybee and Bradbury is both unprecedented and unconscionable, especially in the wake of journalist Jason Leopold's stunning expose -- carried by The 'Skeeter Bites Report on Monday -- that the former Bush lawyers ignored six major court cases dating back a century that firmly established that waterboarding is torture and a crime under both U.S. and international law.

It is even more unconscionable that Attorney General Eric Holder -- who personally declared his belief that waterboarding is torture -- would not order a criminal investigation of Yoo, Bybee and Bradbury. Failure to do so would, in this writer's opinion, constitute outright malfeasance. As the nation's chief law enforcer, Holder has a responsibility to ensure that those responsible for approving the commission of criminal acts be held accountable to the fullest extent of the law.

Leopold, the editor-in-chief of the independent Web news site The Public Record, revealed that among the six cases that Yoo, Bybee and Bradbury ignored is the 1983 federal prosecution -- and conviction -- of a Texas sheriff and three of his deputies for waterboarding criminal suspects in an effort to force confessions from them.

As reported by Leopold, the failure by Yoo, Bybee and Bradbury to cite the earlier waterboarding case and a half-dozen other precedents that dealt with torture is one of the critical findings of the Justice Department report that legal sources say accuses the three of violating "professional standards."

Bybee, Yoo and Bradbury also shocked many who have read their memos in the last two weeks by their use of clinical and legalistic jargon that sometimes took on an other-worldly, even Orwellian quality, Leopold reported. Bybee's August 1, 2002, legal memo -- drafted by Yoo -- argued that waterboarding could not be torture because it does not "inflict physical pain."


Bybee, whose memo gave legal cover for the initial use of waterboarding and nine other brutal interrogation methods, has said that his legal opinion as assistant attorney general in charge of the Office of Legal Counsel -- which advises presidents on the limits of their legal powers -- represented "our best reading of the law." He cited scant history for the Convention Against Torture, which took effect in 1987.

"However, you should be aware that there are no cases construing this statute, just as there have been no prosecutions brought under it," Bybee wrote.

The Convention Against Torture makes it a crime for any "person acting under the color of law" 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."


That law was not in existence when the Texas sheriff, James Parker, and his deputies were prosecuted and sentenced in the 1980s, Leopold noted in his article. But Yoo, Bybee and Bradbury had a duty to their legal profession to cite the case as it would have changed the substance of their legal opinions, according to Scott Horton, a human rights attorney and constitutional expert.

"Any competent legal adviser would, among other things, have looked at the techniques themselves and checked to see how they have been treated in prior cases," Horton said in an email to Leopold. "Obviously the Anti-Torture Statute itself is a very recent invention and it has no enforcement history, so saying that and then suggesting on this basis that the situation is tabula rasa [without precedent] is highly disingenuous."

Horton suspects that Bybee, Yoo and Bradbury were well aware of the case law, but simply chose to ignore it in order to give the Bush administration what it had asked for.


"To take one example, there was a court-martial addressing the practice of waterboarding from 1903, a state court case from the [1920s], a series of prosecutions at the [post-World War II] Tokyo Tribunal [in many of which the death penalty was sought] and another court-martial in 1968," Horton wrote.

"These precedents could have been revealed in just a few minutes of computerized research using the right search engines," Horton continued. "It's hard to imagine that Yoo and Bybee didn't know them. So why are none of these precedents mentioned? Obviously because each of them contradicts the memo's conclusions and would have to be distinguished away. Professional rules would have required that these precedents be cited; failing to do so reflects incompetent analysis."

In fact, the Justice Department's Office of Professional Responsibility (OPR) investigated whether the three lawyers purposely twisted their legal advice to satisfy the White House and knowingly avoided citing existing case law in order to reach conclusions the White House wanted. It's not known what the OPR has concluded about that point in its report, which is now being revised.

The OPR is responsible for investigating attorney employees of the Justice Department who have been accused of misconduct or criminal activity with respect to their professional functions as DOJ attorneys. It promulgates independent standards regarding ethical and criminal conduct applicable to Justice Department attorney employees while the department's Office of the Inspector General (OIG) has jurisdiction of all non-attorney Justice Department employees.


Efforts by the bar associations to impose sanctions on Yoo, Bybee and Bradbury would face steep hurdles, experts on legal ethics told The Washington Post.

Law professors and legal practitioners who have handled such cases told the newspaper that the difficulty of gathering witnesses and evidence could present "nearly insurmountable challenges" for state investigators who may wish to pursue a case against the former Bush lawyers.

For one thing, state bar associations have no subpoena power to compel the Justice Department to make sensitive documents or key witnesses available, noted Stephen Gillers, a professor of legal ethics at New York University.

Another problem, the law professors told the Post, is resources. State bar associations tend to move slowly because they are strapped for resources and are overwhelmed by cases in which lawyers failed to appear in court or absconded with clients' funds.

In spite of the obstacles, it is imperative that Yoo, Bybee and Bradbury not get away with ignoring more than 100 years of court precedents in formulating the Bush administration's policies interrogating terror suspects -- or anyone else accused of violent acts against the United States, be they foreign or domestic.

We are a nation of laws, and the people we entrust with protecting our country must abide by those laws in the performance of their duties. If they don't, they must be held accountable under our laws. Otherwise, we as a nation are no better than our enemies.

Skeeter Sanders
Editor & Publisher
The 'Skeeter Bites Report

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Volume IV, Number 36
Copyright 2009, Skeeter Sanders. All rights reserved.


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