Using Law to Justify Torture

[babylonsister]

Using Law to Justify Torture
Constitutional Scholars Say Advice of Counsel Is Probably Not a Strong Defense

Illustration by: Matt Mahurin
By Daphne Eviatar 07/23/2008


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.

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http://washingtonindependent.com/view/using-law-to-justify

[Kelvin Mace]

1. So, the real problem the Nazis had

was not getting the right advice from the right lawyers?

Damn, Hitler could have avoided that whole suicide thing if he had known that.

[Hydra]

3. The problem the Nazis had is that they didn't win

That seems to be the strongest thread to the BS coming out of the WH- "We're a superpower, and we do what we want. Fuck off."

I have to say that America as a whole accepting this reasoning amuses me. Not 10 years ago, people were talking about how the Geneva Conventions and Nuremberg were sacred principles.

Now we're back to "It's not illegal if the President does it."

[Hydra]

2. Ya, if we could ever get an honest investigation

Bushco upper tiers, past and present would probably end up convicted of war crimes.

It doesn't matter how much they dress this up with narrow readings of the constitution- the two things lots of people are ignoring are this:

1. Constitutional amendments(ie, Bill of Rights) SUPERCEDE the main articles. Bush's "Wartime Authority" is trumped by the Amendments. /Fail

2. Geneva Conventions clearly spell out violations, and we agreed to this. We can always withdraw and become a rogue/terrorist nation, I suppose.

[The Blue Flower]

4. They went to the trouble of ordering up the memos

Because they knew what they were doing was illegal. The memos are thinnest of tissues to cover their corrupt asses.