Charges Seen as Unlikely for Lawyers Over Interrogations


Article Tools Sponsored By
By DAVID JOHNSTON and SCOTT SHANE
Published: May 5, 2009

WASHINGTON — An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.


The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.

The conclusions of the 220-page draft report are not final and have not yet been approved by Attorney General Eric H. Holder Jr. The officials said it is possible the final report might be subject to revision, but they did not expect major alterations in its main findings or recommendations.

The draft report is described as very detailed, tracing e-mail messages between Justice Department lawyers and officials at the White House and the Central Intelligence Agency. Among the questions it is expected to consider is whether the memos reflected the lawyers’ independent judgments of the limits of the federal anti-torture statute or were skewed deliberately to justify what the C.I.A. proposed.

At issue are whether the Justice Department lawyers acted ethically in writing a series of legal opinions from 2002 to 2007. The main targets of criticism are John Yoo, Jay S. Bybee, and Steven G. Bradbury, who as senior officials in the department’s Office of Legal Counsel were the principal authors of the memos.

The opinions permitted the C.I.A. to use a number of interrogation methods that human rights groups have condemned as torture, including waterboarding, wall-slamming, head-slapping and other techniques. The opinions allowed many of these practices to be used repeatedly and in combination.

Several legal scholars have remarked that in approving waterboarding — the near-drowning method that President Obama and his aides have described as torture — the Justice Department lawyers did not cite cases in which the United States government had prosecuted American law enforcement officials and Japanese interrogators in World War II for using the procedure.

In a letter made public on Monday, the Justice Department advised two Democratic senators on the Judiciary committee, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, that the former department lawyers who wrote the opinions had until Sunday to submit written appeals to the findings.

The draft report on the interrogation opinions was completed in December and has provoked controversy within counterterrorism circles, which has intensified since last month when the Obama administration disclosed four previously secret opinions written from 2002 and 2005, which for the first time detailed the approved procedures.
http://www.nytimes.com/2009/05/06/us/politics/06inquire.html?_r=1&hp

Oh well, wonder what the Dems will do now? As I have said,no laws were broken.

I disagree, laws were broken,or the lawyers would not be in jeopardy waterboarding and torture was done away with long ago,by the US ,or supposedly so.and some prosecuted for it~ I don't know if it will be prosecuted, but it broke the law~ or there would not be an investigation into it~my opinion`

gypsy wrote:I disagree, laws were broken,or the lawyers would not be in jeopardy waterboarding and torture was done away with long ago,by the US ,or supposedly so.and some prosecuted for it~ I don't know if it will be prosecuted, but it broke the law~ or there would not be an investigation into it~my opinion`

No. We agree that waterboarding is torture, but WE didn't write the applicable law,did we? Suggesting a crime took place because there is an investigation is foolish. The investigation concluded no law was broken and that's that. The two lawyers waterboarded nobody and weren't being investigated for that. Again,you've offered opinion as law and you are wrong. THE LAW IS NOT WHAT YOUR OPINION SAYS IT IS. That's why they write laws down.

I again disagree.. I understand the complexity of that statement, *if the lawyers didn't actually do the torture* did they break the law?
I have several articles that is questioning this,one is( Immunity) and legalizing torture
http://www.americanfreepress.net/html/legalizing_torture.html



White House Lawyers Sought Legal Loopholes to Permit Abuse



By Fred Lingel



Disturbing evidence continues to emerge that the White House authorized a strategy to find ways to circumvent international guidelines on the torture of detainees. As a consequence, lawyers within the Justice Department, the Department of Defense and the Pentagon suggested legal defenses for U.S. soldiers and interrogators accused of torture and intentional homicide.

In two memos in 2002 and 2003, there was, according to international rights bodies, a clear policy by the Bush administration to find ways around the Geneva Conventions and to construct legal defenses to allow for the inhuman and degrading treatment, as well as torture of detainees.

On Jan. 25, 2002, White House Counsel Albert Gonzales wrote to the president that the war on terror “renders obsolete” the Geneva Conventions’ strict rules on the interrogation of enemy prisoners. Gonzales warned of the dangers of U.S. military personnel facing future criminal charges. In order to avoid such an eventuality, he told the president that the Geneva Conventions should not be applied to Al Qaeda and Taliban prisoners.

By August 2002, a Justice Department memo, in response to a CIA request for advice, stated that the torture of Al Qaeda operatives on foreign soil “might be justified” because international conventions did not apply to the war on terror.

In an incredible piece of “legalese,” it was further stated that if mental torture of a detainee did not result in psychological harm lasting months or years, it could not legally be defined as torture.

The memo also pointed out that if a U.S. government employee used torture, believing he was doing it to prevent future attacks against this country, he could argue he was acting out of necessity or self-defense. And the use of tactics that resulted in moderate or fleeting pain could equally not be construed as torture.

The authors of the 2002 memo were clearly determined to narrow the U.S. military’s own interrogation guidelines as well as those enshrined in international codes. To do so, they offered legal loopholes to protect interrogators.

They listed seven interrogation techniques defined by law as torture, including rape, sexual abuse, burning with a cigarette, imminent death threats, physical beating and forcing a detainee to witness another detainee being tortured.

The memo’s authors, however, said that tactics “falling short” of those listed would have to be “similar in nature,” and the harm caused by them would have to be equally so, before they could even be considered legal violations.

It was hardly surprising that a 49-page memo in March 2003, entitled Working Group Report on Detainee Interrogations in the Global War on Terror: Assessment of Legal, Historical Police and Operational Considerations, followed the guidance and thought processes of the authors of the 2002 memo. The 2003 document was drawn up by lawyers at the Defense Department working in conjunction with colleagues at the Justice Department.

Guantanamo was very much on their minds, and they advised that anti-torture laws did not apply to Gitmo or to “the conduct of U.S. personnel at that facility.”

In the opening section of the document, classified by Donald Rumsfeld, but acquired by a Washington newspaper, it is clearly stated that the Geneva Conventions do not apply to Al Qaeda or Taliban detainees and that the United States, while it ratified the 1994 Geneva Torture Convention, “did so with a variety of reservations and understandings.”

The 2003 memo, like its 2002 counterpart, reinforced the legal principle that international law did not apply to U.S. personnel at Gitmo, but the most disturbing sections of the memo related to ways in which interrogation tactics could be legally defended.

It was asserted that for a crime to be committed, such as acute mental pain, an interrogator had to be shown to have had “specific intent” and “express purpose” to break the law.

Even a cursory reading of the memo provides evidence that its authors were adept at linguistic ambiguities and abstract, legalistic paradoxes. They also cited obscure case law and statutes, as well as published works and papers by psychiatrists and mental health specialists.

The examples below show the cunning of the memo’s lawyers: how they compiled the memo and how they believed an interrogator could argue that his behavior did not have specific intent to cause harm.

• “An individual acting with a good faith belief that his conduct would not produce the result that the law prohibits, negates specific intent”;

• “A defendant must specifically intend to cause prolonged mental harm for the defendant to have committed torture”;

• “Thus, if a defendant has a good faith belief that his actions will not result in prolonged harm, he lacks the mental state necessary for his actions to constitute torture.”

In a separate context within the memo, it is argued that the use of mind-altering drugs is an acceptable procedure that could not be construed as torture, provided an interrogator did not have a “specific intent” to cause long-term harm to a detainee.

The memo dealt with what it saw as the limitation of Congress to regulate the detention and interrogation of detainees:



Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on a battlefield. . . . Any effort by Congress to regulate the interrogations and detentions of unlawful combatants would violate the constitution’s sole vesting of the Commander-in-Chief authority in the president.



A much more controversial section presented a case for what it called “the defense of necessity” to protect interrogators. Such a defense would be one in which an interrogator argued that the evil or harm he sought to prevent was greater than that which he inflicted.

Other legal avenues available to interrogators included “self-defense” on the basis that an interrogator believed a terrorist crime was about to be committed.

One of the closing paragraphs in the memo referred to the right of an interrogator to claim that he had been acting under orders from others higher up the chain of command.

Aside from these two memos, Congress wants to see other documents, in particular a memo signed by Rumsfeld in which he authorized 24 interrogation techniques. Citing executive privilege, Attorney General John Ashcroft has refused to release papers relating to interrogations and the administration’s policy on torture.

The material so far unearthed and leaked to the media indicates that, not only was a policy in place to circumvent international law and U.S. military guidelines, but that a legal basis was being offered for extending extreme interrogation tactics beyond Afghanistan and Gitmo to Iraq and facilities like Abu Ghraib Prison in Baghdad.

The evidence so far provides a paper trail that could eventually lead to the president and vice-president’s offices

rosco 357 wrote:Charges Seen as Unlikely for Lawyers Over Interrogations


Article Tools Sponsored By
By DAVID JOHNSTON and SCOTT SHANE
Published: May 5, 2009

WASHINGTON — An internal Justice Department inquiry into the conduct of Bush administration lawyers who wrote secret memorandums authorizing brutal interrogations has concluded that the authors committed serious lapses of judgment but should not be criminally prosecuted, according to government officials briefed on a draft of the findings.

my article as the lawyers will not criminally prosecuted, is dated may 5, 2009, the url u posted was in 2004, these decisions have just been made on what to do unless eric holder changes them , which they said probalby will not be changed and if so not much ,, plus obama said as i think i remember is not in favor of pursuing this,he has an agenda, and does not want anything in his way, its over only a few far left, hunting blood, but no blood will flow, maybe a disbarment for the lawyers who gave the go ahead as this was ok to do,, obama wants this to go away, and end, it will die on the vine, trust me,

Truthout Original
Facebook DIGG
Reagan's DOJ Prosecuted Texas Sheriff for Waterboarding Prisoners

Monday 27 April 2009

by: Jason Leopold, t r u t h o u t | Report

photo
From left to right, Jay S. Bybee, Steven G. Bradbury and John C. Yoo, the authors of the torture memos. (Photo: AP)

George W. Bush's Justice Department said subjecting a person to the near drowning of waterboarding was not a crime and didn't even cause pain, but Ronald Reagan's Justice Department thought otherwise, prosecuting a Texas sheriff and three deputies for using the practice to get confessions.

Federal prosecutors secured a 10-year sentence against the sheriff and four years in prison for the deputies. But that 1983 case - which would seem to be directly on point for a legal analysis on waterboarding two decades later - was never mentioned in the four Bush administration opinions released last week.

The failure to cite the earlier waterboarding case and a half-dozen other precedents that dealt with torture is reportedly one of the critical findings of a Justice Department watchdog report that legal sources say faults former Bush administration lawyers - Jay Bybee, John Yoo and Steven Bradbury - for violating "professional standards."

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

During the procedure, a subject is strapped down to a bench with his head lower than his feet and his face covered by a cloth that is then saturated with water, cutting off his breathing and inducing the panic reflex that a person feels while drowning.

"You have informed us that this procedure does not inflict actual physical harm," Bybee wrote. "Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain.... The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering."

Bush administration officials approved CIA waterboarding for three "high-value" detainees, including Abu Zubaydah (believed to be an al-Qaeda logistics operative) and Khalid Sheikh Mohammed (known as KSM, the alleged mastermind of the 9/11 attacks). Zubaydah was waterboarded at least 83 times and KSM at least 183 times, according to one Justice Department memo.

Bybee, whose memo gave legal cover for the initial use of waterboarding and nine other brutal interrogation methods, said his 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."

Texas Case

That law was not in existence when the Texas sheriff, James Parker, and his deputies were prosecuted and sentenced in the 1980s. But Bybee, Bradbury and Yoo had a duty to their legal profession to cite the case as it would have changed the substance of their legal opinions, said 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. "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 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 twenties, 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 said. "These precedents could have been revealed in just a few minutes of computerized research using the right search engines. 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 unknown what OPR has concluded about that point in its report, which is now being revised.

Beyond ignoring the case law on torture, Yoo, as a deputy assistant attorney general, pushed the theory that President Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force at a time of war.

"As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," said Yoo in another memo dated August 1, 2002, and entitled "Standards of Conduct for Interrogation."

In that opinion, Yoo failed to cite the key precedent relating to a president's war powers, Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry Truman's order to seize steel mills that had been shut down in a labor dispute during the Korean War.

Truman said the strike threatened national defense and thus justified his actions under his Article II powers in the Constitution.

But the Supreme Court overturned Truman's order, saying, "the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Since Congress hadn't delegated such authority to Truman, the Supreme Court ruled that Truman's actions were unconstitutional, with an influential concurring opinion written by Justice Robert Jackson.

Yoo's Explanation

In his 2006 book, "War by Other Means," Yoo offered up a defense of his failure to cite Youngstown. "We didn't cite Jackson's individual views in Youngstown because earlier [Office of Legal Counsel] opinions, reaching across several administrations, had concluded that it had no application to the President's conduct of foreign affairs and national security."

Yoo added, "Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war....

"Detention and interrogation policy are at the heart of the President's Commander-in-Chief power to wage war, and long constitutional history supports the President's leading role on such matters."

But Horton disagrees. "The Youngstown case is considered the lodestar precedent addressing the President's invocation of Commander-in-Chief powers away from a battlefield," Horton told me via email.

"Justice Jackson's opinion is the most persuasive of the opinions justifying the decision," Horton said. "If you examine any treatise on national security law, you'll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance.

"It's obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.

"But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever cockeyed theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that's exactly what he did."

The four legal opinions released last week attempt to make the case that the "enhanced interrogations" of suspected terrorists needed to be done in order to save American lives and foil other plans to attack the United States. In defending the Bush administration's torture program, Republicans have likened the "high-value" detainees to mass murderers, who don't deserve to be treated humanely.

Texas Trial

At the trial of the Texas sheriff, Assistant US Attorney Scott Woodward said the prisoners who were subjected to waterboarding were not "model citizens," but they were still "victims" of torture.

"We make no bones about it. The victims of these crimes are criminals," Woodward said, according to a copy of the trial transcript. One of the "victims" was Vernell Harkless, who was convicted of burglary in 1977.

Gregg Magee, a deputy sheriff who testified against Sheriff Parker and three of the deputies said he witnessed Harkless being handcuffed to a chair by Parker and then getting "the water treatment."

"A towel was draped over his head," Magee said, according to court documents. "He was pulled back in the chair and water was poured over the towel."

Harkless said he thought he was "going to be strangled to death," adding: "I couldn't breathe."

One of the defendants, Deputy Floyd Allen Baker, said during the trial that he thought torture to be an immoral act, but he was unaware that it was illegal. His attorneys cited the "Nuremberg defense," that Baker was acting on orders from his superiors when he subjected prisoners to waterboarding.

That line of defense has come up in the current debate about whether CIA interrogators should be prosecuted for their roles in the torture of detainees. President Obama, CIA Director Leon Panetta and Attorney General Eric Holder have ruled out prosecuting CIA interrogators who acted on Justice Department legal advice.

Some other legal analysts have suggested that the ambiguity of the Bush administration's decision process - in which CIA interrogators suggested the harsh tactics, national security officials, including Condoleezza Rice, concurred, and Justice Department lawyers gave their approval - would make getting 12 jurors to agree on a conviction difficult.

But the jury in the Baker's case didn't buy the "didn't know it was illegal" defense, convicting the deputy on three counts of civil rights and constitutional violations related to the waterboarding.

Bybee is now a federal judge on the Ninth Circuit Court of Appeals in San Francisco. Yoo is a constitutional law professor at the University of California, Berkeley and a visiting professor at Chapman University in Orange, California.

The waterboarding numbers are incorrect in the last post which has already been clarified in earlier posts.
The very most the lawyers will get is a slap on the wrist by the bar association.

the debate,again I repeat is torture/water boarding is a crime..I also doubt prosecution will happen, but maybe disbarment and Bybee being impeached would be a signal that the United states means business on this illegal form of interrogation~ we determined it was torture,and the article I have put here states it is a crime/illegal.
I am also ready for this to move forward, it is done,hopefully it will not happen again.

gypsy wrote:the debate,again I repeat is torture/water boarding is a crime..I also doubt prosecution will happen, but maybe disbarment and Bybee being impeached would be a signal that the United states means business on this illegal form of interrogation~ we determined it was torture,and the article I have put here states it is a crime/illegal.
I am also ready for this to move forward, it is done,hopefully it will not happen again.

who is bybee???? but if u think congress will waist months on some impeachment on this when even the lawyers that oked may be disbarred is all, that certainly will not happen, obama did not get elected for that, he needs all the time he can before the midterm elections in 2010 comes up to pass his agenda, as he may loose the supermajority it looks like he will have when al franken is finally seated which i think he will be, but in 2010 all that in congress may change like it did when clinton lost the majority in congress, about all he then could get passed was nafta which he and the republican congress were on board for.

rosco 357 wrote:

gypsy wrote:the debate,again I repeat is torture/water boarding is a crime..I also doubt prosecution will happen, but maybe disbarment and Bybee being impeached would be a signal that the United states means business on this illegal form of interrogation~ we determined it was torture,and the article I have put here states it is a crime/illegal.
I am also ready for this to move forward, it is done,hopefully it will not happen again.

who is bybee???? but if u think congress will waist months on some impeachment on this when even the lawyers that oked may be disbarred is all, that certainly will not happen, obama did not get elected for that, he needs all the time he can before the midterm elections in 2010 comes up to pass his agenda, as he may loose the supermajority it looks like he will have when al franken is finally seated which i think he will be, but in 2010 all that in congress may change like it did when clinton lost the majority in congress, about all he then could get passed was nafta which he and the republican congress were on board for.

Jay Scott Bybee (born October 27, 1953 in Oakland, California) is a federal judge on the United States Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals[1] and taught law school; his primary interests are in constitutional and administrative law.

Bybee is currently the subject of a war crimes investigation in Spanish court headed by Baltasar Garzón, and of a U.S. federal investigation by the Justice Department's Office of Professional Responsibility concerning a legal memorandum he authorized while serving as Assistant Attorney General for the Department of Justice's Office of Legal Counsel.[2] In this memorandum, Bybee approved of "enhanced interrogation techniques" regarded by the current Justice Department to be torture. [3] Some human rights advocates and Democratic lawmakers, as well as a New York Times editorial, call for Bybee's impeachment.[4][5]



http://en.wikipedia.org/wiki/Jay_Bybee

ok sorry he was a lawyer in my article, lol my bad, lol, but still no impeachent i dont think it was not mentioned and his name was, only disbarment, lol i thought it was some kinda secret code name for bush, lol really i did,, lol

no he probably want be impeached, but the bad name will follow him, and to think he is a lifetime judge, kind of irks me~ but it is time to move on.
I showed where torture was committed,and it is a war crime/illegal~ that was my point~~ not lets get this country rolling~~ again`