Judge Bybee... said: “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”
Other administration lawyers agreed with those conclusions, Judge Bybee said.
“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”
Let me give a simple small example, helpfully laid out here. Bybee was able to defend waterboarding as non-torture in a legal memo ostensibly providing objective analysis of the case history of the torture technique in the US. Among the obvious precedents for such a decision was the most recent case - when the Reagan administration Justice Department prosecuted a Texas sheriff and his deputies for waterboarding a suspect to get a confession in 1983:
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.
The Reagan Justice Department - back when Republicans opposed torture - did not buy this defense and neither did a jury. They convicted the the deputy on three counts of civil rights and constitutional violations. Now: this case occurred before the UN Convention on Torture went into effect, but any good faith legal memo explaining the history of this particular torture technique would surely have cited it. It's easily findable with Google, let alone with the research resources available to the Office Of Legal Counsel.
I honestly cannot imagine how a serious legal memo with respect to a very rare torture technique would not cite the most recent domestic precedent, finding that it violated the constitution. Can you?
Today, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) sent a letter to Judge Jay Bybee inviting him to testify about his “views” about torture and his “role” in drafting the torture memos. “There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated, the considerations that went into it, and the role played by the White House,” Leahy wrote. “I look forward to your cooperation and your testimony.” Read Leahy’s letter (pdf) here.
MADRID – A Spanish judge opened a probe into the Bush administration over alleged torture of terror suspects at Guantanamo Bay, pressing ahead Wednesday with a drive that Spain's own attorney general has said should be waged in the United States, if at all.
Judge Baltasar Garzon, Spain's most prominent investigative magistrate, said he is acting under this country's observance of the principle of universal justice, which allows crimes allegedly committed in other countries to be prosecuted in Spain.
He said documents declassified by the new U.S. government suggest the practice was systematic and ordered at high levels of the US government.
...Now, Garzon is opening a separate, broader probe that does not name any specific suspects but targets "possible material authors" of torture, accomplices and those who gave torture orders.
In a 10-page writ, Garzon said documents on Bush-era treatment of prisoners, recently declassified by the Obama administration, "reveal what had been just an intuition: an authorized and systematic plan of torture and mistreatment of persons denied freedom without any charge whatsoever and without the rights enjoyed by any detainee."
Garzon cited media accounts of the documents and said he would ask the U.S. to send the documents to him.
The judge wrote that abuses at Guantanamo and other U.S. prisons for terror suspects, such as the American air base at Bagram, Afghanistan, suggest "the existence of a concerted plan to carry out a multiplicity of crimes of torture."
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
The poisoned reasoning posited by Bybee is blatant where he chooses to define the line between legitimate interrogation and torture - in the context of an al-Qaeda suspect. Are there numberous standards and degrees of torture, each defined by the nature of the victim? Then again, coming from a nation which routinely executes black murderers many times more often than white murderers, this probably makes sense.
ReplyDeleteI don't believe this is some sort of gaffe by Bybee. He's far too experienced and accomplished for that. I really believe he views torture as something measured by the nature, ethnicity or political alignment of the subject.
I think that tells us everything we need to know - and more - about Bybee & Company.
The Parker case wasn't included in the Bybee memo because 1) Parker didn't have a published opinion (trial) and 2) because the appellate opinion had nothing to do with "torture", but instead ruled on severeability.
ReplyDeleteIn other words, the case wasn't on point.