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First, Jail All of Bush's Lawyers
If new Attorney General Eric Holder really means what he said in his oath - that he will "support and defend the Constitution of the United States" - then he must give serious consideration to prosecuting crimes committed by the Bush administration, including its torturing of detainees.
And Holder might be advised to begin the process at his own agency, the Department of Justice. To paraphrase Shakespeare, Holder might start by first jailing all of George W. Bush's lawyers.
The logic of targeting former Justice Department lawyers - the likes of John Yoo and Jay Bybee - is that they were the linchpin for justifying acts that were clearly illegal; they provided the paper cover for both the interrogators in the field and the senior officials back in Washington.
Bush and Vice President Dick Cheney have repeatedly cited this legal guidance when insisting that the harsh interrogation of "war on terror" detainees - as well as other prisoners from the Iraq and Afghan wars - did not cross the line into torture.
In essence, the Bush-Cheney defense is that independent lawyers at the Justice Department's Office of Legal Counsel and elsewhere gave honest opinions - and that everyone from the President and Vice President, who approved specific interrogation techniques, to the interrogators, who carried out these acts, operated in good faith.
If, however, that narrative is false - if the lawyers colluded with policymakers in creating legal excuses for criminal acts - then the Bush-Cheney defense collapses. Rather than diligent lawyers providing professional advice, the picture is of consiglieres counseling crime bosses how to skirt the law.
The evidence supports the conspiratorial interpretation. For instance, in his 2006 book War by Other Means, Yoo describes his involvement in frequent White House meetings regarding what "other means" should receive a legal stamp of approval.
Yoo, who was a deputy assistant attorney general assigned to the powerful Office of Legal Counsel, wrote:
"As the White House held its procession of Christmas parties and receptions in December 2001, senior lawyers from the Attorney General's office, the White House counsel's office, the Departments of State and Defense and the NSC [National Security Council] met a few floors away to discuss the work on our opinion.
"We sat at a large round table in a room in the ornate, Empire-style Old Executive Office Building where secretaries of state once conducted business. ... This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism. We certainly did not all agree, nor did we always get along, but we all believed that we were doing what was best for the nation and its citizens.
"Meetings were usually chaired by Alberto Gonzales," who was then White House counsel and later became Bush's second Attorney General.
Yoo identified other key players as Timothy Flanigan, Gonzales's deputy; William Howard Taft IV from State; John Bellinger from the NSC; William "Jim" Haynes from the Pentagon; and David Addington, counsel to Cheney.
In his book, Yoo describes a give-and-take among participants at the meeting with the State Department's Taft challenging Yoo's OLC view that Bush could waive the Geneva Conventions regarding the invasion of Afghanistan (by labeling it a "failed state"). Taft noted that the Taliban was the recognized government of the country.
"We thought Taft's memo represented the typically conservative thinking of foreign ministries, which places a priority on stabilizing relations with other states - even if it means creating or maintaining fictions - rather than adapting to new circumstances," Yoo wrote.
Regarding objections from the Pentagon's judge advocate generals - who feared that waiving the Geneva Conventions would endanger American soldiers - Yoo again stressed policy concerns, not legal logic.
"It was far from obvious that following the Geneva Conventions in the war against al-Qaeda would be wise," Yoo wrote. "Our policy makers had to ask whether [compliance] would yield any benefit or act as a hindrance."
What Yoo's book and other evidence make clear is that the lawyers from the Justice Department's OLC weren't just legal scholars handing down opinions from an ivory tower; they were participants in how to make Bush's desired actions "legal."
They were the lawyerly equivalents of those U.S. intelligence analysts, who - in the words of the British "Downing Street Memo" - "fixed" the facts around Bush's desire to justify invading Iraq.
Yoo and other OLC lawyers looked to be Bush's consiglieres on both brutal interrogation and aggressive war. They floated novel legal theories, looked for loopholes or - in Yoo's phrase - they were "adapting to new circumstances."
The importance of this question - whether the OLC lawyers were honest brokers or criminal conspirators - has not been missed by some of the congressional leaders pressing for a serious investigation of Bush's use of torture and other war crimes.
A year ago, Sens. Dick Durbin, D-Illinois, and Sheldon Whitehouse, D-Rhode Island, wrote a letter to the Justice Department's watchdog agencies requesting an investigation into the role that "Justice Department officials [played] in authorizing and/or overseeing the use of waterboarding by the Central Intelligence Agency... and whether those who authorized it violated the law."
In the Feb. 12, 2008, letter, the senators questioned whether the OLC lawyers were "insulated from outside pressure to reach a particular conclusion" and whether Bush's White House and the CIA played any role in influencing "deliberations about the lawfulness of waterboarding," a technique that creates the sensation of drowning and has been deemed torture since the Inquisition.
Whitehouse, a former federal prosecutor, said those questions were designed to get to the point that having in-house lawyers dream up a legal argument doesn't make an action legal, especially if the lawyers were somehow induced to produce the opinion.
In the case of waterboarding and other abusive interrogation tactics, Yoo and his OLC boss Jay Bybee generated a memo, dated Aug. 1, 2002, that came up with a novel and narrow definition of torture, essentially lifting the language from an unrelated law regarding health benefits.
The Yoo-Bybee legal opinion stated that unless the amount of pain administered to a detainee led to injuries that might result in "death, organ failure, or serious impairment of body functions" then the interrogation technique could not be defined as torture.
Since waterboarding is not intended to cause death or organ failure - only the panicked gag reflex associated with drowning - it was deemed not to be torture.
The "torture memo" and related legal opinions were considered so sloppy and unprofessional that Bybee's replacement to head the OLC, Jack Goldsmith, himself a conservative Republican, took the extraordinary step of withdrawing them after he was appointed in October 2003.
Whitehouse said the Bybee-Yoo memo was "beyond malpractice" and "raises the specter that these things were overlooked" just to advance policy. [For more on Whitehouse's recent comments, see Consortiumnews.com's "More Pressure for Bush Torture Probe."]
In response to the Durbin-Whitehouse letter, H. Marshall Jarrett, head of the Justice Department's Office of Professional Responsibility, disclosed that OPR was examining the genesis of the Aug. 1, 2002, legal opinion, an inquiry that might be completed within the next month or two.
OPR's findings could give Attorney General Holder an opening to question Bybee, Yoo and other lawyers in the torture debate about whether they were pressured to come up with a legal opinion that would justify the abusive tactics that Bush and Cheney already wanted to use against detainees.
Did Bush and Cheney, in effect, lawyer-shop for the answers they wanted?
By concentrating on the lawyers first, Holder could likely build a stronger case than he could against CIA and other interrogators who executed the orders from above to abuse and torture detainees.
While the interrogators might reasonably be able to claim uncertainty about the legality (because they had orders from the Attorney General or the White House), Yoo, Bybee and other lawyers who crafted the legal arguments could make no such claim.
Bybee is now a federal appeals court judge in San Francisco. Yoo is a law professor at the University of California at Berkeley
Yoo also has shown no remorse over his role in putting the United States on the path to torture. Yoo even took to the opinion pages of the Wall Street Journal on Jan. 29 to chastise President Barack Obama for ordering the phased close-down of the Guantanamo Bay prison and for ending the CIA's authority to harshly interrogate detainees.
"While these actions will certainly please his base -- gone are the cries of an ‘imperial presidency' -- they will also seriously handicap our intelligence agencies from preventing future terrorist attacks," Yoo wrote.
"Eliminating the Bush system will mean that we will get no more information from captured al-Qaeda terrorists," Yoo wrote. "In his decisions taken so precipitously just two days after the Inauguration, Mr. Obama may have opened the door to further terrorist acts on U.S. soil by shattering some of the nation's most critical defenses."
While Yoo's rhetoric is typical of what came out of the Bush administration for eight years, it glosses over the basic fact that this approach leaves to one person - the U.S. President - the power to determine who is an "enemy combatant" and to subject that human being to barbaric practices.
It assumes that the President and his intelligence agencies are infallible in making those judgments even for a person apprehended far from any battlefield and with no apparent capacity to wage war, even U.S. citizens or legal residents pulled from their homes or off the street by government agents. [For details, see our book, Neck Deep.]
For many Americans, the question during Bush's presidency was whether his imperial theories and their defenders represented a greater threat to the American constitutional Republic than did a scattered band of terrorists halfway around the world.
Yoo's Wall Street Journal column also is further evidence of his criminal intent. He is stating clearly that he is all about achieving an outcome (i.e. extracting information from suspected terrorists by any means that the President orders), rather than about protecting the sanctity of the law.
It is the ends, not the means, that matter to John Yoo.
If Holder takes seriously his sworn commitment to protect the U.S. Constitution against all enemies foreign and domestic, he has little choice but to examine how political and ideological operatives, like Yoo, twisted the law to fit a President's criminal proclivities.
If the rule of law means anything, it can't be that simply making a legal argument - no matter how baseless and absurd - permits the nation's top executive to break any law and commit any crime.
Possibly after some time behind bars or at least before a grand jury, lawyers, who put their ambitions and policy interests first, might have some heartfelt second thoughts - and might be willing to point the finger at which of their higher-ups got them to write these disreputable legal opinions.