The Case for Disbarment of Lawyers Who Facilitated Torture Grows

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The Case for Disbarment of Lawyers Who Facilitated Torture Grows

Lawyers were the lynchpin if they had given real legal advice: torture is illegal under domestic and international law; there would have been no torture program.

Since filing complaints against 12 Bush-Cheney lawyers the case for disbarment has gotten stronger.  More information is leaking out.  And, more and more Americans from citizens to generals to a former president are speaking out.  On June 10th, a coalition of hundreds of organizations filled an addendum to the complaints against these lawyers to highlight the new information.

The addendum included statements by two generals with first hand knowledge of what occurred in U.S. detention centers in Iraq and Afghanistan. General David Patraeus said on May 29th that the U.S. violated the Geneva Conventions in carrying out “enhanced interrogations.”  On FOX TV, in response to a question about the controversial interrogation practices, Patraeus said:

“When we have taken steps that have violated the Geneva Conventions we rightly have been criticized, so as we move forward I think it's important to again live our values, to live the agreements that we have made in the international justice arena and to practice those.”

Patraeus even said that in the so-called “ticking time bomb” scenario torture techniques were not needed -- “the techniques that are in the Army Field Manual” were sufficient.  The Army Field Manual goes further than banning torture; it specifically requires humane treatment of prisoners and detainees.

Patraeus went on to say that he believed that banning the more extreme techniques had taken away “a tool” employed by “our enemies” as a moral argument against the United States.  He said Guantanamo Bay inflamed U.S. hostility and he supported its closure, commenting, “Gitmo has caused us problems, there’s no question about it . . . the existence of Gitmo has been used by the enemy against us.”

General Ricardo Sanchez, who was the top commander in Iraq when the Abu Ghraib prison abuse scandal became publis, also expressed concern with the torture and abuse of prisoners.  On May 31st he described torture as a “war crime” and called for a truth commission to investigate abusive interrogation practices.  Sanchez blamed prisoner abuse on the civilian and military command at all levels, concluding "and that is why I support the formation of a truth commission." 

Sanchez also disagreed with Dick Cheney's claim that torture helped stop terrorist attacks: "During my time in Iraq there was not one instance of actionable intelligence that came out of these interrogation techniques."  Sanchez expressed concern that the U.S. will repeat these errors, telling the Huffington Post, "If we do not find out what happened then we are doomed to repeat it."

The two generals are joined by a former president. Jimmy Carter expressed disappointment that Obama failed to release the torture and abuse photos and urged an investigation as well as potential prosecution of those who committed war crimes.  Carter said:

. . . what I would like to see is a complete examination of what did happen, the identification of any perpetrators of crimes against our own laws or against international law and then after all that’s done, decide whether or not there should be any prosecutions.

In addition to two generals and one former president speaking out the public is getting angry about the lack of torture accountability. When we filed our complaints on May 16th thousands of concerned citizens and scores of organizations signed on and many more have added their names since they were filed.  On June 25th there will be torture accountability events held in many parts of the country.  See  When President Obama asked people what issues they wanted answers on for a town hall, torture accountability was the top vote getter at the end of scheduled voting.  More than 10,000 people have taken action on torture at VotersForPeace.US and 50,000 signed a petition to prosecute Bush for war crimes.  No doubt, more pressure will be needed to move Congress and the White House on torture accountability, but pressure is building.

And, National Public Radio’s All Things Considered reported that Alberto Gonzalez approved torture well before the Department of Justice memoranda when he served as White House counsel.  The torture involved Abu Zubaydah who was arrested on March 28, 2002. The Justice Department issued its first memorandum on torture four months later on August 1.  An FBI interrogator testified before Congress that they requested permission to use harsher and harsher interrogation methods.  The CIA told NPR that there was legal guidance provided before August 1 but would not say what it was, when it was given or by whom.  A source told NPR that Gonzalez signed off on the harsh interrogation techniques on a daily basis.  The NPR report concludes with a former government official describing the DOJ memoranda process as a complete charade.

One of the documents we filed as an addendum to the bar complaints was a series of Department of Justice emails from Deputy Attorney General James Comey stating that Alberto Gonzalez was “weak” by succumbing to White House political pressure to approve torture, and warning Gonzales that the approval would come back to haunt him and the DOJ.  In fact, when these emails are read it is evident there was a lot of pressure on DOJ to sign-off on torture, which they euphemistically called “enhanced interrogation.”  The pressure was made clear in one email where Comey implicated both the president and vice president, writing:

"The AG explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP's request and the AG had promised they would be ready early this week."

He goes on to describe the Attorney General and Office of Legal Counsel as “too weak to stand up for the principles that undergird the rest of this great institution" (meaning the Department of Justice). Another email, dated April 28, 2005, suggests that Comey was told the torture memoranda needed to be drafted quickly to provide retroactive cover for torture that already occurred.  This adds to the NPR conclusion that the memoranda were a charade to provide cover for an already ongoing torture program.

It really is astounding to think the United States is actually debating whether torture is appropriate or not.  The U.S. led the world in getting the Geneva Convention approved and Ronald Reagan signed the Convention Against Torture.  Both of these treaties, which have been ratified and are now US law, prohibit torture. 

The American Bar Association approved a resolution on August 9, 2004 condemning torture.  It said:

“RESOLVED, That the American Bar Association condemns any use  of torture or other cruel, inhuman or degrading treatment or punishment upon persons within the custody or under the physical control of the United States government (including its contractors) and any endorsement or authorization of such measures by government lawyers, officials and agents;”

The resolution goes on to urge the U.S. to obey all international treaties and laws that prohibit torture. And, it also seeks vigorous investigation of torture and abuse of prisoners and “proceedings against persons who may have committed, assisted, authorized, condoned, had command responsibility for, or otherwise participated in such violations.”  

And, in the report accompanying their resolution, the ABA points to the role of lawyers who provided legal cover for the torture program. They say: “We do not construe the giving of good faith legal advice to constitute endorsement or authorization of torture . . . the memoranda and the decisions of high U.S. officials at the very least contributed to a culture in which prisoner abuse became widespread.”

In fact, the lawyers were the lynchpin.  There was dissent inside the CIA, FBI and DoD over the torture program.  Those directly involved were worried that they could be prosecuted for war crimes as torture is clearly prohibited by international and U.S. law.  If lawyers had not manipulated the meaning of the law through tortured legal reasoning, the torture program would have ended rapidly.  Honest legal advice would have prevented these war crimes.

This is why we are seeking torture accountability for all involved.  The lawyers need to answer to ethics complaints, but that is not enough a public inquiry followed by the appointment of a special prosecutor are the steps that need to be taken to apply the rule of law and remove this toxic poison from the body politic.

Kevin Zeese

Kevin Zeese is an organizer of Popular Resistance and the Attorney General for the Green Shadow Cabinet. He is in the leadership of World Beyond War and Come Home America.


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