A Response to Those Who Say Don't Prosecute Bush's Torture Lawyers

As we reported earlier,
Justice Department investigators are likely to recommend that the
Bush-era torture memo authors should not be criminally prosecuted,
rather they recommend the department refer "two of the three lawyers
[who authored the torture memos] to state bar associations for possible
disciplinary action... where the most severe possible punishment is
disbarment."

Over the past few weeks, I have been extensively reporting
on the efforts to hold Bush-era torturers, their bosses (ie Bush,
Cheney, Rumsfeld, Gonzalez, etc.) and their lawyers (including Jay
Bybee, Steven Bradbury and John Yoo) accountable through criminal
prosecutions. Some people have argued the torturers themselves shouldn't be prosecuted, only the top officials, while others have publicly (and in emails to me and in comments on my Facebook and web pages) suggested that the lawyers should not be prosecuted.

In
short, I disagree completely. I believe that all of those who were a
part of this torture system need to face justice for their crimes. I
also believe the Democrats who were briefed on the program as early as 2002 should also face the music.

As
for the individual torturers, they have committed crimes under both US
and international laws and should be dealt with as such. But what about
the lawyers? I was recently asked to "identify the punishable conduct
and applicable law(s)" regarding prosecution of Bush's torture lawyers.

This
is not some political debate. This is a matter of law and US
obligations to its international treaties, which the Constitution
explicitly states the US will respect and enforce.

First, I would recommend that anyone who thinks it is a "stretch" to prosecute lawyers who provided legal justifications for torture to read the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was signed by President Ronald Reagan. Specifically, read these portions:

Article 2

1. Each State Party shall take effective
legislative, administrative, judicial or other measures to prevent acts
of torture in any territory under its jurisdiction. 2. No
exceptional circumstances whatsoever, whether a state of war or a
threat or war, internal political instability or any other public
emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

[...]

Article 4

1. Each State Party shall ensure that all acts of torture are offences
under its criminal law. The same shall apply to an attempt to commit
torture and to an act by any person which constitutes complicity or
participation in torture.

[...]

Article 7

1. The
State Party in territory under whose jurisdiction a person alleged to
have committed any offence referred to in article 4 is found, shall in
the cases contemplated in article 5, if it does not extradite him,
submit the case to its competent authorities for the purpose of
prosecution.

The US is legally bound to this convention and I would argue that
the attempted legalizing and authorizing of torture, such as was done
by Bybee, Yoo and Bradbury is exactly what this treaty addresses and
bans.

Then there is the precedent established at Nuremberg in the United States v. Altstoetter, which, according
to constitutional and military law expert Scott Horton found "that
lawyers who dispense bad advice about law of armed conflict, and whose
advice predictably leads to the death or mistreatment of prisoners, are
war criminals, chargeable with potentially capital offenses."

According to Horton:

[Hitler's] lawyers were indicted and charged with crimes
against humanity and war crimes arising out of the issuance and
implementation of the Nacht- und Nebelerlass. The United States charged
that as lawyers, "not farmers or factory workers," they must have
recognized that their technical justifications for avoiding the
application of the Hague and Geneva Conventions were unavailing,
because these conventions were "recognized by all civilized nations,
and were regarded as being declaratory of the laws and customs of war."
That is to say, they were customary international law.

[...]

After
trial, the two principal [German] Justice Department lawyers, one a
deputy chief of the criminal division, were convicted and sentenced to
ten years' imprisonment, less time served. This judgment clearly
established the concept of liability of the authors of bureaucratic
policies that breach basic rules of the Hague and Geneva Conventions
for the consequences that predictably flow therefrom. Moreover, it
establishes a particularly perilous standard of liability for
government attorneys who adopt a dismissive attitude towards
international humanitarian law.

These are just a few of the arguments for prosecuting the torture lawyers. More to come.