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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.


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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.

Jeremy Scahill, The Intercept

Jeremy Scahill

Jeremy Scahill is an investigative reporter, war correspondent, co-founder of The Intercept, and author of the international bestselling books Dirty Wars: The World Is A Battlefield and Blackwater: The Rise of the World's Most Powerful Mercenary Army.  He has reported from Afghanistan, Iraq, Somalia, Yemen, Nigeria, the former Yugoslavia, and elsewhere across the globe. Scahill has served as the national security correspondent for The Nation and Democracy Now!, and in 2014 co-founded The Intercept with fellow journalists Glenn Greenwald, Laura Poitras, and investor Pierre Omidyar. Follow him on Twitter: @jeremyscahill

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