With the approach of the ten-year anniversary of September 11th, this chapter of a new book may be of interest. I agreed to join authors from both sides of the debate in a discussion of the legacy of the attacks, though the book is heavily weighted with conservatives ranging from John Ashcroft to Michael Mukasey to John Yoo. I was not aware when I agreed to do the chapter that Yoo would join Dean Reuter as an editor on the book. Despite my strong feelings about Yoo’s infamous role in the torture program, I felt that I had to fulfill my promise so I wrote a chapter on torture and the torture lawyers, including Yoo. The book is entitled Confronting Terror: 9/11 and the Future of American National Security.



The greatest triumph for terrorists is not the destruction of a people but to get a people to destroy their own values. When it comes to torture, our enemies can claim such a victory after the Bush administration responded to the September 11,2011 attacks by ordering the waterboarding of detainees, as well as an array of other abusive measures. This chapter focuses on the advent of an American torture program and how lawyers rationalized the commission of alleged war crimes in the name of fighting terror. It was no small feat, however. In order to legitimize torture, Bush administration officials had to revisit and revise one of the touchstones of international law: the Nuremburg Principles.

This dubious accomplishment was only achieved by using carefully selected government attorneys to validate a facially unlawful program. The damage done to the rule of law is difficult to capture in a brief essay, but it should be featured prominently in any list of the lasting impact of the September 11 attacks. As on so many occasions of our history, our greatest wounds from this tragedy proved to be self-inflicted. It will take decades for the United States to recover from these legal losses and regain our position as the world’s defender of the rule of law. However, the damage is not (as is often claimed) the re-definition of torture. We never changed international law; we simply violated it. Rather, the lasting effect of the Bush program will be in the use of defenses against alleged war crimes and specifically the use of lawyers to avoid accountability of officials who order the torture of detainees.

The prohibition of torture under international law is considered jus cogens and the Convention Against Torture defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Common Article 3 of the Geneva Convention and other international agreements prohibit torture. Various federal laws, not the least of which is the Torture Act, 18 U.S.C. § 2340, address torture. Government records show that Abu Zubaydah was waterboarded at least 83 times and Khalid Sheikh Mohammed at least 183 times.

I will not spend time or effort arguing the obvious: torture is prohibited under both domestic and international law. In overturning the dismissal of a complaint based on torture in Paraguay in Filartiga v. Pena-Irala, the U. S. Court of Appeals for the Second Circuit stated:

Indeed, for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence.

By extension of the Second Circuit analysis, President Bush and his aides put this country in a position of being viewed as “an enemy of all mankind” by ordering torture. In what appeared to be a case of blind rage meeting blind ambition, Bush administration lawyers set out to justify the unjustifiable and create America’s first officially sanctioned torture program.

The “Water Cure” and the Advent of the Bush Torture Program

Outside of the core Bush administration officials and advocates, there has never been serious dispute that waterboarding constitutes torture. This long-established fact has been recognized by officials ranging from President Barack Obama to Attorney General Eric Holder to Senator John McCain to Colin Powell. A wide array of Republican and Democratic experts have also stepped forward to denounce this torture, including Susan J. Crawford, a former judge and convening authority for the Bush military tribunals, and former State Department official Richard Armitage.

For centuries, waterboarding has been recognized as a form of torture. Indeed, it is one of the oldest and most practiced forms of torture. In the fifteenth century, waterboarding was embraced by the Spanish Inquisition and called la tortura del agua—often involving the placement of a cloth into the mouth of the victim and then pouring water on the victim to simulate drowning. The following century, Anabaptists were tortured during the Flemish Inquisition with a similar technique. Later, waterboarding was used by the Dutch East India Company against natives.

Previously, American soldiers were accused of using waterboarding during the occupation of the Philippines (a practice picked up from the Spanish). American prison officials were also accused of this form of torture at Sing Sing prison and other prisons in the nineteenth century. Conversely, U.S. soldiers faced waterboarding at the hands of the Japanese and Germans in World War II. The United States prosecuted Japanese officers for waterboarding American and allied soldiers. One Japanese officer, Yukio Asano, was sentenced to fifteen years of hard labor for waterboarding. In Vietnam, American servicemen, like John McCain, were tortured with waterboarding. It was also a preferred form of torture used by the Khmer Rouge in Cambodia.

Thus, waterboarding was not some new or novel form of “interrogation” when Bush officials began to contemplate its use after the 9/11 attacks. Indeed, in 1983, Texas sheriff James Parker and three deputies were found guilty of torturing six prisoners between 1976 and 1980 to force confessions through the use of waterboarding. This case and other past cases were left out of the so-called “Torture Memos” that were used to justify waterboarding under the euphemism of “enhanced interrogation” techniques. United States officials had for decades denounced waterboarding and other forms of torture around the world. There was no serious ambiguity or uncertainty as to its status as torture—until the Bush administration.

Of course, the United States’ decision to join such countries as North Korea, Egypt, Saudi Arabia, Iran, and Burma as practitioners of “la tormenta de toca” still faced such considerable obstacles as the Geneva Conventions and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Not only did the Bush administration approve of the use of waterboarding, it also allowed for a variety of other acts identified by the Red Cross as prohibited practices. These included, but were not limited to, forcing detainees into prolonged stress positions, beating detainees, sleep deprivation, exposure to extreme temperatures, and other forms of ill-treatment.

Despite the best (or worst) efforts of Bush administration lawyers, waterboarding remains torture and torture remains a war crime. The authors of the “Torture Memos” struggled mightily to avoid decades of precedent to the contrary and, in the end, convinced few. Indeed, the memos were valued less for offering persuasive analysis than a basis for plausible deniability for Bush officials. Ultimately, the Bush administration itself rejected the memos as flawed and those memos are no longer cited by any reputable commentator as offering credible legal analysis. Rather, they have been cited primarily as a defense by officials, including President Bush and Vice President Cheney, when challenged over the alleged torture program. Various officials have admitted that they were concerned about being prosecuted for torture. Indeed, the CIA was later found to have knowingly destroyed tapes of these sessions, anticipating that they could be demanded as evidence. These memos functioned as a ready-made defense for those who ordered the torture of detainees.

The Justice Department ultimately declared that John Yoo had “violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” Associate Deputy Attorney General David Margolis went further to state “I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client [President Bush].” Jay Bybee was found to have “acted in reckless disregard” of his ethical obligations in authoring the Torture Memos.

While some top Bush officials admitted that the memos offered obviously poor and incomplete analysis, they insisted that they were still right in relying upon the memos in ordering the waterboarding and abuse of prisoners. It was an ironic argument for the Justice Department (which ultimately accepted this view) given its general opposition to the “advice of counsel defense” in criminal cases. While steadfastly opposed to such claims by average citizens, the Justice Department readily embraced the defense when administration officials were facing international calls for prosecution.

Thus, the lasting impact of the Bush administration on torture is not the re-definition of torture, but the reduction of accountability for advocating or committing torture. It is on that question that the Bush administration succeeded in revising the Nuremburg Principles in a new and troubling image. The Bush administration revived the use of lawyers in shielding officials from accountability and–most troubling–resuscitated the “superior orders” defense.

The Bush Principles and the Revival of the Superior Orders Defense

The establishment of a torture program by the Bush administration produced shock and outrage around the world. As the existence of the program was gradually confirmed, calls increased for the United States to fulfill its international obligations to prosecute those responsible for ordering and carrying out the torture of detainees. The United States has a clear and mandatory obligation to investigate and prosecute such crimes. The Convention Against Torture provides for states to either prosecute those responsible for torture or to extradite those individuals. Despite these obligations, the Bush administration refused to investigate and prosecute those responsible for criminal conduct, including refusal to appoint a special counsel– given the involvement of both President Bush and prior Attorneys General. Later, both Bush and Cheney admitted that they were personally involved in the ordering of the systemic torture of detainees.

The Convention Against Torture (signed by President Ronald Reagan) expressly states that “just following orders” is no defense and “no exceptional circumstances whatsoever” will be considered. Yet President Obama pledged soon after he was elected that he would not allow any CIA employee to be prosecuted for torture and would block international efforts to investigate these alleged crimes. Despite the fact that he was dealing with alleged war crimes, President Obama insisted that it was necessary “to provide [CIA officers] with the confidence that they can do their jobs.” In this case, that confidence included being shielded from war crimes investigations. Various high-ranking officials also stated that Obama promised them before his inauguration that he would prevent anyone from being charged for the torture program.

If there was one defense that stood out from the Nuremburg Trials, it was “Befehl ist Befehl,” or “orders are orders.” Since 1474 and the trial of Peter von Hagenbach for atrocities committed during the occupation of Breisach (Germany), this defense has been rejected. When von Hagenbach insisted that he was merely following the orders of Charles the Bold, the Duke of Burgundy, the Holy Roman Empire tribunal rejected the defense.

Various Nuremburg defendants tried to argue that they were only following orders and were therefore not responsible for war crimes. The United States and its allies not only rejected the defense, but executed many of those who used it. It became the foundation for human rights law for decades—informing government officials and police around the world that they are independently responsible for criminal acts. Nuremberg Principle IV stated “[t]he fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

At Nuremburg, defendants such as German Armed Forces Command Chief Wilhelm Keitel insisted that he was not only carrying out superior orders but orders that derived from the legal system. This included the Nacht und Nebel (“Night and Fog”) directive allowing for the capture and execution of those who threatened the “security or state of readiness” of German forces. Not only was Keitel convicted, so were lawyers and Justice Ministry officials like Franz Schlegelberger for their role in supporting war crimes through the legal system. The court found that “by his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence.” The court acknowledged that “his ideas were less brutal than those of his associates, but they can scarcely be called humane.”

No one would suggest that the alleged war crimes of the Bush administration reached the horror of the Holocaust. However, it is also important to recognize that torture is a war crime and that the United States is obligated to prosecute those responsible for acts of torture. Under the Bush principles, any war crime could be excused by a president relying on hand-picked lawyers who predictably ratified and legitimized his intended actions.

Ironically, Bush was adamant about the prosecution of war crimes in other countries. In 2003, he insisted, “War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, ‘I was just following orders.’” On June 26, 2003, conservatives applauded as Bush told the United Nations, “[the United States] is committed to the worldwide elimination of torture and we are leading this fight by example.” He then proceeded to order the commission of torture and insist that such orders are by definition legal because they were reviewed on some level by lawyers.

President Obama revived the “Befehl ist Befehl” defense when he announced a blanket immunity for CIA officials and his intention to protect CIA officials “as vigilantly as they protect our security.” Attorney General Holder insisted that the officials were simply following orders that were sanctioned by the Justice Department. CIA Director Leon Panetta went further and said that the “CIA responded, as duty requires”—ignoring the commission of an alleged war crime in the commission of torture. The result is devastating for Nuremburg Principle IV. Government officials now understand that they cannot be held personally liable if they follow orders from their superiors, even in the commission of torture. Moreover, future presidents understand that they need only select a group of willing lawyers to issue self-serving analysis to shield themselves and their subordinates from prosecution.

Once again, no one is suggesting that the Bush administration committed atrocities analogous to the Nazis. However, the Bush principles are ready made for a host of crimes committed more commonly on a smaller scale. This defense can be asserted again in a variety of more insular cases of officials “following orders.”

The logic of the Bush and Obama administrations became circular when they excused torture by CIA officials as based on legal advice and then refused to discipline those lawyers responsible for the advice. The Justice Department would block any prosecution or disciplining of the attorneys who facilitated the torture program, in particular former Justice officials John Yoo, Jay Bybee, and Steven Bradbury. The Bush administration insisted that, no matter how transparent or poor the analysis of the Torture Memos, reliance on those memos excused officials ranging from President Bush to the CIA agents in torturing detainees. Attorney General Michael Mukasey insisted that “[w]hatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.” Mukasey then proceeded to excuse the lawyers for those unsupported memos. Thus, the officials were excused because of the lawyers and the lawyers were then excused because they were performing a legal advisory function.

The use of lawyers as shields is nothing new. The United States helped create the precedent holding lawyers responsible for their roles in war crimes and rejecting the “legal counsel” defense of war criminals. The third of the twelve Nuremburg trials for war crimes involved sixteen German jurists and lawyers. Nine had been officials of the Reich Ministry of Justice; the others were prosecutors and judges of the Special Courts and People’s Courts of Nazi Germany.

The result was a new, immaculate commission of a war crime where no one could be punished. Indeed, Bybee was given the one job that would largely insulate him from the backlash against his unethical conduct: a lifetime appointment as a federal judge on the U. St. Court of Appeals for the Ninth Circuit. For those faced with any questionable order or program in the future, Bybee will stand as a troubling case study of how one can be rewarded despite of (or perhaps because of) one’s involvement in alleged crimes.

Conclusion

At a critical meeting in which top-ranking Bush officials deliberated the use of torture, then Attorney General John Ashcroft reportedly asked “Why are we talking about this in the White House? History will not judge this kindly.” Of course, Ashcroft was right. History will not judge Bush officials or this country kindly for the use of torture. Accounts of the atrocities committed by these terrorists will be followed by accounts of alleged war crimes committed by the United States in response. The effort by the Bush administration to blame attorneys like John Yoo and Jay Beebe for flawed and unsupportable analysis will not alter that historical judgment. The embrace of their analysis was at best a case of willful blindness by Bush and his administration—transparent effort to justify torture. Indeed, the effort to put all of the blame on these lawyers combined a lack of morality with a lack of integrity on the part of Bush officials.

One of the lessons of history is that no country is invulnerable to the relapse to extralegal abuses that come during moments of national fear or rage. In every country, there remain men and women who harbor a preference for authoritarian measures. In this sense, the desire for torture and other abuses rests like a dormant virus within a country—a virus that is allowed to take over a body politic in feverish periods of war or internal strife. What was astonishing was the willingness of academics and lawyers to facilitate the use of these measures to lead it to the destruction of core international and domestic principles.

Magnifying this moral and legal relativism is the effort of some to claim that, putting aside the use of a possible war crime, it worked. Literally within hours of the announcement of the killing of Osama Bin Laden, many of those accused of ordering or facilitating torture from Dick Cheney to John Yoo were claiming that the killing was made possible by waterboarding. They insisted that Khalid Sheikh Mohammed, supplied the name of an associate of Bin Laden after being tortured in 183 waterboarding sessions. Those initial claims were later refuted by the Director of Central Intelligence Leon Panetta as well as others familiar with both the prior intelligence and the operation. However, putting aside the support for this claim, the more relevant question is, even if it were true, why would it matter? The clear import of this claim is that, even if it is a war crime, it was somehow justified by killing a hated enemy. Of course, history has shown that all war criminals believe that their use of torture is justified by their cause or their enemy. The entire premise of the Nuremburg Principles (as well as the Convention Against Torture) is that the ends do not justify the means. Killing a war criminal with a war crime would not be a sign of distinction but of defeat – embracing the same consequencialist morality of our enemy.

There are credible allegations of war crimes in the torture of detainees against those who ordered it, justified it, and carried it out. Each of these accused individuals also has credible defenses to make, but they should have been required to make those arguments to a special counsel or a grand jury. If these officials had persuasive arguments, they would have withstood an independent criminal investigation. Instead, like so many countries we have accused of human rights violations in the past, we barred a full and independent investigation under sweeping claims of privilege and immunity.

Ultimately, no one who ordered or committed torture under the Bush program was prosecuted—a lesson that will not be lost on future government officials in this country and abroad. We will pay that price when Americans are waterboarded in other countries or when we try to condemn others for blocking war crimes investigations. Indeed, many fear that it will be our service members who will pay the price of our hypocrisy at the hands of our enemies. What neither the Bush administration nor the Obama administration understood is that the investigation and prosecution of alleged war crimes do not weaken a nation. They reaffirm the difference between ourselves and those we are fighting. To abandon our principles for politics is to hand al Qaeda its greatest victory—not the destruction of lives or buildings, but our self-inflicted wound of hypocrisy and immorality. True victory against our enemies is only to be found on the other side of prosecuting those who, like our enemies, claim the right to wage war by any means.

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