Hearing Lays Groundwork for Torture Prosecutions

Created: May 14, 2009 06:00 | Last updated: July 31, 2020 00:00

Sen. Sheldon Whitehouse (WDCpix)

A Senate panel appeared to lay the groundwork on Wednesday for a possible prosecution of former Bush administration officials for the torture and abuse of detainees in the “war on terror,” despite strong opposition from Sen. Lindsey Graham (R-S.C.). Specifically, findings by several testifying witnesses that Bush administration lawyers deliberately distorted the law in drafting legal memoranda that offered legal cover for “enhanced interrogation” policies could support future criminal prosecution.

The Office of Legal Counsel memos defining and justifying torture and other abusive interrogation techniques — the so-called “torture memos” — are “a legal train wreck,” testified David Luban, a professor of legal ethics at Georgetown University, to the Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts. “The torture memos fall far short of candid advice and independent professional judgment,” he said. They “cherry pick the law” and “read as if they were reverse engineered to reach a predetermined outcome.” If that outcome was unlawful, then the lawyer has crossed an ethical line.”The rules of professional ethics forbid lawyers from counseling or assisting clients in illegal conduct,” he said.

Illustration by: Matt Mahurin

Although Luban’s testimony was directed at the ethical implications of the legal conclusions drawn by recently released Bush-era memos and whether the lawyers drafting them acted in “good faith,” a finding that the lawyers knowingly helped White House officials engage in illegal conduct could also support criminal liability of both the lawyers and the policymakers who instructed them.

That the OLC lawyers never once cited the case of United States v. Lee, for example, in which the Reagan administration’s Justice Department prosecuted a Texas sherriff who had waterboarded suspects to extract confessions, is revealing, said Luban. The case, decided by the United States Court of Appeals for the Fifth Circuit in 1983, refers to waterboarding as “torture” at least a dozen times. It is “the single most relevant case on water torture” in United States jurisprudence, said Luban. (Sen. Sheldon Whitehouse (D-R.I.), who has cited the case frequently in previous statements, in separate questioning agreed.) The authors of the Office of Legal Counsel memos, while relying on an obscure Medicare reimbursement law to define torture extremely narrowly, as Whitehouse pointed out, ignored the most obvious and readily accessible recent U.S. federal case law on torture. “It’s hard to avoid concluding that they did not mention it because it cast doubt on their legal conclusions,” said Luban.

The memos authorize conduct that “comes very close to President Nixon’s statement that when the president does it, it’s legal,” said Luban. Only President Nixon was saying it as a throwaway line when put on the spot in an interview with a journalist; the claim wasn’t written as an authoritative memo interpreting the law, Luban said.

Philip Zelikow, the former counselor to Secretary of State Condoleeza Rice who in 2005 wrote a memo objecting to the OLC interpretations, which was ignored, similarly testified that “the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. . . . I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American constitution,” he said, adding: “If the CIA program passed muster under an American constitutional compliance analysis, then a program of this kind would pass American constitutional muster if employed anywhere in the United States on American citizens.”

Not all of the witnesses at the subcommittee hearing agreed that the OLC conclusions were indefensible.

Jeffrey Addicott, a professor at St. Mary’s University School of Law, testified that “in my legal opinion the so-called enhanced interrogation program did not constitute torture under international law.” Addicott relied on the opinion of the European Court of Human Rights in the case of Ireland v. UK, in which the use of prolonged stress positions, sleep deprivation and other techniques similar to those used by the CIA were found to be “inhuman and degrading, but not torture,” said Addicott. That case was also cited by OLC lawyer Jay Bybee in an August 1, 2002 memo. Although the court did not discuss waterboarding, Addicott testified that to any “reasonable mind” waterboarding wouldn’t constitute torture, either.

If it were torture, however, the Bush administration officials would be out of luck, Addicott continued. “Those who order, approve or engage in torture must be criminally prosecuted,” he said. “There is no way out of this. We have to prosecute under the torture convention. We can’t say, on the one hand, those people engaged in torture and not do anything. On the other hand, if we say they do not rise to level of torture then we’re not under any international obligation to prosecute.”

Addicott did not mention, however, that the United Nations Convention Against Torture — the same convention cited by Addicott — signed by Ronald Reagan and implemented by U.S. federal law, forbids not only “torture” but “cruel, inhuman and degrading treatment”, which must also be prosecuted under the law. And it was the definition of cruel, inhuman and degrading treatment, in particular, that gave rise to the objections of Zelikow and others.

That’s because, as later OLC memos acknowledged, the cruel, inhumane and degrading treatment, according to the reservations included when the United States signed the anti-torture treaty, is to be interpeted in accordance with the U.S. Constitution. If the actions would be prohibited under the substantive due process clause of the Constitution’s Fifth Amendment, or by the Eighth Amendment’s prohibition on Cruel and Unusual Punishment, then it would be likewise prohibited — and must be prosecuted — under the U.S. anti-torture statute.

Although the European Court of Human Rights’ interpretation of international law does not constitute a definitive interpretation of U.S. Constitutional law, it hardly bolsters the case against prosecution to cite that court’s conclusion that the techniques used by the UK — and similar techniques used by the CIA — were “inhuman and degrading,” although not torture.

The next witness, although stating that he agreed with Graham’s view that mistakes should not be criminalized, ultimately provided more support for prosecution than against it. Robert Turner, associate director for the Center for National Security Law at the University of Virginia, testified that “under international law we are bound by Common Article 3 of the Geneva Conventions. All detainees are entitled to humane treatment.” Whether the abuse rises to the level of torture, then, is essentially irrelevant.

Indeed, Turner, a former lawyer in the Reagan White House, made that same argument in a July 2007 op-ed he coauthored in The Washington Post titled “War Crimes and the White House.” Common Article 3, he wrote, prohibits ” ‘at any time and in any place whatsoever’ any acts of ‘violence to life and person’ or ‘outrages upon personal dignity, in particular, humiliating and degrading treatment.’ ”

Yet the White House had in 2007 issued an executive order declaring that “the CIA program ‘fully complies with the obligations of the United States under Common Article 3,’ provided that its interrogation techniques do not violate existing federal statutes (prohibiting such things as torture, mutilation or maiming) and do not constitute ‘willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency.’”

“In other words, as long as the intent of the abuse is to gather intelligence or to prevent future attacks, and the abuse is not ‘done for the purpose of humiliating or degrading the individual’ — even if that is an inevitable consequence — the president has given the CIA carte blanche to engage in ‘willful and outrageous acts of personal abuse,’ ” he wrote.

Turner and his co-author, P.X. Kelley, a retired Marine Corp. general, argued that this interpretation of the law was not in “good faith” as required: “It is clear to us that the language in the executive order cannot even arguably be reconciled with America’s clear duty under Common Article 3 to treat all detainees humanely and to avoid any acts of violence against their person.”

Although in his op-ed Turner was saying that the United States’ interrogation tactics violated international law, at Wednesday’s hearing, he adopted the position of Senator Graham, saying: “It appears that some good people made some very bad decisions.”

As Graham put it in his concluding remarks, “I’ve always believed that when you engage in harsh interrogation techniques like waterboarding, eventually it comes back to bite you. And it has. But the people devising these techniques were not criminals. They were Americans who were afraid,” he said.

Now, Graham said, “I’m so afraid that what we’re doing here today is going to chill out the legal advices to come in the future…and that we’re putting men and women at risk in a future prosecution or civil lawsuit who did nothing but do their best to protect this nation.”

The interrogators, lawyers and policymakers who authorized the interrogation techniques were, in essence, good people who did bad things, he said.

Fortunately, neither Congress nor any future prosecutors will be asked to decide the moral integrity of those who devised and approved of abusive, inhuman and degrading interrogation tactics. They need only determine whether those individuals broke the law.