What Would Ronnie Do?

George W. Bush's Justice Department said subjecting a person to the near drowning of waterboarding was not a crime and didn't even cause pain, but Ronald Reagan's Justice Department thought otherwise, prosecuting a Texas sheriff and three deputies for using the practice to get confessions.



Federal prosecutors secured a 10-year sentence against the sheriff and four years in prison for the deputies. But that 1983 case - which would seem to be directly on point for a legal analysis on waterboarding two decades later - was never mentioned in the four Bush administration opinions released last week.



The failure to cite the earlier waterboarding case and a half-dozen other precedents that dealt with torture is reportedly one of the critical findings of a Justice Department watchdog report that legal sources say faults former Bush administration lawyers - Jay Bybee, John Yoo and Steven Bradbury - for violating "professional standards."



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t the trial of the Texas sheriff, Assistant US Attorney Scott Woodward said the prisoners who were subjected to waterboarding were not "model citizens," but they were still "victims" of torture.



"We make no bones about it. The victims of these crimes are criminals," Woodward said, according to a copy of the trial transcript. One of the "victims" was Vernell Harkless, who was convicted of burglary in 1977.



Gregg Magee, a deputy sheriff who testified against Sheriff Parker and three of the deputies said he witnessed Harkless being handcuffed to a chair by Parker and then getting "the water treatment."



"A towel was draped over his head," Magee said, according to court documents. "He was pulled back in the chair and water was poured over the towel."



Harkless said he thought he was "going to be strangled to death," adding: "I couldn't breathe."



One of the defendants, Deputy Floyd Allen Baker, said during the trial that he thought torture to be an immoral act, but he was unaware that it was illegal. His attorneys cited the "Nuremberg defense," that Baker was acting on orders from his superiors when he subjected prisoners to waterboarding.



That line of defense has come up in the current debate about whether CIA interrogators should be prosecuted for their roles in the torture of detainees. President Obama, CIA Director Leon Panetta and Attorney General Eric Holder have ruled out prosecuting CIA interrogators who acted on Justice Department legal advice.



Some other legal analysts have suggested that the ambiguity of the Bush administration's decision process - in which CIA interrogators suggested the harsh tactics, national security officials, including Condoleezza Rice, concurred, and Justice Department lawyers gave their approval - would make getting 12 jurors to agree on a conviction difficult.



But the jury in the Baker's case didn't buy the "didn't know it was illegal" defense, convicting the deputy on three counts of civil rights and constitutional violations related to the waterboarding.

Washington Post

"Jay would be the sort of lawyer who would say, 'Look, I'll give you the legal advice, but it's up to someone else to make the policy decision whether you implement it,' " said Randall Guynn, who roomed with Bybee at Brigham Young University and remains close.

Bybee's friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, Guynn said, was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, "Would you be willing to take a position at the OLC first?" Guynn said.