Touting Torture - Waterboarding and the Ethically Impermissible

The Department of Justice took out the trash on Friday, February 22nd, and dumped a little tidbit into a news cycle which perhaps it hoped would be missed between accounts of Britney's child visitation woes and Hillary's increasingly desperate attacks on Obama.

The New York Times reported Friday that the DOJ's internal ethics office is investigating the origins of the infamous Torture Memo which led to the equally infamous waterboarding and torture of terrorism suspects by the CIA.

H. Marshall Jarrett, head of the DOJ's Office of Professional Responsibility (who knew they had one?) responded to a letter from Senator Durbin of Illinois, and Senator Whitehouse of Rhode Island:

the legal advice approving waterboarding was one subject of an investigation into “the circumstances surrounding the drafting” of a Justice legal memorandum dated Aug. 1, 2002.

The document declared that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. The memorandum, drafted by a Justice Department lawyer, John Yoo, and signed by Jay S. Bybee, then head of the department’s Office of Legal Counsel, was withdrawn in 2004.

Mr. Jarrett said the investigation was also covering “related” legal memorandums prepared by the Office of Legal Counsel since 2002. That suggested the investigation would address still-secret legal opinions written in 2005 by Steven G. Bradbury, then and now the acting head of the Office of Legal Counsel, that gave legal approval for waterboarding and other tough methods, even when used in combination.

Mr. Jarrett said his office was “examining whether the legal advice in these memoranda was consistent with the professional standards that apply to Department of Justice attorneys.”

“Because of the significant public interest in this matter, O.P.R. will consider releasing to Congress and the public a nonclassified summary of our final report,” Mr. Jarrett wrote, using the initials for the Office of Professional Responsibility.

Justice Department officials said that the O.P.R. inquiry began more than three years ago and noted that it was mentioned in a Newsweek article in December 2004. It has since been expanded, the officials said, to cover more recent legal opinions on interrogation.

Mr. Jarrett’s letter, dated Monday, came in reply to a Feb. 12 letter from Mr. Durbin and Mr. Whitehouse to him and the Justice Department’s inspector general, Glenn A. Fine, seeking an investigation into the department’s legal approval of waterboarding.

“Despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal,” the senators wrote, “certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials.”

According to a Washington Post article

The memo was formally withdrawn in 2004 by Jack L. Goldsmith, who succeeded Bybee as head of OLC. Goldsmith concluded that legal opinions on the NSA program, torture and other issues were fundamentally flawed and told the Senate last year that the memos created "a legal mess."

Two other Justice memos that are known to have dealt with waterboarding and harsh tactics are still-secret opinions penned in 2005 by Steven G. Bradbury, who is currently the acting OLC chief. Administration officials have said those opinions authorized a number of techniques, including waterboarding, sleep deprivation and head-slapping.

Proving once and for all that crappy research skills and a willingness to overlook teeny-tiny ethical issues like whether coerced confessions violate the very basis of our system of justice don't necessarily pose an impediment to the ambitious and well-connected young persecutor prosecutor, it should be noted that John Yoo is a law professor at the University of California Berkeley College of Law and his co-conspirator former boss, Jay S. Bybee is now a federal judge sitting on the Ninth Circuit Court of Appeals. Yes, both men are examples of how those who disregard and flout the highest standards of the legal profession are punished rewarded for their perfidy.

So Are They Prisoners of War or Criminal Detainees?

For a brief period on Thursday, April 26th, Senator Patrick Leahy became a witness and testified before the Senate Armed Services Committee on the rights of Guantanamo detainees.

Leahy described the indefinite detention of hundreds of individuals as "un-American". Senators skirmish over Gitmo detainees. Thank goodness for people like Leahy and Senator Levin, who point out the hypocrisy in a system which professes the rights of the accused and yet holds them indefinitely without the right even to demand probable cause. As Levin said:

"America at its best is a beacon for human rights and human liberty, and that's how we like to see ourselves ... but much of the world sees us in a very different way when we fail to live up to the standards we profess."

The government has released well over 300 of these detainees, the so-called "worst of the worst" according to Cheney, yet the continued detention of the remaining detainees is considered justified by the nature of the accusations against them. What a crock.

We hear it over and over again: We're in a "global war on terror". Really? It's a war? Then why aren't the rules of war being followed? Why aren't the people we're detaining being considered prisoners of war and subject to the protections of the Geneva Convention?

They're not soldiers but terrorists? Well aren't terrorists criminals? Why can't we subject them to the criminal laws of this country as we used to do before the Bush Administration decided to create this legal limbo where people are neither soldiers nor criminals but something in between? How is it that we were able to try and convict terrorists like the blind sheik and his co-conspirators after the first World Trade Center bombings without sending them to an island with no recourse to the legal system? Didn't we try and convict Tim McVeigh without taking away his right to an aggressive legal defense? The law is not the enemy. Legal protections and standards of evidence and fairness are not the enemy. Again, what is our government afraid of?

Confessions of a C-Span Junkie - Two Callers Show the Way

Every morning I watch the news until the fake bonhomie and pressing stories of how to make the best fashion decisions or adopt a shelter animal get to me and I feel compelled to change over to C-Span's Washington Journal.

This morning, as I got ready, then left the house and started my usual drive around town, I heard interviews with Dem. Rep. Crowley, and a Texas Republican (blanking out on her name), and finally Rep. Maxine Waters. The call-ins were particularly uninspiring, and in the case of the Texas rep. no less than three callers in a row called in to express support for the war and to say that if "we don't fight them there they'll come over here", the Bush Administration's favorite reason for staying in Iraq forever.

Thankfully, the quality of call-ins changed radically as soon as Representative Waters came on board. The first caller was an older man who said he was sick of all the talk about "get them there or they'll come here" and recalled that back during the days of Vietnam this is exactly the justification used to keep the Vietnam war going. It was all about stopping communism "before it comes here" he pointed out. Then he said "how many terrorists are they talking about coming here? Fifteen, twenty? Where's their army, their air force, their navy? What heavy artillery are they bringing with them? I'm tired of hearing that we have to keep this war going on over there because a handful of terrorists might come over here." Wow. Great comments.

The very next caller stated that he is a Ronald Reagan Republican who believes in the principles of shared responsibility and shared sacrifice. He said "I make $450,000 a year. I have two children in college. In the past few years I've received tens of thousands of dollars in tax relief. I have not been required to sacrifice anything and I have sacrificed nothing. The only two times President Bush asked people like me to make a sacrifice for the war he asked me to go shopping." This caller said he is disgusted at the selfishness of an administration which calls upon only a small portion of the population to make a real sacrifice while refusing even to ask the wealthy to pay their fair share of taxes to make it possible. I think this same caller then commented on the massive government growth under Bush and flagrant violations of civil liberties.

It's callers like these who keep me listening to C-Span although many others cause me to yell at my radio as I drive, much to the consternation of passing drivers.