Knocking Down Bush’s Legal Advice Torture Defense

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Bush thinks he can beat a torture prosecution because the law provides a defense of acting on legal counsel’s advice.  So, Bush can whip out those infamous legal memos, which opined that torture lite is not torture.

However, two little jabs can knock down this defense. One poke should educate the public (and potential jurors) that torture lite is torture under the law. Bush is banking on people limiting torture to gruesome, physical mutilations even though seemingly harmless acts cause similar pain, injuries and death. Jurors believing this false distinction are more likely to find Bush had reasonable grounds to rely on legal advice that supported his view.  The second poke ties in the reality that Bush ignored US findings that torture lite methods constitute torture, particularly when several techniques are combined together. This jab also includes the truth that prisoners killed by those innocuous stress positions renders it unreasonable for a President to claim good faith reliance on legal advice of his hired guns.

The McCain Amendment is one of those bipartisan gifts for Bush. The measure prohibits cruel, inhuman or degrading treatment (CID) of persons under custody or control of the US government. However, the McCain Amendment did not impose criminal or civil liabilities on US persons who violated this ban.

On the other hand, to “placate the White House,” the McCain Amendment for the Detainee Treatment Act of 2005 does expressly provide a legal defense of ignorance of torture laws.  This defense is applicable in any criminal prosecution arising from the detention or interrogation of non-citizen terrorist suspects involving “specific operational practices,” which is not defined other than the context of the statutory title of “protection of United States Government personnel engaged in authorized interrogations,” and thus is another euphemism for torture.  

This defense has three elements: (1) defendant must show that the practices were “authorized and determined to be lawful at the time they were conducted”;  (2) the defendant did not know the practices were unlawful; and (3) a “person of ordinary sense and understanding would not know the practices were unlawful.”  It is unclear if the courts would accord retroactive application of this defense (pdf file) to torture committed before the DTA was enacted in December 2005.

Element #1 is easy for Bush to at least superficially prove. Bush and his torture cronies would use his EOs and applicable signing statements to show that the office of the President “authorized” the practices that the Justice Dept. lawyers determined to be lawful.  In addition to the memos, high-level officials participated in approving interrogation methods at National Security Principals Committee meetings in the WH over the span of at least 2 years in which the CIA wanted approvals before conducting interrogation in individual cases.   These meetings included Ashcroft and thus it may be claimed that the Justice Dept. approved the practices discussed in some of the memos after demonstrations of the practices were provided to the principals at these meetings.

The high-level discussions about these “enhanced interrogation techniques” were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

These top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding, sources told ABC news.

Element #2, the defendant did not know that the practices were unlawful, will not be easy for Bush to prove once a few facts are revealed to the jury:

(1) 70 prisoners were killed by “gross recklessness, abuse or torture,” which is hardly the result one would expect from harmless interrogation methods.

(2) The innocent sounding Bush torture lite method of stress positions killed several prisoners, including one whose arms were almost removed from his sockets. In fact, Karl Rove called similar stress positions used by the Vietnamese against John McCain torture.  Even today McCain can’t raise his arms over his head.

(3)  Rummy mocked one stress position that forces the prisoner to stand for hours.  However, a 1956 CIA commissioned medical study of Soviet torture found that standing for extended time periods, such as 18-24 hours, causes “excruciating pain as ankles double in size, skin becomes ‘tense and intensely painful,’ blisters erupt oozing ‘watery serum,’ heart rates soar, kidneys shut down, and delusions deepen.” The US had prisoners standing for more than 40 hours.

(4) After WWII, the US organized and participated in a world war crimes tribunal (the Tokyo War Crimes Trials) to prosecute and convict Japanese soldiers, military leaders and government elite for waterboarding torture of American prisoners of war.

(5)  The US coercive psychological torture — which includes things seemingly as harmless as isolation, humiliation and sensory deprivation — was based on Chinese techniques used to compel false confessions and which the US long ago characterized as torture.

(6) In 2001, the US characterized sleep deprivation as torture and it is a practice included within Bush’s torture lite.

Element #3 provides the defense of legal advice. In order for the jury to determine whether a “person of ordinary sense and understanding would not know the practices were unlawful,” legal advice is the only factor mentioned:

Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

The good faith reliance on advice of counsel is where defendants will whip out the legal advice documented in memorandums from OLC attorneys (pdf file).  In 2002, the Yoo and Bybee memos concluded that torturing prisoners was not against the law. When the public and Congress did not react favorably once the memorandums were publicly disclosed in 2004, then the Bush team withdrew the memorandums amid claims that torture was “abhorrent.” However, the Justice Department then whipped out two more secret memorandums in 2005 that “specifically approved waterboarding and other violent interrogation techniques, conclud[ing] that these practices would not violate the Detainee Treatment Act [or McCain Amendment], which was at that time pending before Congress.” And, in 2007, Bush issued an EO declaring that the CIA interrogation program “fully complies” with applicable law.

However, a legal opinion that torture lite does not constitute torture is not reasonable when the opinions, as concluded by the Senate Committee, “distorted the meaning and intent of anti-torture laws” (pdf file) and “rationalized the abuse of detainees in U.S. custody.”  When considered in the full context of what the US held to constitute torture, as discussed above, it is not reasonable to rely on legal memos that reached opinions contrary to the domestic and international torture laws.

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Bush’s Torture Lite=Torture discusses the torture lite methods of waterboarding and stress positions.

Bush’s Torture Lite=Torture (Pt. 2) discusses the torture lite methods of coercive psychological torture and sleep deprivation.


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  1. link to get coding is on fp. i kept scrolling thru your diaries to find the diary with the coding!

    will post at GOS this evening.  

  2. Remember, too, the testimonies of Marjorie Cohn, David Luban and Phillipe Sands, on the subject of torture!

    Thank you for this!

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