(noon. – promoted by ek hornbeck)
When government officials agree to torture prisoners, issue sham legal opinions to “authorize” the torture contrary to law and then enact laws designed to prevent prosecution, the law calls that conspiracy. Evidence that started as a sporadic trickle and is now flowing steadily indicates that former administration officials, including President Bush and Vice President Cheney, conspired to commit torture.
Rep. John Olver (D-MA) has recognized the possibility that our “President, Vice President and other top officials conspired to create a policy” to sanction torture.
A 2008 executive summary of a Senate Armed Services Committee inquiry determined that senior officials sanctioned torture by “redefin[ing] the law to create the appearance” that Bush’s torture program was legal.
The engine of that conspiracy is the War Council of lawyers for Bush and Cheney.
Former defense and Bush administration officials have stated that the torture program was primarily the work of the “War Council,” a group of five lawyers with key positions in the administration who “reinterpreted or tossed out the U.S. and international laws that govern the treatment of prisoners in wartime” in compliance with orders issued by Bush and Cheney. The War Council was convened by Cheney’s legal counsel, David Addington and included White House counsel Gonzales, Gonzales’s White House Deputy Tim Flannigan, the Pentagon’s General Counsel William Haynes and OLC lawyer Yoo.
Redefining the law to “create the appearance” that torture was legal is easy when the War Council included Yoo, who was then strategically located in the Department of Justice’s Office of Legal Counsel (OLC) whose memos historically have had the force of law in the Executive Branch.
At this time, we don’t need a slam-dunk conspiracy case. A special prosecutor would have the means to gather additional evidence and connect the dots. However, there is already significant evidence showing a conspiracy to torture. Whether the accumulating evidence of this conspiracy will actually be used to prosecute one or more of them is as much a political issue as a legal one.
Torture Conspiracy Law
Any torture conspiracy charge would be directed against persons who had agreed to torture prisoners and then implemented the means to accomplish that objective, such as issuing the OLC torture memos:
To prove the crime, the prosecutor must show that: (1) two or more persons agreed to commit or cause the commission of acts of torture, under color of law, upon persons who were in the conspirators’ custody and control; and (2) the defendant knowingly joined the illegal agreement at any time. But here’s the most important point: This type of conspiracy continues, as a legal matter, as long as its members are still trying to accomplish its objectives – regardless of when they committed their last overt act.
Thus, the statute of limitations clock starts to run only when Bush and Cheney have stopped trying to maintain their torture program. Technically, that day has not yet arrived because Cheney is still campaigning to persuade America and Obama to continue torture. However, even absent the Dickie/Lizzie pro-torture campaign, at the very least the crime continued until the end of the second Bush term, that is, noon on January 20, 2009. Former federal prosecutor Elizabeth de la Vega summarizes:
[A]t any time after January 2009, until the limitations period expires – if it ever does – a prosecutor could charge a conspiracy to torture that began in 2001 and lasted until the end of the Bush administration.
The statute of limitations for torture and torture conspiracy is eight years for noncapital cases. However, there is no time limit when the “commission of such offense resulted in, or created a foreseeable risk of, death or serious bodily injury to another person.” Given that there has been only one torture prosecution under this law, I interpret the statute of limitations conservatively and thus would prefer a prosecution commenced within eight years or any legislative time extension as proposed by House Judiciary Committee Chairman John Conyers to avoid a 5 o’clock surprise.
Another relevant charge is conspiracy to defraud the United States. One count of the defraud conspiracy charge could be based on their deceit, trickery, dishonest means, false and fraudulent representations to obtain authorization for the Iraq War. A sample indictment against Bush, Cheney, National Security Advisor Rice, Secretary of Defense Donald Rumsfeld and Secretary of State Colin Powell that itemizes the supporting evidence has been drafted by de la Vega.
A second count of defraud conspiracy might be based on the torture:
The pattern of numerous misrepresentations to Congress by Bush White House officials and their surrogates, along with the secret legal memos and Executive Orders that surreptitiously attempted to vitiate existing law, the destruction of evidence, and the suppression of information that might reveal the illegality of the torture operation, constitute overwhelming proof of a conspiracy to defraud the US with regard to the torture program.
The statute of limitations would not be an issue because the clock does not start ticking until the last overt act or knowing material omission occurs in furtherance of the illegal conspiracy agreement:
In this situation, that would be no earlier than January 20, 2009, because – among other reasons – as the recently-declassified Senate Intelligence Committee narrative makes clear, the Bush administration continued to conceal the ongoing existence of Office of Legal Counsel “authority” for the use of waterboarding and other forms of torture until the bitter end.
Defraud conspiracy has a five-year statute of limitations which means that the evidence that an agreement was formed in 2001 could be grounds for charges filed in 2014 when the time clock started ticking in 2009.
As noted by a former State Dept. lawyer who runs a human rights program, it is the conspiracy laws that “‘should cause concern for [any] senior-level officials’ who sanctioned improper interrogations, even from a distance.” Conspiracy charges widen the net of putative defendants to not just the primary torturers (Bush, Cheney, etc.) but also all persons who “agreed to commit or cause the commission of acts of torture,” such as the laterals and subordinates who worked for Bush, Cheney et al. While I don’t believe subordinates should be the target of prosecution, if they do not cooperate voluntarily with the investigation, then the prosecutor could threaten conspiracy charges to entice “civic duty” compliance.
In most jurisdictions, a conspiracy is a valid charge even when the end objective of the conspiracy is legal. An example I remember from law school is that Jack and Jill can be charged with conspiracy when they agree to provide food to their local hunger bank by stealing the food. So, even if Bush was correct that his torture methods were legal, the means used to achieve a torture program were not lawful: This includes the writing of unethical DOJ opinions, violating legal requirements for Congressional oversight and lying, misleading and defrauding Congress and the public.
Evidence Indicating Conspiracy
A conspiracy case against the Bush team would be very similar to the only prosecution under our federal anti-torture statute of Charles or Chuckie Taylor (son of former Liberian President Charles Taylor). Taylor’s indictment (pdf file) included a count of conspiracy in which torture was used as a means to accomplish political objectives. In Taylor’s case, people conspired to protect and strengthen the power of his father’s presidency by imprisoning and torturing persons about actual or perceived opposition to the presidency.
The Bush team similarly used torture as a means to achieve political objectives of finding “evidence” to support the Iraq war while also using the unreliable evidence tainted by torture as a means to keep the public and Congress in a state of shock and fear while they implemented their torture agenda. And, the 9/11 Commission used evidence obtained from tortured prisoners to provide the facts surrounding the 2001 attacks in its report. Thus, there is evidence that the Bush/Cheney torture program was designed to obtain “evidence” to support their political agenda rather than to shield the nation from some Jack Bauerish “ticking bomb” scenario.
Here is a sampling of the evidence to show that conspiracy charges should be added to the other charges of torture, war crimes and aggressive war that could be filed against Bush officials:
(1) The torture memos show that the lawyers agreed to use improper legal analysis as the only means to reach a finding that Bush’s “enhanced interrogation techniques” (EIT) did not constitute torture.
Given the existence of a War Council of lawyers that worked for key offices (President, Vice President, Pentagon and OLC) needed to rewrite the laws of war, it was no surprise that the DOJ’s Office of Professional Responsibility (OPR) investigation addressed “whether the [torture] memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted.” The goal of torturing prisoners to yield political evidence was dependent upon obtaining OLC opinions that torture was legal, which in turn required the lawyers to violate ethical duties in order to reach a legal opinion that was predetermined before they put pen to paper.
The CIA made it clear that it would not torture without a “golden shield” of legal protection in the form of OLC opinions concluding that the torture complied with U.S. laws and international treaties. When a lawyer is performing an advocacy role, such as litigation, the lawyer knows its desired outcome before drafting legal briefs. However, when lawyers have advisory roles, such as the OLC, their job is a research mission to find the law both opposing and supporting an issue so that the president can make a fully informed decision. (see, Cheney’s Crumbling Torture Defense for a discussion of the dual lawyer roles of adviser and advocate.)
The only way that the torture memos could reach the predetermined conclusion of legality required by the CIA was by ignoring the relevant precedents and twisting the law. The OPR report apparently discusses many flagrant violations by the torture lawyers, such as the failure to cite relevant precedents. This was in compliance with Bush’s directive to his lawyers to “not give him the best view of the law, but to push the envelope.”
How likely is it that the torture lawyers from the OLC — a “small, elite office, staffed by the best and the brightest attorneys ” — all committed these same ethical violations unless they had agreed beforehand — perhaps at a meeting of their War Council? The OPR report may fill in some gaps because the report provides a “detailed play-by-play of how the memos were produced.” This includes “e-mails sent from one Justice Department employee to another and from Justice Department employees to other government officials.” It also includes emails between the torture lawyers and the White House and CIA.
(2) Former Bush administration officials lobbied DOJ to soften the OPR report findings, which some might interpret as interference or obstruction of justice.
Worried over the findings of this report, former Bush administration officials campaigned behind-the-scenes to “urge Justice Department leaders to soften an ethics report criticizing lawyers.” Representatives of Yoo and Bybee “encouraged former Justice Department and White House officials to contact new officials at the department to point out the troubling precedent of imposing sanctions on legal advisers.”
Why were the torture lawyers worried about an OPR report that is apparently not recommending criminal prosecutions, but only professional sanctions? Legal ethics experts indicate that state bars can face “nearly insurmountable challenges” that prevent imposing state bar disciplinary measures, such as disbarment, thus leaving the torture lawyers free of penalties based upon bar membership.
This lobbying effort takes on new meaning when considering that the torture memos were a key part of the White House defense against any criminal charges based on torture. In 2005, Bush succeeded in obtaining a major cover-your-ass law of advice of counsel defense. As Bush told Larry King one week before leaving office, the torture was legal because it was backed by legal opinions. If the OPR report finds flagrant violations by the torture lawyers, then it could affect the validity of the advice-of-counsel defense for Bush officials. And, if the OLC lawyers were acting as advocates rather than advisers, then their defense of simply issuing a legal opinion is squashed as well.
(3) There is a pattern of silencing voices within the administration that questioned legality of torture program.
The Senate Intelligence Committee report determined that dissent by other officials in the executive branch were “brushed aside repeatedly:”
In the years that followed … there were numerous internal legal reviews of the program, suggesting government attorneys raised concerns that the harsh methods, particularly waterboarding, might violate federal laws against torture and the U.S. Constitution.
But Bush administration lawyers continued to validate the program.
In 2004, the Bush administration was “reeling” from the August 2002 Bybee torture memo and Jack Goldsmith withdrew the memo. Daniel Levin replaced Goldsmith and was charged with writing a memo to replace the Bybee memo. Levin decided to experience waterboarding firsthand because he was concerned about this “interrogation technique” and concluded it was potentially illegal torture unless “performed in a highly limited way.”
Levin released the new memo in December 2004, but was forced by White House counsel Gonzales to state in a footnote that the “memo was not declaring the administration’s previous opinions illegal.” Levin apparently was drafting a second memo that imposed “tighter controls” on waterboarding, but he was “forced out of the Justice Department when Gonzales became attorney general.”
In 2005, Philip Zelikow wrote a dissenting memo when he was Secretary of State Rice’s counselor. The White House response was to “collect and destroy all copies” of his memo. Fortunately, one copy was found in the State Dept. files and is being reviewed for declassification.
The numerous instances of dissenting voices and the pattern of silencing that dissent — in combination with the lawyers violating ethical duties to produce the torture memos — strongly suggests that the Bush cabal knew the torture was illegal and were using the authority attached to the OLC as legal cover.
(4) Bush team passed laws to prevent prosecutions against them for torture and war crimes.
The Bush team changed the law in a number of ways to prevent prosecutions against them, showing that even they believed their conduct was illegal. Gonzales’s 2002 memo advised Bush to proclaim that the Geneva Conventions did not apply to the prisoners captured or rendered from Afghanistan. Gonzales believed this pronouncement might “substantially [reduce] the threat of domestic criminal prosecution under the War Crimes Act” by providing a “solid defense” that the Geneva Conventions did not apply. It is interesting that Cheney’s counsel, Addington, apparently wrote this memo that was then “delivered” in a memo by Gonzales to Bush.
That “solid defense” was wiped out when the Supreme Court held that the Geneva Conventions did apply. In June 2006, the Supremes decided Hamdan v. Rumsfeld that made it “clear that abusive interrogation techniques used by the CIA violated international law, and that CIA operatives could be held criminally liable for such abuses.” Bush team went into rapid response mode to pass a law to immunize the CIA and make it harder to prosecute Bush officials.
In 2006, Bush was fairly confidant that torture prosecutions were not likely because he had conned Congress and the public that his EIT did not constitute torture per the OLC legal opinions, which also assisted his advice of counsel defense to prosecutions. However, there was concern about potential war crimes prosecutions based on cruel, humiliating or degrading treatment. While some argue that the EITs do not constitute torture, there are fewer willing to maintain that any of the EITs did not constitute cruel, humiliating or degrading treatment.
The remedy was using the MCA to change the definition of war crimes. Previously, the WCA defined a war crime as any “grave breach” of Common Article 3 of the Geneva Conventions, including cruel, humiliating or degrading treatment of prisoners. The MCA amended the WCA to limit “grave breaches” to only those crimes listed by Bush. The result is that degrading or humiliating treatment is not listed as grave breaches. And, the law was amended back to November 26, 1997 to provide retroactive immunity.
That only left the potential war crime of cruel and inhuman treatment. In an effort to eliminate the valid concern of war crime liability on these grounds, the law was changed to provide two separate definitions for cruel and inhuman treatment:
A twist in the new legislation is that it includes two separate definitions of cruel and inhuman treatment, one that applies to abuses that occurred prior to the MCA’s passage, and another that applies to future conduct. If committed after the passage of the MCA, cruel and inhuman treatment only requires a finding of serious and non-fleeting mental pain or suffering. But for abuses committed prior to the law’s passage, the perpetrator can only be penalized if the pain or suffering is “prolonged.”
This provision may immunize from prosecution CIA interrogators who have previously employed abusive interrogation techniques such as waterboarding and extended sleep deprivation — techniques that cause time-limited but severe mental anguish.
The reason for the dividing line of conduct before and after 2006 is the claim that at least some torture ended before 2006, such as waterboarding. In fact, Wilkerson (Powell’s former Chief of Staff) claims that no torture was used during Bush’s second term or during 2005-2009. The key here is not whether Bush’s claims are true or false, but the intent to provide another escape hatch from prosecution based on their theory that torture ended.
Confidant that the defense of advice of counsel and other actions would prevent prosecutions under U.S. laws, the Bush team enacted Section 5 to bar the use of the Geneva Conventions and related treaties in civil cases involving the US government or officials:
No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.
Less than a month after the MCA was signed into law, section 5 was invoked by Rumsfeld (pdf file) as supplemental authority cited to argue for dismissal of a pending lawsuit.