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Politico reported yesterday that Obama’s lawyers are prepping to  defend John Yoo next week by moving to dismiss a lawsuit filed by Jose Padilla.  Padilla seeks a declaration that Yoo’s legal memos that purported to authorize torture were unconstitutional.  Obama presumably does not plan to support torture or the torture memos. Instead, Obama may argue that the case should be dismissed in order to protect governmental prerogatives, like immunity for government officials acting within the scope of their employment or state secrets.  While any of these defenses may have legal validity, what about protecting the public’s prerogative to the rule of law?  And, does the US want to continue shielding our government officials from torture liability while prosecuting foreign officials to hold them individually accountable?

This is not a case of a government lawyer simply writing a legal memorandum that is based on convoluting the law. As reported by Vanity Fair  (video interview), Bush’s torture lawyers --- Bush’s lawyer Gonzales, Yoo and Jay Bybee (now a federal judge) at Justice Dept., William Haynes DOD lawyer for Rummy,  David Addington lawyer for Cheney --- advocated torture that violated international law, the Geneva Conventions, Common Article 3, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Army Field Manual and US laws. In other words, our government lawyers were advising Bush to violate the laws or commit a crime. Moreover, while the Bush meme is that the source of new torture techniques "trickled up from the ground at Guantánamo" to DC, it appears that the "origins lie in actions taken at the very highest levels of the administration—by some of the most senior personal advisers to the president, the vice president, and the secretary of defense."  Further, these torture lawyers participated in ensuring that torture was implemented by flying down to Guantánamo to pressure the military to torture after witnessing "interrogations."

Indeed, "Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse" and torture.  It is important to remember that these lawyers were political appointees and Addington, Haynes and Gonzales "all objected to Geneva" Conventions. These lawyers also knew that other administration lawyers, such as Powell’s counsel at the State Department and military lawyers in the office of the judge advocate general, objected to the position that the US did not have to comply with Geneva Conventions.  Bush’s lawyers wanted a policy of torture but no legal liability:

The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it—they wanted distance and deniability. They also wanted legal cover for themselves.

It was Gonzales, Addington, Haynes and CIA lawyer John Rizzo who visited Guantánamo and established the torture methods: "They brought ideas with them which had been given from sources in D.C."  These lawyers  "witnessed some interrogations" with military lawyer Diane Beaver, who was "visibly anxious" when she talked "about the episode" even long after it had happened. The message from the lawyers for Bush, Cheney, Rumsfeld and the CIA was a green light to do "whatever needed to be done."

Jose Padilla, a US citizen who Bush tagged an enemy combatant, experienced some of that torture at a military brig in South Carolina. Last year, the Lowenstein International Human Rights Clinic filed a lawsuit (pdf file) against John Yoo on behalf of Padilla. The case seeks a judicial declaration that Yoo’s torture memos and the torture were unlawful and violated the federal Constitution and US laws and damages of $1.00.

The gravamen of the lawsuit is that Yoo personally wrote a "legal blank check" that purported to "provide essential legal approval" for the use of torture and participated in the formulation and approval of torture against a US citizen, which violated a number of his constitutional rights. The complaint alleges that Yoo advised government officials who authorized or carried out torture that even if the "techniques were indeed illegal," they could escape liability by claiming defenses of necessity or self-defense as their "get-out-of-jail-free cards." Moreover, the torture memos were used to sanction methods that the US had years earlier condemned as torture when used by other countries. Further, the complaint maintains that Yoo ignored warnings by professional interrogation experts that such torture methods were used to compel false confessions.

It is possible that President Obama will argue next week that this case should be dismissed in order to protect a governmental immunity doctrine while not supporting the torture or the Yoo memos.

In a similar case, Rasul v. Rumsfeld, 4 former Guantánamo prisoners who are British filed a lawsuit seeking damages against Rumsfeld, the Chairmen of the Joint Chiefs of Staff and senior military officers for torture in violation of the US Constitution, the Geneva Conventions and other laws. The lawsuit charged that Rummy et al approved interrogation practices that they knew violated US and international laws, including laws governing torture, cruel, inhuman or degrading treatment and cruel and unusual punishment.

The federal court dismissed the case, ruling that Rummy and the military officials had qualified immunity because they were acting within the scope of their employment in authorizing "aggressive interrogation techniques."   "Scope of employment" is broadly interpreted by the courts to include foreseeable acts, even criminal acts. Once it is found that torture is within the scope of employment, then the US is automatically substituted as the defendant, and the US is immune from torture liability due to sovereign immunity and federal tort law, leaving victims of torture with no remedy.  The hypocrisy is that the US has used civil litigation to hold foreign officials individually liable for torture while preventing the same accountability for US officials.

The claims based on the Geneva Conventions were dismissed because the federal court found the defendants immune on the grounds that "torture is a foreseeable consequence (pdf file) of the military’s detention of suspected enemy combatants."  Moreover, even if torture were illegal, "defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantánamo had any constitutional rights."

If governmental immunity based upon scope of employment is not used to dismiss Padilla’s case, then there’s the reliable state secrets defense. Several lawsuits based on torture have been dismissed on these grounds in order to protect our country from the risks of revealing what happened to the prisoners tortured. This defense is "embarrassingly weak" given that Bush’s torture methods and several of the legal memos have been publicly disclosed, debated and condemned.  

We know that Obama does not support torture. Politico even noted that Obama does not support Yoo’s torture memos, and thus "[o] ne of the new president’s first acts upon taking office last week was to nullify every detainee-related legal opinion issued during the Bush administration by the unit Yoo worked in, the Office of Legal Counsel."  However, if the US continues to practice a double standard of shielding our government officials from individual liability for the deaths and injuries caused by torture, are we not indirectly supporting torture?

What about government lawyers who issue opinions that torture is legal contrary to US and international law?  US v. Josef Altstoetter (1947), a case tried before a US military tribunal in Germany, is apparently the only case where lawyers have been charged and convicted for committing international crimes by the performance of their legal functions, such as implementing the "Nazi ‘racial purity’ program through the eugenic and racial laws."  The Allies prosecuted the case to "establish the principle that lawyers and judges in the Nazi regime bore a particular responsibility for the regime’s crimes." While there is no comparison between the "scale of the Nazi atrocities" to the torture at Guantánamo, should the general principle of criminal prosecution of lawyers for their role in violating  international laws be limited to crimes on the scale of Nazi atrocities?  

Should civil and criminal prosecution of Bush officials, including the torture lawyers, be off the table, then international forums may be a possibility precisely because Bush was so greedy in enacting defenses and immunities for protection.  Under the Military Commissions Act, for example, there is immunity from prosecution. As one foreign judge/prosecutor stated:

"That is very stupid," said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.

Originally posted to Patriot Daily News Clearinghouse on Thu Jan 29, 2009 at 08:19 PM PST.

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