The Lawyers Who Would Torture

America’s current economic meltdown has crippled many professions, and the legal professional is no exception.  As major law firms are engaging in the wholesale layoffs of lawyers, and freezing hiring for two years, newly minted lawyers must seek employment at department stores and fast food restaurants.  One cannot help but conclude that collectively, lawyers are paying the price for the crimes of an errant minority.

I speak of that group of lawyers that, over the past decade, wrote the 30-page credit card contracts that are destroying millions of lives—contracts that are so intentionally murky and deceptively convoluted that even Elizabeth Warren, Harvard law professor and Congressional TARP overseer, cannot understand them.  There were the Ponzi-scheming lawyers who conspired to swindle honest, hard-working citizens out of billions of dollars in life savings.  And there were the lawyers and judges who knowingly placed the innocent behind bars—or even worse, sent them to their untimely death.

And finally, there were the government lawyers who wrote memos to the President, justifying the torture of terror suspects, and giving the green light to lawbreaking.  These documents were not mere academic exercises, but rather weapons used to harm and oppress others.  Further, these memos were a violation of international treaties and federal criminal statutes, denying its victims a fair trial governed by the rule of law.  If there is a hell, whether actual or metaphysical, such a place would undoubtedly reserve a special wing for such lawyers.  And they will be made to wear those proverbial gasoline drawers on their journey to that select subterranean locale.

To coincide with the Obama administration’s release of a report on the CIA’s brutal and coercive interrogations techniques, Georgetown legal scholar David Cole has presented a new book called Torture Memos: Rationalizing the Unthinkable (The New Press, 2009).  As its name suggests, the book discusses and presents in their entirety the actual legal memoranda that Bush administration lawyers wrote to justify torture.  An important point which Cole makes is that while the actual CIA torturers should be held accountable for their brutal and illegal acts, the authors of these memos are culpable for their contortions of the law to sanction human rights abuses.

“Law at its best is about seeking justice, resolving disputes pursuant to principle and reasoned judgment, regulating state power, respecting human dignity, and protecting the vulnerable”, Cole says (p. 35).  “Law at its worst treats legal doctrine as infinitely manipulable, capable of being twisted cynically in whatever direction serves the client’s desires….[T]hey used law not as a check on power, but as a facilitator of brutality, deployed against captive human beings who had absolutely no other recourse.”  

Acting in bad faith, the legal hacks who crafted the torture memos engaged in sham analysis and tricky legal gymnastics.  Motivated by a desire to please their superiors and little else, they merely invented law out of thin air, and created a law-free zone where perpetrators could act as they pleased.  No superior legal analysis was presented from these allegedly superior legal minds.  Ignoring that the prohibition on cruel, inhuman, and degrading treatment is absolute, they began with a false, predetermined conclusion that torture is acceptable.  They proceeded to twist the law to rationalize their predetermined conclusion.  Most of all, the analysis always absolved the CIA torturers— and the officials who authorized torture— of any wrongdoing.  It makes you wonder what some people actually learn in law school, and what they hope to do with their law degree.

A nation is only as good as the laws that govern it.  Unfortunately, throughout history we have witnessed the ways in which societies compromise their legal systems to oppress the many, benefit the few, and sanction the unconscionable.  The law becomes a political game in which the powerful are exempt from the rules, and some are more equal than others.  An arbitrary and capricious legal system can cloak injustice and the unjust with a veneer of legitimacy, fully backed by the apparatus of the state and the prestige of the courts.  The Torture Memos reminds us through its post-game analysis that a free society must guard against such abuses of the law.  Failure to do so will ensure that official criminal wrongdoing will occur.  And as a matter of fact, it just did over the course of the Bush years.  

Cross-posted from BlackCommentator.com.

David A. Love is an Editorial Board member of BlackCommentator.com, and a contributor to the Progressive Media Project and theGrio. He is a writer and human rights advocate based in Philadelphia, and a graduate of Harvard College and the University of Pennsylvania Law School. His blog is davidalove.com.

 

Follow David A. Love on Twitter: www.twitter.com/davidalove

Comments

[realpolitic]

The lawyers at the Office of Legal Counsel should have been a check on presidential wrongdoing, instead as the article explains their were only concerned with their own career advancement. As lawyers, they should have understood their client was the American people and not the president. They should have done a objective, measured analysis of what the law permitted instead of twisting everything into some obscure legal theory and then arguing it was allowable. What is frightening is that these attorney's are still around, for example, John Yoo, and still believe in what they did. If another conservative administration takes over, they may be right back in business since we had no hearings to determine wrongdoing. They will just argue these matters are decided by elections.

[SewaneeLeftist]

Exactly right, Mr. Love; well said, especially when you paraphrased a point that not only "the actual CIA torturers should be held accountable for their brutal and illegal acts, [but that] the authors of these memos are culpable for their contortions of the law to sanction human rights abuses." It is true that ALL the abuses that you describe are sullying the profession of law as well as the rule of law. Fortunately, it is also true that we have a long history of holding accountable those who distorted the law from official positions to allow crime, such as when we hanged judges who interpreted Third Reich law at the Nuremburg war crimes trials.

All criminals who attacked our Constitution though these illegal means need to be prosecuted, no matter who they are: elected officials, civil service employees, soldiers, military police, or intelligence agents, regardless of party, office, or stature -- without exception, no matter who it is.

Only by convicting the torturers, those who ordered the torture, and those who covered for the torture or falsely tried to make torture legal can we clear our country of this ghastly blot on our American ideals and take the country wholly back to the rule of law on which America finds its constitutional basis.

[pwhunter]

In the spirit of examining corruption in our society, perhaps in your next article you could take the time to examine the cosy relationship between the american bar association and the democratic party and the Obama administration. It is no co-incidence that it is almost impossible to get any meaningful legal reform in this country with this very influential special interest legal lobby blocking any debate on the matter. Just follow the money. If you are interested in breaking the strangle-hold that special interest elites have on our gov't, perhaps that would be a great place to start.

[Rog49Thomas]

As we begin to cast stones at those who have sinned, it's appropriate to make sure we don't leave anyone out.

If any serious student of history out there thinks that torture began with Former President Pan, then it's time for a second pass through the historical record. In "modern" times, our nation's involvement began shortly after the Second World War. It has continued under Democratic and Republican Administrations, liberals and conservatives.

We not only conducted research in this country and overseas (including experiments on US citizens and harsher experiments on "disposable" people from the Soviet Bloc), we trained foreigners in our discoveries (and continue to this day at WHINSEC), employed them ourselves, and helped our "brave" allies employ them in their own countries.

As to economic favoritism of the rich, well, you would have to go back 100 or 200 years earlier.

[SewaneeLeftist]

As a violation of the precepts to come for our country, future president George Washington would not let his troops to torture Hessian mercenaries who supposedly had committed atrocities against colonists. Therefore, long before we signed Geneva conventions and international bans on torture, our country has had a long and proud tradition of rejecting torture. In the shameful lawless Administration of Shame, the Shrubs shamelessly overturned hundreds of years of precedent when they decided they were above the Constitution.

[randyjet]

Damn, an HONEST LAWYER? He better watch out the others will kill him.

[S1m0n]

The last administration had an 'it's legal if they can't stop us" policy, which meant that all they needed to was to be able to tell the troops "It's legal; our lawyers have signed off," with a straight face. They knew the american public won't stand for the prosecution of soldiers for following orders. The actual legality will never be tested. Making an example of any soldiers who *did* object was all it took to subvert the constitution and the ediface of the international law of war. It's scary how fragile it was.

The UCMJ doctrine on war crimes and illegal orders, which is taught to all recruits, is predicated on the assumption that these orders will have come from individual rogue commanders and that the top of the chain of command is honest. Thus, all the procedures for soldiers given what they believe to be illegal orders consist of appealing that order up the chain of command. That this chain is corrupt at the top (as was the case) is a situation unimagined by the drafters of American military law. No remedy is in place for soldiers in such a situation, except for taking a personal stand and being prosecuted for desertion or insubordination, and then suffering the penalty imposed.

There are soldiers who made exactly this decision and who will face its consequences for the rest of their days, These men and women should be honored; they are not criminals, they are the very best of America.

[Poboy]

This is an outstanding post.

It's not scary to me but alarming at exactly what was needed to subvert the Constitution was "I was following orders." What if the commanders ordered the soldiers to seize the Capital and the White House? In effect, that's what the commanders did. The soldiers, commanders, generals and politicians swear to uphold the Constitution not to follow orders.

These soldiers are not obligated to follow illegal orders, and if it means sacrificing your career for your country then that's what swearing to defend the Constitution against enemies foreign and domestic means, even if domestic enemies come in a uniform.

[alysheba 3]

"They knew the american public won't stand for the prosecution of soldiers for following orders."

The above statement is incorrect. It should read "They knew the American public would not stand for the prosecution of AMERICAN soldiers for following orders." The American public fully supported the prosecution and imprisonment of German, Japanese and Vietnamese soldiers who were only following orders.

Of course, it seems that the accepted ideal of Americans is that they do not need to follow the same international laws as everyone else.

[GrahamInCanada]

"“Law at its worst treats legal doctrine as infinitely manipulable, capable of being twisted cynically in whatever direction serves the client’s desires….[T]hey used law not as a check on power, but as a facilitator of brutality, deployed against captive human beings who had absolutely no other recourse.”

Kind of reminds you of The United States of America v. Alstötter et al?

[RPCVguy]

Indeed an EXCELLENT post. American culture has lost it's way with image over substance, marketing sickly foods, protecting the wealthy over the middle class, denying meaningful health-care, and as you've stated so clearly - wrapping the worst of all tortuous behavior as legally justified. Lawyers have generically been the butt of jokes for years, and your article heaps fuel on the fire that may someday engulf them.
Maybe redemption can yet be theirs, IF enough sharp legal minds will now rally to undo the wrongs written into our societal laws and their interpretations.

[Moshe]

Outstanding post. Thank you very much.

I have nothing to add other than a hope that you will continue to help to keep this issue alive, and continue pushing for justice at every opportunity. If enough of us do this, there is still hope that the U.S. can return to the Rule of Law.

I am lawyer, and before it actually happened, I would not have believed that Abu Ghraib or institutionalized torture was possible in the U.S. But even more shocking, not only did it happen, but it continues to be condoned and openly defended.

Without the Rule of Law, our democracy and civil liberties are doomed.

Millions of Americans don't seem to get this, but they will not enjoy life in a nation in which torture becomes simply another tool of investigation, and the Rule of Law and the Constitution are deemed "quaint."

Please keep up the great work.

Shalom friend.

[David A. Love - Huffpost Blogger]

Shalom to you as well, Moshe. Thank you.

[grandtrunk road]

The way I see it is that Cheney and whoever else authorized torture knew that torture violated the U.S. Constitution and international law--not that they cared about the latter--and so they sought legal cover without informing Congress what they were up to. The lawyers who wrote the torture memos simply followed orders because they were basically sycophants without an inner moral compass. As for Chaney, national security is his Moby Dick.To this day, he insists that the Bush Administration's torture program saved American lives even though there is no proof to substantiate his allegation. What we do know is that some detainees died in detention due to the brutality of the interrogation procedure. Anybody who was detained, whether guilty or innocent, was fair game for torture. The sad thing is that the American public doesn't really care about this issue, and so far Obama doesn't have the political will to get to the bottom of it.

[HST]

"An important point which Cole makes is that while the actual CIA torturers should be held accountable for their brutal and illegal acts, the authors of these memos are culpable for their contortions of the law to sanction human rights abuses."

Fully agree. John Yoo needs to be in jail!

[pdog]

Great article. I never understood the Bush/Cheney argument that torture was legal simply because some lawyers at the justice department wrote a memo(s) saying it was. How does that make it legal? Not many people pointed this out and the MSM never bothered to challenge their claim. I'm appalled when I hear about everything that was done by the justice department while Bush/Cheney were in charge. You should be too regardless of your political party. The easiest way to undermine our government is to undermine our system of justice.

[David A. Love - Huffpost Blogger]

Thanks for your comment, pdog. The Bush people left a big mess, but hopefully we're on the right track to cleaning it up.

[taikan]

We are not "on the right track" to cleaning up the mess caused by the use of officially sanctioned torture.

This administration clearly lacks the will to prosecute those who engaged in torture, with perhaps a few exceptions for people whose conduct clearly exceeded in significant scope the actions "authorized" by the torture memos. More importantly, DOJ has made it clear that it does not intend to investigate or prosecute those who procured or created the torture memos, or those who tortured prisoners without going beyond the scope of the acts authorized in those memos.

Although quick to support or condone the prosecution by international authorities of people from other countries who engaged in torture, there is little support among most Americans for prosecuting, or even allowing the prosecution in international tribunals, of any Americans who engaged in torture under cover of official sanction.

[alysheba 3]

I have often asked hose same questions. And found the answers I was given very scary. If so many who defend the torturing done in the name of the US truly believe that they are still so much more moral than any group which uses terror, pain, injury, and death to get what they want (or think they need) then I know that my husband and I will never return to the US.