08/20/2009 05:12 am ET | Updated May 25, 2011

Breaking the 'Golden Shield'

The torture started with Bush, Cheney and their lawyers. The prosecutions must start with the lawyers who gave the legal cover, the "Golden Shield," to both the Bush officials and the line of command that led to those who performed the horrendous act on the ground. At the present time, they, and all the Bush officials and government personnel who participated in the torture, have immunity from prosecution.

Attorney General Holder, in calling last Friday for an interrogation inquiry, has excluded the lawyers from the initial investigation while repeating the Obama Administration's often-stated position that the lawyers who built the legal foundation for the torture should not be punished.

The lawyers should be prosecuted for two very separate reasons.

First, because all available evidence shows they knew what they were writing both recommended and countenanced illegal and unconstitutional acts. Second, if pressured by the threat of an indictment, the lawyers might turn on their bosses, Bush and Cheney, and those who directed that the memos be written, as John Dean -- Nixon's counsel -- did in 1973, in order to protect his boss at the time of Watergate.

On October 17, 2006, a day that should also live in infamy, Bush signed into law a bill passed by a cowed Congress that granted Bush officials and "others" immunity from prosecution.
Congress now, after so much information has come out about the extent of the torture, the reliance on the lawyers' legal memorandum, and the details of how the legal memorandum were prepared, should vote to reverse that law.

No one disputes that many government officials should not have violated American and international law and treaties without the "Golden shield."

Many reasons are advanced not to prosecute the lawyers.

The legal memorandum team, spearheaded by David Addington, Cheney's counsel, and to a lesser extent, Alberto Gonzales, the Attorney General, prepared documents that are full of evasions, distortions, twisted facts, preposterous legal reasoning and blatant dishonesty.

The claim that the president can ignore Congress, the federal courts, the Geneva Convention, the War Crimes Act , the Convention Against Torture and our own military code is being soundly rejected by the United States Supreme Court beginning with the concurring opinion written by Justice Anthony Kennedy in the 2006 Hamdan case.

The lawyers hide behind unnamed sources, make assumptions they know are not true, ignore relevant information presented to them and refused to go "on site" to see exactly what was really happening. They also refused to ask others to visit the sites -- a minimum obligation on their part. To mark as "true" descriptions by people who never visited the sites is a mockery of what constitutes any responsible writer of legal memorandum.

The lawyers saw the government hired its own psychological experts to contradict clear medical evidence about the effects of each act of physical abuse and the effects of the combination of the separate acts. Then they included false facts they were told by these experts.

The role of the lawyers cannot be underestimated. Had the lawyers refused to write protective letters, it's entirely likely that the worst conduct would not have occurred. Had they written truthful memorandum, pointing out that both American and international law prohibited cruel, inhuman and degrading conduct, it's likely that we might have even complied with the law.

Most often personal ambition drove the lawyers. Many were promoted immediately after they wrote memos that supported the administration's claim.

Many, like Jay Bybee, who wrote the now infamous August 1, 2002 memo that was the foundation for the giving of permission to torture, was not an ideologue and did not share the beliefs of the conservatives who defended the concept of the all powerful unitary president. Bybee was a former law professor who certainly knew better.

Bush, over congress initial objection, rewarded him by appointing him to the prestigious Federal Ninth Circuit Court of Appeals -- a good jumping off point for a Supreme Court judgeship.

The prosecution of lawyers is not new, both in the civil as well as the criminal courts of America and in international courts. Lawyers who wrote legal memorandum were prosecuted by the Allies at Nuremberg.

Lawyers like anyone else must be responsible for their conduct. What other do by physical act or speech lawyers do with written words.

American citizens must be given a chance to decide, if crimes were committed. A jury of 12, in a criminal prosecution, is entitled to have a reasoned opportunity to evaluate their conduct.
The lawyers have the full panoply of defenses; they can argue that they merely made mistakes of law; that they were misinformed about the facts. The jury can decide.

Otherwise a precedent is set that will allow future legal memorandum writers to go further.