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Nan Aron

Nan Aron

Posted: November 6, 2009 02:53 PM

Bush DOJ Official Agrees "Torture Memo" Lawyers Should Be Investigated

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This week, I participated in a panel discussion about the Bush administration's "torture memos" with a former Bush administration official, Daniel Levin. And it turns out that he and I are in agreement about the need to investigate and hold accountable any government lawyers who violated their duties to uphold the Constitution by authorizing torture -- which means, to my great surprise, that Mr. Levin and I share a very similar outlook on this issue.

Daniel Levin served from 2004-05 as the acting head of the Office of Legal Counsel in the Department of Justice, the office in which government lawyers John Yoo and Jay Bybee had previously written authoritative legal opinions that sanctioned and justified the CIA's use of torture on detainees. (After Levin would reportedly be pushed out of the office for not sufficiently towing the Cheney line, acting head Steven Bradbury would author further memos re-authorizing torture.) At a conference this week at American University's Washington College of Law about professional ethics and the "torture memos," Mr. Levin spoke publicly for the first time about this controversial issue -- and announced that he was not opposed to a criminal investigation of his conduct and the work of his colleagues. As Mr. Levin said, "Any government employee is appropriately subject to investigation of their conduct while they're serving in government."

Mr. Levin forcefully and eloquently stated the principle we've been communicating for years. In 2004, after the first torture memos were publicly released, Alliance for Justice prepared a statement criticizing the torture memos that was signed by federal judges, former presidents of the American Bar Association, military lawyers, JAGs, and prestigious lawyers around the country and law teachers. A year later, the same group of eminent scholars and lawyers signed another statement calling for the appointment of a commission to investigate the torture memos. Perhaps not surprisingly, nothing happened during the Bush administration; but we were heartened to hear President Obama, in his inaugural address, reaffirm our national belief in "the rule of law and the rights of man." "Those ideals still light the world," he said, "and we will not give them up for expedience's sake."

But a change in leadership does not eliminate the need to examine our system and learn from our history, even when -- especially when -- our Department of Justice was corrupted to the point of sanctioning torture. The prohibition against torture is a fundamental American value dating back to George Washington, who as general of the Continental Army, insisted on humane treatment of prisoners of war. As he said to troops in 1775, "Should any American soldier be so base and infamous as to injure any [prisoner]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause... for by such conduct they bring shame, disgrace and ruin to themselves and their country."

Many do not speak in so principled a manner as Mr. Levin about the propriety of accountability for government lawyers. There are those who say that the lawyers involved in producing the "torture memos" have already come under sufficient scrutiny. Yoo, Bradbury, and Bybee have been subject to criticism, attack, and some protests. Others say, in times of national security, the circumstances are so trying that our legal and ethical standards may be different, and lawyers' and others' missteps may be excusable. And yet the point of living in a nation of laws is that we always, above all, adhere to our laws and defer to the Constitution. The very premise of a Constitution is that it "precommits" us to a certain set of standards, and binds us by a certain set of guidelines, that can not be justifiably abandoned or violated, no matter the circumstances.

This is particularly true for the lawyers who worked at the Office of Legal Counsel, which is considered the "constitutional conscience" of an administration. Those lawyers should be the last, best defense against injustice. We as Americans need to look and see what happened in that office. We need accountability and transparency to remember that we are a country that acts in accordance with the law, even in times of fear and danger.

Attorney General Eric Holder can take a very important first step towards accountability by releasing the report that was prepared five years ago about the torture memos by the Office of Professional Responsibility (OPR), the department in DOJ that investigates allegations of professional misconduct by DOJ attorneys. We still don't know all the facts about what led this country to torture. Information has emerged in bits and pieces over the last several years, thanks to extensive litigation by civil liberties advocates and to the selected release of certain documents by the Obama administration. At the end of this October, the government dumped hundreds more documents about interrogation and detainee policies, pursuant to a court order, adding more insight into how detainee abuse developed and was legally justified. But so long as the record is incomplete and disjointed, the evidence that emerges raises more questions than it answers -- which is all the more reason why Attorney General Holder should promote transparency and take the important first step of releasing the OPR report.

Based on what we do know at this time, our government is obligated to engage in a full-scale investigation of all those who authorized and designed the torture policies. Serious crimes were committed, and the U.S. is bound by the Convention Against Torture to investigate evidence of torture. It is imperative that we investigate how the OLC lawyers came to recommend actions to the president that were clearly contrary to established law prohibiting the use of torture. As Senator Whitehouse said this week at the conference at American University's Washington College of Law, "America, as an ongoing education in freedom, teaches us that the vehicle of America's freedom is process of law, so process matters. It matters a lot. The question how we came to torture is not an idle or prurient one. Something went wrong, and the epicenter of the problem was the Office of Legal Counsel."

Each year, Alliance for Justice produces a film on an important social justice topic. Our new film Tortured Law, examines the role lawyers played in authorizing torture.

Thousands of students at law schools and YouTube viewers have seen this short documentary, and many who care about human rights have signed our online petition.

On November 12, we are organizing a National Torture Accountability Day, asking people to pick up the phone, call the Justice Department, and ask for the immediate release of the OPR Report -- as a first step in bringing the facts to light.

Alliance for Justice is calling on the Obama administration, and more particularly, Attorney General Eric Holder, to conduct a full investigation of those who ordered, designed, and justified torture. That full accounting must be done, so that we can begin to restore our national reputation and international standing in the world.

For more information on the November 12 National Torture Accountability Day, and to view our new film Tortured Law, please visit http://www.afj.org/films-and-programs/tortured-law/.

 
 
 

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