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The Torture Memos Are the Crime: Why Obama and Holder Should Smack Cornyn Down
As I write this, senator John Cornyn, the, um, distinguished Republican from Texas, is holding up the people's business by delaying the confirmation of Attorney General-designee Eric Holder. Why? Because he wants guarantees that Holder, in due course of his tenure at Justice, will never, ever, EVER prosecute any intelligence agents of the Bush era for engaging in torture.
Wow, way to cement your legacy of integrity and protection of the Constitution, Senator. Good luck with that. But Cornyn's clear panic at the looming possibility of prosecutions raises some important points about whether prosecutions could really go forward and if so, of whom.
Those like Cornyn who would aid and abet American torturers argue that the Military Commissions Act and the series of "opinion memos" issued by Alberto Gonzalez's DOJ ultimately shield government officials who practiced waterboarding and other extreme techniques. The sad thing is: they may be right, legally. But only to a point, and that's where it gets interesting.
The Military Commissions Act may shield lower level agents, as too do the Justice Dept. memos, because they create a reasonable amount of confusion or doubt in the mind of the agent as to the legality of the practices engaged in. This doubt can in turn be cited as a defense for any individual down the chain of command.
But the memos and the Act do NOT really provide legal cover for those at the top; in fact the writing of the memos themselves may be the ultimate prosecutable crime here.
The Military Commissions act was only passed in 2006. So one hole in Cornyn's argument that Holder would be flouting the law by seeking prosecutions for torture is that Holder could always limit his purview to pre-Act incidences of extreme interrogation. Investigating only the instances of torture from 2002-2005 would still leave plenty for Holder to go after.
Perhaps more importantly, the Justice Dept. memos predate the Military Commissions Act by years. One of the earliest is the "Bybee" memo of August 2002, named for John Bybee, who was head of the DOJ's Office of Legal Counsel at the time. He signed off on sections of the memo that sought to lay the groundwork for justifying extreme interrogation techniques. Alberto Gonzalez, then White House Counsel, requested the memo.
In April 2003, DOJ issued internally an 81-page memo that constituted a more bold and far-reaching series of justifications for torture. The ACLU later forced the release of the memo, and their staff attorney Amrit Singh assessed it thus: "Senior officials at the Justice Department gave the Pentagon the green light to torture prisoners. It is outrageous that none of these high-level officials have been brought to task yet for their role in authorizing prisoner abuse." PDFs of the 81-page memo are still accessible through this link.
The DOJ memos continued like a steady drumbeat though 2005 -- at least six known documents from the DOJ predating the Military Commissions Act. As the ACLU put it in a report after forcing the public release of several 2005 torture memos:
(T)he Office of Legal Counsel (OLC) for the Department of Justice issued three secret memos in May 2005 relating to the interrogation of detainees in CIA custody. Until now, the existence of only two of those memos had been reported and it was not known precisely when the memos had been written. The memos are believed to have authorized the CIA to use extremely harsh interrogation methods including waterboarding.
"These torture memos should never have been written, and it is utterly unacceptable that the administration continues to suppress them while at the same time declaring publicly that it abhors torture," said Jameel Jaffer, Director of the ACLU's National Security Project. "It is now obvious that senior administration officials worked in concert over a period of several years to evade and violate the laws that prohibit cruelty and torture. Some degree of accountability is long overdue."
All of which brings us back to Cornyn's absurd maneuver. The Military Commissions Act may have had the Bush administration's intended effect of bolstering and nuancing the "Nuremberg defense." And that is why Cornyn thinks he can boldly declare that Holder should be prohibited from pursuing legal sanctions on torturers. Like Bush and Cheney, Cornyn wants the book closed on the era through which we have just suffered; the Military Commissions Act can be repealed, one supposes, but its legal force during its ugly little historical moment cannot be contested.
The administration's own Susan J. Crawford has already maintained publicly that torture was committed, and Bush and Cheney are both on record incriminating themselves. Sadly, one could potentially sustain the notion that the torture itself was not technically a crime -- or was a crime that had no one directly committing it -- because those brutal hours were shielded by the Military Commissions Act. However, the actions that created the murky legal conditions under which the Act came to be passed, and used as a defense, constitute a deliberate attempt to circumvent existing laws both domestic and international, and to violate treaties to which the United States is a party. The memos, predating and advancing the bogus legal claims ultimately enshrined in the Act, therefore become the crime from which the supposedly "decriminalized" torture followed.
The torture memos are criminal. They belong to a past that will walk with us like a twisted shadow until we expose it to the cleansing light of due process. And whether Cornyn and his fellow apologists for torture like it or not, Holder not only has every right to pursue those who participated in the torture memos -- in fact any Attorney General who swears to uphold the law of the land will have a duty to do just that.
My hope has always been that information can be brought to light about everyone who engaged in this at all levels, but that prosecutions need to focus only at the top of the Executive -- Bush, Cheney, Gonzalez, Bybee, former Deputy Assistant US Attorney General John Yoo. The list goes on.
And so it is not those whose gloves were bloodied who may be called to account. But the genteel savages laboring in the DOJ offices to torture a justification for torture out of plain language -- and their masters at the White House -- it is they who seem to be standing quite naked in the light of the law.
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Your post is so correct -- it's those at the top that must be the subject of investigation and prosecution. I think it is completely obnoxious that some staff sargents are the only ones that have been held accountable to this point in time. Bush, Cheney, Addington, Gonzales and Yoo all are enjoying their retirements, yet they are the ones that ordered the torture and encouraged the barbaric acts committed at Abu Graib. As to the military, they ought to be ashamed for letting the officers who were in charge of Abu Graib off with wrist slaps or early retirements. Not one of them stepped up and resigned rather than go along with the Gitmo-izing of that prison. This country can only fully recover from the last 8 years if everything that was wrong is brought to light and those that are responsible are held accountable.
We the USA must prosecute the Bush admin on these torture charges b/c someone else in the world surely will do so to our extreme embarassment and discredit as a nation of LAWS. For the USA to restore our image internationally has no other option BUT to prosecute. It's our LAWS and no one is above them mantra that we hold up to the world as a shining example of our validation as the world's leading democracy tp both friend and foe. Do we also want to perpetuate the lies and crimes of the Bush admin for not doing so. I don't think so. Let's get busy and prosecute them ASAP.
The fact that Joh Corny ( I seem to be having trouble with my 'n' key), wait, John Cornynut ( there that's better), is only out to protect intelligence agents doesn't let any of those in the executive branch off the hook. There wasn't an ounce of intelligence in the whole lot of them!
Eric Holder is playing his cards according to Obama's wishes. They want to leave the 'Prosecution' door open during Obama's presidency so as to keep liberals happy. They will never prosecute Bush, CHeney or anyone else. As long as they keep the door open the Libs can be kept at bay. Another political misdirection by Obama to appease his flock.
YOU ARE SO FUNNY!
Harper's Scott Horton notes that the leading U.N. official in charge of torture conventions, such as the Convention Against Torture (signed by Ronald Reagan and ratified by the U.S. Senate), just stated that the Obama administration is obligated by that treaty and by international law to criminally investigate Bush officials for torture:
In an interview on Tuesday evening with the German television program “Frontal 21,” on channel ZDF Professor Manfred Nowak, the United Nations Rapporteur responsible for torture, stated that with George W. Bush’s head of state immunity now terminated, the new government of Barack Obama was obligated by international law to commence a criminal investigation into Bush’s torture practices.
“The evidence is sitting on the table,” he stated. “There is no avoiding the fact that this was torture.” He pointed to the U.S. undertakings under the Convention Against Torture in which the country committed that it would criminally prosecute anyone who tortured, or extradite the person to a state that would prosecute him. “The government of the United States is required to take all necessary steps to bring George W. Bush and Donald Rumsfeld before a court,” Nowak said.
At least the equal effort and money that Cornyn made available for the investigation into Clinton's
failure to admit personal problems to senate commitees.
Time about 3 years, money 65 million plus
All so, everytime Clinton did bomb bin Laden, Cornyn and his cohorts said "just trying to take attention
away from important matters"
Don't think the guy could be more phony!
They belong to a past that will walk with us like a twisted shadow until we expose it to the cleansing light of due process.
Wow, nice phrase, Pete! I agree totally.
If they have nothing to hide they have nothing to be afraid of. Isn't that what the Bush administration kept telling us?
The Torture Memos are the lesser crime against the constitution, the Patriot Act the greater. I hope Congress, and President Obama, will address that fact.
There are so many people in Congress who were complicit in the Bush crimes and that is why there will be no prosecution on torture. Why do you think he wasn't impeached ?
The shame from Texas never ends. Let justice be DONE!
He was born in Connecticut. Please don't blame us REAL Texans. :-)
Dallas went blue, too.
Thank you for that clarification.
I agree. If the law is king in this land and no man is above law, all ppl supporting this need to be prosecuted. There is no political issue. It's clearcut as a matter of law. No excuses. If any Dems were informed of it and did nothing, throw the book at 'em too. I don't care. Law is law. And that's ALL that matters.
Let's say a burgler robbed a house. He admitted to it and tried to justify it. Should he be arrested, prosecuted and, if found guilty, be held responsible and punished for it? Of course. And he would be if he wasn't politically protected.
Suppose someone committed far more grievous crimes, which resulted in the deaths of 4000 Americans and hundreds of thousands of innocent foreign civilians. Which included the treasonous act of outing a spy and in violating millions of American citizens' civil rights. And corruption was rampant during his tenure. Of course he should be made responsible, and pay, for his crimes.
To fail to at least investigate the allegations against Bush is a subversion of the Constitution in itself. He and his administration must be made responsible for any crimes they may have committed. To do less is to give license to the next sociopath who wants to violate the laws and Constitution.
When Holder said he would obey the law and constitution and expected the President to do so, Cornyn became very nervous.
Cornyn is like most Republicans, when the shoe is on the other foot, so to speak, how quickly we forget. When Bush placed the brilliant Gonzalez (LOL) in nomination, the Democrats did not pull such a stunt. To hold up Holder who is imminently qualified up because he leaves his options open to prosecute or not demonstrates how narrow minded Republican are especially the one's who were prosecutors before they became Senators. Obama shed light on them during the Inauguration..., "When I was a child I acted like a child", therefore grow up Republicans. We Have Much Work To Do!
Can you provide a tantalizing tangible morsel of evidence to support this statement? It would be like reliving the fabulous inauguration all over again. It would be our secret. Like maybe a short text message from a confidential source. It would really make my day and it would really help with my ulcers. Thanks in advance for your consideration. Yes I am serious. You don't have to tell us the source just post the message or email.
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