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The Torture Memos Are the Crime: Why Obama and Holder Should Smack Cornyn Down

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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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