Dick Cheney and other CIA personnel have a very good defense to any prosecution; they rely on the legal opinions, now called "torture memos," of attorney general Alberto Gonzales and those under him, John Yoo and Jay Bybee.
Even if we will not prosecute Cheney and the CIA, we should disbar and suspend Alberto Gonzales, who is in private practice, Jay Bybee who is now a federal appeals court judge and John Yoo who is a law professor at UC Berkeley.
The torture memos dated August 1, 2002 and thereafter, described ten techniques which the interrogators wanted to use: attention grasp, walling, facial hold, facial slap (insult slap), cramped confinement, wall standing, stress positions, sleep deprivation, insects placed in confinement box, and waterboarding. The memo claimed these enhanced interrogation techniques were all constitutionally protected even though the cases did not say that and even though the United Nations had determined most were torture. The memos were written to "legalize" actions that occurred previously and were to be continued in the future.
Doing so would hopefully stop politically motivated opinions from appearing again from the Department of Justice or future Attorney Generals on behalf of the CIA, NSA or other governmental agencies as a basis for other illegal American acts.
Bush, Cheney and Gonzales did not rely on vague or carefully couched memos. Gonzales -- acting at the direction of Cheney and with the acquiescence (if not direction) of Bush, was direct. Gonzales countermanded the direct orders of the FBI operatives in the field, as well as George Tenet. He did not write nuanced legal memorandums to get past the Geneva Conventions or the War Torture Act. He simply ignored it.
When a highly respected former Bureau agent, Ali Soufan, said stop using brutal interrogation techniques against Abu Zubaydah in 2002, because it is both torture and was counterproductive, Gonzales directed James Mitchell, to continue. This was before the torture memos were circulated.
Zubaydah was water boarded 83 times.
"We're the United States, we don't do this," Soufan said. Gonzales replied, do it, says Soufan. Soufan wanted to arrest Mitchell, the man Gonzales sent in to oversee the torture. He could not.
Former Attorney General Alberto Gonzales, now in private practice, who had difficulty finding a professional career after he was discharged, described himself in an interview with the Wall Street Journal in 2008: "For some reason, I am portrayed as the one who is evil in formulating policies that people disagree with. I consider myself a casualty, one of the many casualties of the war on terror."
Jay Bybee, after having his nomination fail once in the Senate, was confirmed to become a Federal Court Appeals Judge in the 9th circuit on March 28, 2003. Senator Patrick Leahy said if all the torture information were now known, he never would have been confirmed.
John Yoo is teaching constitutional law at a very respected law school. UC Berkley overrode student and community protests in 2006 but the protestors did not have as much information as we now have. He was sued, barred from travel to other countries but is otherwise unscathed.
The Department of Justice's Office of Professional Responsibility concluded in a 261-page report dated July 29, 2009, that Yoo and Bybee committed "intentional professional misconduct" when they "knowingly failed to provide a thorough, objective and candid interpretation of the law" and it recommended a referral to the Bar for disciplinary action. But David Margolis, a career Justice Attorney, in a Memorandum dated January 5, 2010, countermanded the recommended referral. While Margolis was careful to avoid "an endorsement of the legal work" which he said was "flawed" and "contained errors more than minor," concluding that Yoo had exercised "poor judgment," he did not find "professional misconduct" sufficient to authorize OPR "to refer its findings to the state bar disciplinary authorities."
Can a Bar Association really decide the tough questions, such as whether Alberto Gonzales' opinion, concluding the Geneva Convention Protections do not apply to prisoners of war captured for Al Qaeda or the Taliban? Of course. A Bar Association can determine if the legal opinion was a facade to justify actions already taken -- only the legal process has any hope of piercing the wall of defense that will be used to block that inquiry. Those memos were not used to interpret the law -- they were intentionally written to disregard the law.
Under the rules of the governing Bar Associations, the Government or any third party with knowledge of the facts can file a complaint. If the Government does not file a complaint, I shall.