Steve Sheppard

How the Torture Lawyers Broke the Law, and Why They Must be Punished

By STEVE SHEPPARD
Monday, March 1, 2010

Last month, Associate Deputy Attorney General David Margulis tried to bar any punishment for the government lawyers whose official opinions falsely claimed that U.S. agents and soldiers could legally use techniques amounting to torture on people in U.S. custody. His decision protects the masterminds of policies that have sent U.S. soldiers to prison. It gives office lawyers the kinds of excuses that are denied even to police on the ground. It stands against fifty years of U.S. policy against terrorism. It exposes U.S. servicemen and servicewomen to a greater risk of torture by our enemies, and it weakens our position with our allies in the fight against terrorism.

American justice – and our national interest in confronting terrorism – requires Attorney General Eric Holder to rise to this occasion. If he will not, a future Attorney General must, to defend the law against both a bureaucracy that protects its own, and to correct an American public that has developed a taste for torture.

The Torture Lawyers

In 2002, Attorney General Alberto Gonzales sought an opinion memo from Assistant Attorney General Jay Bybee, asking what practices regarding detainees are allowed under the federal law against torture. The memo, prepared by Department of Justice lawyer John Yoo (and, apparently, his colleague Jennifer Koester Hardy) gave a perverse reading to the U.S. statute, ignoring U.S. and international law to claim that torture includes only "extreme acts" causing consequences such as "death or organ failure." Other lawyers were involved, especially Defense Department Counsel William J. Haynes and Vice Presidential Counsel David Addington, and other memos that also blessed the use of torture were prepared, such as a 2003 memo from Yoo to Addington detailing actions that were approved in 2002.

The memos were disseminated, and U.S. soldiers and agents began the infamous abuse of prisoners in Iraq, Guantánamo Bay, and elsewhere that later became public, mainly in 2004. The Department of Justice repudiated the memos in 2005, but some of the contested practices still continued through 2008.

Granted, some of the acts that occurred in Iraq were not allowed by Yoo and Bybee's analysis. Yet the horrible prisoner treatment in the infamous 2004 Abu Ghraib photos was allowed, according to their memos.

The Obama Administration's Response to the Torture Memos

An early question for the Obama Department of Justice (DOJ) was how it would deal with the torture memos' authors. In 2009, DOJ's ethics watchdog, the Office of Professional Responsibility (OPR), completed its review of Bybee's and Yoo's work, finding that they committed "professional misconduct," breaching their duties "to exercise independent legal judgment and render thorough, objective, and candid legal advice." However, the OPR did not consider charges against the other lawyers, and it recommended no criminal sanctions, though it did seek a referral of Bybee and Yoo for professional discipline by the state bars to which they belonged. For Yoo and Bybee, now a law professor and a judge, this kind of a penalty would be embarrassing – but ultimately a slap on their wrists.

Then, this year, Associate Deputy Attorney General David Margulis, a career DOJ lawyer, reversed the OPR, critiquing away most of its 290-page report. Mainly, Margulis claimed that any substantive standard that Yoo and Bybee violated was ambiguous. Though he agreed with the OPR that Yoo and Bybee's legal work was shoddy, he also concluded that no clear law defined torture in detail, and, as a result, he opined that the torture memos did not clearly contradict the law at the time. And, he excused many of the memos' flaws because those were perilous times.

Margulis is wrong on the details, as legal ethics guru David Luban has shown. Yoo and Bybee left out too much, and they knowingly distorted a fundamental legal limit on the Executive Branch. To find that the law was unclear in 2002, as Margulis claimed, is incorrect.

Arguably, Margulis made a smart person's mistake: He confused the forest for the trees. He spends pages of his analysis worrying OPR precedents to say there was no "clear" law against Yoo and Bybee's position. Yet, in order to do so, Margulis sidelined the purpose of the statute and treaty that Yoo and Bybee interpreted, downplayed some cases, and, mainly, focused on parts rather than the whole. (For instance, Margulis thinks that Yoo and Bybee might be right about some of the details, such as whether torture requires the specific intent to cause pain.)

Overall, Margulis studied the twigs, ignored the trees, and skipped the forest. Of course there's little U.S. precedent in this area – but that doesn't mean the illegality of torture was unclear; it emphasizes the obvious. Until these guys came along, we simply didn't torture prisoners (or "detainees" or "enemy combatants") – at least, not as a matter of policy. (Though, of course, there have been illegal excesses subject to punishment.)

In many respects, too, it must have been crystal-clear, even to Yoo and Bybee, that what they said was not the law. For instance, it was very clear that the Abu Ghraib photos depicted illegal torture under the law as it stood in 2002. Yet Bybee and Yoo's memo allowed such practices. And the mistake was not subtle, nor was the point difficult. These were practices that, when the photographs were made public, horrified Americans and caused even the President to ask how this had happened, and to assume that – not wonder if – this torture was against the law.

In sum, Yoo and Bybee knowingly gave wrong legal advice – advice with terrible implications.

The Torture Lawyers in Context: Three Comparisons

The wrongness of Margulis's decision not even to slap the wrists of torture lawyers is illustrated by three parallels:

1. U.S. soldiers have been tried for what these lawyers said was legal. More than a dozen soldiers, including a brigadier general, colonels, sergeants, and corporals, were tried for committing acts in Iraq that were authorized by Yoo's and Bybee's memoranda. Then, they were called rogue soldiers, but in fact, they were carrying out orders that commanded practices that were authorized by these lawyers' analyses.

2. Police are tried for "mistakes in the aftermath" – yet Margulis excused Yoo and Bybee on the same theory. Margulis makes much of the pressure on DOJ after 9-11, in order to excuse Yoo's and Bybee's shoddy work. But compare Margulis's lenience for the lawyers to a judge's proper refusal to excuse police misconduct because of the pressure inherent in the need to keep order in Katrina-flooded New Orleans. Moreover, the attorneys' mistake was not a mistake born of stress and hurry: To the contrary, John Yoo appears to have had enough extra time to use the crisis to advance his pet theory of a unitary executive, which underpinned his memo. Far from giving a rushed, jumbled answer in an emergency, Yoo had the luxury of grafting his own wrongheaded theoretical structure onto the law. And the excuse of rush and pressure is ridiculous when years have passed, and Yoo and Bybee have yet to recant or apologize. Even they do not claim they were rushed or pressured.

3. Nuremberg lessons were forgotten here. The United States once led the world in ending torture and forbidding torture as a war crime. We prosecuted our enemies at Tokyo and Nuremberg for torture, including water torture (which Vice President Cheney still promotes). And we prosecuted, and put in prison, German government lawyers who sanctioned illegal actions, including torture, in violation of less clear and certain laws than ours.

Nuremberg was a shining American legacy of promoting peace and the rule of law, but now that legacy is sullied. The result is that a significant number of Americans have lost faith in their legal system, and America's enemies can make claims of victor's justice.

Margulis found that Yoo and Bybee's deficiencies could not have "prejudiced the client." Yet this conclusion is as disturbing as it is ironic: The torture lawyers dramatically hurt the United States in the fight against terrorism.

Yoo's and Bybee's legal analysis also led to the death of U.S. troops: Shortly after returning from Iraq in 2007, Major General Robert L. Caslen, Commander of the 25th Infantry Division in Iraq, said that the torture committed at Abu Ghraib – that is, the torture committed under the approval of Yoo and Bybee's analysis – followed a "direct road" to U.S. casualties in the field.

American defense of the methods that Yoo and Bybee sanctioned hurt our relationship with our allies in the fight against terrorism. Some states refused to extradite prisoners to us for interrogation or for prosecution in terrorism cases.

Finally, the torture lawyers gave Americans a taste for illegal acts. One notable example: J.D. Hayworth, in seeking John McCain's Senate seat, gained support by arguing that McCain is soft on terrorism because he rejects water torture.

How Justice Ought to Work

Usually, when a serious federal crime occurs, DOJ investigates it, identifies the perpetrators, and brings them to justice. Here, a serious federal crime occurred following a secret conspiracy. The conspirators were the lawyers who claimed the crime was lawful, and those who relied on their advice to order the crime or to commit it. That the lawyers' part in the conspiracy was played through memoranda, rather than in dark alleys, grants no immunity. That they were paid by the taxpayers while playing their part only makes them more culpable, not less.

The U.S. statute banning torture is very clear: "Whoever ... commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years ... A person who conspires to commit an offense under this section shall be subject to the same penalties."

The facts are fairly clear. Many crimes occurred. There has been widespread admission that we used water torture, which is torture under U.S. and international law (the same law that the U.S. enforced against the Japanese in Tokyo after World War II). Moreover, the "enhanced interrogation techniques" cumulatively went far beyond water torture and are known by the lawyers and interrogation experts involved clearly to be torture.

The statute of limitations has not run, and it will not run for many years, because the liability of a conspirator persists as long as the acts of their conspiracy are performed. As Elizabeth de la Vega argues, under the Patriot Act an indictment may be brought up to eight years after the last act of non-mortal torture occurs. In addition, there is no time limitation at all to bar prosecution for acts of torture that were life-threatening (even if the victim lived). No jeopardy attaches to a failure to prosecute.

For these reasons, the efforts by the DOJ so far to foreclose the possibility of subsequent prosecution have failed.

The High Road That Has Not Been Taken ... Yet

There is still time for Attorney General Holder to refer to the case to a special counsel, to overturn the decision of his deputy, or to refer the matter back to the OPR. If he does not choose any of these options, a later Attorney General could still task a U.S. Attorney to summon a grand jury to indict the attorneys.

If, someday, an indictment were to issue, and the cases were to go to trial, the opening argument is ready. Indeed, it was drafted sixty-odd years ago by a U.S. prosecutor, Brigadier General Telford Taylor, who charged German government lawyers with crimes for wrongly opining that illegal acts could be done:

"This case is unusual in that the defendants are charged with crimes committed in the name of the law. These men, together with their deceased or fugitive colleagues, were the embodiment of what passed for justice in the Third Reich.

Most of the defendants have served, at various times, as judges, as state prosecutors, and as officials of the Reich Ministry of Justice. All but one are professional jurists; they are well accustomed to courts and courtrooms, though their present role may be new to them.

But a court is far more than a courtroom; it is a process and a spirit. It is a house of law. This the defendants know, or must have known in times past. I doubt that they ever forgot it. Indeed, the root of the accusation here is that those men, leaders of the German judicial system, consciously and deliberately suppressed the law, engaged in an unholy masquerade of brutish tyranny disguised as justice, and converted the German judicial system to an engine of despotism, conquest, pillage, and slaughter."

The torture lawyers put us on a similar road to ruin. It is up to the United States Attorney General to build new roadblocks to replace those that they attempted to destroy. Let us hope he does so.


Steve Sheppard is the Judge Enfield Professor of Law at the University of Arkansas School of Law and author, among other works, of I Do Solemnly Swear: The Moral Obligations of Legal Officials, now out by Cambridge University Press, and editor of the new, fourth edition of Farnsworth's Introduction to the Legal System of the United States, out this summer from Oxford University Press.

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