November 5, 2007
Outline for Program on the Responsibility
of Administration Lawyers for Torture

Dean Lawrence R. Velvel

1(a).  If I understand correctly, the Center has filed proceedings under international law against high American officials in Germany and France.  Explain why this was done, what laws the cases were filed under, and why courts in those countries are said to have jurisdiction.  In the latter connection, explain the concept of universal jurisdiction and also why the International Criminal Court can have jurisdiction.

(b). What stage are those cases at, and is there any realistic chance that prosecutions will be carried through in Germany, France or elsewhere.

(c).  Explain the Pinochet case if you haven’t already.

2(a).  Discuss the fact that torture is barred under international law, including by the Convention Against Torture.

(b).  Explain what constitutes mental or physical torture.

A.  There cannot be any good faith doubt that America has engaged in torture, can there?

B.  Despite all the government secrecy, to be discussed below, we now know, do we not, that the
desire for and authorization for torture extended right up to Bush (who, we even know, signed an
order for it in 2006)?

C.  Explain the domestic laws against torture:  the War Crimes Act and the Anti-Torture Statute.

3. Elaborate the fact that CIA personnel who were perpetrating torture were demanding a “golden shield,” an “advance get out of jail free card,” to protect them in future against investigation or prosecution for the torture they were committing.

4(a).  Elaborate the fact that lawyers in the Department of Justice, the Department of Defense and the White House set out, via a small committee that operated in secret, to insure that there were legal opinions that justified and provided a legal defense for torture.  The lawyers, at least some of whom, if not all of whom, personally agreed with what was going on, included Addington, Gonzales, Yoo, Haynes, and, occasionally, some others, e.g., Goldsmith.  Later Bradbury took over Goldsmith’s opinion writing responsibilities.

A.  Explain the role of the Office of Legal Counsel in all this.

B.  Everything was kept secret and a “very close hold” so that people would not know and could not
question what was being done or its supposed legal bases.

C.  Explain that the military JAGs objected to the torture but were silenced.

(b). Explain that Yoo’s torture memo of August 2, 2002, was professionally incompetent (as lawyers all over have said and as even Goldsmith said). (Koh called it the most incompetent memo he’d ever read.)  But in reality it wasn’t bona fide legal work, but was just a complicit method of providing the desired golden shield (and ultimately was withdrawn.)  It also was the basis of a nearly identical April 2003 DOD memo.

A.  Discuss the fact that its definition of torture was preposterous (it was taken from a Medicare
statute defining when a hospital must give emergency treatment), and its definition of specific
intent meant there could never be torture.  And this is not to mention that it made the
Commander-in Chief a dictator.

(c). Explain that there was a second memo of August 1, 2002 -- which to this day remains secret and classified -- which was never withdrawn and which we know discussed and authorized the actual techniques that were being used by the CIA.

A. Note that a now-public DOD memo setting forth authorized techniques includes a form of
waterboarding – and that is a public memo, so one wonders what might be in still secret memos.

B.  The “Levin memo” which replaced Yoo’s torture memo contains an often overlooked footnote
which in effect says the previously authorized techniques were legal.

(d).  Since then Bradbury apparently has written several memos authorizing torture, according to the Times seven column story of October 7th, and Bush has signed an order, vetted by Bradbury, authorizing torture.  (Note Goldsmith says in his book that the methods of interrogation being used had been “vetted in the highest circles of government” and there was heavy pressure to produce memos saying what the Administration wanted.)

5(a).  All of this makes the lawyers complicit in crimes under international law and crimes under domestic statutes, doesn’t it?  In relevant legal phrases, they are “complicit,” “aiders and abettors,” “co-conspirators,” and persons who could “foresee the consequences of their acts.”

A.  That the lawyers were complicit, prosecutable and morally reprehensible is only the more true,
isn’t it, because this is a law riven society in which people depend on lawyers to tell them what
they can or cannot do.  It was, indeed, concern for legal repercussions that led CIA people to
demand a golden shield in the first place.

(b). German lawyers and judges were prosecuted for complicity in violations of law, were they not?

A. And at Nuremberg Justice Jackson said we would be bound by the rules we were imposing on
the Germans.

i. What the Administration has done is an effort to override, or defacto repeal,
Nuremberg, isn’t it?

6 . Mukasey is now in the following position, isn’t he?  If he opines that waterboarding is torture -- as it has been since the Spanish Inquisition -- he has undercut the golden shield that protects the lawyers, the CIA perpetrators, lower level military perpetrators, and the high officials who desired, authorized and ordered torture, e.g., Bush, Cheney and Rumsfeld (all of whom have thus far escaped while a few low level guys took the fall).  If he declines to say that waterboarding is torture, he is not only a liar and dissembler, but, by declining to take the only defensible position, and by instead implying or even saying that wat erboarding could be legal, he is making himself complicit in serious crimes under both international and domestic law.

A. Because the same quandary will affect any future nominee for AG if Mukasey is rejected, it is
foreseeable that Bush, as he has done with so many other positions, will appoint an “interim” or
“acting” AG -- who does not have to be approved by the Senate, I believe (is this correct?) -- to serve
through the rest of Bush’s term.

B.  If the Senate approves Mukasey even if he declines to say torture is illegal, then isn’t the
Senate too complicit in crimes against both international and domestic law?  Isn’t someone
complicit when, with knowledge, he supports and approves someone else who is complicit?

7(a). Even though torture is a crime, is it immunized from prosecution in the United States by the 2006 law granting immunity for past violations of law against “enemy combatants”?

(b). Even if it is immunized from prosecution in the United States, it would not be immunized elsewhere from prosecution under international law.

(c).  Would it even be immunized within the United States if the tortured person were later found not to have been an enemy combatant, as has occurred, I gather, with regard to about 40 people at Gitmo?  The immunizing law, as I understand it, applies only to people who were “enemy combatants.”

A.  And the immunizing law wouldn’t apply when some innocent person -- and there have been
several -- was kidnapped off the streets and was immediately and complicitously (co
conspiratorially) rendered to some other country (e.g., Syria) for torture.  We never ruled such a
person an “enemy combatant.”

8(a).  Can Berkeley and Harvard, with even a shred of integrity, keep Yoo and Goldsmith -- war criminals who authorized and supported torture -- on their faculties?

(b).  Ditto re the United States keeping Bybee as a federal judge instead of forcing his resignation or impeaching and convicting him.

This posting represents the personal views of Lawrence R. Velvel.  If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu.  Your response may be posted on the blog if you have no objection; please tell me if you do object.


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