Torture and the Rule of Law

Investigating the Bush Torture Memos

For more on this event, please see click here.

The Bush torture memos are “a stain on this nation’s honor,” said Congressman Jerrold Nadler (D-NY) at a joint Center for American Progress and Alliance for Justice event Wednesday. Nadler went on to point out that the United States is a signatory to both the Convention Against Torture and the Anti-Torture Act, meaning that the memos—which were drafted by Bush administration Department of Justice officials and sought to legalize torture—are heinous not only because they authorize torture, but because they display a flippant disregard for the rule of law.

Nadler was joined by Nan Aron, president of the Alliance for Justice; David Cole, professor of law at Georgetown University; and Bruce Fein, chairman of the American Freedom Agenda on a panel moderated by Ken Gude, Associate Director of International Rights and Responsibilities at CAP. The event also included a screening of the Alliance for Justice’s short documentary film, “Tortured Law.”

After a five-year investigation the Justice Department’s Office of Professional Responsibility, or OPR, finally concluded in a report released on February 19, 2010 that Bush administration Office of Legal Counsel, or OLC, officials John Yoo and Jay Bybee “exercised poor judgment” for their role in drafting the 2002 memos that authorized the use of techniques otherwise understood to constitute torture in detainee interrogations.

The release of the report has spurred criticism, particularly because OPR staff could not interview key witnesses or review hundreds of emails written by the lawyers, Gude explained. Questions remain as to why records were destroyed and witnesses were kept from investigators, as well as if the lawyers’ intended to conduct criminal activity or simply give the president their best legal advice. Additionally, a DOJ official overruled OPR’s recommendation and determined that the officials should not be referred to their respective bar associations for investigation of professional misconduct.

Aron explained that part of the impetus for doing a film about the memos was to take the issue “beyond just the human rights community of groups,” and “spark discussion” among law students and institutions. She added that “These torture memos were not just a stain on our country, but a stain on the legal profession.”

The lawyers who drafted the memos claimed they were giving the Bush administration their best legal advice. Yet it’s clear the administration distorted the law by engineering the memos with predetermined legal opinions and knew their actions were unlawful. John Ashcroft, for example, was so concerned he considered issuing “advance pardons” to protect CIA agents who waterboarded detainees.

The American public was told the memos were kept secret to prevent revealing too much information to the terrorists. But the real reason the Bush administration used the States Secrets Doctrine—which says that the revelation of state secrets would adversely affect national security and therefore the disclosure of such information must be avoided by all procedural means available to the court—was to protect government officials from the public revelation of their criminal activity, according to Nadler.

Fein thought the memos were the product of a particular way of thinking at the time that focused on doing whatever was necessary to defeat terrorism and win wars overseas—including taking away civil liberties. “Before even 9/11…we’d become an empire instead of a republic and things readily subordinated to the national security state…due process became an epithet rather than a plaudit.” The empire-at-war mindset eroded many civil liberties such as surveillance, extraordinary renditions, and illegal detainments, but the authorization of torture is by far “the most frightening” in part because of its twisted legal reasoning, he said.

But it would be “wrong to suggest it’s just the lawyers or Bush and Cheney” who are at fault, Fein added. Congress has “all the power in the world” to affect things and they did not—which further solidifies the notion that “in the empire, the president has all the power,” he said.

Cole stressed that “we as a people need to insist on accountability for what went on or else we’re complicit in allowing this to go on,” adding, “what’s important…is that we as a society acknowledge that a legal wrong was committed. We haven’t yet done that.” He said no formal acknowledgment has happened because there’s been no bipartisan commission and statement from Congress or the executive branch to “achieve accountability writ large.”

Only an investigation truly independent from the Department of Justice, where many of these decisions were made, would provide a result that could withstand scrutiny, according to Nadler. Both Yoo and Bybee were DOJ employees, so it is a conflict of interest for the DOJ to investigate. To get accountability we need the press to do its job and keep on this subject, he said. People should also write to their congressmen about the issue and urge bar associations to take a stand.

Throughout U.S. history in times of war, “we have done things in the name of national security…that did trample liberty, did hurt people in the exercise of liberty,” Nadler said. “Invariably we end up apologizing, usually 30 years later. Hopefully we’ll do better this time.”

For more on this event, please see click here.