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War Criminals, Including Their Lawyers, Must Be Prosecuted

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Since he took office, President Obama has instituted many changes that break with the policies of the Bush administration. The new president has ordered that no government agency will be allowed to torture, that the U.S. prison at Guantánamo will be shuttered, and that the CIA's secret black sites will be closed down. But Obama is non-committal when asked whether he will seek investigation and prosecution of Bush officials who broke the law. "My view is also that nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen," Obama said. "But," he added, "generally speaking, I'm more interested in looking forward than I am in looking backwards." Obama fears that holding Team Bush to account will risk alienating Republicans whom he still seeks to win over.

Obama may be off the hook, at least with respect to investigating the lawyers who advised the White House on how to torture and get away with it. The Office of Professional Responsibility (OPR) has written a draft report that apparently excoriates former Justice Department lawyers John Yoo and Jay Bybee, authors of the infamous torture memos, according to Newsweek's Michael Isikoff. OPR can report these lawyers to their state bar associations for possible discipline, or even refer them for criminal investigation. Obama doesn't have to initiate investigations; the OPR has already launched them, on Bush's watch.

The smoking gun that may incriminate George W. Bush, Dick Cheney, et al., is the email traffic that passed between the lawyers and the White House. Isikoff revealed the existence of these emails on The Rachel Maddow Show. Some maintain that Bush officials are innocent because they relied in good faith on legal advice from their lawyers. But if the president and vice president told the lawyers to manipulate the law to allow them to commit torture, then that defense won't fly.

A bipartisan report of the Senate Armed Services Committee found that "senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees."

Cheney recently admitted to authorizing waterboarding, which has long been considered torture under U.S. law. Donald Rumsfeld, Condoleezza Rice, George Tenet, Colin Powell, and John Ashcroft met with Cheney in the White House basement and authorized harsh interrogation techniques, including waterboarding, according to an ABC News report. When asked, Bush said he knew about it and approved.

John Yoo wrote in a Wall Street Journal oped that Bush "could even authorize waterboarding, which he did three times in the years after 9/11."

A representative of the Justice Department promised that OPR's report would be released sometime last November. But Bush's attorney general Michael Mukasey objected to the draft. A final version will be presented to Attorney General Eric Holder. The administration will then have to decide whether to make it, and the emails, public and then how to proceed.

When the United States ratified the Convention Against Torture, we promised to extradite or prosecute those who commit, or are complicit in the commission, of torture. We have two federal criminal statutes for torture prosecutions – the Torture Statute and the War Crimes Act (torture is considered a war crime under U.S. law). The Torture Convention is unequivocal: nothing, including a state of war, can be invoked as a justification for torture.

Yoo redefined torture much more narrowly than U.S. law provides, and counseled the White House that it could evade prosecution under the War Crimes Act by claiming self-defense or necessity. Yoo knew or should have known of the Torture Convention's absolute prohibition of torture.

There is precedent for holding lawyers criminally liable for giving legally erroneous advice that resulted in great physical or mental harm or death. In U.S. v. Altstoetter, Nazi lawyers were convicted of war crimes and crimes against humanity for advising Hitler on how to "legally" disappear political suspects to special detention camps.

Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 favor criminal investigations. Cong. John Conyers has introduced legislation to establish a National Commission on Presidential War Powers and Civil Liberties. Sen. Patrick Leahy advocates for a Truth and Reconciliation Commission; but this is insufficient. TRC's are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.

Attorney General Eric Holder should appoint a Special Prosecutor to investigate and prosecute high Bush officials including lawyers like John Yoo who gave them "legal" cover. Obama is correct when he said that no one is above the law. Accountability is critical to ensuring that our leaders never again torture and abuse people.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of Cowboy Republic:  Six Ways the Bush Gang Has Defied the Law. Her newest book, Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd), will be published in April. Her articles are archived at www.marjoriecohn.com.

 

http://www.marjoriecohn.com

Marjorie Cohn is a professor at Thomas Jefferson School of Law and immediate past president of the National Lawyers Guild. She is author of  'The United States and Torture: Interrogation, Incarceration, and Abuse, and 
Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and co-author of Rules of Disengagement: The Politics and Honor of Military Dissent. Her anthology, The United States and Torture: Interrogation, Incarceration and Abuse. Her articles are archived at www.marjoriecohn.com.

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Everyone of the so-called changes you've menti... by Mr M on Friday, Feb 20, 2009 at 9:13:32 AM
Mr. M, thanks for posting the link to this article... by Better World Order on Friday, Feb 20, 2009 at 9:49:14 AM
there may be problems with Gesell's theory tha... by Better World Order on Friday, Feb 20, 2009 at 9:59:43 AM
... future. I'm not so sure, but, it won't... by Mr M on Friday, Feb 20, 2009 at 12:34:40 PM
Mr. M- "Even if, and that's a big &q... by Better World Order on Friday, Feb 20, 2009 at 1:39:28 PM
... that I've witnessed, if anything you'r... by Mr M on Friday, Feb 20, 2009 at 4:34:19 PM
... ah, what a moran ...... by Mr M on Friday, Feb 20, 2009 at 6:52:37 PM
... ah, what a moran ...... by Mr M on Friday, Feb 20, 2009 at 7:23:28 PM
it goes way back. a nephew of a powerful gang/trib... by First Last on Friday, Feb 20, 2009 at 10:48:20 AM
GOD MADE PROMISES TO ABRAHAM--THOSE PROMISES ARE F... by TRADESMAN on Saturday, Feb 21, 2009 at 5:54:46 PM
Was our President home sick from Harvard when they... by Jason Paz on Friday, Feb 20, 2009 at 12:31:04 PM
CHAMP- PATRIOT--GET YOUR OWN SITE SO WE CAN ALL GO... by TRADESMAN on Saturday, Feb 21, 2009 at 5:31:27 AM
The whole Amerikan populace should be put on trial... by Markageloo Breza on Friday, Feb 20, 2009 at 10:14:40 AM
Sometimes it's good strategy  to pretend ... by wagelaborer on Friday, Feb 20, 2009 at 11:41:34 AM
“Accountability is critical to ensuring that... by boomerang on Friday, Feb 20, 2009 at 12:48:39 PM
  ...must be prosecutedBut before gettin... by aberamsay on Friday, Feb 20, 2009 at 4:22:00 PM
Larry Silverstein. Need I say more?... by Cinderfella on Friday, Feb 20, 2009 at 7:13:13 PM
Sure as hell someone was going to point this ... by aberamsay on Saturday, Feb 21, 2009 at 4:05:58 AM
to read the comments AFTER Mr. M spelled out the f... by steve scheetz on Friday, Feb 20, 2009 at 6:22:00 PM
I was saying that the comment from EriK Larson ( B... by aberamsay on Friday, Feb 20, 2009 at 6:24:37 PM
I agree with you and everything Mr M and the other... by jersey girl on Friday, Feb 20, 2009 at 8:49:01 PM
It is without historical precedent for an executiv... by William Whitten on Sunday, Feb 22, 2009 at 1:57:24 AM
Of course! As one of the six founding members of &... by Wolfgang May on Friday, Feb 20, 2009 at 9:45:35 PM
I just think it's funny every time I see an ar... by William Whitten on Friday, Feb 20, 2009 at 11:49:33 PM
That is what I have said REPEATEDLY. Lots of ... by Michael Cavlan on Saturday, Feb 21, 2009 at 12:03:37 AM
The Two Party Delusion, Mass Movements And Real Pr... by Michael Cavlan on Saturday, Feb 21, 2009 at 12:07:52 AM
Whatever the merits of the debate, I missed your a... by WML on Saturday, Feb 21, 2009 at 7:24:05 AM
Golden Microphone?  Hell no, more like tin ca... by jersey girl on Saturday, Feb 21, 2009 at 9:47:04 AM
Right? COTO Was Here Time to build our own ... by Michael Cavlan on Saturday, Feb 21, 2009 at 12:23:40 AM
http://finkelblog.com/index.php/2009/02/17/brzezin... by William Whitten on Saturday, Feb 21, 2009 at 12:44:11 AM
Programmed genocide at  global level planned ... by aberamsay on Saturday, Feb 21, 2009 at 3:55:31 AM
Marjorie Cohn is right on this. But she can not m... by John H Kennedy on Saturday, Feb 21, 2009 at 8:49:01 AM
Yammering for anything but total systemic change i... by William Whitten on Saturday, Feb 21, 2009 at 9:15:35 AM