What Real DOJ Trial Attorneys Say About Torture
Sunday 18 November 2007
If there is one thing the Bush administration is good at, it's talking points: simple, stupid slogans. And when it comes to torture, the theme du jour is that we are all too simple and too stupid to understand just what is and is not prohibited. More than anything, White House officials want us to believe that the law of torture is so terribly confusing and vague that no lay person could comprehend its complexities. Hell, not even the attorneys can really sort it all out. How, then, the not-so-subtle implication would be, could anyone be held responsible for violating it?
Consider, for example, Dana Perino on October 5, 2007. This was the press conference where the White House spokesperson made it clear, stopping just short of stamping her feet, that she was not pleased about the reporters repeatedly asking her to define the term "torture." She had already told them the day before: "It's a very complicated legal matter" better left to the experts - particularly Steven Bradbury, interim head of the Office of Legal Counsel. Unfortunately, Bradbury's memos were, and are, secret, so she couldn't talk about those. At the same time, she noted, the memo that is public - written in December 2004 by the former acting head of OLC, Dan Levin - "is extremely dense. It's very complicated." Since Dana Perino is not an attorney, she couldn't really say much about that either.
Newly sworn Attorney General Michael Mukasey, on the other hand, is an attorney, not to mention a former federal prosecutor and veteran federal judge. But, hiding behind a mask of lawyerly caution, he has deliberately perpetuated the same false idea, refusing to acknowledge to the Senate Judiciary Committee Democrats the starkly obvious conclusion that waterboarding is illegal under US law on the ground that legal opinions must be based on "real life." Further, as if to somehow prove the difficulty of the issue, Mukasey padded his written response with a nearly full-page listing of statutes and treaties he would have to analyze before voicing an opinion on the matter.
What Perino and Mukasey are doing, of course, is deliberately obfuscating the law of torture to support the president's effort to inoculate himself and his henchmen against possible future prosecution. Perhaps they can succeed in confusing at least some percentage of the public (an increasingly small percentage, it appears), but they are not fooling the prosecutors. Indeed, before uttering even one more patently ridiculous and legally unsupportable word in furtherance of this shameful campaign, Bush administration officials should find out what their own Justice Department career attorneys have already said about the law of torture - not in secret memos, but in publicly filed court documents.
They needn't look far. As it happens, while the president and his many talking heads have been defending torture in Washington, lawyers from the Department of Justice and the US Attorney's Office for the Southern District of Florida have been prosecuting it. In a case officially titled United States v. Charles Emmanuel, they have charged Charles "Chuckie" Taylor Jr., son of the former president of Liberia, Charles McArthur Taylor, with committing and conspiring to commit acts of torture on behalf of the former Liberian government's Anti-Terrorism Unit. The statute under which Taylor Jr. is charged - Title 18, United States Code, Section 2340 - is the very law that contains the definition of torture Bush administration appointees seem to find so befuddling.
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The DOJ trial attorneys handling the real-life prosecution of Chuckie Taylor Jr. are, on the other hand, not confused in the least about the law of torture. Here is what they've had to say:
First, a defendant doesn't get to walk merely because the indictment charges acts - such as pouring hot water over a victim's body and administering electric shocks to his genitalia - that are not specifically prohibited by the statute.
This argument - that a person cannot know whether his conduct falls within the definition of torture unless it is expressly proscribed by Section 2340 - is precisely the one we've heard from Michael Mukasey with regard to waterboarding. Unfortunately for the new attorney general, however, his subordinates on the front lines consider this contention barely worthy of discussion.
For starters - and here I must interject because the prosecutors obviously found this point too basic to mention in a court filing - almost no criminal statute purports to exhaustively list all the means by which it could be violated. First degree murder, for example, is usually defined as "an unlawful killing with malice aforethought." No laws that I'm aware of specifically proscribe, say, killing your spouse by injecting his pumpkin pie with deadly bacteria in order to cause fatal septicemia - not something my actual spouse needs to worry about, by the way - but ordinary people contemplating this course of action would know that it could well constitute first degree murder, and really ruin a good Thanksgiving dinner.
The operative word here is ordinary - which is precisely what the Justice Department attorneys stressed in their response to Taylor Jr.'s motion. The test of whether a statute provides adequate notice to a prospective defendant, they pointed out, is the same in every criminal case. As the Supreme Court held years ago, the issue is simply whether "reasonable" or "ordinary" persons could consider their conduct in light of the language of the statute and know that they were at risk for prosecution.
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Can ordinary people evaluate whether certain acts or courses of action could reasonably be considered as "specifically intended to cause severe physical or mental pain or suffering" such that they would fall within the prohibition of Section 2340 - even though those acts are not itemized or described in detail?
Of course. The US government lawyers handling the Taylor Jr. case did not even consider it a close question. Neither did the judge.
Second, the Justice Department attorneys were equally dismissive of Taylor Jr.'s contention that the torture statute is overly vague because it does not separately define the term "severe" in the phrase "severe mental or physical pain or suffering." This argument sounds awfully familiar as well, doesn't it?
Unfortunately for the White House, this, too, is a common defense claim that the Supreme Court has addressed with a basic rule: When words are not defined in a statute, they "will be interpreted as taking their ordinary, contemporary, common meaning." Nothing tricky here at all, the federal prosecutors argued in their reply to Taylor Jr.'s motion to dismiss. On the contrary, the criminal code is "replete" with instances of "statutory elements that call for juries to use common sense to evaluate terms such as severe pain, serious bodily injury, severe mental or physical pain." The jury in the Taylor Jr. case would be equally capable of applying the common-sense meaning of "severe" to the facts of the case. The judge agreed.
Finally, what do Justice Department prosecutors and assistant US attorneys think of the notion - advanced by both defendant Taylor Jr. and the Bush administration - that the torture statute is so impossibly complex that it can only be interpreted by experts?
Not much. This is what they argued in their reply memo:
"Defendant is wrong to suggest that the torture statute presents novel questions for which courts and juries are ill-equipped."
The DOJ lawyers prosecuting Chuckie Taylor on charges of committing and conspiring to commit torture are, of course, correct - on all of the above. And Attorney General Michael Mukasey already knows it.
Mukasey knows that, in real life, we are all - including our highest government officials - on notice that we risk prosecution if, under the jurisdictional circumstances of Title 18, United States Code, Section 2340, we commit or conspire to commit acts that ordinary persons would know were specifically intended to inflict serious physical or mental pain or suffering.
In real life, we do not require experts or lawyers to help us understand the meaning of everyday words, and reasonable persons routinely make common-sense decisions based on those understandings. Long-settled principles of criminal law reflect that fact.
Certainly, the powerful - indeed, criminals in general - almost never imagine they will be prosecuted for their crimes. But one day, the orchestrators of the United States' program of state-sponsored torture may thoroughly fall from grace. Their descent has already begun. One day, too, the grotesque stories of our torture victims will become impossible to ignore. When that day comes, the public may demand accountability. The Department of Justice may not be so friendly. Experienced federal prosecutors who no longer fear losing their jobs, or others in the international community, may well undertake a thorough review of the available evidence - the public torture documents, the victims' nightmarish statements, the medical reports, the testimony of witnesses to the abuse and of insiders who've left federal service in despair - and decide that their commitment to justice, and humanity, requires them to pursue charges against the engineers and enablers of this "interrogation program."
It seems unlikely now, but if that should happen, it would be ordinary citizens - not legal experts, not military experts, not judges, not lawyers, not the attorney general or even the president - who would be called upon to decide the case. They would not deliberate over abstract or isolated "techniques." They would hear testimony from real human beings who were beaten, threatened by dogs, kept naked in a 2 x 3 foot box for months, sexually humiliated and - on top of all that - strapped to a board while water was poured down their throats to the point where they believed they were about to die. The jury would see photographs and hear confessions from guilt-wracked government agents. Not all of the victims would have lived through their ordeal, so no one in the courtroom would see them - but their stories would survive.
Yes, Bush administration officials could claim they relied on legal opinions written by DOJ appointee Steven Bradbury. But in criminal law, the defense of reliance on advice of counsel requires good faith, proof of which would be an uphill battle when those legal opinions were kept secret because they purported to sanction conduct which has been universally condemned for centuries.
The jury would be instructed on this principle. And, finally, the jury would be instructed on the law of torture as it actually is - straightforward and grounded in common sense - not on the law as the Bush administration would like it to be. If those in the White House, and their apologists, believe they can ward off possible prosecution merely by misleading the public about the law, they are - just like the defendant in the Taylor Jr. case - wrong. They are, plainly and simply, wrong. It is long past time for them to listen to what the real prosecutors in the Department of Justice have to say.
Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and chief of the San Jose Branch of the US attorney's office for the Northern District of California. Her pieces have appeared in a variety of print and on-line publications including Truthout, TomDispatch.com, The Nation, The Los Angeles Times, Salon, Mother Jones and The Christian Science Monitor. The author of "United States v. George W. Bush et al," she may be contacted at ElizabethdelaVega@Verizon.net.