I can’t take credit for an exclusive scoop for uncovering and exposing a US government document that says that Jay Bybee and John Yoo must go to jail for their torture memos. The document has been there all along, readily accessible to anyone who wanted to find it. But, so far, I haven’t seen anyone quoting this document in the back and forth argument about what to do about the authors of the torture memos. It seems to have been studiously ignored even by those in favor of prosecution of the authors.
The thing that all the people kicking this thing around have forgotten is that when you want to know what to do about a crime, you go to law.
Here it is:
Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment or fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imp rosined for not more than twenty years.
It is not a defense to a prosecution under this section that the person solicited could not be convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution.
This document is from the US Code, Title 18--Crimes and Criminal Procedure, Part I--Crimes, Chapter 19--Conspiracy, Sec. 373. Solicitation to commit a crime of violence, paragraphs (a) and (c).
Yoo and Bybee meet all of the requirements called for in the section that make their actions in writing the memos a crime.
“Whoever” includes them. Although they would be horrified, from their lofty perch on the bench and professorship, to find that they are in a category that includes the rest of us.
“With intent that another person engage in conduct constituting a felony.” Their memos were intended to give George Bush, Dick Cheney and Donald Rumsfeld cover for committing the crime of torture.
“Under circumstances strongly corroborative of that intent.” Yoo and Bybee were instructed to provide a legal cover to torture in order to find a non-existent connection between Saddam and 9/11, between Saddam and Al Qaeda and that Saddam had weapons of mass destruction that Bush had already been told did not exist.
“Solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct.” Bush and Cheney didn’t need much, if any, inducement or persuasion to commit torture. They had already made up their minds to do it, anyway.
Even though the section does not use the word torture, torture comes under the criteria for the use of physical force. You can’t torture without it.
The second paragraph says, in so many words, that even though George Bush was of a state of mind to torture, because he was and is incompetent and irresponsible, and even though Bush may falsely claim that he is immune from prosecution, Yoo and Bybee can’t claim that as a defense. And, even though George Bush was and is a complete doofus, that doesn’t excuse Yoo and Bybee from inducing and persuading him to torture.
It does seem to be a gross breach of morals and ethics, if not an additional crime, for Yoo and Bybee to persuade an incompetent mentally deficient person such as Bush to commit a crime. But, since You and Bybee have demonstrated with their memos that they are also incompetent and mentally deficient, we must contemplate that they will use that as a defense. A defense of mental derangement comes to mind. If that works, then instead of jail, they would have to be sentenced to a mental institution.
Their own torture memos in their own words are prima facie evidence of their crimes. According to this section of the US Code, all any judge would need is to just read their memos and send them directly to jail. We know from their memos that they’re guilty as hell. But, the presumption of innocence will see that they have a trial and in a fair and impartial trial that presumption will be destroyed by the evidence.
The evidence. The thing that Bush and his ideology driven administration has ignored and pretended doesn’t exist when it contradicts their ideology, will be the thing that they will still not understand as they look at it for twenty years through the bars of their jail cell.