Lawyers who reject President Barack Obama's decision not to seek prosecution of officials who may have participated in the torture of terror-suspect prisoners are seeking justice through another avenue: Sanctions against government lawyers who created the "enhanced interrogation" policies of former President George W. Bush.
Their first target is former Defense Department General Counsel William J. Haynes II. The San Francisco Bay Area chapter of the National Lawyers Guild (NLG) has filed a complaint against Haynes, asking the State Bar of California to investigate him and revoke his status as Registered In-House Counsel. Haynes is now an attorney with Chevron Corp. in San Ramon, California.
The Los Angeles Times reports that a similar complaint is being prepared in Pennsylvania against former Justice Department lawyer John C. Yoo, the University of California Berkeley law professor, for his role in drafting the legal guidelines that approved enhanced interrogation techniques including waterboarding during his service in the DOJ's Office of Legal Counsel (OLC) during the Bush Administration.
Marjorie Cohn, President of the NLG, told us, "The lawyers who provided the high Bush officials with 'legal' cover were participants in formulating the policy of torture and cruel treatment. They should be the targets of criminal investigations and should also be disbarred for their ethical violations."
She also noted that the complaint filed with the Pennsylvania state bar against John Yoo "has been put on hold pending the release of the report of the DOJ's Office of Professional Responsibility, which is apparently highly critical of Yoo, Jay Bybee and Stephen Bradbury, authors of the torture memos."
Haynes served as the DOD General Counsel from May 24, 2001 until his abrupt resignation on February 25, 2008. He resigned days after an article accusing him of rigging trials of enemy prisoners at Guantánamo Bay appeared in "The Nation" magazine. Haynes was the DOD's chief legal officer and legal adviser to then-Secretary of Defense Donald Rumsfeld.
Several memoranda to and from Haynes were released as part of the Obama Justice Department disclosures of March 2009.
Haynes was also one of the six Bush-era officials named in the ongoing investigation of torture and other unlawful acts currently being considered by the Spanish judiciary.
The NLG complaint charges that, while General Counsel at the DOD, Haynes advocated for harsh tactics amounting to torture in violation of U.S. and international law. His "improper advocacy directly led to detainee abuses at the Guantanamo Bay and Abu Ghraib facilities," the NLG complaint charges.
It says Haynes "breached his duty as a lawyer" in providing legal cover for U.S. soldiers and federal agents to use dogs, nudity, stress positions and other humiliating tactics to break down terror suspects.
The complaint says Haynes "is directly linked to the torture of at least one detainee," Mohamed Mani Ahmad al-Kahtani, an alleged member of al-Qaeda, who allegedly intended to come to the U.S. to take part in the terrorist attacks of September 11, 2001 as a "muscle hijacker" but was refused entry due to suspicions that he was attempting to immigrate. Since January 2002, al-Kahtani has been detained at the U.S. prison at Guantanamo Bay, Cuba.
According to Susan J. Crawford, convening authority for military commissions at Guantanamo, Al-Kahtani's treatment during this time was torture. She stated, "We tortured Kathani. His treatment met the legal
definition of torture." Because of his torture, Crawford dismissed the charges against him.
The NLG charges that Haynes is also directly linked to the prosecution of low-level service members for using techniques he approved.
Haynes's conduct "demonstrates moral turpitude," the NLG charged. The group alleges that he failed to show "respect for and obedience to the law, and respect for the rights of others" as required by the rules of the California bar.
He "intentionally or recklessly" failed to act competently, failed to adequately supervise the work of subordinate attorneys, and forwarded "shoddy legal memoranda regarding the definition of torture" to Rumsfeld.
"Haynes further acted incompetently by advising Secretary Rumsfeld to approve interrogation techniques that were in violation of U.S. and international law, and without even mentioning strong objections by the military," the complaint says.
Under a legal memorandum written by Haynes and approved by Rumsfeld, one detainee was "bothered by the presence and touch of a female," "females viewing his naked body," and being refused the right to pray.
Haynes "recommended approval of aggressive interrogation techniques that the military stated may violate the law. He forced subordinate attorneys to rely on memoranda prepared by the Office of Legal Counsel that have since been rescinded in an unprecedented manner. His advice was so contrary to the law that Secretary Rumsfeld was forced to rescind the approval based on the Haynes Memo," the NLG complaint says.