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Deterring Torture Through the Law

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By Coleen Rowley and Ray McGovern 

"First, let's kill all the lawyers" may have made sense in that Shakespearian scene, but there is a far simpler solution to the legal ambiguities regarding what to do now about the torture approved by President George W. Bush.  We suggest this variant:  First, let's have the lawyers review their notes from Criminal Justice 101.

The professor whom Coleen Rowley had for that course at the University of Iowa was the consummate curmudgeon.  He kept repeating himself.  It is now clear why.  The old fellow hammered home the basic purposes of the criminal justice system and the various kinds and degrees of criminal intent.  For Rowley, 24 years as a FBI special agent and attorney helped make it all real.

Eight years of the Bush/Cheney administration have served to make the matter of criminal intent the first essay question on the final exam for Criminal Justice 101, so to speak.  But obfuscation (much of it deliberate) reigns; worst of all, it impedes the important task of seeking accountability for those responsible for torture.

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Criminal intent comes in essentially three kinds:  No one needs much help understanding the "deliberate-premeditated-cold blooded" first-degree intent, because that's the stuff of the movies--the perfect murder scheme or elaborate plot to pull off the heist of the century.  "Second-degree intent" is also easy to grasp.  It is the usual label for what prompts people to commit unplanned crimes in the heat of passion, for example.

It was to that third type of guilty intent—"recklessness"—that the old law professor devoted most emphasis, using his favorite "Russian Roulette" hypothetical to distinguish it from the first two types and from mere negligence.  His words still ring:  "One cannot simply put a gun on a table knowing there is a bullet in the cylinder, spin the cylinder, point it at a person, pull the trigger and then say (when it goes off), 'It's not my fault, because I was hoping it would spin to one of the empty chambers.'"

The First and Third Degrees

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The evidence on the Bush administration's torture decisions, which is becoming more abundant and damning as the weeks go by, rules out second-degree intent; i. e., unplanned crimes in the heat of passion.  These decisions were much more deliberate.  As the saying goes, after 9/11 "everything changed."  With virtually no opposition, the president was allowed to declare the country in a "war on terror" and consider himself above the law.

Indeed, after his address to the nation on the very evening of 9/11, Bush assembled his top aides in the White House bunker and set a lawless path from the start.  One of the aides present, Richard Clarke, has written in his memoir, Against All Enemies, that the president insisted:  "[W]e are at war…Nothing else matters…Any barriers in your way, they're gone…I don't care what the international lawyers say, we are going to kick some ass."

A bipartisan report released on Dec. 15, Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, highlights in its "First Conclusion" the fact that on Feb. 7, 2002 the president issued a written determination that the Geneva protections for POWs did not apply to al-Qaeda or Taliban detainees; and that following that determination, techniques like water boarding were authorized for use in interrogation.  The U.S. Supreme Court ruled in June 2006 that such detainees could not be exempted from the protections of Geneva, despite efforts to "redefine the law to create the appearance of legality" for aggressive techniques, as the recent Senate report puts it.

Sounds Premeditated, No?

Administration apologists, from Rush Limbaugh to Attorney General Michael Mukasey claim that none of those who approved or conducted torture had guilty intent, but were only trying to protect national security.  (That's right—the same Mukasey who professes not to know whether water boarding is torture.)

Mukasey's sophistry calls to mind the disingenuous argument of other administration lawyers that one could apply harsh interrogation techniques to a detainee, as long as your intent is not to inflict pain but rather to obtain information.  Not to mention the pithy hint provided by a CIA attorney: "If the detainee dies, you're doing it wrong."

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Add to this mix the remarkable guidance of Justice Department counsel, Jay Bybee (now a federal judge), quoted in the Senate report:

"Violent acts aren't necessarily torture; if you do torture, you probably have a defense; and even if you don't have a defense, the torture law doesn't apply if you act under the color of presidential authority."

Clearly, the so-called "rotten apples" sat atop the proverbial barrel, as the Senate report demonstrates time and time again.  If you'd like still more proof of premeditation and you missed Vice President Dick Cheney Monday on ABC TV bragging about his role in facilitating water boarding, please read the transcript.

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Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in inner-city Washington. He was an Army infantry/intelligence officer and then a CIA analyst for 27 years, and is now on the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS). His (more...)

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