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Deciphering The Scratchings Of The Torture Consiglieri

Scott Horton hits the painful nail right on the head with this:

…And of course, the torture lawyers fully appreciated from the outset that torture was a criminal act. Most of the legal memoranda they crafted, including the March 2003 Yoo memorandum released today, consist largely of precisely the sorts of arguments that criminal defense attorneys make–they weave and bob through the law finding exceptions and qualifications to the application of the criminal law. But there are some major differences: these memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law.

They have dragged the Department of Justice, as an institution, straight into the gutter. And amazingly, five years later, it continues to sit there in the muck, unable to stand up and step out of it.

Of course they missed some things along the way. The legal analyses were so poorly crafted–making the sorts of sophomoric arguments that would land a law student a failing grade on an examination, that Justice was forced to rescind them. It immediately crafted new opinions, which it continues to keep under lock and key, with the certain knowledge that when they are disclosed the resulting public uproar will force their withdrawal as well. This is the quality of legal work that emanates from the Justice Department under Alberto Gonzales, and now, Michael Mukasey.

They also missed the established precedent I have cited repeatedly here, namely United States v. Altstoetter, under the rule of which the conduct of the torture lawyers is a criminal act not shielded by any notions of government immunity. Sands discusses the history of that case which is, lamentably, known by so few American lawyers…. (emphasis mine)

The Vanity Fair piece that Scott references is startling in its brutal prose, so be forewarned before clicking through this link. But it, like the Yoo memorandum, needs to be read and discussed in the open. Because there is much, much more to come, the indications are all over the footnotes and whispers on this, and have been for months. And what we do not know still? It’s beyond my ability to even imagine how much worse it could be, because thus far we have reached a level that should never, ever have occurred by law or by basic standards of human decency.

Scott’s prior work Deconstructing Yoo and on the blocking of the Bradbury appointment are worth another read-through as well in this context. Glenn has more on Yoo, as does the ACLU.

And an odd little side note for the day — Stuart Bowen, the former IG in Iraq who is now under Bush Administration investigation of his own for allegedly sifting through employee e-mails? His retained counsel is none other than Bradford Berenson. Small world, I suppose. Creepy how all these people keep turning up in the most unexpected places, isn’t it?

Am still trying to force my way through the read of the Yoo memorandum in its entirety. Painful does not begin to describe it.

(YouTube of Pablo Casals plays BACH – Suite no 1 for Cello – part 1, filmed in 1954 in the Abbaye Saint-Michel-de-Cuxa.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com