Prosecution’s Opening Statement in US v. Bradbury, Bybee, and Yoo
[The DOJ’s Office of Professional Responsibility is winding up their investigation of the Bush-era Office of Legal Counsel at the DOJ. Leaks are flowing, and they suggest that the biggest sanction that OPR will recommend is that Bradbury, Bybee, and Yoo face disciplinary hearings with their various bar associations.
Sorry, but this is not acceptable.
What is needed is a criminal prosecution.
Since the DOJ is shorthanded right now (what with the various sub-cabinet level appointees like Dawn Johnson being held up in the Senate), I thought I might give the DOJ a hand and — with the help of the fine legal team at FDL and EW — draft an opening statement for the Government in the case of United States v Bradbury, Bybee, and Yoo.
For the record, I never attended law school. Also for the record,
neither did Justice Jackson only attended for one year. [corrected]
May it please the court.
Torture is a war crime, and it is clear from the reports and memos that have been released (see here (pdf), here (pdf), here, here (pdf), and here), that it was practiced at US detention facilities at Guantanamo Bay and elsewhere by agents of the United States government. Media reports of other still-classified memos and reports only add color to the already vivid picture.
The International Committee of the Red Cross (pdf) calls it torture, Physicians for Human Rights calls it torture, the U.N. special investigator for human rights and counterterrorism calls it torture (link), the medical professionals at the Center for Victims of Torture (pdf) call it torture — everyone calls it torture.
Everyone, that is, except Messrs. Bradbury, Bybee, and Yoo, and their superiors in the Department of Justice and the George W. Bush White House.
And They. Are. Wrong.
But they are more than just wrong. This is not a simple case of a professional disagreement between lawyers who came to different legal conclusions on a thorny issue. No, this is a case in which these high-ranking DOJ attorneys knew the practices their superiors wanted them to justify, and they willfully turned their eyes away from anything that would have prevented them from reaching their pre-determined end result. These are not incompetent lawyers, who somehow wrote a set of very poor legal opinions for the rest of the executive branch to use. These are very careful lawyers who painstakingly tailored their advice so as to enable and endorse torture.
These lawyers did not pour the water on the faces of those who were strapped to boards — but they gave the unholy practice the blessing of the US government. These lawyers did not put detainees in stress positions for extended periods of time, deprive them of sleep, or lock them in small confined spaces — but they gave an official seal of approval to these practices, and in a move worthy of Orwell, they called them not torture but "enhanced interrogation techniques."
We’re going to show you the evidence that makes it crystal clear that these are not poor lawyers who drafted some bad legal advice, but good lawyers so anxious to please that they willfully departed from the law. For example:
- John Yoo, who properly listed Youngstown v. Sawyer among the first week’s readings for his Spring 2000 course on Foreign Relations Law because of its centrality to any discussion of the separation of powers, somehow didn’t see it as important enough to mention in 2003 when he wrote the March 14 memo to the DOD in which he declared sweeping and unchallengeable powers for the president under his Commander-in-Chief military authority — an argument explicitly denied in Youngstown.
- The Bush administration did not notify the Congressional Intelligence committees before using the so-called "enhanced techniques" as required by law, but instead did so only after they had finished waterboarding Abu Zubayduh 83 times.
- The DOJ in general and Stephen Bradbury in particular dragged their heels when asked by the Legislative branch to justify their approval of torture in the face of constitutional prohibitions and international treaty obligations, finally offering only the poorest of excuses when it was obvious that the questions would not go away after almost a year.
- Bradbury wrote an embarassingly self-serving memo, five days before the arrival of a new administration, trying to sweep away seven years of efforts to give torture some kind of legal cover by the DOJ, as if to say "Never mind."
Selective citations in legal memos. Selective and misleading notification of Congress. Obstructing legitimate oversight. Attempting to sweep the record of the OLC out the door. This is the pattern of careful attention to detail exhibited by of the Office of Legal Counsel under Attorneys General Ashcroft and Mukasey.
These high ranking DOJ lawyers put "getting ahead" and "pleasing the boss" ahead of their duty to the Constitution of the United States and their own obligations as lawyers to follow the law where ever it leads. They sold their legal souls by providing the cover of law to practices so abhorrent that they are called not crimes against the state but crimes against humanity.
Our own humanity demands that we hold them accountable for what they enabled: the acts of torture that were carried out in our names.