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UN-Recommended Prosecution of Lawyers Who Cleared US Torture Program Good First Step

A UN panel’s call to prosecute lawyers who cleared US torture program is a good start.

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The United Nations Committee Against Torture (UN-CAT) just completed its review of the United States and found much of concern. In its “Concluding Observations,” the panel called for the investigation and prosecution of “persons in positions of command and those who provided legal cover to torture.

The UN-CAT periodically reviews states that have ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT-CID). The United States is one of these states – Ronald Reagan signed the CAT-CID in 1988, and the Senate ratified it in 1994. The CAT-CID, like all ratified treaties, is the supreme law of the land according to the US Constitution.

Prosecution Is Needed to Regain Moral Compass

Beginning with TV shows like “24” and continuing more recently with films like Zero Dark Thirty, the powers that be have brought torture into mainstream conversation, apparently attempting to normalize torture. Now, the torture-enablers are going further, and are seeking exoneration and vindication at the bar of history.

Torture is a crime that cannot be legalized away. Torture is as depraved as slavery or rape – all are simply wrong. No amount of rationalization by lawyers or assessments by psychologists can make rape, slavery or torture right. Unless the United States wants to follow Dick Cheney to the dark side, it’s time to prosecute those responsible.

Encouragingly, there have been increasing calls for prosecution. The best way to make this happen is to start with the attorneys, because partisan mud-slinging would follow any attempted prosecution of Cheney or Bush and would cloud the issues. Prosecution of the attorneys who worked at the Office of the Legal Counsel (OLC) would avoid some of this, as OLC attorneys are nonpartisan and are specifically tasked with “providing authoritative legal advice” to the president.

OLC attorneys John Yoo and Jay Bybee are the lawyers primarily responsible for implementing the Bush administration’s detention, rendition and torture programs. This has been proven through numerous investigations, including these UN Concluding Observations; the Senate Intelligence Committee Report; the CIA’s own internal investigation conducted by the CIA Inspector General; the Senate Armed Services Committee Report; the European Court of Human Rights; the tribunal in Kuala Lampur, and more. Yoo and Byee should be the initial focus of investigation and prosecution.

Yoo and Bybee Memos Identified by the UN-CAT

Considering that the UN uses diplomatic speech only, the UN-CAT Concluding Observations are perhaps equivalent to pointing a finger at Yoo and Bybee, jumping up and down and yelling “they did it!”

UN-CAT Concluding Observations specifically reference declassified memoranda written by the OLC, beginning in 2001. The start date of 2001 is significant. Beginning in 2001 and continuing in 2002 and 2003, either, or both, John Yoo and Jay Bybee authored all relevant OLC opinions. (By 2003, Yoo and Bybee had left the OLC.) Thus, when the UN-CAT identifies OLC memos from 2001, 2002 and 2003, they are referring to memos written by Yoo and Bybee. The declassified OLC memos include those released pursuant to Freedom of Information Act requests and other standardly released memos. (Other memos have never been released, either to the public or to the UN.)

UN-CAT Concluding Observation 10 finds that OLC memos written between 2001 and 2009 are “deeply flawed” in their interpretation of applicability of Geneva Conventions outside of the United States.

UN Concluding Observation 11 expresses “grave concern” over the CIA’s rendition, detention and interrogation programs starting in 2001 and continuing until 2008.

UN-CAT Concluding Observation 9 specifically criticizes the “interpretative understanding” of “prolonged mental harm” provided by the OLC. “Prolonged mental harm” is included in the US definition of torture. Yoo and Bybee used pretzel logic to find that waterboarding did not result in prolonged mental harm because the “relief is almost immediate when the cloth is removed from the nose and mouth.” Therefore, according to their sick logic, waterboarding is not torture. (Memo from Bybee and Yoo to John Rizzo at the CIA, August 1, 2002.)

Below is a complete list of all declassified OLC memos from 2001, 2002 and 2003 that discuss the alleged legal underpinnings for the US rendition, detention and torture programs. Yoo and Bybee authored or coauthored each and every declassified memoranda on these subjects. In doing so, Yoo and Bybee provided the “legal cover” that the UN-CAT condemned and for which the UN-CAT recommended prosecution. The United States should live up to its obligations under international law, the Geneva Conventions and federal law, and prosecute Yoo and Bybee.

OLC Memos Regarding Rendition, Detention and Torture From 2001 to 2003

  • Memo from Yoo, President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, September 25, 2001
  • Memo from Yoo and [Robert J.] Delahunty, Treaties and Laws Applicable to the Conflict in Afghanistan and to the Treatment of Persons Captured by the US Armed Forces in that Conflict, November 30, 2001
  • Memo from Yoo and Delahunty, Application of Treaties and Laws to al Qadea and Taliban Detainees, January 9, 2002
  • Memo from Bybee, Application of Treaties and Laws to al Qaeda and Taliban Detainee, January 22, 2002
  • Memo from Bybee, Re: Memorandum From Alberto Gonzales to the President on the Applicability of the Geneva Conventions to al Qaeda and the Taliban, January 26, 2002
  • Memo from Yoo, Potential Legal Constraints Applicable to Interrogations of Persons Captured by US armed Forces in Afghanistan, February 26, 2002
  • Memo from Bybee, Potential Legal Constraints Applicable to Interrogations of Persons Captured by US Armed Forces in Afghanistan, February 26, 2002
  • Memo from Bybee, President’s Power as Commander in Chief to Transfer Captured Terrorist to the Control and Custody of Foreign Nations, March 13, 2002
  • Memo from Bybee, Determination of Enemy Belligerency and Military Detention, June 8, 2002
  • Letter from Yoo to Rizzo, acting general counsel of the CIA, a total of three paragraphs to eviscerate the prohibition against torture, relied on by those in Thailand who tortured Abu Zubaydah, July 13, 2002
  • Memo from Bybee, written by Yoo, Interrogation of al Qaeda Operative, the infamous torture memo, August 1, 2002
  • Letter from Yoo, regarding the legality under international law of certain interrogation techniques, August 1, 2002
  • Memo from Bybee, Standards of Conduct for Interrogation, August 1, 2002
  • Memo from Yoo, Authorization for Use of Military Force Against Iraq Resolution of 2002, October 21, 2002
  • Memo from Yoo, Response to the Preliminary Report of the ABA Task Force on the Treatment of Enemy Combatants, February 7, 2003
  • Memo from Yoo, Military Interrogation of Alien Unlawful Combatants Held Outside the United States, March 14, 2003
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