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How to Torture the Bush Six
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Torture-memo authors John Yoo and Jay Bybee will likely not be prosecuted but law professor Paul Campos says the legal profession can punish the men who sanctioned war crimes.
An open letter to my fellow law professors:
Last summer, I took part in a conference at which John Yoo was participating on another panel. It was a large event, featuring dozens of talks, and I hadn’t been aware that Yoo was speaking until the night before my talk.
Still, I felt a stab of conscience at the idea that I was, in my own very small way, helping to lend an aura of respectability to Professor Yoo and his ilk by continuing to play a part in a horrible charade. This charade pretends that the willingness of people at the top of our government to use methods of torture associated with the darkest days of the Inquisition, and perfected by the 20th century’s worst war criminals, is nothing but a “policy disagreement,” like a squabble about capital-gains tax rates or automaker-bailout packages.
If you think Bybee and Yoo and the rest ought to be tried as war criminals, then treat them like people who should be tried as war criminals, not as respectable colleagues with whom you happen to disagree about this or that point of legal interpretation.
It wasn’t. It was a hideous, shameful crime, which future American generations will look back on with shame and amazement.
But this conference was nearly a year ago now, when the nation was still in such deep denial about that crime that it was easy enough for people to repress their qualms and continue to act as if everything was still business as usual.
I gave my talk, and collected a nice little honorarium, before enjoying a splendid celebratory dinner with Bill Clinton, Colin Powell, Tom Friedman, Arianna Huffington, and many other utterly respectable luminaries whose consciences, like mine, had not prevented them from appearing.
I would like to think I wouldn’t be willing to do the same thing today. For one thing, after the recent disclosure of the torture memos that Yoo helped to author with Jay Bybee, the fact that we became a nation that tortured as a matter of official policy is now much harder to ignore.
Given that the United States is obligated under both domestic and international law to prosecute acts of torture, the legal consequences of the Obama administration’s stated view that waterboarding is torture would seem clear. Spanish prosecutors have decided to indict six former top Bush administration officials for their role in approving the torture of Spanish citizens held at Guantanamo Bay, but it seems unlikely that criminal charges will be brought against the Bush six in any U.S. court—a recent Justice Department investigation decided to not pursue prosecution. Indeed, even such comparatively weak responses as impeaching Bybee, firing Yoo, and disbarring any of the lawyers involved appear to be, for now, off the table.
All this raises some tough issues for the legal profession in general, and for us legal academics in particular. Plenty of prominent law professors have expressed some variation of the view that Bybee and Yoo played a key role in what Yale law professor Jack Balkin has described as “what appears to be a conspiracy to commit war crimes.”
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Paul Schrodt is a writer living in New York City. He has contributed to New York magazine, Radar, and Esquire.com.
Justice Clinton?
As vice chairman of Public Strategies and president of Maverick Media, Mark McKinnon has helped meet strategic challenges for candidates, corporations and causes, including George W. Bush, John McCain, Governor Ann Richards, Charlie Wilson, Lance Armstrong, and Bono. McKinnon is co-chair of Arts & Labs, a collaboration between technology and creative communities that have embraced today's rich Internet environment to deliver innovative and creative digital products to consumers.
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Paul Campos is a professor of law at the University of Colorado at Boulder.
Supreme Sellout
Paul Campos is a professor of law at the University of Colorado at Boulder.
Serena Was Totally Justified
Paul Campos is a professor of law at the University of Colorado at Boulder.
MagnoliaState
Um, good luck with those "suggestions." Exactly how would you refuse to send a student to clerk for Bybee? You might try to dissuade the student or refuse a reference, but it is the student's choice. And not hiring people who've "worked on the same city block" as the so-called torturers/war criminals? Ha! This article reeks of over-the-top hysteria.
PASTORDAVID
I am really amazed at the insistence that President Bush, his administration should all be indicted for some war crime? Has anyone really given thought about what took place on 9/11? How in the name of freedom were we suppose to get valuable information from these, and let me be real gentle here, don't want to offend any liberals or any terrorist, MURDERS? Does Mr. Campos actually believe that these men deliberately went out and thought up the most hideous type of practice just so that they could extract some sort of information and at the same time inflect retribution? Does anyone really have an idea of what it took to capture these men and prevent another attack on U. S. soil? If you have a better way of gaining information from these men who planned and executed this horrific crime against innocent people then by all means tell us. These terrorist proclaimed war on America and its people. This was a war we did not encourage nor did we expect. But it happened and war is war and these men were part of it. I am really amazed that for the last seven years we have not had an attack on American people. I am grateful that in these last years we did not have to bury our brothers and sisters because of some religious mandate. But as I read further and saw the type of people Mr. Campos hung around with: "I gave my talk, and collected a nice little honorarium, before enjoying a splendid celebratory dinner with Bill Clinton, Colin Powell, Tom Friedman, Arianna Huffington, and many other utterly respectable luminaries whose consciences, like mine, had not prevented them from appearing." I realized where he stood. A big thank you Mr. Campos is in order here.
RickJames
The sad truth is that the bulk of the terrorist threats to the U.S. were fiction. If Republicans were honest they would admit that every time the Bush administration's polling numbers dropped they would raise the threat level because of some absurd imminent attack. (Just think about all the duct tape that people bought because of the imaginary biological attack that was supposed to be so imminent or the imaginary destruction of every major bridge in America that was imminent, ect, ect.) To my knowledge that only plausible one was the shoe bomber who represented a lone fanatic and not a coordinated attack.
The real question that should be asked is not whether there were no attacks after 9/11 because of measures taken by the Bush administration but whether there were no attacks because El Qaeda was only as small group of fanatics that got lucky with one operation and had no other feasible operations in the pipeline.
If the answer was that the Bush administration kept us safe, you can be sure the Bush administration would have provided details of the imminent major attack. Because no details have been provide it is obvious to all that the latter is the truth.
Ironically it is precisely because of the incompetence of the Bush administration that El Qaeda was not defeated and has been able to reconfigure itself as major terrorist organization capable of another major attack. Water boarding someone six times a day for month will not change that brutal truth.
oliverckerr
A terrorist act, the murder of innocent people is a crime against humanity. An act of torture is a crime against humanity. Both are the same.
An Afghani citizen is denounced to the CIA (cash in advance) Americans as having ties to al Qaeda. The citizen denounced is grabbed and taken to a dark hole in a prison and there, tortured for information.
That is a fascist act and a fascist act is just that a fascist act. We are not fascists.
The fascists confuse reality. One cannot make any connection with torture and our safety. Torturing people only incensed people to join the terrorists who then willingly strapped a bomb to their chest, to get back at us for torturing their cousins.
One of the reasons for the torturing was to get confessions that saddam and bin Laden shared the same hot tub, a reason to attack Saddam. It has not been suggested anywhere that the Bush administration should be indicted.
But those people who participated in setting the stage for war crimes should be brought to justice. Were someone to grab you after a sermon and waterboard you for whatever reason - to get your confession - you would want those people brought to justice.
You make so many false assumptions. An example: "Does anyone really have an idea of what it took to capture these men and prevent another attack on U. S. soil?"
What makes you think it took so much to grab someone who was only guilty of being denounced by someone else. How did the capture of an accused dissident save lives over here.
What about innocent until proven guilty? Without that rule in place then anyone can be arrested and tortured at any time. You aren't a real pastor. You couldn't be.
lmktacwa
Convention Against Torture -- signed by Reagan in 1988, ratified in 1994 by Senate:
Each State Party shall ensure that all acts of torture are offences under its criminal law (Article 4) . . . . The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. . . . An order from a superior officer or a public authority may not be invoked as a justification of torture.
Geneva Conventions, Article 146:
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.
Charter of the International Tribunal at Nuremberg, Article 8:
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
U.S. Constitution, Article VI:
[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.
mrprman
This is a war that did not have to be, it could have been prevented if the incompetent Bush administration had heeded the warnings of the outgoing Clinton admin. 9/11 happened under Bush's watch and it is also true that the Nation had been free of attacks for the last 7 years of the Clinton administration and all without a war on terror.
blissfulight
You've been watching too much TV if you believe that torture works. We've been using interrogation without torture to successfully obtain information (and confessions) for many years prior to 9/11, and we will do so for many years after. We can't prevent 9/11 (it already happened, in case you haven't been reading the news for the last six years), and in any case there are no direct links between so-called enhanced interrogations/torture and the foiling of any plots against the American people since 9/11 (as they say, "prove it"). War crimes are war crimes, no matter if you cloak them in legal opinions, secrecy, political words, or the stupid as as stupid does kind of defense. Clearly, you do owe Mr. Campos a big thank you having the courage to tread where Obama and his administration feared to go, and God grant you the capacity to see that the bulwark of the prior administration's defense that they were doing it for all the fallen on 9/11 is complete, absurd nonsense.
PASTORDAVID
I realize that however I answer this I will be mocked or ridiculed for my opinions. Still, I am not convinced that enhanced interrogations did not yield some significant information. I guess if all the information was released on this matter maybe we will all know the truth about enhanced interrogations? I know I can already see the response coming, "There is nothing new to release." But what if all the memos were released and it was found that some of these methods really worked, then maybe we could put this silliness aside? I am not foolish enough to think that everything that has happened after 9/11 was for the defense of the fallen. Please give me a little credit. But how are we to make credible conclusions when not all the information is given? Are we to take the word of the President, Holder or Napolitano? No, I am not going to thank Paul Campos for his earth shattering revelation. I do give the President credit for moving slowly through this landmine.
FrankleeMiDeer
Pastor, eh? What denomination?
May God have mercy on your soul for approving of torture in any form.
BuckTurgidson
Are you proposing the full suite of techniques as used at Abu Ghraib and other out of country facilities? Because that puts you in the position of supporting instrumental rape of adults, rape of children, beatings, starvation, live burial, sodomy, mutilation of genitals via razor blades, hypothermia, mental abuse and psychological abuse, and ultimately murder. Did you know that the torture, like the wiretapping, began before the legal justification for it was sought?
By torture working, do you mean coercing random people via torture into supporting Cheney's policies, which were based on lies? Because torture is a great way to get people to lie and tell you how smart and awesome you are, how kind and forgiving, while you rape their children (Remember the Abu Ghraib documents that weren't released? They were bad enough to make a rat or a Republican puke.)
There is no torture that can make a determined person tell the truth. Torture only serves to lower us to the level of the monster we claim to be fighting. Becoming a totalitarian authoritarian nation will do nothing to prevent terrorists from attacking us-it will only create more terrorists because a dictatorship needs enemies to be successful, otherwise the people will rebel when they see they've been lied to. If we were truly a great nation, the Bush administration and any Democrats, bureaucrats, military personnel and lawyer/sociopaths involved would be in a prison awaiting trial.
like-mind
Excellent - death by professional asphyxiation.
Bravo, I agree. This Shunning ought to be discussed far and wide so that it's on everyone's mind when they're around these amoral opportunists.
drmarkklein
What were we supposed to do after 9/11? Just mirandize and lawyer up suspected terrorists.
muddog
Yes.
If torture DOES NOT work and we DO NOT GET information to stop the next attack, is that not a risk to US security?. Torture is like the death penalty, it does nothing to stop murder but it has everything to do with revenge. It makes us feel like we are "getting" back when in fact we are stooping to a level that the terrorist play on AND it does not work.
I thought what set the US apart from the rest of the world was how we acted in a time of crisis. Apparently we are not much different.
Show me ONE attack that was thwarted because of info from torture.
motrbotr
I'm pretty sure that the death penalty does stop murder.
Its funny. Obama, says we have gained information from waterboarding BUT everyone forgets that part. I say lets not torture any more. Hell, lets not fight anymore, bring our troops home, disband the military. If we are just nice to the world, we will be fine.
muddog
Iraq, Afganistan has made the world so much safer....
Who said disband the Army?.
Proove the death penalty works?. We have the most people on death row out of ALL western countries.
Who said just be NICE to everyone?. It's easier to beat your chest, in the case of Bush and Co, they can avoid military service but will use it for their pathetic political means.
Obama is not the ANSWER but he is an adult and will provide much needed and MATURE leadership compared to the school yard bully tactics of the last 8 years.
If we are to hold other countires ( China , Russia ) to a higher standard then we should set an example before we preach.
OnwardRocinante
I support your admittedly pathetic effort at sanctions. Alas, we shall have to wait for their consciences weigh heavily upon them. A guilty conscience may lead to a bout of heavy drinking, getting behind the wheel, and ultimately to a DUI. Then, maybe, their respective State Bars will sanction them.
heaterbox
Why do people of opposite opinion these days feel the need to destroy the opposition. This professor's own opinion would lead us to believe that the only legal views that are right are his. And by his own logic any opposing view shoud be crushed. Didn't one of our 20th century leaderes already try that,? I believe his name was Hitler
BuckTurgidson
Besides the Godwin violation, the fact that the convention against torture was signed by conservative demigod Reagan as well as the Geneva Conventions and out own constitutional prohibitions against cruel and unusual punishment, I would say that the professor's opinion is the only possible correct and morally right answer. Anything else is excusing perversion of justice and atrocity.
I thought Conservatives weren't supposed to have gray areas in their Manichean moral system, but apparently when it is to err on the side of cruelty, vengeance, and sadism, everything is swell.
heaterbox
Ask Mr. Pearl's widow about Geneva Conventions, and perversions of justice. I suppose the lowely secretary that showed up early for work on 9/11,at the world trade center should rest easier knowing that this professor would condemn these terrorists for violating her civil rights. The people who did these things could care less about rule of law and civil rights. I challenge all those who condemn these actions to go the Iran and make the same case to the government there about the Taliban, and other extermist in Iran. I agree that cruelty begats cruelty, but remember they sowed these seeds when they fly jets into buildings
Pupster
I'm rather disgusted by Mr. Campos's wimpy response. Last year, he knew Yoo was guilty of torture memos but admits that he was able to waive his conscience. It's only now, with societal approval, that his conscience can no longer abide it? Could that be more cowardly? Should we applaud his need for public opinion validation?
Then, he offers as his solution to ignore and shun the perpetrators. Is this high school? Why this fey passive-aggression? Instead of avoiding the guilty parties, why not actively work to get them disbarred and evicted from the profession. Why let them continue to practice? Do lawyers who have active professional associations and accreditations work actively to expunge these embarrassments from your ranks? This is like the AMA standing by while malpractitioners continue to let patients die on the table.
Take a stand. Grow a pair. Don't just ignore. Get them out of practice. Have them fired. Make sure they never practice again.
d-jacks
PastorDavid, drmarkklein, and heaterbox the government should be allowed to torture - but only when bad things happen like 9/11 or maybe WWII.
lmktacwa
Convention Against Torture -- signed by Reagan in 1988, ratified in 1994 by Senate:
Each State Party shall ensure that all acts of torture are offences under its criminal law (Article 4) . . . . The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. . . . An order from a superior officer or a public authority may not be invoked as a justification of torture.
Geneva Conventions, Article 146:
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.
Charter of the International Tribunal at Nuremberg, Article 8:
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
U.S. Constitution, Article VI:
[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.
AiriqS
Bill Clinton - utterly respectable luminary.
I believe he is a disbarred attorney for commiting perjury?
Martyz42
Nothing will happen to any of the Bush Crime Family because they are all, every one of them part of the White, Rich, Politically Connected elite that has corrupted this as well as other nations for decades. This ruling class has used money & religion & fear to run the world & will continue to do so until the people stand up for what is right & what is wrong. I am not talking about class warfare, I am talking about the rule of law being the same for rich & poor. I am talking about the rule of law being enforced against all wrong doers regardless of wealth & power & regardless of who or how many elected criminals they know & have supported with money over the years.
Simonsez
To Pastordavid:
The hardest thing to do is remain loyal to our ideals in face of the most brutal. If what we stand for is the moral superiority to the terrorist ideology and if we reduce ourselves to their level we gain nothing and have no ground to condem their methods.
mmarshall
As a mother of a member of the Army who has to go into the throws of insurgent country, I would like to state that torture by the US can put my son in even greater danger.
How about it pastordavid, join the Army and fight for all of your lofty ideals on protecting our country. And how does a pastor (are you really?) justify torture with religion. WWJD!!!!
lmktacwa
I am a mother of a son in the Air Force stationed in Iraq: got the following off of thinkprogress:
It is torture itself - not its cessation - that serves as a recruiting tool for new terrorists. Experts from FBI special agent Jack Cloonan to torture victim Sen. John McCain (R-AZ) to former Army JAG Major General Thomas Romig all agree that Bush and Rove's "enhanced interrogation" program recruited terrorists who have killed thousands of Americans. Indeed, former military interrogator Matthew Alexander cited Bush's interrogation program as the most effective means to recruiting insurgents in Iraq who were battling Americans every day:
The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me - unless you don't count American soldiers as Americans.
Pastordavid: To read ThinkProgress's extensive report, Why Bush's "Enhanced Interrogation" Program Failed, go here: http://thinkprogress.org/why-enhanced-interrogation-failed/
PASTORDAVID
Thank you for the link. If others of you have similar links I would like to visit them.
kansas1946
Grand idea. You know, sometimes becoming a social pariah is as effective a punishment as there is. The Amish know this, and call it "shunning" and it is devastating to the person being shunned. It should be easy, because anyone who loves the law and loves our country shouldn't have any trouble turning their backs on these men, if not spitting at their feet. Not that it would ever be an issue, but I would not allow one of them in my home, I would not sit at the same table as one of them, and I would not acknowledge them in any capacity. Maybe they will all slink off to Iran, or, Syria, where their legal definitions of torture would be better appreciated.
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