...and that left a loophole the lawyers could exploit.
That conclusion is erroneous, because the legal documents that the lawyers (Yoo, Bybee, Haynes et al) crafted, by some magical fashion, missed all the controlling cases in US jurisprudence and case law.
See:
pegc.us
Specifically, they missed, the japanese war crimes trials, Courts Martial for use of the "water cure" during the Philippine Insurgency, and most recently, prosecution and conviction of a Texas Sheriff and deputies by the Department of Justice in 1983 for torturing prisoners using the "water cure" to elicit forced confessions. A snipet from The Court of Appeal decision affirming those convictions is summarized at the bottom of this post.
The OLC memos, now that we can finally see them, along with all the information that has already come out, with more to come, shows conclusively that the regular institutions (all the military services, the FBI, even the CIA initially) said - '...this is illegal, this is torture, don't do it....'
The Politicians demanded information, however obtained, and ordered their PET lawyers to craft seemingly persuasive legal memoranda to enforce their Political Command: and their pet lawyers complied.
Those memoranda have no more legal force than if I have my lawyer write me a memo saying its perfectly legal to rob at gunpoint the local 7-11.
If you wish another cite to US black letter case regarding lawyers facilitating criminality and War Crimes, google:
United States v. Altstoetter
----------------------
"...Lee was indicted along with two other deputies, Floyd Baker and James Glover, and the County Sheriff, James Parker, based on a number of incidents in which prisoners were subjected to a “water torture” in order to prompt confessions to various crimes. On the morning trial was to begin, Floyd Baker's counsel informed the court and his co-defendants that Baker intended to admit the government's allegations were true but would argue that he did not have the “state of mind” required for criminal liability. Lee, Glover and Parker each intended to defend on the ground that they did not participate in any torture incidents and were unaware that any such incidents were taking place. Counsel for the other defendants immediately moved for severance. The district court deferred a ruling on these motions pending some clarification of exactly what Baker's defense and testimony would be.
At trial, Baker's defense as developed by his counsel and his testimony rested on two points. The first was that he actively participated in only a single torture episode, and then only because ordered to do so by his superiors-a “Nuremberg defense.” The second was that while he believed the torture of prisoners immoral, he did not at the time think it was illegal. In the course of Baker's testimony, he identified Lee as a participant in the torture of several prisoners. Seven other witnesses also connected Lee with various torture incidents. At the close of the evidence, the district judge severed Baker, and put the case of the remaining defendants to the jury. Lee was convicted on three counts...." |
