Go ahead, blame the lawyers.

by: Bob Gentry

Thu Apr 09, 2009 at 21:13:36 PM MST

These top U.S. officials, and notable others, are liable for war crimes under the U.S. War Crimes Act, and for violation of the Convention Against Torture and the Geneva Conventions, which are all part of U.S. law (by the Supremacy Clause). They ordered the torture carried out by the interrogators.  The facts underlying these allegations are undisputed, and the legal conclusions are irrefutable.  

Cheney admitted it on the teevee and Bush himself admitted, "yes, I'm aware our national security team met on this issue. And I approved."  The present conflicted and confused stalemate between the Obama administration and Congress on possible prosecution leaves little hope at present that the rule of law will prevail in the face of these former Bush administration officials' crimes.  That's tragic, but not the subject of this essay.

Each one of these people has fallen back on the old saw, "I was relying on advice of counsel."  And the Bush administration attorneys refute moral, ethical, and most importantly (to them) legal responsibility by saying they just provided the advice, they didn't undertake any criminal activity themselves.  

But the legal profession is self-regulating, though we'll have to wait and see to what degree.  An attorney's license to practice law is a privilege that is supposed to be wholly dependent upon that attorney's compliance with rules of professional conduct.  Each state regulates attorney professional conduct through state bar associations.  Montana's rules are relatively consistent with rules of professional conduct in the rest of the US.  

The legal profession is looking into the activity of Bush administration lawyers, with a substantial push from the National Lawyers Guild (NLG).  The NLG filed a complaint last month with the California Bar Association seeking the disbarment of former General Counsel to the US Dept. of Defense William J. Haynes, II (now Chief Corporate Counsel at Chevron) for moral turpitude, stating that he intentionally or recklessly ignored relevant law and opinions in his legal advice to Donald Rumsfeld.  A similar complaint is pending in Pennsylvania against John Yoo, former Deputy Assistant Attorney General in the Bush administration's Department of Justice, now a professor at UC Berkeley.

Haynes wrote a legal memorandum to Rumsfeld in 2002 recommending approval of harsh interrogation techniques, including removal of clothing, stress positions, and the use of dogs against detainees.  All branches of the military had strong reservations about the legality of the proposed interrogation techniques. Yet, the Haynes Memo advised the DoD to approve the techniques, without telling the DoD about the military's reservations. The Haynes Memo did not mention Common Article 3 of the Geneva Conventions, which prohibits in all circumstances "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment". He failed to highlight, or even mention, Article 1.1 of the Convention Against Torture, which defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession..."

The Haynes Memo failed to discuss domestic law in particular, that U.S. law outlaws torture, including conspiracy to commit torture. Congress defined torture in 18 U.S.C. § 2340 as "an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering."  Mr. Haynes's legal advice failed spectacularly on both the practical and legal level.  Legally, the Haynes Memo was so flawed that is was withdrawn less than two months after issuance. Practically, Mr. Haynes sought approval of the aggressive interrogation techniques for use with a particular person, al-Kahtani. The techniques used on al-Kahtani were "torture" according to the convening authority for military commissions at Guantanamo. Because of the torture, all charges against al-Kahtani were dropped.  Haynes systematically overlooked relevant law and ignored the opinions of the military and others regarding the proposed interrogation techniques. The Haynes Memo, under the guise of legal opinion, advocates what is apparently Mr. Haynes' personal view that torture is acceptable.

On April 1, 2008, the US DOJ released an 81 page memo authored in 2003 by John Yoo.  In that memo, Yoo advised the Bush administration that the Department of Justice's Office of Legal Counsel (OLC) would not enforce U.S. criminal laws, including federal statutes against torture, assault, maiming and stalking in the detention and interrogation of enemy combatants.  

In this "torture memo," Yoo also narrowed the definition of torture so the victim must experience intense pain or suffering equivalent to pain associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions will likely result.  Breaking arms is fair game.  Removing fingernails is fair game.  Since the rack usually resulted in death (as one's spinal cord eventually was separated in numerous places) so one might assume that it was off the table.  Yoo's definition of torture contravenes the definition of torture in the Convention Against Torture, a treaty the US has ratified which is thus part of the US law under the Constitution's Supremacy Clause.  Yoo said self-defense or necessity could be used as a defense to war crimes prosecutions for torture, notwithstanding the Torture Convention's absolute prohibition against torture in all circumstances, even in wartime.

This memo and another Yoo wrote with Jay Bybee (now a Bush appointed judge on the US 9th Circuit Court of Appeals), and David Addington (presently avoiding travel in Spain) in August 2002 provided the basis for the Bush administration's torture of prisoners.

As stated by Vincent Warren of the Center for Constitutional Rights:

The 'Torture Memo' was not an abstract, academic foray. Rather, it was crafted to sidestep U.S. and international laws that make coercive interrogation and torture a crime. It was written with the knowledge that its legal conclusions were to be applied to the interrogations of hundreds of individual detainees... And it worked. It became the basis for the CIA's use of extreme interrogation methods as well the basis for DOD interrogation policy... Yoo's legal opinions as well as the others issued by the Office of Legal Counsel were the keystone of the torture program, and were the necessary precondition for the torture program's creation and implementation.

The prosecution of lawyers for rendering legal advice enabling war crimes under international law and treaties is not unprecedented.  Motivated by the high level of casualties the Germans were suffering on the Russian front, the Nacht - Und Nebelerlass (Night and Fog Decree) was crafted by German Department of Justice lawyers to authorize particularized rules setting out how detainees were to be treated by police, justice officials and others.  Pursuant to legal opinions obtained from his lawyers, Hitler instructed Field Marshall Keitel to issue a special decree authorizing extraordinary measures pursuant to which political suspects would simply "disappear" to special detention facilities and might face summary court proceedings.  The rules specified how such individuals would be permitted to make wills, issue final letters of farewell, what would be done with children born to detainees and how their death could be recorded in the registry. Other lawyers prepared parallel orders creating special secret courts and detention facilities for those interned under the Nacht- und Nebelerlass. These courts were crafted under domestic German law and thus constituted a projection of German law into the occupied territories.  Thousands of people died under these "policies."

But there were also legal heroes in Nazi Germany.  Helmuth von Moltke was a man whose example serves as a model for all, a person who represents the ethical pinnacle of the legal profession.  And he did it from within the Third Reich as a staff lawyer at the German defense ministry during the Second World War.  His tenacious advocacy of the Geneva and Hague Conventions in the face of withering criticism and suspicion from the Nazi hierarchy saved the lives of thousands of civilians and prisoners, particularly on the Eastern Front and in the Balkans. It also led inextricably to his execution at the hands of the Nazis in 1945.  I had the pleasure of meeting his grandson in Vermont in 1993.

For these attempts to disbar war criminals, the hook, pursuant to the Rules of Professional Conduct, is Rule 8.4.  

It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do so, or do so
through the acts of another;
(b) commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects;
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration
of justice;
(e) state or imply an ability to influence improperly a
government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that
is a violation of applicable code of judicial conduct or other law.

In response to a reporter's question on the Haynes petition for disbarment, Robert Hawley, deputy executive director of the California state bar, recalled that President Clinton lost his Arkansas bar license for five years because of charges of perjury in the Monica Lewinsky scandal and that President Nixon was facing charges before the California bar when he resigned.  Hawley said,

It doesn't matter who you are. If you're a lawyer and you're licensed and you violate licensing standards, your licensing jurisdiction will pursue it.

So what chance do these efforts to at least disbar these lawyers, to keep them from ever having the privilege of giving legal advice again, have?  This commenter's blog entry summarizes what I hope is a minority view in the legal profession of disbarment under these circumstances, and probably summarizes Yoo and Haynes' responses to the complaints.  

I abhor Yoo's views, but I am not sure I understand what is the basis for calling for his disbarment. It is argued that he developed the legal analysis upon which the administration based its position justifying the use of torture. It is alleged that his memos were based on questionable, weak legal arguments. The website mentioned above refers to the fact that Yoo "advocated that Bush be allowed to do essentially whatever he wanted in the so-called "War on Terror."

Again, that's terrible, but what rule did he break? If this is all there is to it, is his conduct criminal? Some are arguing that the Bush administration engaged in war crimes by authorizing torture, but does that include the lawyer who wrote the memo with the bad reasoning to justify it? If so, okay, then we can say his conduct is criminal and he should be disbarred for violating Rule 8.4. But one problem with this is that the Obama administration seems intent on dragging its feet and not conducting an investigation into criminal conduct. So can we justifiably disbar someone for "criminal conduct" when the conduct has not been adjudicated to be criminal yet?  

This take begs many questions.  In addition to the obvious one of just what the fuck do you think Rule 8.4 means?  Certainly I am inspired to ask in a much more professionally acceptable way, if this is not a situation in which an attorney must be held responsible for their professional opinions, their work, when would Rule 8.4 ever apply, other than lying about a blowjob?