Tuesday, May 05, 2009

OPR watch

We are closer to knowing whether of not the White House Office of Legal Council (OLC) attorneys Yoo, Bybee and Bradbury will face consequences for the sorry torture memos they crafted in support of the Bush torture regime. The Justice Department's Office of Professional Responsibility (OPR) report on "memogate" is due out soon, and may reflect badly on the OLC attorneys, say news reports. "Among the questions it is expected to consider is whether the memos reflected the lawyers’ independent judgments of the limits of the federal anti-torture statute or were skewed deliberately to justify what the C.I.A. proposed," the New York Times reports.

If so, the consequences could be considerable. So far, no one wants to admit that all the king's men signed off on what they knew was torture. Each new revelation makes denying that fact more difficult, and avoiding our treaty obligations - "the supreme Law of the Land," per U.S. Constitution Article Six - even more so.

Atlantic's Andrew Sullivan puts it bluntly:
The reason this is vital is that it gets to the core of the question of good faith in authorizing the elaborate torture program that Bush and Cheney constructed as their central weapon in the war against Jihadist terrorism. If we can see that the memos were transparent attempts not to explicate the law in good faith to guide the executive branch - but were emanations of the executive branch to provide phony and flawed legal cover for already-decided illegal acts, then we have a conspiracy to commit war crimes.
Having read the Senate Armed Services Committee report, I have already made up my mind (as has Andrew).

How is giving bad legal advice a crime? The question of culpability for that was addressed last month at Opinio Juris by Melbourne Law School's Kevin Jon Heller. A Nuremberg case involving the deportation of 6,000 French Jews to Auschwitz in March, 1942 has parallels:
Scholars who believe that the individuals who wrote the OLC memos authorizing torture should be criminally prosecuted — as I do — normally cite the Justice Case, decided by the Nuremberg Military Tribunal (NMT) in 1947...

There is, however, another NMT case that does provide significant support for prosecuting the authors of the OLC memos: United States v. von Weizsaecker et al., better known as the Ministries Case... The critical defendants are Ernst von Weizsacker himself, who was the State Secretary in the Foreign Office, and Ernst Woermann, who was the Undersecretary of State and head of the Political Department in the Foreign Office...
The tribunal found that the two both knew that the deportations violated international law, and that they had a duty to object when Eichmann wrote to ask if they had any objections. They did not. Both were convicted.
Indeed, in one critical respect, the case against the authors of the OLC memos is even stronger than the case against von Weizsaecker and Woermann. The latter’s criminal participation in the deportations consisted solely of omissions – failing to point out that the deportations violated international law. The former’s criminal participation in the CIA’s torture regime, by contrast, consists of both acts and omissions, because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime.
At a minimum, the Times suggests, the report may suggest disbarment. Bush administraion officials are already "scrambling" to minimize the damage.

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