Draft Lawyer Story – PDF

2006 Draft Lawyer Story

Ratner lawyer story——-

Wka—I have not proofed or reread as I wanted to get this to you. A lot more could be done, but of their complity I have no doubt esp the aug 1 memo—phase 2 on CAT—

The evidence is sufficient to require a criminal investigation into the complicity of government lawyers, Gonzales, Yoo, Bybee, Addington, and Haynes in the aiding and abetting of war crimes and in particularly torture in violation of the humanitarian provisions of the Geneva Conventions

[wka I am not sure we are adding all these—certainly gonzles yoo Bybee] [goldsmith is really a different issue]

While it may be unusual for lawyers giving legal advice to also be investigated and charged with complicity in war crimes, it is not unprecedented. The key decision holding that such legal advice can be actionable is the World War II case, United States v. Altsoetter. The legal principles of liability underlying the Alsoetter case are well known and not in dispute. The defendants in that case were charged with conscious participation in a nationwide governmentally organized system of cruelty and injustice, in violation of the laws of war and humanity, and perpetrated in the name of law by the authority of the Ministry of Justice….

To be found guilty under this standard it was necessary to find:

  1. the fact of the great pattern or plan of racial persecution and extermination; and
  2. specific conduct of the individual defendant in furtherance of the plan.

This second requirement was further elaborated upon as a need to show that the defendant “consciously participated in the plan or took a consenting part therein” to further the abuses. The defense that somehow a defendant’s legal opinions regarding his interpretation of the law would exempt him from guilt was not accepted if those interpretations were unwarranted, and if it was foreseeable that the opinions could cause death or serious harm. As one legal scholar said, the Altsoetter case: “made it clear that lawyers and judges may not obtain legal immunity by draping themselves in the cloak of domestic law and are internationally liable for the arbitrary and discriminatory interpretation and enforcement of draconian statutes. (Lippman, Matthew “Law, Lawyers and Legality in the Third Reich: The Perversion of Principle and Professionalism,” 11 Temp. Int’l & Comp. L.J. 199 (___ )).

The equivalent crime in today’s world is “aiding and abetting.” Under the most stringent standard employed at the ICTY there is criminal responsibility for aiding and abetting where the defendant has engaged win acts that provide the principle with “practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” [wka—not sure what standard you want to use—there are better standards for us] So there is no question that lawyers can be liable criminally if they knowingly give unwarranted and false legal advice in situations where it is foreseeable that death or serious harm to people will result from that advice. Under this standard there is sufficient evidence against the lawyer defendants in this case to warrant the opening of a criminal investigation.

The violations of the Geneva Conventions and human rights law by the current U.S, administration is well known. There is no doubt that the current United States administration engaged in war crimes. The administration has acknowledged treating hundreds if not thousands of detainees in a coercive manner that legally, according to most experts, the ICRC and others constitutes torture, cruel, inhuman and degrading treatment, and violations of the humanitarian provisions of the Geneva conventions, the Convention Against Torture and the International Covenant on Civil and Political Rights. The administration has set up secret detention facilities where they admit using coercive tactics and to this day argue that they want to continue this criminal conduct at those sites and at other facilities across the globe.. (quote sept 6 bush speech) (quote Cheney dark and dunk) The evidence of the commission of war crimes is open and notorious as set forth in this Complaint.

Sadly, these war crimes, this worldwide U.S, torture program was aided and abetted by the lawyers named in this case: Gonzales, Yoo, Bybee, Addington, Haynes and Goldsmith. While some of them claim to merely have given legal opinions, those opinions were false or clearly erroneous and given in a context where it was known and foreseeable to these lawyers that torture would be the result. Not only was torture foreseeable, this legal advice was given to facilitate and aid and abet torture. Without these opinions, the torture program would not have occurred.

Phase One of the Torture Program 9/11/01—2/7/02

The torture program began shortly after 9/11/01. We do not know who were the first persons tortured under this program or the precise dates torture first occurred. Most likely its occurrence began in late 2001 and in the early months of 2002. We do know that the legal underpinnings for the program were established early on in January and February of 2002 and in response to the detention of hundreds of prisoners during the war in Afghanistan. Members of the administration wanted to engage in aggressive questioning of these captives, questioning that would include treatment that would be legally tantamount to torture. The earliest legal memos that have surfaced to date on this subject were written in the period from January 9, 2002 through February 7, 2002. They were written by defendants Yoo, Bybee of the Office of Legal Counsel (OLC) at the Department of Justice and defendant Gonzales, the President’s Counsel. These opinions were not just “opinions” but are considered under U.S. law as authoritative interpretations of the law. The OLC is, according to the defendants, the final word as to the law that governs the executive branch (the President). These opinions are not mere musings—they are the binding interpretation of the law for the executive. (who they were sent to eg Haynes)

The primary concerns in this first set of memos are questions concerning the Geneva Conventions and war crimes. The memos by Yoo, Bybee and Gonzales are very concerned by the criminal provisions of the United States War Crimes Act which makes violations of the Geneva Conventions and particularly Common Article 3 of those conventions war crimes. The analysis of whether or not Geneva applies to the war in Afghanistan, to the Taliban and to al Qaeda is framed in the context of the War Crimes Act. The defendants are explicit in these memos as to why they are concerned by the War Crimes Statute. As defendant Gonzales writes in his memorandum of January 22, 2002, the “war against terrorism is a new kind of war” that “requires the ability to quickly obtain information from captured terrorists,” and this “makes obsolete Geneva’s strict limitations on questioning of enemy prisoners….” In other words, Geneva is a problem; its limitations on questioning prohibit coercive interrogations. And coercive interrogations, interrogations by methods that violated the Geneva Conventions and amounted to torture, were what the administration wanted to do.

But the problem for the defendants is bigger than just the prohibitions of Geneva. The real issue is that violations of those prohibitions on coercive interrogations also are a violation of U. S. criminal law. And that is serious. A U.S. interrogator—whether CIA or military –is not going to torture or cruelly treat a detainee if he knows that he is committing a war crime and might be prosecuted. So the defendant lawyers had to find a way to immunize interrogators and higher officials who authorized such acts from criminal prosecution. Nor do those higher officials who authorize coercive interrogations want to be prosecuted. Defendant Gonzales is explicit about this and the advantages of not applying the Geneva Conventions. As he says in the memo to the President of January 25, 2002: “it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2241 [War Crimes Act]” Defendant Gonzales continues that a Presidential decision not to apply Geneva “would provide a solid defense to any future prosecution.” This is the primary reason the memos by defendants Yoo and Bybee spend pages laying out arcane, bizarre and fallacious reasoning in trying to establish that the Geneva Conventions do not apply to the war with Afghanistan, to the Taliban and al Qaeda. If the Geneva Conventions do not apply then at least there is no violation of the War Crimes Statute as only violations of Geneva are within its language.

In addition to arguing that the Conventions have no application to the war in Afghanistan the memos also argue that “deviations concerning treatment can be justified on basic grounds of legal excuse concerning self-defense and feasibility.” January 22, 2002 Memorandum from Defendant Bybee to defendants Gonzales and Haynes. This provides the authorizers and interrogators another so-called defense to the mistreatment and torture of detainees—although it is utterly without legitimate legal merit. The claim made in the memos is that the use of torture and other coercive methods is to obtain information can be justified as a self-defense measure thereby protecting those authorizing the torture and those who carry it out. The defendants want to leave no stone unturned in arguing that torture is not only allowable, but that the torturers will be protected. The Bybee memo continues with the astonishing statement that “the United States armed forces can modify their Geneva III obligations to take into account the needs of military necessity…” This argument has absolutely no legal merit; the Geneva obligations regarding torture and mistreatment are absolute and non-derogable.

[wka -I could add here Taft and State’s strong disagreement on law on Geneva]

As a result of these opinions the President on February 7, 2002 issued a Memorandum for the Vice President concerning Humane Treatment of al Qaeda and Taliban Detainees. The Memorandum stated that the Geneva Conventions did not apply to al Qaeda, even though they were detained during the war in Afghanistan, and while they did apply to the Taliban, none of the Taliban were entitled to be treated as Prisoners of War. The memorandum ended with the conclusion that “the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” Thus, the torture or mistreatment of any detainee could be justified by military necessity.

Had these opinions been written as a law school or academic exercise they could be merely condemned and their authors could not be held criminally accountable. But they were not. They were written by high level attorneys in a context where the opinions represented the governing law and were to be employed by the President in setting detainee policy. The memos were written in the context where the legal conclusions were to be applied to the interrogations of hundreds, if not thousands, of detainees. They were written with the consciousness that the opinions would immunize those who authorized and engaged in torture from being prosecuted. This immunization of the torturers gave a green light to torture and the violation of the humanitarian provisions of the Geneva Conventions. The defendants who wrote these memos gave practical and substantial assistance and encouragement to those committing the crime of torture. By these memos these defendants aided and abetted the commission of acts of torture. It was not just foreseeable that the legal positions taken in these memos would lead to torture and the harming of human beings; it was the very purpose of these defendants in writing these memorandum.

Phase Two: Lawyers Declare “Torture is Not Torture” & The Techniques of Torture

What we are calling Phase Two of the Torture Program revolves around a key memo written by defendants Bybee and Yoo. That memo, written at the behest of defendant Addington and addressed to and approved by defendant Gonzales is dated August 1, 2002. It subject matter according to the memo concerns the “Standards of Conduct for Interrogation under 18 U.S.C. sections 2340-2340A,” the U.S, criminal statutes that implements the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment. That memorandum, referred to herein as the “Torture Memo”, is the key document that redefined torture so narrowly that such classic and age old tortures such as water-boarding, were authorized to be employed and were employed by U.S. officials. The story of that memos creation demonstrates that the defendant lawyers, involved in the Torture Memo’s writing and approval. Knew very well the use to which it would be put: the memo would be employed to authorize, aid and abet torture. It would also be used to immunize those who tortured.

The memo was written, as the drafters were aware, to address concerns from Vice President Cheney that the CIA was unwilling to interrogate alleged al Qaeda suspects in secret detention facilities in a sufficiently harsh manner and using techniques that would violate prohibitions contained in U.S, criminal law. It was written as a means of insuring the CIA those techniques such as water-boarding, stress positions, hypothermia, and the use of dogs were legal and could be employed. It was written and approved with the knowledge that such torture and cruel treatment techniques would be used on al Qaeda suspects.

In late March of 2002 a suspected al Qaeda leader, Abu Zubayadh, was wounded and captured in Pakistan. He was taken to a secret CIA dark site. Apparently, little information could be gained from him despite interrogation by the CIA. During the early summer his case became an important one that concerned officials in the administration, particularly Vice President Cheney and an attorney in his office David S. Addington. During this same time Cheney was making visits to the CIA in his efforts to find “intelligence” that would support a war against Iraq. On these visits he and Addington were also concerned with the CIA’s inability to gain information from Abu Zubayadh and other so-called high value detainees in CIA custody. On those visits he was informed by Scott W. Muller, General Counsel of the CIA, that the interrogation techniques employed by the CIA already were up to the line and that the CIA was doing what the law authorized. In particular Muller, pointed out the limits of U.S. law and particularly the Convention Against Torture as well as the U.S. criminal statutes that implement the Convention.

Cheney was angry and decided that the CIA had to be overridden; that harsher techniques had to be employed and that the Convention Against Torture should not stand in the way of the use of such techniques. To do so he engaged Addington, Yoo, Gonzales and Bybee. Addington determined that the office of the Attorney General of the United States, operating through the Office of Legal Counsel, where defendants Bybee and Yoo worked, had the authority to bind the government and override the views of ­the CIA. A legal opinion from OLC was the final word. This is precisely what occurred. Yoo, Bybee and apparently with the consent of Cheney Addington and Gonzales, drafted the infamous August 1, 2002 Torture Memo.

The Yoo Bybee memo was not an abstract legal memo. It was written by them with the knowledge that its purpose was to overcome the CIA’s opposition to using harsh interrogation techniques that the CIA believed violated the Convention Against Torture. It was written with the knowledge that its conclusions would be used to harshly treat detainees and employ techniques such as waterboarding. There were meetings with defendants Gonzales, Addington and Haynes on the types of interrogation techniques that needed to get approved, such as waterboarding and these defendants approved such techniques. The memo from OLC would need to provide that authority and it did. Gonzales approved the August 2002 memo that gave CIA interrogators the legal authority to engage in interrogation techniques such as waterboarding, hypothermia, stress positions, hooding and stripping.

The conclusions of the August 1, 2002 Bybee Yoo Torture Memo were considered to be without merit, false, bizarre and written to authorize techniques that run afoul of the Convention Against Torture and to allow those who violated the Convention to escape criminal liability. David Luban, a prominent professor of law at Georgetown wrote that the memo reached a “series of startling conclusions:”

the infliction of pain rises to the level of torture only if the pain is as severe as that accompanying ‘death, organ failure, or serious impairment of bodily function;’ that the infliction of psychological pain rises to the level of torture only if the interrogator specifically indented it to cause ‘lasting… damage;’ that it would be unconstitutional to apply anti-torture laws to interrogations authorized by the President in the War on Terror and that “under the current circumstances, necessity of self-defense may justify interrogation methods that might violate’ the criminal prohibition on torture.

Luban continues by saying that the “near consensus” in the legal community was that the “legal analysis in the Bybee Memo was bizarre.” This memo governed the torture program until December 30, 2004 when, shortly before the hearing that would confirm defendant Gonzales as Attorney General, the OLC repudiated many of the Bybee Yoo conclusions.

The Bybee Yoo torture memo represented a total and unwarranted departure from the prohibition of torture. As the Dean Harold Koh of Yale Law School summed up the legal reasoning of the Bybee Yoo torture memo:

In sum, the August 1, 2002 Bybee [Yoo] Opinion is a stain upon our law and our national reputation. A legal opinion that is so lacking in historical context, that offers a definition of torture so narrow that it would have exculpated Saddam Hussein, that reads the Commander-in-Chief power so as to remove Congress as a check against torture, that turns Nuremberg on its head, and that gives government officials a license for cruelty can only be described–as my predecessor, Dean Eugene Rostow of Yale Law School, described the Japanese internment cases–as a “disaster.”1

The “evident purpose [of the August 1, 2002 memo] was to allow government officials to use as much coercion as possible in interrogations.”2 The memorandum was not intended as legal advice at all, “but instead as an immunizing document, to ensure that CIA officials who engage in torture would not be prosecuted for that conduct.”‘ It lays out a clear strategy for how a government defendant could defeat charges of torture, going so far as to suggest that a prosecution for torture under the domestic torture act would be unconstitutional and that defenses of necessity and self-defense could be employed as well. The memorandum

apparently became the basis for the CIA’s use of extreme interrogation methods, including `waterboarding,’ and shaped Defense Department interrogation policy. In fact, much of the memorandum was used verbatim in an April 2003 Defense Department Working Group report on interrogation methods, which then became the basis for Defense Department policy.4

To be noted here and shaped by the August 1 Bybee Yoo memo are the famous Rumsfeld interrogation techniques employed at Guantanamo and confirmed in his order of December 2, 2002. This included stress positions, hooding, stripping, exploiting phobias e.g dogs, sleep deprivation and isolation.

As the Dean Koh concluded

The August 1 OLC memorandum cannot be justified as a case of lawyers doing their job and setting out options for their client. If a client asks a lawyer how to break the law and escape liability, the lawyer’s ethical duty is to say no. A lawyer has no obligation to aid, support, or justify the commission of an illegal act.

Sadly, this is what these defendant lawyers did: aided and abetted criminal acts of torture, cruel, inhuman and degrading treatment and violations of the humanitarian protections of the Geneva Conventions.

1Koh, 43 Colum. J. Transnat’l L. at 654.

2 “What Bush Wants to Hear: A Consideration of John Yoo’s The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11”, David Cole, New York Review of Books, Novemeber 17, 2005.

3 Clark, 1 J. Nat’l Security L. & Po1’y at 468, see also David Luban, Liberalism, Torture, and the Ticking Time Bomb, in The Torture Debate in America (Karen J. Greenberg ed., 2006) 55.

4 Clark, 1 J. Nat’l Security L. & Po1’y at 462.