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The Smart Guys debate the proposition of prosecution Bush administration officials over the OLC memos

Thursday, April 23, 2009
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HH: As you know, the dominant story yesterday, today and going forward is the witch hunt that has been launched by the Obama administration against former Bush administration officials who answered in the affirmative that it was legal to use interrogation techniques up to and including waterboarding. Joining us to discuss the debate over what is happening, Erwin Chemerinsky, dean of the law school at the University of California, Irvine, and John Eastman, dean of the law school at Chapman University in Orange County as well. Dean Eastman, let me start with you. I just want to make sure the facts are first. The OLC, the Office of Legal Counsel gave an opinion that was requested of them from the Central Intelligence Agency on what interrogation methods they could use. They answered that extensively. And then Congress was briefed on that. Am I right that Nancy Pelosi, John Rockefeller, Jane Harman, bunches of Democrats signed off on waterboarding?

JE: Well, that’s according to a report on December 9th, 2007, in the Washington Post. The briefing occurred in September of 2002. The memo is written, one was written to the CIA, the other was written to the Department of Defense. One of them was written by Jay Bybee, the other was written by John Yoo. Those were written in August of 2002. And this, the Gang of 8 it’s called, the leadership of both the House and the Senate, and the heads of the Intelligence Committees in both the House and the Senate, a closed loop because of sensitive, top secret information. And it included Senators Bob Graham and John Rockefeller, Jay Rockefeller, Democrat, Senator Pat Roberts, Republican. It included Nancy Pelosi and Jane Harman in the House, as well as Porter Goss, the Republican in the House, who himself later became head of the CIA for a couple of years.

HH: Erwin Chemerinsky, first question, if a prosecution for unlawful torture followed for anyone at any level, would not each of those legislators have to appear both in deposition and at the trial of these individuals, whomever they might be charged?

EC: Would they have to? I mean, I don’t know what those legislators knew or when they knew it. Also, I don’t know how relevant it is to the prosecution of individuals. If the torture memos led to torture of individuals, then I think that is war crimes and justifies prosecution. I think there has to be investigation first, and if the evidence shows there were war crimes, prosecution should occur. Whether the legislators are witnesses or not, it’s too soon to know.

HH: John, do you think those legislators would obviously be witnesses?

JE: Well, I think they would. And look, I have to object to the characterization of these memos. I know it’s become shorthand in the press to call them the torture memos. But the fact is, they’re not advocating torture. The purpose of these memos was to try and parse the language of the convention on torture, the international treaty, as well as our implementing statute that prohibits torture to find out what constitutes torture. And the purpose of the memos was to then steer the CIA and the Defense Department away from taking those actions. Now some have argued that they too loosely interpreted what constituted, or what did not constitute torture to allow for things that many people think are torture. But the fact of the matter is that’s not what the memos’ purpose was. It was to define where the line is so that the CIA and the Defense Department would stay short of that line rather than exceeding it.

HH: Now Erwin Chemerinsky, who exactly can you imagine being the subject of prosecution? The lawyers who wrote these memos? Are you suggesting that Judge Bybee of the 9th Circuit because he gave his best legal opinion at the time is somehow criminally culpable for rendering his best legal advice?

EC: I am pronouncing no judgment on anyone. I am saying, though, based on the Jane Mayer book The Dark Side, the Red Cross report and these torture memos, that there is evidence that international law and domestic law was violated. The law…

HH: Erwin, stop right there. What evidence have you got, not Jane Mayer, she’s not credible, she has been discredited many, many times. But what evidence do you point to that’s not contested that says these, Jay Bybee, Judge Bybee broke any law?

EC: First, I strongly disagree about your attack on Jane Mayer. I think her book describes in detail torture that occurred. The Red Cross report describes it. And these torture memos describe things that are clearly cruel, inhumane and degrading treatment. Now the question is what caused such torture to occur, assuming that it did? If it could be shown that the actions of Dick Cheney, David Addington, Jay Bybee, and John Yoo among others, led to individuals being tortured, then I think that’s war crimes and they ought to be prosecuted.

HH: John Eastman…

EC: Again, I’m not pronouncing judgments, I’m just saying there should be an investigation and prosecution if the evidence supports it.

HH: John Eastman, that is of course McCarthyism wearing a Democratic liberal face if that is the urge out there, because no lawyer has ever been prosecuted for such a OLC opinion in the history of the Department of Justice, have they?

JE: No, and in fact, the opinion is 81 pages. 81 pages parsing the statute. The convention against torture prohibits torture, and it defines it as severe physical or mental pain and suffering, and then it parses each one of those words to try and find out what the case law interpreting that word has meant – what other statutes, what other conventions have done. And then it says okay, so severe physical torture includes things that are going to lead to death or dismemberment and those things. Severe mental torture is broader than that, and as long as there’s a prolonged psychological impact, that that would qualify as torture. And there’s a whole litany of things that it defines as torture that the CIA was supposed to, or in the Defense Department, were supposed to stay within those bounds. And it’s very carefully reasoned. Now we may in hindsight say you know what, we want to draw the line a little bit differently, but here’s what the best evidence and the law was at the time. And to go back and try and do this, and you used the word witch hunt, I think that’s exactly what’s going on, and I think the fact that the administration was as forthcoming as they were with members of the opposition party in the Congress to let them know what was going…and this Washington Post report from 2007 says that several members of that Congressional delegation asked why are we stopping it there? We need to go further. These people are ready to launch another biological or weapon of mass destruction attack on the United States. And we want you to do even more. So the fact that the lawyers were trying to find the legal line on what we should not go beyond in doing, and they’re now being accused of launching the most egregious conduct that’s been claimed and not proved, it’s just preposterous.

HH: Erwin Chemerinsky, a very factual question. Has any lawyer…

EC: But can I respond to John, because I disagree so strongly with he and your characterizing witch hunting.

HH: I’ll let you. I’ll let you do that. We’ve got two segments, but I’ve got to get one factual thing. Has any lawyer from the Office of Legal Counsel or any similar lawyer in the Department of Justice ever been prosecuted in the history of the Republic for rendering a legal opinion?

EC: I don’t know.

HH: The answer is no. The answer it has never happened. How then, since this is a first time ever, would this not be a witch hunt on par with Joe McCarthy going after alleged communists in the State Department?

EC: I so strongly object to both you calling it witch hunting. I think there’s two questions here. First, were individuals tortured by those under American command? I think if you read the Jane Mayer book, you read the Red Cross report, there’s no doubt that individuals were tortured. Waterboarding has been regarded as torture since the early 20th Century. Forcing men to be nude except for diapers is degrading treatment. Physical pain by prolonged staying in the same position is torture. Jane Mayer describes individuals who literally died as a result of torture by American officials. So the first question is did torture occur? We have to investigate. The second question is if so, why did it occur? If the memos that were written led to the torture occurring, then I think they’re responsible. I don’t think they can hide behind being part of Office of Legal Counsel. I don’t think they can hide by saying it was just memos. If their memos led to torture, then they’re responsible just as memos that might have led to Nazi gas chambers are responsible for that resulting. And I do intentionally liken it, torture, to what the Nazis did.

HH: Yeah, we head you. We heard you. We’ll be right back.

– – – –

HH: Thanks to the magic of the internet, I have the article that John Eastman referred to from the December 9, 2007 Washington Post, Page A-1. “In September, 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi, was given a virtual tour of the CIA’s overseas detention sites, and the harsh techniques interrogators had devised to make their prisoners talk. Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said. The briefer was specifically asked if the methods were tough enough.” John Eastman, Dean Chemerinsky just unequivocally stated that waterboarding is torture. That’s ridiculous. It cannot be unequivocally stated. And in fact, I have not yet seen one former United States attorney argue that waterboarding is a prosecutable offense. Have you found anyone with prosecution experience to argue that waterboarding is a prosecutable offense?

JE: No, and in fact, if you look at the Bybee and the John Yoo memos, they go through and they look at the actual language of the convention against torture. And it says severe physical pain or suffering. That’s one component of it. And waterboarding gives you an intense sensation that you’re drowning, but there is no physical pain or suffering, or any lasting consequence. The second is severe mental pain and suffering. And that is then further defined to say prolonged. I mean, we use waterboarding on our own guys going through Navy SEAL training, which would be illegal if in fact the United States government was of a position that was torture. The Congressional statute mimics the language of the torture convention with severe. Now that was changed in 2006 to say serious, but Senator Lindsey Graham on Sunday said that we changed this to make waterboarding illegal in 2006. The Congress did nothing of the sort. It doesn’t say that waterboarding is illegal. And in fact, when General Mukasey was up for his confirmation hearings, he declined to say that it was torture. When Leon Panetts, Obama’s CIA director pick was up before confirmation hearings, he declined to say that it was torture. So there’s an ambiguity. If you look at what waterboarding is compared to what the statutory and international treaty definitions are, it doesn’t qualify.

HH: Erwin Chemerinsky, is there any prosecutor out there on record who’s been a United States attorney or a senior prosecutor in the Department of Justice saying that waterboarding is a prosecutable offense?

EC: To my knowledge, it’s the wrong question, because to my knowledge, the United States government has thankfully never done this before. What John and also you are missing is that one of the key things about the Bybee-Yoo memo is it said that the President had the authority to unilaterally change the definition of torture. And under the Bybee-Yoo definition, not only would waterboarding not be torture, but putting electrodes on somebody’s genitals…

HH: That did not happen, Erwin. That is duplicitous argument.

EC: No, it’s not.

HH: It did not happen.

EC: But…no, but I didn’t say that these are, I said they changed the definition of torture…

HH: We should stick to what happened. We should stick to the…

EC: Well then, let’s talk about…I’m glad to talk about and stick with what happened in terms of…do we want to talk about the number of hours that they kept people awake?

HH: Go ahead.

EC: People being kept in a standing position for as many as 180 hours.

HH: It’s not torture, Erwin. Show me a statute that defines it as torture. You know that you can’t have vague prosecution authority. Our republic rests on the specificity of crimes that people know they are committing. You can’t invent something that allows a police state to start to imprison people on ambiguity.

EC: I strongly disagree. I think under American law, keeping prisoners as they did for three of them, awake for more than 96 hours, and one for nearly an eight day maximum, and this is according to the documents that were released, would meet the definition of torture under the federal torture statute, and the torture treaty ratified by this country. That’s behavior that is cruel, inhumane and degrading treatment.

HH: John Eastman?

JE: Look, look, I mean, if we’re to read, if we’re to read the statute and the convention against torture in that fashion, it says any action that is going to lead to sever physical or mental pain or suffering, and including that which leads to death. That means going out on a battlefield and shooting…could cause physical pain and suffering likely to lead to death, would constitute torture. That’s not the way we’ve understood these things. The fact is that these are unlawful combatants. The President asked his legal counsel to find out what am I allowed to do to get as much information as I can within the confines of the torture convention and the torture statute. Where is that line that nobody else has been willing to defend? We are now in a situation where we have to define that line so I know what I can do, and what I can’t do. And the memos…based on the OLC memos, they were given to the operatives at the CIA specifically said we are going to comply with the conventions and the statute, but here’s what the best legal advice I’ve been able to get says that we can do up to that point and no further.

– – – –

HH: We prevailed on Dean Erwin Chemerinsky of the University of California, Irvine Law School, Dean John Eastman of Chapman University Law School to hang around. Erwin may be late for his plane. We hope not. Erwin, I want to go back with what I’m crossing swords with you, because I think the debate is getting very unfairly mixed up in the public eye. It is a question in my mind whether or not you can prosecute something, prosecute attorneys for writing memos. That’s what’s going, being brooded about right now. It’s never happened before. Your opinion on what waterboarding is I understand. But prosecutors, as Andy McCarthy said on this show yesterday, have to look at the vagueness of the law, they have to look at the facts available to them, the attenuated nature of the causation, and the fact that there is no universal agreement on waterboarding being torture, and no one will bring this case. And that’s what Andy said, and I’m looking for some prosecutor, not a law professor, not an ideologue, not a New Yorker writer who has an axe to grind as big as Paul Bunyan’s, but a prosecutor to say you can prosecute attorneys for writing memos in this situation. There isn’t one not named Ramsey Clark out there.

EC: Well, but I think you’re asking the wrong question. Since our country’s never done this before, you can’t say what’s the precedent for doing it.

HH: I didn’t say. Find me a prosecutor.

EC: But I think there’s two questions. I think there’s two questions here, and I think what the President of the United States said is absolutely right. The first question is did torture occur. The second question is if so, why did it occur. If you can show a causal link between what the people in the White House Counsel’s office did, or what the Vice President and his top aide, David Addington, and torture that resulted, then I believe that they are liable. What I’ve said repeatedly, including on this program, is we first need to have a commission to thoroughly investigate and find out what happened and why it happened. And if it leads to evidence that war crimes occurred, then there should be prosecutions. So much of what John just said is absolutely irrelevant. He says they’re enemy combatants. The Supreme Court has said that even enemy combatants are covered by the third Geneva Court that prevents torture. John said killing on the battlefield would be prohibited. That’s not what we’re talking about here. Unlike you, I believe that what was done according to every available source does meet the definition of torture. Let’s have an investigation and find out. And if the evidence shows it, then let’s have a prosecution.

HH: Dean Eastman, I want to point out something that Dean Chemerinsky slipped in there. A prosecution proceeds from an investigation undertaken by prosecutors, not a bipartisan commission, not a standing witch hunt commission, not a truth commission, but by lawyers. It won’t go anywhere if real lawyers are asked to look at this, real serious prosecutors. They want to trap people in perjury. That’s why they want to have a commission. They want to have a witch hunt in order to find some witches to burn. But no serious prosecutor would entertain this kind of a prosecution.

JE: Well, that’s because there’s another element here, and that is for a prosecution under the torture statutes, there has to be a specific intent. And everybody concedes that these guys wrote the best legal advice they could. People disagreed with their conclusions, but you know, Brian Leiter, the professor at the University of Texas now at the University of Chicago, wrote about this a year ago, and the controversy swirling whether John should be removed from his tenured position at Berkeley. And he said that’s preposterous. You know, there’s no question that he was acting in good faith in writing these memos. That takes out the specific intent element for the prosecution. Erwin added something else here, that the Supreme Court has said that this violates Common Article 3 of the Geneva Conventions. Well that decision, which is a very close call, and quite frankly I think wrong, did not occur until after these memos were written. And it was an open question. Nobody had thought before then that Common Article 3 applied to the situations we have here. They thought that that was limited to civil war context. And so you know, even the Geneva Conventions, the current Attorney General, Eric Holder, said the Geneva Convention doesn’t apply to these guys because they’re unlawful combatants. And that means you’re not limited to kind of questioning their name, rank and serial number. You can engage in enhanced interrogation techniques to try and find information that’s going to stop detonating a nuclear weapon or something on the shores of the United States. And the task fell to these lawyers to try and define how much could the CIA do without violating the torture convention, and without violating the implementing statute in Congress. And maybe they got that wrong, but there’s no question that they acted in good faith to try and figure out where that line was.

HH: Erwin Chemerinsky, I want to go back to my question about your commission. There’s no need for a commission. If a crime was committed, a prosecutor can go and find it, they can name a special prosecutor if they want, and he can go investigate everyone. But there is no need for a commission that is not political.

EC: I think we could do this through a grand jury. That would be the traditional way for prosecution. But I also think it’s so important that our country know what happened and why it happened. And I think any nonpartisan commission operating in the greatest extent in public is much better off for this country than a grand jury which operates in secret. But the key is, there has to be the gathering of evidence to see whether torture occurred, and why it occurred, and whether there’s probably cause there was a crime. If so, then there should be prosecutions, and that’s all that President Obama has said, is we should investigate.

HH: John Eastman, if this terrible idea gets underway and the country has its first witch hunt since Salem, and its first head on a stick campaign since Joe McCarthy, would you lawyer up, and would you refuse to appear before such a sham trial thing?

JE: I would. I would recommend to my clients not to appear. And look, I think the current head of the Office of Legal Counsel ought to be concerned about going down this path as well. Dawn Johnson has reportedly been involved, in her days in the Clinton administration, of signing off on a memo that would allow rendition to Egypt where we knew for a fact that torture as we all understood it, not some dispute about what constitutes torture is not, but you know, real torture…

HH: And wasn’t our solicitor general the White House counsel at the time that that rendition memo was rendered?

JE: Well, you know, yeah, but I don’t know between White House Counsel’s office and the OLC who had responsibility for what. I do know that memo has not been declassified, so we don’t know. This kind of selective leaking of partial classified information, not the other half of it, and what kind of, you know, the attack on Los Angeles that was stopped because of these aggressive interrogation techniques that Vice President Cheney talked about last night, I mean, the selective leaking of the war strategy is both harming our tactical response to the serious threat of continued war by terrorists, and because it’s partial, and because it’s selective, it’s starting to look awfully partisan, and that’s a very dangerous thing.

HH: The last minute goes to Dean Chemerinsky. Last minute to Erwin.

EC: I said throughout our discussion today there are two questions. First, did torture occur by American personnel. That’s not a witch hunt to find out. It’s not partisan. I worry that for partisan reasons Republicans want to cover it up and keep us from learning. We need to know the answer to that question. And if torture occurred, then we need to look at a second question, why did it occur. It’s something that the United States has always repudiated going back to the days of George Washington. If our personnel engaged in torture, why did it happen? And if the causal chain links to memos written by John Yoo and Jay Bybee, if it goes to the actions of Dick Cheney and David Addington, then I believe war crimes prosecutions are appropriate. I say it all depends on what the evidence shows.

HH: Dean Erwin Chemerinsky from University of California, Irvine Law School, man of the left, Dean John Eastman of Chapman University Law School, man of the right, thank you both.

End of interview.

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