Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

President Cheney, and their colleagues don’t care, though. The law is a mere suggestion to these people. Cheney, in a recent speech at the American Enterprise Institute on May 21st 2009, stated that he would not have changed any of the practices the Bush administration implemented.68

The Justice Department’s actions in response to the leak of the initial August 2002 memo showed this continued objection to the rule of law.69 When the first August 2002 memo became public in 2004, the Justice Department issued a replacement memo on December 30th 2004, which essentially overruled the August 2002 memo.70 Nevertheless, the Justice Department could not keep from breaking the law. The OLC issued three secret memos in May 2005, signed by the head of the OLC, Steven Bradbury, which declared that none of the CIA techniques amounted to torture.71 The OLC based its assessment on two facts that are irrelevant to the lawfulness of the interrogation techniques.72

One fact was that American soldiers in the military’s counter-terrorism training program had not suffered severe physical pain or prolonged mental harm when the techniques were performed on them.73 This information has nothing to do with the techniques’ lawfulness because American soldiers are not Guantánamo Bay detainees. Our soldiers entered this program voluntarily, the tactics used against them have clearly defined limits, and the soldiers can utter a code word whenever they want to stop the ordeal.74 Prisoners do not have these luxuries.

The other fact on which Bradbury relied was that CIA-employed physicians would be present during interrogations of prisoners to monitor them.75How can physicians assess the severity of pain being inflicted? How can they know when to stop the process?76Did they ever stop it? What kind of a physician would facilitate the administration of pain? Don’t physicians promise, “First do no harm”?

The third May 2005 memo, the most disturbing of them all, went even further, stating that the CIA’s interrogation techniques did not even amount to “cruel, inhuman, or degrading treatment.”77 Why did the OLC write this memo? The Bush administration knew that Congress would soon vote on President Bush’s objections to the Detainee Treatment Act, which prohibited “cruel, inhuman, or degrading treatment” of any person in U.S. custody.78 Therefore, the Justice Department, in order to continue to permit the Bush administration to use cruel, inhuman, and degrading treatment, was forced to conclude that the enhanced interrogation techniques that Congress thought it was outlawing were neither cruel, nor inhuman, nor degrading. The OLC rationalized its claim, stating that in order for techniques to be considered cruel, inhuman, or degrading, they must “shock the conscience,” and the CIA’s techniques did not shock the conscience.79Whose conscience?

Unfortunately, in its memo the OLC conveniently disregarded the United States Supreme Court case of Chavez v. Martinez (2003).80 In that case, the Supreme Court held that any intentional infliction of pain in the course of interrogation shocks the conscience, even where the statements gathered are not used to prosecute the subject.81 So, it turns out that intentionally inflicting pain is illegal. I guess our Justice Department, employing some of the most brilliant attorneys in the country, mistakenly skipped over the Chavez case, or, it was under pressure to disregard it. Of course, one must possess a conscience in order for it to be shocked, and many in the Bush administration gave all indications of lacking any semblance of a conscience.

The latest public memo from the OLC on the CIA interrogation tactics was the one dated July 2007.82 This memo contains some remarkable language, considering the time at which it was written. Before the memo was written, the Supreme Court ruled that Common Article 3 of the Geneva Conventions covered al-Qaeda detainees, even though the Bush administration argued that they were not covered.83 The OLC claimed that al-Qaeda detainees were different, and that the CIA could engage in degrading treatment that did not constitute an “outrage upon personal dignity,”84 a class of treatment prohibited by Common Article 3. Furthermore, the memo stated that even if the CIA program violated Common Article 3, the president could simply declare that it does not apply.85

The Office of Legal Counsel operates as the “constitutional conscience” of the Justice Department.86 Its job is to exercise independent, objective judgment to make sure the president and the executive branch are working within the law.87 Its job is not to write one-sided memos ignoring laws and treaties unfavorable to the president’s cause. The OLC is important not only because it works for the federal government, and Americans expect that the government will respect the rule of law (isn’t there a mountain of evidence that militates against such an expectation?), but also the OLC’s role is vital because its work is virtually unchecked.88 OLC lawyers are not private attorneys who put forth their clients’ best argument in an adversarial setting.89 No judge or jury reviews the OLC’s opinions. Rather, the OLC is supposed to work as a check on the executive branch, representing a line of defense against unlawful executive activity.

It is clear, then, that the lawyers who wrote the torture memos and facilitated the Bush administration’s torture policy, are not merely guilty of exercising poor judgment; they disregarded their honorable role in our government and involved themselves in a criminal conspiracy. The Department of Justice must investigate and prosecute these lawyers to show that the guidelines they set for the CIA were illegal and essentially worked as a permission slip for CIA agents to violate the law. If we have any respect for our laws or any sense of justice, we must show that this behavior will not be tolerated.

By the way, we also need to prosecute the OLC lawyers. We are legally bound by the Convention Against Torture to submit any case alleging torture by a person within our jurisdiction “to . . . competent authorities for the purpose of prosecution.”90Mr. President and Attorney General Holder, what are you waiting for?

We Allowed It

Depriving people of natural rights without due process is wrong, immoral, criminal, and unconstitutional; torture is