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MB 11 street roots Education * Dialogue* Independence Professor: Authors of torture memos must be held accountable BY JOANNE ZUHL S T A F F W R IT E R J rôfessor Ofer Raban teaches constitutional law, criminal investigation and legal theory at University of Oregon. His report, “Dissecting the Torture Memos,” analyzes the memos issued by Bush administration attorneys John Yooand Jay Bybee, with the conclusion that their intent to provide legal protection to justify the use of torture tails to the point of négligence. In an interview on KBOO’s civil rights show “We The People,” Raban outlined how the foundation laid for Ofer Raban allowing torture is so faulty as to open the doors for accountability and possible legal action against the perpetrators and authorities who employed so-called enhanced | interrogation techniques, Joanne Zuhl: You’ve analyzed the ^so-called torture memos reteased earlier this year, and in your report you call them “a deliberate series o f distortions, wordplays, non sequiturs and self contradictions that read like a parody on legal reasoning.”How much does that set the stage for legal recourse? Ofer Raban: The piece analyzed the legal arguments advanced in two of those so-called torture mémos, written by John Yoo and JayBybee, and what is obvious from any serious examination of those, is that the legal analysis is not only flawed it is positively frivolous. These memos contain a serious distortion of the language and the intent of the laws banning torture, and again it is fair to say that they make a mockery of the law in order to provide legal cover for actions that were ho doubt criminal under federal law. The legal analysis, and this is something that need be noted, has been repudiated^ by people from across the political , spectrum, including Jack Goldsmith, who was hired by the Bush administration to help the office of legal counsel and who retracted those memos as faulty and then resigned. My article advocates professional legal proceedings against these individuals, that is, the suspension or disbarment of these lawyers based upon their failures. And we need to distinguish between three possible legal actions that can be taken against these individuals and others involved both in planning these policies and in executing. First, in regard to the lawyers who authorized these techniques, there is the possibility of disciplinary professional proceedings against them, which entails possible disbarment or suspension of their license. Additionally, there is'the possibility of criminal prosecutions, which are ultimately a political decision; that is executive officials who prosecute this have substantial discretion in deciding whether to prosecute or not, as should be the case. But this means this would depend on political will. What we have seen recently, is, in fact, the initial success, in the early stages, of civil lawsuits against some individuals. There’s a civil lawsuit against John Yoo, and a civil lawsuit that was just allowed to proceed against John Ashcroft. J.Z.: In the end, though, you’re talking about going after attorneys, and you say in your report that heads must roll. Are those the heads wé want to be going after O.R.: Not necessarily, of course: The question we should ask ourselves as a society is where does the buck stop. Nevertheless, there is the initial question of whether such lawyers, exercising their professional duties, should be held liable for such serious dereliction of duties. That is when they write memoranda that everyone agrees are utterly defective and that are meant to provide legal cover for a policy to which they may have subscribed. Whether this* should be the end of the matter is a different question altogether. I think that at the very least these lawyers should be held responsible for what they did through professional disciplinary action, ...The civil lawsuits that were brought against Yoo and Ashcroft are based on allegations' of violating the plaintiffs’ constitutional rights^ Executive officials are entitled to immunity in such cases, unless they violated clearly established statutory or constitutional rights a reasonable person would know. J.Z.: One o f the concerns raised by some intelligence experts is that legal actions pursued in civil and criminal courts are undermining intelligence efforts. What is your view on those claims? O.R.: First, the Freedom of Information Act exempts information that is classified and whose disclosure may harm national security. So that under FOIA there is no obligation qn the part of the executive branch to release any such documentation, and indeed the documents released by the executive branch under the FOIA oftentimes are heavily redacted, including the just-released 2004 inspector general’s report, which has entire pages blacked out. Again, both the law itself Exempts classified information that may harm national security^And of course, the legal system is a flexible system, and it may redact whatever, information may pose such harm to national security any time a document is released. I. 1.’. So, in your opinion, there are plenty of safeguards in place. . O.R.: Absolutely. I think the more serious concern that underlies these CIA’s officials objections has to do with perhaps concern with a demoralized agency whose agents may be less willing to undertake risks on behalf of the security of the American people. On the other hand, I do not believe that these concerns outweigh our interest in preserving these laws, and making sure that our agents never torture in violation of our laws. And indeed, as many have argued,-torturing suspects ntay pose a greater threat to our national security, than failing to obtain the questionable information we can extract. J. Z.: You talk about how poorly written are the legal memoranda. Is this a matter of any politician getting a lawyer to write whatever the politician wants? O.R.: That is what is at stake when we ask ourselves whether we want these people tu b e held liable, either through professional disciplinary proceedings or through criminal action or civil lawsuits for their actions. Of course, what we want to make sure what will not happen again is that some lawyer can provide legal cover for patently illegal actions.... I don’t think it is true to conclude that what we had here is the successful creation of legal cover for illegal actions, because I think again this torture issue is here to stay for a long time, and despite efforts to push it aside, we see that it remains in the news and remains a matter of popular debate and popular action. And I think there is going to be one way or another, a price to pay for these illegal actions, at least I hope that there will be. don’t want to pass it on to the next those decisions should be. We just have to T.H.: I think so. You have to start generation. As time goes on, you lose trust the process. somewhere. The problem I have' with Abu information, people’s memories fade, Ghraib is that the people prosecuted documents get lost - we saw what happened J.Z.: Is this the right time to do it, while we arrested, then those countries would have deserved to be prosecuted, blit it shouldn t are still facing hostilities in Afghanistan and to some of the interrogation videos, they jurisdiction to prosecute those individuals. Iraq, and detainees and interrogations are still were purposely destroyed, or no t have ended there. There was a command Somebody needs to take the bull by the element at Abu Ghraib and that was never Nonetheless, they’re not there anymore. very much in play? horns and start investigating this. As a judge really fully explored. So I hope it isn’t the advocate, I would teach every year soldiers . same thing where they (investigate) the about the law of war. It’s mandatory in the interrogators and that’s the end of the military. And the example I would always story. lese are the actions th a t do not go away. B we th in k about tell soldiers, I try to explain to people that you have to understand that these are the o d d War 11, people s till remember and ta lk about, w rite A.Q.: I f Obama goes after higher-ups, there actions that do not go away. If we think is the political accusation that he is toks about, make movies and study hum an rights abuses.... about World War II, people still remember scapegoating, that he is going on a political hose issues don't disappear, th e longer yon let them go and and talk about, write books about, make witch-hunt of his opponents. Politically he’s tn •J..— Hnmtr and fester, the la rge r onr problem is. movies and study human-rights abuses. Jf a very difficult position, but from a legal . you look back ori our history there are lots perspective it doesn’t seem like there would be of areas that are still very much unresolved many options for him to back away. in segments of our population, whether its T.H.: He has a job that I don’t w ant The Native American rights, or the issue of - Our war on terror requires international decisions he has to make are ones I can’t T.H.: On the one hand you don’t want to slavery, or the Civil War. These issues d ont help. We want our allies and potential allies even contemplate having to make. But we create a division in your society while you disappear. The longer you let them go and : to support Us in this effort, and I think that need to walk the walk. If we say we trust still "have troops that are counting on having allow them to linger and fester, the larger faking now, a measured response to take our judicial system to weed out people who everyone’s support. Troops need to know our problem is. I suspect that they know corrective action to hold people responsible that what they are doing matters and that are responsible and who are not this is going, to open up to a much larger forclear violations of international law will responsible. And if we trust our democratic people value their sacrifice, because they’re •- issue, but they’re taking it a step at a time, go a long ways to building up that support, government to make decisions that are asked to do a lot of things that thank also take away the propaganda tool for al they’re being measured. based on general consensus, as time goes goodness most of Us don’t want to do- The Qaida recruitment L think ultimately it will on as these investigations move forward or x CIA and FBI, we want them to protect our A.Q.: You think that, it’s wise to approach, result in a quicker resolution in our efforts the investigation with who actually conducted don’t move forward, the decision making citizens.... At the same time, this isn t in the war on terror. the interrogations and see where that leads. will open up and become more obvious what something that’s going to go away and you TORTURE, from page 10 Now at a new date and time, on KBOO.90.7fm 6-7 p.m. the second Wednesday of the month embrace ¡rjuaui diversity pordandhearingvoiixs.net
