The Torture Reports: Physicians for Human rights

Just as George W. Bush emerged to re-ignite public debate with his embrace of waterboarding as something we did to "save lives" Physicians for Human Rights concludes, in The Torture Reports:

`Evidence Indicates that the Bush Administration Conducted Experiments and Research on Detainees to Design Torture Techniques and Create Legal Cover'.  
The abstract: "Health professionals working for and on behalf of the CIA monitored the interrogations of detainees, collected and analyzed the results of those interrogations, and sought to derive generalizable inferences to be applied to subsequent interrogations. Such acts may be seen as the conduct of research and experimentation by health professionals on prisoners, which could violate accepted standards of medical ethics, as well as domestic and international law. These practices could, in some cases, constitute war crimes and crimes against humanity."


Update: The New York Times editorializes that the participation of health professionals in titrating doses and changing the material (e.g. from water to saline) could well be understood as aiding and abetting torture.

Jon Stewart tangles with Marc Thiessen on the `al Qaeda 7' - Justice Department Lawyers who represented Guantanamo Detainees

In the wake of the controversy over Liz Cheney's web attack ad on Justice Department lawyers who once represented  Guantanamo detainees Jon Stewart invited a defender - Marc Thiessen -and as charged, barely let Thiessen get in a word.  So the extended interview is posted on the web.  Thiessen defends not only Cheney's notorious attack ad, but also Charles Grasley and the Republicans on the Senate Judiciary Committee who started the fight.

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Conservative Lawyers Push Back against Lynne Cheney Smear on Lawyers for Detainees

images: Liz Cheney, `Keep America Safe' still
Lynne Cheney's attack video labeling as the "al Qaeda 7" Justice Department lawyers who represented Guantanamo detainees has backfired.  Prominent conservative lawyers, including Clinton nemesis Kenneth Starr, have defended as honorable the defense of the unpopular.  The letter, reported on Politico, begins

The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department’s strengths. The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. 

To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit. 

The full report is HERE.  A broad summary of critical response to  the video by TPM is HERE.

Trial by Jury: the Public's Right to Judge the 9/11 Defendants

 When Eric Holder says he wants to try, convict, and sentence to death the accused 9/11 planners  Sen. Charles Grassley acts like Holder wants to bake them a cake.  Grassley objects in a recent  letter to  President Obama that

"A trial would provide "unprivileged enemy belligerents a venue to spew their hateful rhetoric; creating new public terrorist targets out of our federal courthouses.... providing non-U.S. citizen terrorists constitutional protections associated with criminal prosecutions; and providing terrorists more rights than our military men and women when they are subject to a court-martial. "

The rhetorical device employed by Grassley - a member of the Judiciary Committee - is to put the words terrorist, rights, and Democrat, Holder, or Obama  close together.  The smear tactic is widely employed by the political right, as this post on Think Progress details.  Grassley continues

Additionally, Attorney General Holder also referred some detainees who are charged with attacking the U.S.S. Cole back to the Department of Defense for trial via military commission.

In splitting the prosecutions into two categories, it appears that the Attorney General has created a system which allows the terrorist to select the forum for justice by simply choosing to select a civilian or military target. 

But the Administration has drawn the line at a perfectly sensible place: those who attacked civilians deserve to be tried before a civilian court.  As Justice Anthony Kennedy emphasized in a civil context in Edmonson v. Leesville Concrete, 500 U.S. 614 (1991) trial by jury is not simply a right of the litigant.  The opportunity to be a member of a jury  is a public right of citizenship which  may not be arbitrarily denied.  Justice Antonin Scalia has described the jury as the "spinal column" of democracy. Neder v. United States, 527 U.S. 1, 30 (1999).

The Sixth Amendment provides for  "speedy and public trial by an impartial jury in the state and district where the crime shall have occurred."  The jury is an important democratic institution.  The jury is  not only a barrier to arbitrary government conduct, but also is the bulwark of  citizens' participation in the justice system, of the public's opportunity to judge the accused.  Trial by jury brings  the judgment of the community.   That a court martial cannot accomplish.  There, even when we adhere to the Uniform Code of Military Justice, every participant - judge, jury, prosecutor, and defender - is a member of the military chain of command.

Regrettably  little attention has been paid to this important aspect of Justice Department's intention to try the accused terrorists in the United States District Courts.

Chief Chinese Prosecutors set to issue rules barring coerced testimony in death penalty trials

The Supreme Procuratorate in China - the nation's chief prosecutorial office - is set to release regulations putting teeth in the statutory ban on evidence procured through unlawful methods, particularly in death penalty cases according to an account in the South China Morning Post.

An editorial in ND Daily, the apparent the source of the SCMP report, is HERE. The editorial says that despite the criminal law's ban, and Supreme Peoples Court interpretations, unlawfully obtained testimony is still used.

The SCMP piece follows:

Anti-torture measures in works, paper says
Ng Tze-wei
Aug 11, 2009

The mainland will soon release a judicial document that will for the first time spell out that confessions obtained through torture will not be admissible evidence in court, according to The Southern Metropolis News.

Even though the mainland criminal code has long banned torture during the questioning of suspects, and even made it a criminal offence, forced confessions still overshadow the judicial system.

The Renmin University School of Law recently researched 137 wrongful convictions imposed in the 1980s and determined that 164 men and women had been wrongfully deprived of a total of 720 years of freedom, one had
been executed, and another had died in prison. Half of the wrongful convictions involved murder charges.

The Southern Metropolis News, which is based in Guangzhou, quoted Renmin University professor Liu Pinxin as saying that the reason wrongful convictions tended to concentrate on felonies was that police were under pressure to solve the cases within a time limit, and there was little social sympathy for people suspected of serious crimes.

As the mainland reviews its Criminal Procedure Law, debate has been rekindled over whether criminal law should follow the principle of "protecting individual rights" or "protecting the masses through heavy punishment". The way evidence is obtained is one of the issues at the forefront.

Using the death penalty as a starting point, the Supreme Procuratorate will soon introduce a new regulation on death-penalty trials and the use of evidence, which will specify the inadmissibility of confessions obtained through torture.

China University of Political Science and Law professor Wang Shunan hailed the pending regulation as "an extremely important step". He said it would also force the country's police and procuratorates to shift from an emphasis on confession and testimony to collecting solid circumstantial and documentary evidence.

"In the past it was endorsed only in theory; now it will be given as a procedure," Professor Wang said. "So if torture is used now, there will be clearly stated legal repercussions."

Under the new regulation, the procuratorate must also investigate and bring charges if it becomes aware of torture or any form of tampering with evidence. It will also specify six scenarios in which evidence will be considered to have been gathered illegally and cannot be used in court.

Criminal lawyer Xia Lin said he would reserve judgment about the changes until he saw the details.

"The key is who will have the liability to prove that the confession was obtained through torture. Right now unless a defendant dies or suffers serious injuries, it is very difficult for the defendant to prove that he has been tortured," Mr Xia said.

"The police should bear the burden of proof that they have not used torture."

Other measures such as filming whole interrogations, allowing the presence of lawyers during interrogation and separating interrogation facilities from detention facilities are also aimed at stopping torture.

Thanks to Otto Malmgren for the tip.

John Yoo must answer civil rights suit by Jose Padilla

Judges at the trial level are taught to defer to those above. The habit of mind that tends to find a conciliatory approach, to reach for consensus, to narrow difference is deeply embedded in judical temperament. But choices must be made when adversaries press a point - as have the attorneys for plaintiff Jose Padilla, the al Qaeda supporter who suffered at the hands of captors whose methods were authorized by the opinions of high ranking lawyers in the United States Department of Justice - John Yoo, now a Berkeley law professor.

Jeffrey S. White, a federal judge of the Northern District of California, has confronted such a moment. He has allowed a "Bivens" civil rights action to proceed against the former Justice Department lawyer. 42 USC 1983, the post civil war statute authorizing lawsuits against oppression by state officials does not reach federal officers. For that the United States Supreme Court, in the landmark Bivens v. Six Unknwon agents of the Federal Bureau of Narcotics, said that the constitution itself authorizes a civil remedy. That 1971 opinion by Justice William Brennan is the foundation on which Padilla's complaint and White's opinion, rest.

Judge White recognizes the choices to be made. Here is his opening statement. A link to the full opinion follows.

[War] will compel nations the most attached to liberty to resort for repose and

security to institutions which have a tendency to destroy their civil and political

rights. To be more safe, they at length become willing to run the risk of being

less free.

The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).

The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect. After the brutal and unprecedented attacks on this nation on September 11, 2001, the United States government responded to protect its citizens from further terrorist activity. This lawsuit poses the question addressed by our founding fathers about how to strike the proper balance of fighting a war

against terror, at home and abroad, and fighting a war using tactics of terror.

Padilla v. Yoo: Order Granting in part and Denying in Part Defendent's Motion to Dismiss

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Post-script:

Brian Tamanaha has a supportive summary of key elements of Judge White's ruling (e.g. on qualified immunity) , and many readers comment at Balkinization here. - gwc

PPS: John Yoo has filed his brief on appeal HERE

"Disbar the torture lawyers"?

I am not committing myself on the legal merits of the effort but here is the website of Velvet Revolution's campaign to "disbar the torture lawyers". It provides the disciplinary complaints they have filed against Bush administration lawyers who were policy architects or authored the notorious memos, and the key documents.

As a teacher of professional responsibility I will withhold judgment until I have studied them. I will acknowledge though that when on his first day in the Oval Office President Obama stood with the admirals who had pressed the issue and signed the executive order that interrogations must adhere to law - to the Army field manual - tears welled up as the weight of shame lifted.

And I voted with the majority on a yet-to-be-published editorial in the New Jersey Law Journal entitled Enabling Torture. It concludes:

"Law is powerful and lawyers who construe and implement law have extraordinary power. If that power is used to enable torture, criminal punishment and professional discipline may well be warranted."

p.s. - 12/1/2009 A coalition of NGO's has filed more state bar complaints against lawyers in the Bush administration. The documents can be found HERE