Russia Bars Bush-Era Torture Lawyers

The U.S. government views itself as the global arbiter of human rights, righteously throwing stones at other nations for their misbehavior and most recently imposing sanctions on a group of Russians accused of human rights crimes. That move prompted a tit-for-tat response from Moscow, barring 18 current and former U.S. officials from entering Russia.

The predictable response from the U.S. news media to the Russian retaliation was to liken it to the Cold War days when the United States would catch a Soviet spy and Moscow would retaliate by grabbing an American and arranging a swap.

But several of the Americans targeted by Moscow this time were clearly guilty of human rights crimes. John Yoo and David Addington were former legal advisers to Criminal-at-Large George W. Bush and [accomplice] Vice President Dick Cheney, respectively. The two lawyers were famous for inventing new excuses for torture. Two other Americans on Moscow’s list — Major General Geoffrey D. Miller and Rear Admiral Jeffrey Harbeson — commanded the extralegal detention center at Guantanamo Bay, Cuba.In particular, Yoo and Addington stand out as smug apologists for torture who twisted law and logic to justify waterboarding, painful stress positions, forced nudity, sleep deprivation and other techniques that have been historically defined as torture. In a society that truly respected human rights, they would have been held accountable — along with other practitioners of the “dark side” — but instead have been allowed to walk free and carry on their professional lives almost as if nothing had happened.

The Russians were polite enough only to include on the list these mid-level torture advocates and enablers (as well as some prosecutors who have led legal cases against Russian nationals). They left off the list many culpable former senior officials, such as Defense Secretary Donald Rumsfeld, National Security Adviser Condoleezza Rice, CIA Director George Tenet, Cheney and Bush. Obviously, the Russian government didn’t want an escalation.

It’s also undeniably true that Moscow does not come to the human rights issue with clean hands. But neither does the United States, a country that for generations has taken pride in its role as the supposed beacon of human rights, the rule of law, and democratic principles.

Acting as a prosecutor at the Nuremberg Tribunals after World War II, Supreme Court Justice Robert Jackson famously denied that punishing the Nazi leaders as war criminals was simply victor’s justice. He insisted that the same principles would apply to the nations sitting in judgment, including the United States and the Soviet Union. However, that has turned out not to be the case.

The real principles of today’s international law could be described as dragging petty warlords from Africa or Eastern Europe off to The Hague for prosecution by the International Criminal Court, while letting leaders of the Big Powers — with far more blood on their hands — off the hook. Jackson’s “universal principles” of human rights now only apply to the relatively weak.

A History of Double Standards

Of course, one could argue that double and triple standards have always been the way of the world. What often seems to really matter is who has the most powerful friends, the best P.R. team, and the greatest number of “news” organizations in their pocket. Plus, lots of cognitive dissonance helps, too.

For instance, you must forget the role of the New York Times’ Thomas Friedman, the Washington Post’s Fred Hiatt and other mainstream media stars in rallying the American people to get behind the U.S. invasion of Iraq in 2002-2003 — when the same pundits now fold their arms in disgust at some other nation’s violation of international law.

It’s also handy if you can forget much of American history. You can fondly recall the stirring words about liberty from the Founding Fathers, but it’s best to forget that many owned African-Americans as slaves and that their lust for territorial expansion led them and their descendants to wage a cruel genocide against Native Americans.

There also were the repeated military interventions in Latin America and the brutal counterinsurgency campaign in the Philippines (which applied some of the same tactics that the U.S. military had perfected in crushing uprisings by Native Americans). Then, there were the militarily unnecessary atomic bomb attacks on Hiroshima and Nagasaki; the mass slaughters in Indochina in the 1960s and 1970s; and the “death squad” operations in South and Central America in the 1970s and 1980s.

One can trace a direct correlation from American sayings like “the only good Indian is a dead Indian” in the 19th Century to “kill them all and let God sort them out” in the 20 th  Century. And U.S. respect for human rights hasn’t improved much in the new century with George W. Bush’s “war on terror” and his invasions of Afghanistan and Iraq and with Barack Obama’s extrajudicial killings by drone attacks.

So, when the United States strides from its glass house to hurl stones at Russians over repression in Chechnya, it’s not at all surprising that the Russians would return the volley by singling out some of the Americans clearly implicated in war crimes under George W. Bush. The only real question is why did the Russians stop with a handful of apparatchiks? Probably they didn’t want to escalate this exchange of Big Power hypocrisies.

The hard truth is that if the United States had a functioning criminal justice system for the powerful — not just for run-of-the-mill offenders — former Vice President Cheney and ex-President Bush would have convicted themselves with their own public comments defending their use of torture.

For instance, in February 2010, on ABC’s “This Week,” Cheney pronounced himself “a big supporter of waterboarding,” a near-drowning technique that has been regarded as torture back to the Spanish Inquisition and that has long been treated by U.S. authorities as a serious war crime, such as when Japanese commanders were prosecuted for using it on American prisoners during World War II.

Cheney was unrepentant about his support for the technique. He answered with an emphatic “yes” when asked if he had opposed the Bush administration’s decision to suspend the use of waterboarding. He added that waterboarding should still be “on the table” today.

Admitting the Sham

But Cheney went further. Speaking with a sense of legal impunity, he casually negated a key line of defense that senior Bush officials had hidden behind for years — that the brutal interrogations were okayed by independent Justice Department legal experts who gave the administration a legitimate reason to believe the actions were within the law.

However, in the interview, Cheney acknowledged that the White House had told the Justice Department lawyers what legal opinions to render. In other words, the opinions amounted to ordered-up lawyering to permit the administration to do whatever it wanted.

In responding to a question about why he had so harshly attacked President Obama’s counterterrorism policies, Cheney explained that he was concerned about the new administration prosecuting some CIA operatives who had handled the interrogations and “disbarring lawyers with the Justice Department who had helped us put those policies together. … I thought it was important for some senior person in the administration to stand up and defend those people who’d done what we asked them to do.”

Cheney’s comment about the Justice lawyers who had “done what we asked them to do” was an apparent reference to John Yoo and his boss, Jay Bybee, at the Office of Legal Counsel (OLC), a powerful Justice Department agency that advises the President on the limits of his power.

In 2002, Yoo — while working closely with White House officials — drafted legal memos that permitted waterboarding and other brutal techniques by narrowly defining torture. He also authored legal opinions that asserted virtual dictatorial powers for a President during war, even one as vaguely defined as the “war on terror.” Yoo’s key memos were then signed by Bybee.

In 2003, after Yoo left to be a law professor at the University of California at Berkeley and Bybee was elevated to a federal appeals court judgeship in San Francisco, their successors withdrew the memos because of the sloppy scholarship. However, in 2005, President George W. Bush appointed a new acting chief of the OLC, Steven Bradbury, who restored many of the Yoo-Bybee opinions.

In the years that followed, Bush administration officials repeatedly cited the Yoo-Bybee-Bradbury legal guidance when insisting that the “enhanced interrogation” of “war on terror” detainees — as well as prisoners from the Iraq and Afghan wars — did not cross the line into torture.

In essence, the Bush-Cheney defense was that the OLC lawyers offered honest opinions and that everyone from the President and Vice President, who approved use of the interrogation techniques, down to the CIA interrogators, who conducted the torture, operated in good faith.

If, however, that narrative is indeed false — if the lawyers had colluded with the policymakers to create legal excuses for criminal acts — then the Bush-Cheney defense would collapse. Rather than diligent lawyers providing professional advice, the picture would be of Mob consiglieres counseling crime bosses how to skirt the law.

Hand in Glove

Though Bush administration defenders have long denied that the legal opinions were cooked, the evidence has long supported the conspiratorial interpretation. For instance, in his 2006 book War by Other Means, Yoo himself described his involvement in frequent White House meetings regarding what “other means” should receive a legal stamp of approval. Yoo wrote:

“As the White House held its procession of Christmas parties and receptions in December 2001, senior lawyers from the Attorney General’s office, the White House counsel’s office, the Departments of State and Defense and the NSC [National Security Council] met a few floors away to discuss the work on our opinion. … This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism.”

Yoo said meetings were usually chaired by Alberto Gonzales, who was then White House counsel and later became Bush’s second Attorney General. Yoo identified other key players as Timothy Flanigan, Gonzales’s deputy; William Howard Taft IV from State; John Bellinger from the NSC; William “Jim” Haynes from the Pentagon; and David Addington, counsel to Cheney.

In his book, Yoo described his work swatting down objections from the State Department’s lawyer and the Pentagon’s judge advocate generals — who feared that waiving the Geneva Conventions in the “war on terror” would endanger U.S. soldiers — Yoo stressed policy concerns, not legal logic.

“It was far from obvious that following the Geneva Conventions in the war against al-Qaeda would be wise,” Yoo wrote. “Our policy makers had to ask whether [compliance] would yield any benefit or act as a hindrance.”

What Yoo’s book and other evidence make clear is that the lawyers from the Justice Department’s OLC weren’t just legal scholars handing down opinions from an ivory tower; they were participants in how to make Bush’s desired actions “legal.” They were the lawyerly equivalents of those U.S. intelligence officials, who — in the words of the British “Downing Street Memo” — “fixed” the facts around Bush’s desire to invade Iraq.

Redefining Torture

In the case of waterboarding and other abusive interrogation tactics, Yoo and Bybee generated a memo, dated Aug. 1, 2002, that came up with a novel and narrow definition of torture, essentially lifting the language from an unrelated law regarding health benefits.

The Yoo-Bybee legal opinion stated that unless the amount of pain administered to a detainee led to injuries that might result in “death, organ failure, or serious impairment of body functions” then the interrogation technique could not be defined as torture. Since waterboarding is not intended to cause death or organ failure — only the panicked gag reflex associated with drowning — it was deemed not to be torture.

The “torture memo” and related legal opinions were considered so unprofessional that Bybee’s replacement to head the OLC, Jack Goldsmith, himself a conservative Republican, took the extraordinary step of withdrawing them after he was appointed in October 2003. However, Goldsmith was pushed out of his job after a confrontation with Cheney’s counsel Addington. Bradbury then enabled the Bush White House to reinstate many of the Yoo-Bybee opinions.

Cheney’s frank comments on “This Week” in 2010 — corroborating that Yoo and Bybee “had done what we asked them to do” — reflected the confidence that former Bush administration officials felt by then that they would face no accountability from the Obama administration for war crimes.

Surely, if a leader of another country had called himself “a big supporter of waterboarding,” there would have been a clamor for his immediate arrest and trial at The Hague. That Cheney felt he could speak so openly and with such impunity was a damning commentary on the rule of law in the United States, at least when it comes to the nation’s elites.

John Yoo apparently shares Cheney’s nonchalance about facing accountability. This weekend, when Yoo was asked about the Russians banning him as a human rights violator, he joked about the athletic skills of Russian President Vladimir Putin. “Darn,” Yoo wrote in an e-mail, “there goes my judo match with Putin.”

Perhaps the ultimate measure of America’s current standing as a promoter of human rights is that it’s difficult to judge which government is the bigger hypocrite: the one in Moscow or the one in Washington.