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This Saturday, a time bomb will start ticking. The eight-year statute-of-limitations period applicable to the Federal Torture Statute will soon expire. Then, for time immemorial, it will be official: If you torture or conspire to torture in the name of the United States of America, no consequences will follow. We will have officially sanctioned torture.

Why this Saturday? On January 9, 2002, a memo not as well known as the so-called "torture memos" was completed by John Yoo and Robert Delahunty. Addressed to Defense Department General Counsel William Haynes II, and titled "Application of Laws and Treaties to al Qaeda and Taliban Detainees," it is one scary memo. It may be the first evidence of our national policy of torture, what Major General Antonio Taguba, the man selected by the Pentagon to report on Abu Ghraib, called "a systematic regime of torture." The John Yoo and Jay Bybee memos that followed in August of 2002, with their it’s-not-torture-until-organ-failure-occurs, have gotten much more publicity. But the Jan. 9 memo, written in much less inflammatory legalese, was the memo that may well have given the green light for torture. This is where the conspiracy to torture may have begun. Here’s why.

It was not a memo; it was a brief. Legal memos typically lay out the current state of the law on a given issue. They give arguments on all sides and generally inform the client what the legal consequences of a proposed action may be. On the other hand, legal briefs argue a particular side of an issue, with the expectation that in our adversary system of justice, the other party, in its brief, will argue the other side. In the Yoo-Delahunty "memo," every single question raised came out exactly the same way: The Geneva Conventions do not apply.

This was presented as a dispassionate explanation of the state of current law — they even called it a "memorandum" — but it was nothing of the sort. Its arguments seemed destined to reach only one possible conclusion. And the conclusion they reached led our government to adopt that position for the first time in our history. How do we know there were arguments Yoo and Delahunty did not present? No more than two days later, on January 11, 2002, the State Department’s William Howard Taft IV issued in response a 40-page memo. In that memo, he wrote that their two-day review led them to believe that the "factual assumptions...and legal analysis [of the Yoo-Delahunty memo were] seriously flawed."

It was the first time in our history that our government said Geneva Conventions did not apply. The Yoo-Delahunty memo was not putting forward a commonly accepted view of the state of the law. In fact, the position proposed had never before been adopted by the United States government. The Conventions are not late-20th century legalisms. In fact, we ratified our first Geneva Convention in 1882. Certainly sometimes we did not follow the Conventions we had ratified. But never before was it stated policy that the Conventions do not apply in a particular war. This was nothing close to mainstream legal thinking.

The Yoo-Delahunty "memo" failed to mention the Convention Against Torture (CAT) or the Federal Torture Statute (18 U.S.C. Secs. 2340 and 2340A-B). On behalf of the United States, Ronald Reagan signed the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on April 18, 1988. On October 21, 1994, the treaty was ratified by the United States Senate. That same year, Congress passed and President Clinton signed the Federal Torture Statute as legislation implementing CAT. The Yoo-Delahunty "memo" is titled, "Application of Treaties and Laws to al Qaeda and Taliban Detainees." Neither CAT nor the Federal Torture Statute were even mentioned in the 42-page document.

This is not to say that Yoo and Delahunty do not have a possible explanation for this oversight. The "memo’s" second sentence reads as follows: "In particular, you have asked whether the laws of armed conflict apply to the conditions of detention and the procedures for trial...." Defenders of Yoo and Delahunty (see Jeffrey K. Shapiro, "Legal Ethics and Other Perspectives," in The Torture Debate in America (2006), pp. 229-35) argue that CAT and the Federal Torture Statute are not part of the laws of armed conflict. They apply in all circumstances, not merely in wartime, so they didn’t have to be included. Legal ethics experts have said such an explanation would expose a private lawyer to certain malpractice liability. (See, e.g., Stephen Gillers, "Legal Ethics: A Debate," in The Torture Debate in America (2006) pp. 236-240.) It would be as if a client asked for legal advice about a non-existent federal law regarding armed robbery, and the lawyer neglected to mention that every state had laws against such activity.

How the "memo" was going to be used was crystal clear. Yoo and Delahunty were asked about laws regarding "conditions of detention and procedures for trial." As Yoo and Delahunty noted on page 2 of their "memo," this request did not include the major issue of the availability of habeas corpus for the detainees at Guantanamo. That had been dealt with in an earlier memo. So what "conditions of detention" demanded an OLC memorandum? Was it detainees’ amount of exercise time? Was it commissary privileges? Was it how often detainees had to be provided with a change of socks? Hardly. No competent lawyer could possibly question what was meant by "conditions of detention." This was clearly about torture. They knew, or they should have known.

Making this even more clear is the fact that the torture — the stress positions, the sleep deprivation, the solid food deprivation, the putting of people into small boxes, possibly even the waterboarding — began well before the so-called "torture memos" were completed on August 1, 2002. On what Office of Legal Counsel opinions did those practices rely? Either the January 9, 2002, "memo" was a ratification of already-intended practices, or it was the "memo" that gave the green light for torture to proceed. The Geneva Conventions proscriptions against torture were ruled out, and the Convention Against Torture’s proscriptions were ignored.

The Yoo-Delahunty defenders do them a disservice. Mr. Yoo is a law professor at Boalt Hall School of Law at the University of California at Berkeley (jyoo@law.berkeley.edu). Mr. Delahunty is a law professor at the University of St. Thomas School of Law in Minneapolis, Minnesota (rjdelahunty@stthomas.edu). Each has been defended by some law school colleagues.

In an October 20, 2009, PBS "News Hour" report, Jesse Choper, law professor at Boalt, said: "People say, well, he was told — he knew what they wanted, and he gave it to them. I don’t believe that. He gave them what — he gave them an approach that was wholly consistent with virtually everything he did as a scholar beforehand." If true, this may defend Mr. Yoo, but in doing so, it indicts those who sought his opinion. They knew precisely what they were going to get. That was why they asked him to write the "memo." They were merely seeking a "legal shield" for their predetermined policy. And just because Mr. Yoo had written these views beforehand, hardly makes them the accepted view of what the state of the law was.

In a June 22, 2009, letter made public on August 6, 2009, the University of St. Thomas Law School’s Dean Thomas Mengler wrote: "Furthermore, Delahunty was not at the Justice Department when the key memos were written. In January 2002, Delahunty left the Justice Department for the White House where he was on loan for 18 months. While Delahunty was in the White House, not the Justice Department, is when many of the questions regarding interrogation tactics were answered." Well, that’s not quite the whole story. Delahunty was still Special Counsel to the Office of Legal Counsel while he was at the Department of Homeland Security at the White House. This is confirmed by a still-secret Nov. 18, 2003, memo he co-authored with Jack Goldsmith, then head of the OLC. (This was revealed in a declaration by Steven Bradbury in the ACLU et al. v. Dept. of Defense case on June 7, 2007.) Moreover, the public record is replete with examples of torture occurring systematically long before the August 1, 2002, "torture memos" were written.

The Jan. 9, 2002, Yoo-Delahunty "memo" may well have been the key memo that began the Bush administration’s "legalization" of its systematic policy of torture. Yoo and Delahunty may have been part of a conspiracy to torture and may be criminally liable under the Federal Torture Statute. Eight years have passed, and their exposure under the torture statute will expire whenever the last act of the conspiracy is determined to have occurred. The statute of limitations’ ticking time bomb has begun to tick.

Tick-tick-tick.

Originally posted to youmayberight on Thu Jan 07, 2010 at 08:13 PM PST.

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Comment Preferences

    •  Regarding the statute of limitations, (2+ / 0-)
      Recommended by:
      Uberbah, wolfie1818

      doesn't Yoo's liability extend to the end of his federal employment in 2003, since the activities he advocated continued through at least 2004?  And since several people are known to have died from torture as a direct result of Yoo's opinions, I'm not sure the 8 year limit applies anyway.

      The bigger question is whether the US has the courage to face this issue.

      •  You may be right, but (1+ / 0-)
        Recommended by:
        skrekk

        that position would rely on the courts to determine precisely what acts could be tied to the conspiracy of writing the memos, and whether specific deaths could also be connected. In that latter case, of course, there would be no statute of limitations. In fact, if there were a foreseeable risk of serious bodily injury, there would be no limitation on the period. But these scenarios require relying on courts, which are probably not going to be all that willing to find criminal liability to begin with. So I think it would be wise to err on the conservative side in determining how long before the statute of limitations period will expire.

  •  This is not the America (3+ / 0-)
    Recommended by:
    Uberbah, Jerry Melton, wolfie1818

    I want to live in.  

    "Rules must be binding. Violations must be punished. Words must mean something." President Obama in Prague on April 5

    by jlynne on Thu Jan 07, 2010 at 08:23:21 PM PST

  •  Maybe this is why Dawn Johnson was kept out... (1+ / 0-)
    Recommended by:
    Uberbah

    for the year.  Of course if this is the hard and fast deadline as you are saying, then it's already over.  Holder hasn't been building a secret case that he's going to spring on Yoo by close of business tomorrow.

    Politics is like playing Asteroids - You go far enough to the left and you end up on the right. Or vice-versa.

    by Jonze on Thu Jan 07, 2010 at 08:24:11 PM PST

  •  What can be done... (1+ / 0-)
    Recommended by:
    subtropolis

    It seems that the Obama administration has taken any action against Bush administration officials for the use of torture off the table. I would have hoped that a different policy would be in effect; however, it doesn't look like there wil be any prosecutions for torture initiated by the Justice Department. I understand your concern; however, under the current policy I don't know what can be done.  

    "Intelligence is quickness in seeing things as they are..." George Santayana

    by KJG52 on Thu Jan 07, 2010 at 08:30:10 PM PST

    •  Rep. Conyers floated a proposal a year ago (3+ / 0-)
      Recommended by:
      subtropolis, Uberbah, wolfie1818

      to extend the statute of limitations to 10 years. If it is done before the period expires, there are no ex post facto problems. Some legal people also believe the period doesn't even begin to run until the last act concealing the torture, but the law is murky on which acts of concealment get included in the conspiracy and which do not.

      Other than that, we can raise holy hell with our Representatives and Senators.

  •  Watch for a flood of indictments... (0+ / 0-)

    ... after the upper echelons are safe from prosecution.

    "Most of the important things in the world have been accomplished by people who have kept on trying when there seemed to be no hope at all" Andrew Carnegie

    by pantherq on Thu Jan 07, 2010 at 11:50:32 PM PST

  •  Ticking Time Bomb (0+ / 0-)

    This article should be sent to our senators and represenators AND Attorney General Holder.  Thank you for writing it.

  •  There is no statute of limitations on treason. (0+ / 0-)

    Or premeditated murder.

    Foreignness is in the ignorance of the beholder.

    by Troubadour on Fri Jan 08, 2010 at 06:44:04 AM PST

  •  NO STATUTE on war crimes/crimes against humanity (0+ / 0-)

    There is no statute of limitations on war crimes (torture is a war crime when committed in time of war) or for crimes against humanity (torture is a crime against humanity if widespread or systematic no matter whether in time of war or in time of PEACE), and torture in time of peace, if isolated, is an independent international crime.  

    Although the above is international customary law, it is the highest law in the world, and it is non-derogable, meaning any national laws to the country are irrelevant.  THE CLOCK IS TICKING ON INTERNATIONAL JURISDICTION and, as with Nazi hunters, they can't run out the clock.

    DOmestically, i presume the 8 year statute is correctly quoted.  That may work within the country, but statutes get tolled, or paused, for CONTINUING WRONGS, so most likely it doesn't even START until the Bush administration left power -- if then...

    THere's a treaty obligation under the Convention against Torture and Other forms of Ill-Treatment to CONFORM DOMESTIC LAW to the provisions of the treaty.  In that sense, an 8 year statute is a failure to conform domestic law to the provisions of the treaty.  Torture is basically the clearest possible law: no exceptions for any circumstances whatsoever, regardless of war, peace or state of emergency.  None.  The passage of 8 years confers no immunity -- that would be an "exception" to liability, when none are allowed.  Basically, the US objects to international criminal jurisdiction of the ICC (International Criminal Court) and it is simply a standoff, a matter of power and not law, that is stalling prosecutions, yet Rumsfeld's already been sued in Germany and had the case revived because US has exhausted its legal remedies. The ticking of the clock's expiration actually opens a new door.

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