The wrongness of Margulis’s decision not even to slap the wrists of torture lawyers is illustrated by three parallels:
1. U.S. soldiers have been tried for what these lawyers said was legal. More than a dozen soldiers, including a brigadier general, colonels, sergeants, and corporals, were tried for committing acts in Iraq that were authorized by Yoo’s and Bybee’s memoranda. Then, they were called rogue soldiers, but in fact, they were carrying out orders that commanded practices that were authorized by these lawyers’ analyses.
2. Police are tried for “mistakes in the aftermath” – yet Margulis excused Yoo and Bybee on the same theory.Margulis makes much of the pressure on DOJ after 9-11, in order to excuse Yoo’s and Bybee’s shoddy work. But compare Margulis’s lenience for the lawyers to a judge’s proper refusal to excuse police misconduct because of the pressure inherent in the need to keep order in Katrina-flooded New Orleans. Moreover, the attorneys’ mistake was not a mistake born of stress and hurry: To the contrary, John Yoo appears to have had enough extra time to use the crisis to advance his pet theory of a unitary executive, which underpinned his memo. Far from giving a rushed, jumbled answer in an emergency, Yoo had the luxury of grafting his own wrongheaded theoretical structure onto the law. And the excuse of rush and pressure is ridiculous when years have passed, and Yoo and Bybee have yet to recant or apologize. Even they do not claim they were rushed or pressured.
3. Nuremberg lessons were forgotten here. The United States once led the world in ending torture and forbidding torture as a war crime. We prosecuted our enemies at Tokyo and Nuremberg for torture, including water torture (which Vice President Cheney still promotes). And we prosecuted, and put in prison, German government lawyers who sanctioned illegal actions, including torture, in violation of less clear and certain laws than ours.
Tuesday 2 March 2010
How the Torture Lawyers Broke the Law, and Why They Must be Punished ☀
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