The deputies were sentenced to four years in prison and Parker pleaded guilty to extortion and federal civil rights violations and received a 10-year sentence. Parker admitted that he had operated a “marijuana trap” on U.S. Highway 59, arrested suspects, and, according to court documents, subjected “prisoners to a suffocating water torture ordeal in order to coerce confessions.
“This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning,” the complaint said, which referred to the technique as “water torture.”
Yet nowhere in the four “torture” memos released by the Justice Department last week that authorized the CIA to waterboard detainees do the attorneys who drafted the legal opinions mention the federal case U.S. v Parker et al, in which San Jacinto County Sheriff James Parker and three deputies– Carl Lee, Floyd Allen Baker and John Glover—were found guilty of torturing at least six prisoners between 1976 and 1980 in a rural part of the state 60 miles outside of Houston.
The failure to cite U.S v Parker, as well as a half-dozen other precedent setting cases that dealt with torture, is reportedly one of the critical findings of a Justice Department watchdog report that legal sources said concluded “professional standards” were violated by former Office of Legal Counsel chiefs Jay Bybee and Steven G. Bradbury and former Deputy Assistant Attorney General John Yoo.
Bybee is now a federal judge on the 9th Circuit Court of Appeals. Yoo is a constitutional law professor at the University of California, Berkeley and a visiting professor at Chapman University in Orange, Calif.
One of the key legal arguments contained in Bybee’s Aug. 1, 2002 legal memo was that waterboarding, which was used on three alleged “high-value” detainees a combined 266 times in the span of one month, was not torture because it does not “inflict physical pain.”
“You have informed us that this procedure does not inflict actual physical harm,” says Bybee’s 18-page opinion. “Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain… The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.”
Bybee, whose memo was prepared for John A. Rizzo, the acting general counsel of the CIA, said he based his decision to authorize the use of waterboarding as well as nine other brutal interrogation methods on “our best reading of the law.”
“However, you should be aware that there are no cases construing this statute, just as there have been no prosecutions brought under it,” Bybee wrote.
The statute Bybee was referring to is U.S.C. § 2340 [the Convention Against Torture], which makes it a crime for any “person acting under the color of law” to “inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”
That law was not yet in existence when Parker and the deputies were prosecuted and sentenced. But Bybee, Bradbury and Yoo had a duty to their legal profession to cite the case as it would have changed the substance of their legal opinions, said Scott Horton, a human rights attorney and constitutional expert.
“Any competent legal adviser would, among other things, have looked at the techniques themselves and checked to see how they have been treated in prior cases,” Horton said in an interview conducted via e-mail. “Obviously the Anti-Torture Statute itself is a very recent invention and it has no enforcement history, so saying that and then suggesting on this basis that the situation is tabula rasa is highly disingenuous.”
Horton believes Bybee, Yoo and Bradbury were well aware of the case law but simply chose to ignore it in order to give the Bush administration what it had asked for.
“To take one example, there was a court-martial addressing the practice of waterboarding from 1903, a state court case from the twenties, a series of prosecutions at the Tokyo Tribunal (in many of which the death penalty was sought) and another court-martial in 1968,” Horton said. “These precedents could have been revealed in just a few minutes of computerized research using the right search engines. It’s hard to imagine that Yoo and Bybee didn’t know them.
“So why are none of these precedents mentioned? Obviously because each of them contradicts the memo’s conclusions and would have to be distinguished away. Professional rules would have required that these precedents be cited, failing to do so reflects incompetent analysis.”
In fact, OPR investigated whether the former Justice Department attorneys purposely twisted their legal advice to the White House and knowingly avoided citing existing case law in order to reach conclusions the White House wanted. It’s unknown what OPR has concluded in this respect as the final version of the report is now being changed.
In an Aug. 1, 2002 opinion written by Yoo for then-White House counsel Alberto Gonzales that had been previously published, Yoo stated that President Bush could not be bound by laws outlawing torture because of his constitutional authority to use military force.
“As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy,” said the 50-page memo entitled “Standards of Conduct for Interrogation.”
But in that opinion, Yoo failed to cite Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry S. Truman’s order to seize steel mills that had been shut down in a labor dispute during the Korean War. Truman believed the strike threatened national defense and thus he could act under his Article II powers in the Constitution.
But the Supreme Court overturned Truman’s order, saying, “the President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Since Congress hadn’t delegated such authority to Truman, the Supreme Court ruled that Truman’s actions were unconstitutional, with an influential concurring opinion written by Justice Robert Jackson.
Yoo offered up a defense of his failure to cite Youngstown in his 2006 book, War by Other Means. Yoo wrote, “we didn’t cite Jackson’s individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the President’s conduct of foreign affairs and national security.”
Yoo added, “Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war. …
“Detention and interrogation policy are at the heart of the President’s Commander-in-Chief power to wage war, and long constitutional history supports the President’s leading role on such matters.”
But Horton disagrees with Yoo’s legal reasoning. “The Youngstown case is considered the lodestar precedent addressing the President’s invocation of Commander-in-Chief powers away from a battlefield,” Horton told me via e-mail.
“Justice Jackson’s opinion is the most persuasive of the opinions justifying the decision,” Horton said. “If you examine any treatise on national security law, you’ll find them at the core. Moreover, the Supreme Court itself in subsequent opinions has highlighted their importance.
“It’s obvious that Yoo failed to cite them not because he believed they were off point (as he rather lamely suggests), but because they strongly contradicted the premise he was articulating.
“But a lawyer crafting an opinion has a duty of candor that requires that he identify and distinguish adverse precedent that a court might consider controlling. In essence, Yoo was free to articulate whatever cockeyed theories he wanted. He was not free to suppress the existence of Supreme Court authority that went in the opposite direction. But that’s exactly what he did.”
The four legal opinions released last week attempt to make the case that the “enhanced interrogations” of admitted terrorists needed to be done in order to save American lives and foil plans to attack the U.S. Republicans who have defended the Bush administration’s torture program have likened the “high-value” detainees to mass murderers who don’t deserve to be treated humanely.
At the trial of the Texas sheriff, Scott Woodward, an Assistant U.S. Attorney, said the prisoners who were subjected to waterboarding were not “model citizens” but they were still “victims” of torture.
“We make no bones about it. The victims of these crimes are criminals,” Woodward said, according to a copy of the trial transcript.
One of the “victims” was Vernell Harkless who was convicted of burglary in 1977. Gregg Magee, a deputy sheriff who testified against Parker and three of his colleagues said he witnessed Harkless being handcuffed to a chair by Parker and was given “the water treatment.”
“A towel was draped over his head,” Magee said, according to court documents. “He was pulled back in the chair and water was poured over the towel.”
Harkless said he thought he was “going to be strangled to death.”
“I couldn’t breathe,” he said.
One of the defendants, deputy Floyd Allen Baker, said during the trial that he thought torture to be an immoral act but he was unaware that it was illegal.
His attorneys cited the “Nuremberg defense,” that Baker was acting on orders from his superiors when he subjected prisoners to waterboarding. That line of defense has come up in the current debate about whether CIA interrogators should be prosecuted for their roles in the torture of detainees. President Obama, CIA Director Leon Panetta and Attorney General Eric Holder have ruled out prosecuting CIA interrogators who acted on Justice Department legal advice where torturous tactics were used.
But the jury wasn’t persuaded in Baker’s case. He was convicted on three counts of civil rights and constitutional violations related to his role in waterboarding prisoners.
Filed under: Civil Liberties, Military Industrial Complex, Prison Industrial Complex | Tagged: 9th Circuit Court of Appeals, Alberto Gonzales, Anti-Torture Statute, Article II, Carl Lee, Central Intelligence Agency, Chapman University, CIA, Convention Against Torture, Department of Justice, DOJ, Floyd Allen Baker, Gregg Magee, Harry S. Truman, James Parker, Jay Bybee, John A. Rizzo, John Glover, John Yoo, Korean War, l Eric Holder, Leon Panetta, marijuana, Nuremberg defense, Office of Legal Counsel, Office of Professional Responsibility, San Jacinto County Sheriff, Scott Horton, Scott Woodward, Standards of Conduct for Interrogation, Steven G. Bradbury, Supreme Court, Texas, Tokyo Tribunal, torture, U.S. v Parker et al, University of California, Vernell Harkless, War by Other Means, waterboarding, Youngstown Sheet & Tube Co. v. Sawyer |