[StopTorture] Reagan's DOJ Prosecuted Texas Sheriff for Waterboarding Prisoners

Deborah Popowski dpopowski at law.harvard.edu
Mon May 4 00:02:44 EDT 2009

  Reagan's DOJ Prosecuted Texas Sheriff for Waterboarding Prisoners

Monday 27 April 2009
by: Jason Leopold, t r u t h o u t | Report

    George W. Bush's Justice Department said subjecting a person to the
near drowning of waterboarding was not a crime and didn't even cause
pain, but Ronald Reagan's Justice Department thought otherwise,
prosecuting a Texas sheriff and three deputies for using the practice to
get confessions.

    Federal prosecutors secured a 10-year sentence against the sheriff
and four years in prison for the deputies. But that 1983 case - which
would seem to be directly on point for a legal analysis on waterboarding
two decades later - was never mentioned in the four Bush administration
opinions released last week.

    The failure to cite the earlier waterboarding case and a half-dozen
other precedents that dealt with torture is reportedly one of the
critical findings of a Justice Department watchdog report that legal
sources say faults former Bush administration lawyers - Jay Bybee, John
Yoo and Steven Bradbury - for violating "professional standards."

    Bybee, Yoo and Bradbury also shocked many who have read their memos
in the last week by their use of clinical and legalistic jargon that
sometimes took on an otherworldly or Orwellian quality. Bybee's August
1, 2002, legal memo - drafted by Yoo - argued that waterboarding could
not be torture because it does not "inflict physical pain."

    During the procedure, a subject is strapped down to a bench with his
head lower than his feet and his face covered by a cloth that is then
saturated with water, cutting off his breathing and inducing the panic
reflex that a person feels while drowning.

    "You have informed us that this procedure does not inflict actual
physical harm," Bybee wrote. "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."

    Bush administration officials approved CIA waterboarding for three
"high-value" detainees, including Abu Zubaydah (believed to be an
al-Qaeda logistics operative) and Khalid Sheikh Mohammed (known as KSM,
the alleged mastermind of the 9/11 attacks). Zubaydah was waterboarded
at least 83 times and KSM at least 183 times, according to one Justice
Department memo.

    Bybee, whose memo gave legal cover for the initial use of
waterboarding and nine other brutal interrogation methods, said his
opinion - as assistant attorney general in charge of the Office of Legal
Counsel, which advises presidents on the limits of their legal powers -
represented "our best reading of the law." He cited scant history for
the Convention Against Torture, which took effect in 1987.

    "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 Convention Against Torture 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."

    *Texas Case*

    That law was not in existence when the Texas sheriff, James Parker,
and his deputies were prosecuted and sentenced in the 1980s. 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 email. "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 suspects that 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 [post-World War II] 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, the Justice Department's Office of Professional
Responsibility (OPR) investigated whether the three lawyers purposely
twisted their legal advice to satisfy 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 about that point in
its report, which is now being revised.

    Beyond ignoring the case law on torture, Yoo, as a deputy assistant
attorney general, pushed the theory that President Bush could not be
bound by laws outlawing torture because of his constitutional authority
to use military force at a time of war.

    "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 Yoo in another memo dated August 1, 2002, and entitled "Standards
of Conduct for Interrogation."

    In that opinion, Yoo failed to cite the key precedent relating to a
president's war powers, Youngstown Sheet & Tube Co. v. Sawyer, a 1952
Supreme Court case that addressed President Harry Truman's order to
seize steel mills that had been shut down in a labor dispute during the
Korean War.

    Truman said the strike threatened national defense and thus
justified his actions 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's Explanation*

    In his 2006 book, "War by Other Means," Yoo offered up a defense of
his failure to cite Youngstown. "We didn't cite Jackson's individual
views in Youngstown because earlier [Office of Legal Counsel] opinions,
reaching across several administrations, had concluded that it had no
application to the President's conduct of foreign affairs and national

    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

    But Horton disagrees. "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

    "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

    "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 suspected terrorists needed to be
done in order to save American lives and foil other plans to attack the
United States. In defending the Bush administration's torture program,
Republicans have likened the "high-value" detainees to mass murderers,
who don't deserve to be treated humanely.

    *Texas Trial*

    At the trial of the Texas sheriff, Assistant US Attorney Scott
Woodward 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 Sheriff Parker
and three of the deputies said he witnessed Harkless being handcuffed to
a chair by Parker and then getting "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,"
adding: "I couldn't breathe."

    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.

    Some other legal analysts have suggested that the ambiguity of the
Bush administration's decision process - in which CIA interrogators
suggested the harsh tactics, national security officials, including
Condoleezza Rice, concurred, and Justice Department lawyers gave their
approval - would make getting 12 jurors to agree on a conviction difficult.

    But the jury in the Baker's case didn't buy the "didn't know it was
illegal" defense, convicting the deputy on three counts of civil rights
and constitutional violations related to the waterboarding.

    Bybee is now a federal judge on the Ninth Circuit Court of Appeals
in San Francisco. Yoo is a constitutional law professor at the
University of California, Berkeley and a visiting professor at Chapman
University in Orange, California.

    Bradbury, who was acting head of the Office of Legal Counsel for
most of Bush's second term, reportedly has been looking for a job since
Bush left office on January 20, 2009.


Jason Leopold is editor in chief of The Public Record, www.pubrecord.org

Deborah A. Popowski | Kaufman-Skirball Fellow | Center for Constitutional
Rights | 666 Broadway, 7th Floor | New York, NY 10012 | www.ccrjustice.org

"Power concedes nothing without a demand.  It never did and it never will."
Frederick Douglass
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