Reagan's DOJ Prosecuted Texas Sheriff for Waterboarding Prisoners
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"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.
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.