He named them: Alberto Gonzales, Pres- ident Bush’s White House Counsel; John Yoo and Jay Bybee at the Office of Legal Counsel (OLC) in the Justice Department; and David Addington, counsel to Vice Pres- ident Dick Cheney. They all got to work, Pyle said, in Novemenber 2001 by creating a new judicial system called military com- missions. These were outside the jurisdic- tion of either the federal court system or the military justice systems called courts martial. “There could only be one reason to have military commissions,” he said, “and that was to admit evidence obtained by torture.” Such evidence was notorious- ly unreliable and not allowed in a normal court of law, he continued. Tortured prison- ers invariably said what their tortures want- ed them to say. These were nothing less than kangaroo courts created, Pyle con- cluded, in anticipation of detainees being tortured to get false confessions.13 Yoo and Bybee of the OLC went on to


create secret legal memos to justify the ille- gal torture (e.g., waterboarding) by simply creating new definitions of torture. In short, Pyle concluded, Bush’s lawyers “were ac- complices in a criminal conspiracy to vio- late the law” and as such, “they should be punished.”


The OLC laywers would argue different-


ly, of course—that they were giving the best advice they could under very trying circumstances. But as criminal defense law- yer Joshua Dratel was quick to point out, if these lawyers, in their 2003-03 legal mem- os, were simply papering over illegalities that had already occurred (what Dean Velv- el wryly called “memoing up”), then they had no defense.14


Within six months of this conference,


Bush administration lawyers would become the center of a national debate as more of their so-called “torture memos” were re- leased to the public pursuant to a Free- dom of Information lawsuit brought by the American Civil Liberties Union. What was once considered unthinkable—prosecuting not only the Bush lawyers but their boss- es (Bush, Cheney, and Rumsfeld) for war crimes—was now a matter of kitchen table debate and even coverage in editorials in The New York Times.15


By the time Presi-


dent Obama took office and asked sup- porters to rank their priorities on his official website’s wish list, the number one priori- ty was “appointing a special prosecutor for Bush and Cheney.”16


The wish list did not last long, and be-


fore he had even taken the oath of office the President-elect uttered a statement which caused his liberal supporters to gasp in dismay. “We need to look forward, as opposed to looking backwards,” he told them. In other words, forget about prose- cutions.


www.vtbar.org


From Despair to Renewed Hope


The record during Obama’s first term in office has been grim.17


He did not abolish


military commissions. His Justice Depart- ment has repeatedly tried to shut down cases filed by torture victims, claiming state secrets and executive power. An internal DOJ investigation into “torture lawyers” Yoo and Bybee ended up absolving them from “professional misconduct,” issuing in- stead a slap-on-the wrist finding of “poor judgment.”18


High level officials who have broken the law have been given immunity, while whis- tleblowers—including Thomas Drake, who leaked information to the Baltimore Sun about illegal domestic surveillance by the National Security Agency—are being pros- ecuted. The Obama Administration has been pressuring New York’s attorney gen- eral to go easy on Wall Street banks, ef- fectively immunizing them from liability for mortgage fraud. The DOJ’s dismissal of an ACLU case seeking to prevent the threat- ened assassination of an American citizen in Yemen—and the Pentagon’s subsequent carrying out of Ahmed al Alwaki’s murder by drone in October—has constitutional lawyers reeling. But in recent months, two federal judg- es have bucked the tide. The U.S. Court of Appeals for the Seventh Circuit ruled Au- gust 8 that two American citizens detained and tortured without even a court hear- ing by the Bush-era Defense Department may sue former Defense Secretary Donald Rumsfeld.19


In a second lawsuit, U.S. Dis- trict Judge James Gwin of the Northern District of Ohio ordered that an anony- mous military contractor who was detained and tortured for nine months beginning in November 2005 may proceed with his suit against Donald Rumsfeld.20 The Robert Justice Jackson Steering Committee (which formed after the 2008 Andover conference) has appealed the heavily-redacted and increasingly watered- down DOJ reports absolving Yoo and By- bee. As this author noted in the FOIA ap- peal,


Whenever the ethics lawyers in the [DOJ’s] Office of Professional Respon- sibility got close to revealing crimi- nal behavior in their report, the CIA stepped in and blacked out the evi- dence. Among the items redacted are dates (already made public through other sources) that confirm that illegal torture began in the spring of 2002, months before lawyers John Yoo and Jay Bybee … concocted their new def- initions of torture to get their superiors off the hook.21


The appeal was recently turned over to the CIA for a response.


THE VERMONT BAR JOURNAL • FALL 2011 33


Closing the Impunity Gap


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