Torture instigators George Bush and Dick Cheney should not be allowed to evade prosecution on grounds they acted in good faith on their lawyersâ€™ advice because they told their lawyers what advice to give, a law school dean says.
â€œCould Al Capone or â€˜Luckyâ€™ Luciana receive immunity for acting in accordance with the advice of counsel when they told counsel what to advise?â€ asks Lawrence Velvel of the Massachusetts School of Law at Andover .
â€œ(Vice-President) Cheney and (President) Bush knew that they were ordering violations of law,â€ Velvel points out. â€œThe fact that they were doing so, and were well aware they were doing so, was one of the reasons why they, like a significant number of CIA officials who knew the same, demanded that lawyers produce legal cover for them in the form of Office of Legal Counsel memos authored by the likes of (John) Yoo and (Steven) Bradbury.â€
Lower level CIA and military personnel that did not read the supposedly exculpatory memos, Velvel said, also cannot claim reliance on legal counsel because â€œthey had to know that torture was forbidden no matter what some lawyers said. You could not grow up in America and not know thisâ€ any more than a person could claim murder was lawful because some lawyer told him so, Velvel writes.
â€œPeople who grew up in America cannot realistically claim that they thought it was lawful to beat people mercilessly, to smash their heads against walls, to kill about one hundred of them apparently, to hang them from ceiling hooks, to make them freeze, to deny them sleep for weeks on end, and so forth,â€ Velvel writes in an essay in his new book â€œAmerica 2008â€ from Doukathsan Press.
â€œThey knew what they were doing was wrong,â€ he continued. â€œFBIâ€¦guys on the scene knew it regardless of what lawyers like Yoo said, and it was knowledge that what they were doing was wrong that caused some lower level CIA guys too to want a â€˜get out of jail free card,â€™â€ Velvel writes.
â€œThat realization is why CIA officials, from 2002 to 2006 or 2007 demanded memoranda from the Office of Legal Counsel of the Department of Justice, falsely claiming that the abuse and torture were not criminal acts,â€ Velvel said. â€œThe officials wanted these OLC memos so that they could later avoid or defeat prosecutions by claiming that the decision-making office of the DOJ had approved the legality of what they were doing. The officials wanted a â€˜golden shield,â€™â€ he added.
Those who claim they were ordered to torture, like those who said they had a legal opinion that to do so was okay, are guilty of an effort to â€œescape the Nuremberg principles by saying that others said what the culprits were doing was okay,â€ Velvel continues. The Nuremberg tribunal that judged accused Nazi war criminals after World War Two concluded they could not evade guilt by asserting they were only following orders.
â€œBut claiming that their actions were immune because others okayed them is precisely what Cheney, Bush, their whole crowdâ€¦have been attempting to doâ€¦ They knew what they were doing was illegal, as evidenced by the extreme secrecy they practiced lest it be learned they were practicing, and lest they be accused of practicing, the crimes they were in fact practicing. Morality, decency, and Nuremberg alike forbid this.â€
â€œBy now it seems beyond serious doubt that George Bush and company committed numerous war crimes,â€ Velvel wrote. â€œIt is evident that if these things can be done, then there is an end of law where the truly wealthy and powerful are concerned. Whether it is Al Capone or Dick Cheney, the filthy rich or obscenely powerful will have it in their power to do the most awful things yet escape the law by using contributions or power to obtain immunity from preexisting law and to buy the opinions of immoral lawyers. That is the moral and philosophical basis why these things canâ€™t be permitted,â€ Velvel said.
Velvel is dean of the Massachusetts School of Law at Andover, founded in 1988 for the express purpose of providing a quality, affordable legal education to minority students, immigrants and students from low-income backgrounds who would otherwise not be able to afford law school. Tuition at the school is only about half that charged by other New England area law schools. Velvel has been honored for his contributions to legal education reform by the National Law Journal and has also received a number of awards from the book publishing industry for his essays.