The prosecutor is often first presented with a case as a “corpus delicti” – a bullet-riddled body in the street, for instance. That ordinarily is enough to justify investigation. Through investigation, the evidence may prove that there was not in fact a crime (it was a suicide or an accident) or that the fatal acts were privileged or enjoy a legal defense (self-defense or justifiable shooting by an officer of the law). But one begins by investigation.
The judicial branch (which, under Marbury v. Madison, has the ultimate duty to determine “what the law is”) has determined that waterboarding is torture (see U.S. v. Lee, decided in 1984 by the U.S. Court of Appeals for the 5th Circuit). The Bush administration has admitted to waterboarding captives. The corpus delicti of that crime exists. For there to be investigation now is unexceptional.
The only exceptional thing is the parties involved: the former vice president of the United States, his counsel David Addington, Office of Legal Counsel (OLC) lawyer John Yoo and their private contractors Bruce Jessen and Jim Mitchell, psychologists who designed the torture program. But in America, high office does not put one outside the law. Indeed, it borders on unethical for a prosecutor to refuse to investigate the corpus delicti of a crime because of concern as to where the evidence may lead.
With the corpus delicti present, a prosecutor looks to see whether theories of criminal liability can be eliminated by evidence the investigation reveals (a suicide note in the pocket, a police officer’s convincing description of a “clean shoot”). But as long as a viable theory of criminal liability remains, the investigation continues.
Hence the question: Looking only at the evidence that has become public so far, is there a viable theory of criminal liability arising out of this corpus delicti, the torture of America’s captives?
There is substantial evidence of legal malpractice by lawyer Yoo. His opinions were even withdrawn under the Bush administration, and they are the subject of an unprecedented internal investigation by the Department of Justice. For one thing, the precise case on point was overlooked. The analysis is bad enough that it could be a sham. Investigation would reveal whether this was the result of incompetence, ideology or instruction.
There is substantial evidence of a back channel between Addington and Yoo. It is not yet clear what information or instructions passed along that back channel. It does appear to have sidelined regular chains of reporting, including the attorney general. Investigation would determine whether this was communication or conspiracy.
There is substantial public evidence of exceptional access provided to the private contractors. They were allowed to repeatedly interrupt and ultimately compromise one of the most productive interrogations in our fight against terrorism. As contractors, they were outside the military and government chains of command and reporting and thus were potentially a means of direct secret access between the White House and the torture chamber. Investigation would reveal whether this was abused.
There is substantial evidence that the waterboarding went outside what was approved by the OLC opinions. The opinions themselves disclosed this fact. A Senate Armed Services Committee investigation disclosed evidence of abusive interrogation techniques being used to establish a link between al-Queda and Saddam Hussein in the run-up to the 2004 presidential election. That purpose is not one for which abusive techniques were allowed. A recent Washington Post article reported that, after 83 waterboardings over four or five days, a detainee “was broken” and the team unanimously concluded that “he was cooperating,” yet headquarters insisted that waterboarding continue for 30 more days. If true, this would appear to violate the OLC legal requirement “that a terrorist attack is imminent” and “the subject has actionable intelligence that can prevent, disrupt, or delay this attack,” before waterboarding can take place. Investigation would determine whether these apparent violations of OLC’s restrictions were in fact culpable.
None of this evidence creates a complete case, yet. But it suggests theories of criminal liability that are not foreclosed by the evidence so far. Put these elements together: actual torture under our existing laws, the possibility of actual knowledge that the OLC opinions were phony, conduct outside the restrictions even of those opinions and a possible improper motive outside of legitimate national security concerns. That’s a theory of criminal liability, and it has not yet been eliminated by the evidence. From a prosecutor’s perspective, the stonewalling we have seen – aggressive assertions of executive privilege, refusals to cooperate with inspectors general, cover stories that don’t withstand scrutiny – raises suspicions further.
When the evidence is all in, it may prove that all the conduct surrounding American’s descent into torture was proper, protected by good-faith legal defenses. But it’s too early to responsibly reach that conclusion. Investigation is what allows such a conclusion to be reached.
