Opinion: Torture, interrogation & the law -- Supreme Court says Bush folks not liable


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Those seeking to sue top Bush administration officials over torture policy take note: The Supreme Court ruled today that former Atty. Gen. John Ashcroft and FBI Director Robert Mueller could not be sued for alleged prison abuse in a roundup of Muslim suspects after the 9/11 terror attacks.

Javaid Iqbal, a Pakistani Muslim who spent nearly six months in solitary confinement in New York in 2002, had argued that while Ashcroft and Mueller did not single him out for mistreatment, they were responsible for a policy of confining Muslim prisoners in highly restrictive conditions and subjecting them to strip searches and brutal beatings. He has since been deported to Pakistan.


The Supreme Court, on a 5-4 vote, said there was nothing linking the two Bush officials to Iqbal’s treatment. The court’s liberal justices — David Souter, Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens — dissented, so even a liberal pick by President Obama to replace Souter would not change the mix.

Meanwhile a coalition of left-leaning advocacy groups filed complaints today with five state bar associations, accusing a dozen former Bush administration lawyers -- including Ashcroft and ....

...former attorneys general Alberto Gonzales and Michael Mukasey -- of violating professional standards by approving the use of torture on terrorism suspects. The punishment: They want the lawyers disbarred in California, New York, Pennsylvania, Texas and the District of Columbia.

Also on the list: John Yoo, now a law professor at UC Berkeley’s Boalt School of Law, Jay Bybee, a judge on the Ninth Circuit Court of Appeals, former Homeland Security Secretary Michael Chertoff, former Pentagon lawyer Douglas Feith, and David Addington, legal guru for former Vice President Dick Cheney.

Addington’s the one who had that testy encounter last June with Congress over his torture memos.

‘It is time to hold these lawyers accountable for violating their legal oath, said Kevin Zeese, a former Green Party activist who now heads VotersForPeace.US, one of the groups filing the complaints. ‘Just as the bar would suspend an attorney who advised a police officer to torture and brutalize a detained immigrant or criminal defendant, the bar must suspend these attorneys for advocating and causing the torture of war detainees.’

But legal experts doubt that these complaints will be any more successful than Iqbal’s lawsuit.


‘The only theory on which [a case] could proceed would be if lawyers (gave) the White House an opinion in which they did not actually believe,’ said Stephen Gillers, a professor of legal ethics at New York University.

That of course is exactly what the groups are claiming, but as the Washington Post noted, state bar associations have no subpoena power to compel Justice Department documents or witnesses. Plus they’re overwhelmed by other kinds of cases involving lawyers who fail to show up in court or who abscond with clients’ payments.

Meanwhile Atty. Gen. Eric Holder is weighing an investigation into Yoo, Bybee and others at the Bush administration’s Justice Department who signed off on harsh interrogation tactics against terrorist suspects.

-- Johanna Neuman

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