Senator Patrick McCarthy 
By Deborah T. Bucknam

Not just content to win elections, the Left is trying to destroy its political opponents by calling for criminal prosecution of Bush administration officials for political and legal decisions the Left does not like.

Vermont Senator Patrick Leahy is leading this banana republic style campaign to criminalize policy decisions made by a duly elected previous administration.

Leahy began his attack by repeatedly calling for a “Truth Commission” to "investigate abuses” of the Bush administration.  His pronouncements have been bereft of specifics, and the compliant media has yet to ask Leahy for particulars. He had the authority, as chair of the Senate Judiciary Committee, to investigate abuse of the executive branch while the Bush administration was still in place.  But Sen. Leahy was not interested. After President Bush left office, Leahy has stepped up calls for an "extra-legal commission” to go after those who are no longer in power.  It is so much easier than exercising his constitutional oversight authority.

Recently Leahy has started after specific targets, and he has picked the easiest scapegoats first: former Bush Justice Department lawyers who have no campaign war chests and no political constituencies.  Leahy has already gone in front of the cameras demanding that Judge Jay Bybee, a former Bush administration assistant attorney general, resign from the federal bench.

It is a pattern Americans have seen before.  Senator Joseph McCarthy furthered his career by destroying public servants in order to satisfy a portion of the American population frightened by Communist infiltration in the U.S. government.  McCarthy targeted the most vulnerable public servants first.

Sen. Leahy similarly is making a name for himself and gearing up for his re-election in 2010 by attempting to destroy public servants who were acting in good faith. He claims that Bush Justice Department lawyers condoned “torture” and they should be liable for their conduct.

Leahy’s accusations, like Sen. McCarthy’s fifty years ago, are dispossessed of any facts. McCarthy used terms like “traitor” and “Communist” against his political opponents. Leahy uses comparably highly charged terms like “abuse” and “torture”.  Neither McCarthy nor Leahy felt the need to support their accusations with actual information. Making the accusations was enough to satisfy their angry and frightened base.

Vermonters historically have not succumbed to the howling mob.  Vermonters are too independent and fair-minded.  This time, unfortunately, Vermont’s own Senator is leading the Left’s calls for revenge.  Vermonters of all political persuasions must call a halt to Sen. Leahy’s campaign.  We can start by examining the facts and not just relying on Leahy press releases.

On September 11, 2001, over 3000 innocent Americans died at the hands of Islamic terrorists in a surprise attack on the United States.  All Americans believed at the time that the assault was just the first of a series of attacks on our country, but no one knew where the next one would come from.  Our intelligence community, hamstrung by legalistic interpretations of the law, bureaucratic turf battles, and an over reliance on technology, was blind to our enemies’ plans of attack.  President Bush went swiftly to work, ordering an invasion of Taliban-run Afghanistan just a few weeks after the attack on 9/11, and a number of terrorists were captured there and elsewhere. The CIA wanted human intelligence from these captured terrorists.  The Agency was justly concerned about the  danger to Americans, and they desperately needed information.  But the CIA interrogators would not use torture on the terrorists even if they believed torture would yield valuable information that would save American lives.  They intended to act within the law, and they needed to know how U.S. law defined torture.

18 U.S. Code Section 2340-2340A (“anti-torture statute”) defines what constitutes torture of subjects outside United States jurisdiction.  As with nearly every law, the definitions in Section 2340-2340A are subject to interpretation.  It is a lawyer’s job to interpret the statute according to rules of statutory construction.  In 2002, lawyers at the Bush Justice Department were given the task of interpreting the statute so those CIA interrogators would remain within the law when trying to obtain information from terrorists.

This task was a difficult one. First, the statute itself is vague.  It defines torture as follows:

An act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”

"Severe” is a word which requires what lawyers term “fact specific” analysis; i.e. whether the conduct is considered severe depends on  the facts presented to the  lawyer. Therefore,  to a great degree interpretation is dependent on a lawyer’s or a court’s judgment.

Second, courts have not generally interpreted the anti-torture statute, unlike most other statutes.  It is standard practice for lawyers engaged in statutory construction to research case law to determine whether terms have been interpreted by courts, and to weigh the significance of those interpretations when analyzing a particular statute. For a statute requiring fact specific analysis, the absence of case law makes interpretation particularly difficult.

Finally, Justice Department lawyers were told by the CIA that these detainees had been subjected to other forms of interrogations that did not work; that the CIA believed these detainees had valuable information about “imminent” attacks on American citizens; and that the CIA believed enhanced interrogation techniques would yield valuable information which would save American lives.

Thus Bush Justice Department lawyers were not only examining an uncertain area of the law, but they were asked to give an opinion, which, if they got it wrong, might result in the deaths of  hundreds, if not thousands, of Americans.  Rarely have lawyers faced such a difficult task.

Assistant Attorney General Jay Bybee wrote an 18 page single spaced memo in August 2002, carefully outlining the facts in the first eight pages.  Attorney Bybee reported the history of the use of enhanced techniques, including waterboarding, on thousands of American servicemen and women over a period of ten years. He outlined the detainee’s psychological profile.  Finally, he gave a detailed description of how each of the methods was to be used, before he came to any legal conclusions.

Later memos by other Justice Department lawyers, totaling an additional 105 pages of single spaced type, outlined in greater detail the legal issues involved in the enhanced interrogation techniques, and recommended certain restraints on some conduct.

These opinions cannot, in a viable democracy, be the basis for criminal prosecution, no matter how fervently one disagrees with the lawyers’ conclusions.  Democracy requires that the antidotes for policy errors are elections, not criminal prosecutions.

At one of Sen. McCarthy’s Senate hearings, Boston Attorney Joseph Welch was the first to confront the Senator and his totalitarian tactics.  He said to McCarthy in front of the cameras,  “Have you no sense of decency, Sir?”   It was the beginning of the end for Sen. McCarthy.

Vermonters need to ask the same question of Sen. Leahy. Vermonters must also insist that Sen. Leahy cease his assault on decent public servants. If he does not, then Vermonters ought to give Leahy a lesson in democracy by voting him out of office in 2010.
 

Deborah T. Bucknam, Esq.
Law Offices of Deborah T. Bucknam & Associates, PC