The rule of law prevails over the demands of politics
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
In the wake of the Obama administration’s release of the “terror memos” and the political firestorm the release generated, the president has instructed U.S. Attorney General Eric Holder to review all the facts and circumstances surrounding the “torture” interrogations conducted by CIA and U.S. military personnel and make a determination of whether criminal charges should be filed either against those who approved the torture interrogations or those who conducted them, or both. Any decision Attorney General Holder makes will trigger an intense political backlash.
While the Democratic leadership favors either the formation of some kind of “truth commission” to investigate the torture issue much like the 9/11 commission or the criminal prosecution of all those involved, indications from the media are that President Obama is not personally or politically prepared to embrace either concept. One thing is fairly certain. The president should follow the rule of law. As a Harvard Law School graduate and former law professor, Obama has a deep appreciation for making sure that the rule of law prevails over the demands of politics. The president should neither direct nor attempt to control the course of the attorney general’s investigation and he will most certainly abide by the attorney general’s final decision.
Recent leaks indicate that criminal prosecution is not being considered but that the Justice Department may recommend that those involved in crafting the documents be disciplined by their state bar associations or banned from the practice of law.
However, should the attorney general elect to prosecute those involved in the “torture” process under the Bush administration, recent decisions by the United States Court of Appeals for the District of Columbia and historical U.S. Supreme Court precedents may offer a defense to those indicted on torture charges. The federal torture statute, Section 2340A of Title 18 of the United States Code, requires the Government to prove following elements: 1) the torture occurred outside the United States; 2) the person who carried out the torture is a United States national; and 3) the person who carried out the torture is in the United States, regardless of the nationality of either the torturer or the victim of the torture. These same elements apply to those who conspire to carry out torture. Anyone convicted under this statute faces a fine or a term of imprisonment up to 20 years, or both. 1/ (more…)
