The Torture Memos

A brief comment on the torture memos authored by the Department of Justice in 2002 and 2005. The first memo examines torture in the context of United States federal criminal law and whether the conduct at issue violates that criminal law. Therefore, it is appropriate to briefly weigh in on this topic. When I was in high school in the 70s, the Soviet Union tortured people in secret prisons. In the early 21st Century the United States tortured people in secret prisons. When I was in high school in the 70s, the Soviet Union held people incognito for years without charges. In the early 21st century, the United States held people incognito for years without charges.

I spent a significant portion of this weekend reading the torture memos, one prepared in 2002 by Assistant Attorney General Jay S. Bybee, of DOJ’s Office of Legal Counsel, and three prepared in 2005 by Principal Deputy Assistant Attorney General, Steven G. Bradbury. Each memo was addressed to John Rizzo, in the General Counsel’s Office of the CIA. Bybee the author of the initial memo has been rewarded for his good work with an appointment in 2003 to a seat on the Ninth Circuit Court of Appeals. In my view, he is not fit to be magistrate judge of the smallest hamlet in the land, much less a United States Court of Appeals Judge.

Reading these memos gives one the distinct feeling of having fallen down the rabbit hole in Alice’s Wonderland. The initial memo was prepared after oral advice was given the previous month that the contemplated “conduct” would not violate 18 U.S.C. 2340, which makes it a crime for any person outside of the United States to engage in torture while acting “under color of law.”

We learn in stark, naked language that our Department of Justice gave its imprimatur on a mere 11 days of sleep deprivation, the effects of which “remit after a few good night’s sleep.” And, that waterboarding is OK, because it is “simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.” This is the stuff that could have emanated from Dickens’ Circumlocution Office. Both sides of the aisle have weighed in on the propriety of the release of the memos. I for one am glad we are once again striving to be the shining city on the hill.

The release of these memos last week by President Obama also came with the President’s announcement that this administration would not prosecute those who engaged in the interrogation conduct counseled by the Bush administration as lawful - a decision that I likewise support.

Quietly announced two days prior to the release of the DOJ torture memos, was the President’s nomination of Stephen W. Preston, of Wilmer Hale, as General Counsel for the CIA. Not only is Mr. Preston, one of the best and brightest that this good country has to offer, but also, his intellect is rounded out with exceptional good judgment. For me, I can think of no one more qualified and capable than Mr. Preston to lead us through the difficult times ahead.

U.S. v. Corley: Supreme Court Upholds Exclusionary Rule for Confessions Based Upon Unreasonable Delay in Presentment Before a Judge

In McNabb v. U.S., 318 U. S. 332 (1943) and Mallory v. U.S., 354 U. S. 449 (1957), the Supreme Court set forth the rule that a confession by an arrested person, even if made voluntarily, is inadmissible if made after an unreasonable delay in bringing the person before a judge. The McNabb/Mallory rule was acknowledged in the framing of Federal Rule of Criminal Procedure 5 in 1966, which provides, in part, that “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer…” Fed.R.Crim.P. 5(a)(1)(A). However, in 1968, Congress enacted 18 U.S.C. § 3501, in reaction to Miranda v. Arizona, 384 U. S. 436 (1966). § 3501 provided, in relevant part:

(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.

(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including

(1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment…

The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.

(c) In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate judge or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate judge or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate judge or other officer.

18 U.S.C. § 3501.

            In yesterday’s opinion in U.S. v. Corley, No. 07–10441 (S.Ct. Apr. 6, 2009), authored by Justice Souter, the Court finally considered the issue of whether Congress intended § 3501(a) to eliminate the McNabb/Mallory exclusionary rule, or whether it merely intended § 3501(c) to immunize confessions given within 6 hours of a person’s arrest. Id. at 6. Federal and state officers in Pennsylvania arrested Johnnie Corley on suspicion of bank robbery at 8 a.m. on September 17, 2003, following a struggle and chase. Id.FBI agents kept Corley at a police station while they questioned witnesses, and then took him to a hospital late that morning. Id.The agents then took Corley to the FBI office in Philadelphia and proceeded to question him, despite the fact that the office was in the same building as the chambers of the nearest magistrate judge. Id.At 5:27 p.m., nine-and-a-half hours after his arrest, Corley gave an oral confession to having robbed a bank. Id. at 7. The following day, Corley signed a written confession. He was not presented to a magistrate until 1:30 p.m. the following day—more than 29 hours after his arrest.Id.


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