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to resolve the torture issue is in courts of law.
I know a lot of DUers disdain lawyers, but only civil litigation lawyers in particular but also criminal attorneys are trained and experienced in using the procedural, analytic and intellectual tools necessary to allow for a moral and legal determination here.
For example, lawyers -- and I refer to trial lawyers, that is civil litigation lawyers and criminal lawyers as opposed to transactional lawyers who write contracts and advise you on your taxes and wills and trusts -- understand the difference between an issue of law and an issue of fact. Only trial lawyers are trained to determine or at least argue based in a principled way about which analogies are appropriate, what standards of production of evidence and what of proof must be met by each side in a dispute, and what evidence may be introduced.
Here, as another example, Thom and Richard Perle dispute whether the legal precedent in the Nuremburg Trials which rejected \the "I was following orders defense" set in the Nuremburg Trials should apply to the torturers. Thom, advocates following the Nuremburg precedent and rejecting that defense. He might argue that the analogy to the Nuremburg Trials is appropriate because both cases involve violations of international and human rights laws. Thom would see the issue as "Is the defense of 'I was following orders'" appropriate in defending against violations against international law and human rights?
Richard Perle would reject the analogy to the Nuremburg Trials and permit the "just following orders" defense. His reasoning seems to be that the "following orders" defense should only be rejected in trials of trials involving the deaths of millions of people. He would argue that because of a difference in the facts -- Nuremburg concerned the commission of millions of crimes while here we are only talking about several hundreds of crimes (each waterboarding for example being a separate crime), different law should apply.
Before you could even get to the dispute about whether the Nuremburg defense should be rejected with regard to the torturers, you would have to determine whether, indeed, those who performed the torture, were actually acting under orders. How do you define "acting under orders"? What was the legal relationship between those who committed the torture and those who authorized or ordered the torture? Were the torturers required by law to follow the order to torture? Were they merely following instructions as employees? Was the torture actually ordered? Or was it merely permitted? Were the torturers actually placed under duress and forced to torture? Did they, for example, fear the loss of their own lives if they did not torture? Had they taken an oath to follow all orders even if the orders required them to torture? Or was the duress they were under merely the threat of losing their jobs if they tortured?
The defense of just following orders has to be differentiated from the defense of acting on the advice of counsel. Both issues have been raised by the defenders of the torturers. As I vaguely recall from learning about this years ago, the advice of counsel defense is pretty much appropriate only in response to administrative crimes such as violation of laws or ordinances that are very complex.
Many, many issues would need this kind of analysis, research of existing law and the facts and discussion before the fate of the torturers and those who authorized the torture could be decided. The torturers and those who authorized (or ordered, it's one or the other) the torture may have valid defenses (although I can't think of any myself without knowing more facts), but neither lay commentators nor a commission filled with politicians and civic leaders will be able to deal with the legal issues that must be decided before walking away from these heinous acts. Only lawyers have that training.
And, sorry for the length of this, but, it is not enough to just hire lawyers to support a commission. One side or the other will not be heard in a commission setting. Important questions will not be asked.
The only way to really get the facts, create a record and be fair to everyone, is to hire lawyers on both sides and fight it out in court with lots of pre-trial motions and discovery. There just isn't any other way.
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