The tide began to turn against Yoo's and Walker's expansive attitudes toward presidential authority when Jack Goldsmith took over as chief of the Office of Legal Counsel and, by early 2004, had rescinded Yoo's opinions.
On June 15, 2004, the Senate passed an amendment to the Defense Authorization Bill backed by Republican Sen. Lindsay Graham, to give JAGs the same legal authority as military attorneys, like Walker, who are appointed by the President.
The amendment, dubbed the “Mary Walker bill,” was spurred by complaints from JAGs who said Walker had ignored their legal concerns about the interrogation of detainees at Guantanamo Bay.
In February 2008, the Justice Department’s Office of Professional Responsibility (OPR) confirmed that it had launched a formal investigation into whether Yoo and other attorneys in the Office of Legal Counsel gave the White House poor legal advice in authorizing CIA interrogators to use waterboarding to glean information about terrorist plots from prisoners.
In effect, the legal opinions from Walker and Yoo sought to provide a basis for the Bush administration to circumvent U.S. and international laws prohibiting torture of prisoners.
Immediately after the 9/11 attacks, the United Nations Committee Against Torture reaffirmed the prohibitions contained in the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Convention – approved by 145 nations, including the United States – states that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
Moreover, the convention says individuals who resort to torture cannot defend their actions by saying they were acting on orders from superiors.
The United States signed the Convention Against Torture in 1988 under President Ronald Reagan, who hailed it as “a significant step” in preventing torture, which he called “an abhorrent practice unfortunately still prevalent in the world today.”
In a May 20, 1988, message to the U.S. Senate, Reagan noted that “the core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called ‘universal jurisdiction.’
“Each state party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”
It was this Convention, ratified by the Senate in 1994, that Walker, Yoo and other Bush administration officials sought to bypass.
Although the treaty mandates that the United States cooperate in the criminal prosecution of torturers, the administration's post-9/11 legal opinions sought to shield American interrogators.
The Walker report, which was tailored to fit with Yoo’s legal arguments, advised military interrogators that they could defend their actions by saying Justice Department lawyers told them that their methods were legal.
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