Tuesday, June 08, 2004

Best of the Blogosphere on Torture, and the Administration's Obfuscation Thereof
All these memos, so little time... and the Administration is sticking to its story that it does not condone torture -- even of Al-Qaeda terrorist suspects...

But, but... we ask -- there were all these memos -- as Kevin Drum neatly summarises for us...

January 9, 2002: Justice Department lawyers John Yoo and Robert J. Delahunty argue that "customary international law of armed conflict in no way binds...the President or the U.S. Armed Forces." Despite this "anything goes" argument, they go on to say that President Bush could still put Al Qaeda and Taliban fighters on trial as war criminals if they violate international laws.

January 25, 2002: White House counsel Alberto Gonzales warns that treatment of Taliban prisoners could be interpreted as war crimes. To avoid this possibility, he recommends that President Bush exempt captured Al Qaeda and Taliban fighters from the Geneva Conventions.

August 2002: A Justice Department memo about torture says that "necessity and self-defense could provide justifications that would eliminate any criminal liability." Translation: torture is OK if we really, really think we need to do it.

April 2003: The Department of Defense says that "(the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority." In other words, as long as the president approves it, torture is OK.

Some choice excerpts from this chronologically last report (which has been getting a lot of attention of late), as desribed in the Wall Street Journal:

The report outlined U.S. laws and international treaties forbidding torture, and why those restrictions might be overcome by national-security considerations or legal technicalities. In a March 6, 2003, draft of the report reviewed by The Wall Street Journal, passages were deleted as was an attachment listing specific interrogation techniques and whether Mr. Rumsfeld himself or other officials must grant permission before they could be used. The complete draft document was classified "secret" by Mr. Rumsfeld and scheduled for declassification in 2013.

The draft report, which exceeds 100 pages, deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawful. But at its core is an exceptional argument that because nothing is more important than "obtaining intelligence vital to the protection of untold thousands of American citizens," normal strictures on torture might not apply.

The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued. Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the "necessity" of using such methods to extract information to head off an attack, or "superior orders," sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no "moral choice was in fact possible."

I know, I know -- sheer, completely reprehensible audacity at invoking the Nuremberg defence -- but go read Billmon's brilliant take and analysis, as well as his brief bio on (devout Christian) General Mary L. Walker, who headed the team of lawyers drafting the April 2003 memo.

I find this particular quote in the WSJ article funny: "It isn't known if President Bush has ever seen the report." What does it mean exactly? Does "seen" mean glancing at it as it lay, in its over 100-page glory on Rumsey's desk as he and thuh Prez were having their mid-afternoon pretzels? The man doesn't even read the news -- should it really matter whether he's seen this particular memo? Plus there are so many of them, how could we expect him to digest it all, the poor, overworked dear?

One last citation - Josh Micah Marshall takes this passage in the article,

To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a "presidential directive or other writing" that could serve as evidence, since authority to set aside the laws is "inherent in the president."

... and gives us his take:

So the right to set aside law is "inherent in the president". That claim alone should stop everyone in their tracks and prompt a serious consideration of the safety of the American republic under this president. It is the very definition of a constitutional monarchy, let alone a constitutional republic, that the law is superior to the executive, not the other way around. This is the essence of what the rule of law means -- a government of laws, not men, and all that.

Frankly I really do feel that this Administration does not care what the rule of law -- as understood by the rest of mankind -- means...

posted by claudine |Added at 11:08 PM| | abuse of power