The McClatchy newspapers—the only major media group that has even pretended to employ investigative reporters to question Bush administration policies—has done it again. This time, in a June 18 article by Tom Lasseter, it has pointed out that the “framework under which detainees were imprisoned for years without charges at Guantanamo and in many cases abused in Afghanistan,” was an organized attempt to circumvent U.S. laws and treaties “to prevent anyone…from being held accountable.” Five White House lawyers, all of them familiar to anyone who has been following this, are identified as part of the so-called “War Council:” David Addington, now chief of staff to VP Cheney; Alberto Gonzalez, one-time Attorney General; John Yoo, one-time counsel in the Justice Department; William J. Haynes II, former Pentagon general counsel; and Timothy E. Flanigan, former deputy to Gonzalez. This “War Council” met every few weeks in the office of Gonzalez or Haynes to plot their nefarious policies—policies that resulted directly in depriving arrested suspects of all legal rights, and in torture. The members of this council were, in every sense of the word, a torture conspiracy, and worse, one that “created an environment in which it was nearly impossible to prosecute soldiers or officials for alleged crimes committed in U.S. detention facilities.”
Lasseter’s article lists the memos, the direct result of the conspiracy, that did the dirty work.
Jan. 9, 2002: Yoo sent a memo to Haynes, saying that the Geneva Convention’s Common Article Three prohibiting “humiliating and degrading treatment and torture of prisoners” did not cover al Quaeda or Taliban suspects.
Jan. 25, 2002: Gonzalez sent a follow-up memo to President Bush, asserting that eliminating prisoner rights under Geneva (the Yoo memo) set up a “solid defense against prosecutors or independent counsels” who might some day want to pursue war-crimes charges.
Feb. 7, 2002: Bush then followed up these memos with a memo of his own, asserting that al-Quaeda or Taliban suspects were not considered prisoners of war, and wouldn’t be given Common Article Three protections. (i.e., the memos resulted in almost immediate action.)
Aug. 1, 2002: Gonzalez requests a memo from the Justice Department, which Yoo writes, defining torture so narrowly—injury such as death, or organ failure deriving from “extreme acts”—that it could excuse almost any abuse.
March 14, 2003: Yoo writes a memo for Haynes (who was getting heat from his military lawyers about the abuses going on) asserting that even if some interrogation amounted to war crimes, the perpetrators still couldn’t be prosecuted because they were operating under Bush’s constitutional authority to wage war. “In wartime,” Yoo wrote, “it is for the president alone to decide what methods to use to best prevail against the enemy.”
The conspiracy, in short, provided the legal bases for Americans to use torture, and the legal structure whereby they could escape prosecution for their crimes. These legal opinions resulted in direct and foreseeable and planned actions—first the President’s memo declaring captured detainees beyond the reach of U.S. and international laws, and then the license to interrogators to use techniques normally considered to be war crimes because the President, in his role as commander during a war, had given them sanction. Evidence exists confirming that U.S. interrogators did, in fact, use the once-forbidden techniques, i.e. torture.
Of course, what we now know is that the Justice Department itself, under new head of Office of Legal Counsel Jack Goldsmith, found John Yoo’s Aug. 2002 and March 2003 opinions so legally abhorrent, that it reversed them. We also know that the Supreme Court first, in 2006, rebuked the Bush lawyers by ruling that Common Article Three of the Geneva Conventions DID apply to Guantanamo prisoners; and it also recently reversed the Bush administration’s contention that so-called enemy combatants do not have habeas corpus rights (the right to challenge the reason for their detention), by ruling that, in fact, they DO. We also now know that even within the administration—especially in the Judge Advocate General’s office at the Pentagon—military lawyers and officials were horrified at what they saw being perpetrated in their names, and tried to protest. But, as Lasseter makes clear, the War Council simply shut out these protesting voices.
Now those voices are coming back to haunt them. In a Boston Globe article on June 18, Bryan Bender writes that the group “Physicians for Human Rights” has now found medical evidence corroborating the stories of eleven former Guantanamo prisoners that they were tortured. The evidence includes scars such as cheek wounds on a prisoner who says he was stabbed with a screwdriver, and burns and other scars which tend to support allegations of electrical shock and forced sodomy.
This evidence was convincing enough to General Antonio Taguba (who wrote the first report on Abu Ghraib) to induce him to write in the report’s preface: “This report tells the largely untold human story of what happened to detainees in our custody when the commander in chief and those under him authorized a systematic regime of torture.” General Taguba, now retired, then added an even harsher judgment:
“There is no longer any doubt as to whether the current administration has committed war crimes.”
Does this not complete the circle? White House lawyers engaged in a conspiracy to circumvent the laws against torture, and to provide cover for those who employed torture. The President put that conspiracy into action by asserting that those captured had no rights and so could be held indefinitely without charges and treated in any way their interrogators could devise, short of murdering them (although there are up to one hundred torture deaths alleged by researchers like Alfred McCoy.) The members of the United States armed forces and other official and non-official organizations then implemented those executive orders by treating all captives as if they were guilty, subhuman, and deserving of torture. And their actions were hidden, for as long as possible, from neutral watchdog authorities like the International Red Cross.
What more is needed, now, to begin pursuing those responsible for war crimes?
What could possibly prevent the impeachment of this President, indeed, as Vincent Bugliosi has written in a recent book, from PROSECUTING this President and all his henchmen for nothing less than a sustained conspiracy to commit war crimes?
Lawrence DiStasi
Showing posts with label War Crimes. Show all posts
Showing posts with label War Crimes. Show all posts
Thursday, June 19, 2008
The Torture Conspiracy
The McClatchy newspapers—the only major media group that has even pretended to employ investigative reporters to question Bush administration policies—has done it again. This time, in a June 18 article by Tom Lasseter, it has pointed out that the “framework under which detainees were imprisoned for years without charges at Guantanamo and in many cases abused in Afghanistan,” was an organized attempt to circumvent U.S. laws and treaties “to prevent anyone…from being held accountable.” Five White House lawyers, all of them familiar to anyone who has been following this, are identified as part of the so-called “War Council:” David Addington, now chief of staff to VP Cheney; Alberto Gonzalez, one-time Attorney General; John Yoo, one-time counsel in the Justice Department; William J. Haynes II, former Pentagon general counsel; and Timothy E. Flanigan, former deputy to Gonzalez. This “War Council” met every few weeks in the office of Gonzalez or Haynes to plot their nefarious policies—policies that resulted directly in depriving arrested suspects of all legal rights, and in torture. The members of this council were, in every sense of the word, a torture conspiracy, and worse, one that “created an environment in which it was nearly impossible to prosecute soldiers or officials for alleged crimes committed in U.S. detention facilities.”
Lasseter’s article lists the memos, the direct result of the conspiracy, that did the dirty work.
Jan. 9, 2002: Yoo sent a memo to Haynes, saying that the Geneva Convention’s Common Article Three prohibiting “humiliating and degrading treatment and torture of prisoners” did not cover al Quaeda or Taliban suspects.
Jan. 25, 2002: Gonzalez sent a follow-up memo to President Bush, asserting that eliminating prisoner rights under Geneva (the Yoo memo) set up a “solid defense against prosecutors or independent counsels” who might some day want to pursue war-crimes charges.
Feb. 7, 2002: Bush then followed up these memos with a memo of his own, asserting that al-Quaeda or Taliban suspects were not considered prisoners of war, and wouldn’t be given Common Article Three protections. (i.e., the memos resulted in almost immediate action.)
Aug. 1, 2002: Gonzalez requests a memo from the Justice Department, which Yoo writes, defining torture so narrowly—injury such as death, or organ failure deriving from “extreme acts”—that it could excuse almost any abuse.
March 14, 2003: Yoo writes a memo for Haynes (who was getting heat from his military lawyers about the abuses going on) asserting that even if some interrogation amounted to war crimes, the perpetrators still couldn’t be prosecuted because they were operating under Bush’s constitutional authority to wage war. “In wartime,” Yoo wrote, “it is for the president alone to decide what methods to use to best prevail against the enemy.”
The conspiracy, in short, provided the legal bases for Americans to use torture, and the legal structure whereby they could escape prosecution for their crimes. These legal opinions resulted in direct and foreseeable and planned actions—first the President’s memo declaring captured detainees beyond the reach of U.S. and international laws, and then the license to interrogators to use techniques normally considered to be war crimes because the President, in his role as commander during a war, had given them sanction. Evidence exists confirming that U.S. interrogators did, in fact, use the once-forbidden techniques, i.e. torture.
Of course, what we now know is that the Justice Department itself, under new head of Office of Legal Counsel Jack Goldsmith, found John Yoo’s Aug. 2002 and March 2003 opinions so legally abhorrent, that it reversed them. We also know that the Supreme Court first, in 2006, rebuked the Bush lawyers by ruling that Common Article Three of the Geneva Conventions DID apply to Guantanamo prisoners; and it also recently reversed the Bush administration’s contention that so-called enemy combatants do not have habeas corpus rights (the right to challenge the reason for their detention), by ruling that, in fact, they DO. We also now know that even within the administration—especially in the Judge Advocate General’s office at the Pentagon—military lawyers and officials were horrified at what they saw being perpetrated in their names, and tried to protest. But, as Lasseter makes clear, the War Council simply shut out these protesting voices.
Now those voices are coming back to haunt them. In a Boston Globe article on June 18, Bryan Bender writes that the group “Physicians for Human Rights” has now found medical evidence corroborating the stories of eleven former Guantanamo prisoners that they were tortured. The evidence includes scars such as cheek wounds on a prisoner who says he was stabbed with a screwdriver, and burns and other scars which tend to support allegations of electrical shock and forced sodomy.
This evidence was convincing enough to General Antonio Taguba (who wrote the first report on Abu Ghraib) to induce him to write in the report’s preface: “This report tells the largely untold human story of what happened to detainees in our custody when the commander in chief and those under him authorized a systematic regime of torture.” General Taguba, now retired, then added an even harsher judgment:
“There is no longer any doubt as to whether the current administration has committed war crimes.”
Does this not complete the circle? White House lawyers engaged in a conspiracy to circumvent the laws against torture, and to provide cover for those who employed torture. The President put that conspiracy into action by asserting that those captured had no rights and so could be held indefinitely without charges and treated in any way their interrogators could devise, short of murdering them (although there are up to one hundred torture deaths alleged by researchers like Alfred McCoy.) The members of the United States armed forces and other official and non-official organizations then implemented those executive orders by treating all captives as if they were guilty, subhuman, and deserving of torture. And their actions were hidden, for as long as possible, from neutral watchdog authorities like the International Red Cross.
What more is needed, now, to begin pursuing those responsible for war crimes?
What could possibly prevent the impeachment of this President, indeed, as Vincent Bugliosi has written in a recent book, from PROSECUTING this President and all his henchmen for nothing less than a sustained conspiracy to commit war crimes?
Lawrence DiStasi
Lasseter’s article lists the memos, the direct result of the conspiracy, that did the dirty work.
Jan. 9, 2002: Yoo sent a memo to Haynes, saying that the Geneva Convention’s Common Article Three prohibiting “humiliating and degrading treatment and torture of prisoners” did not cover al Quaeda or Taliban suspects.
Jan. 25, 2002: Gonzalez sent a follow-up memo to President Bush, asserting that eliminating prisoner rights under Geneva (the Yoo memo) set up a “solid defense against prosecutors or independent counsels” who might some day want to pursue war-crimes charges.
Feb. 7, 2002: Bush then followed up these memos with a memo of his own, asserting that al-Quaeda or Taliban suspects were not considered prisoners of war, and wouldn’t be given Common Article Three protections. (i.e., the memos resulted in almost immediate action.)
Aug. 1, 2002: Gonzalez requests a memo from the Justice Department, which Yoo writes, defining torture so narrowly—injury such as death, or organ failure deriving from “extreme acts”—that it could excuse almost any abuse.
March 14, 2003: Yoo writes a memo for Haynes (who was getting heat from his military lawyers about the abuses going on) asserting that even if some interrogation amounted to war crimes, the perpetrators still couldn’t be prosecuted because they were operating under Bush’s constitutional authority to wage war. “In wartime,” Yoo wrote, “it is for the president alone to decide what methods to use to best prevail against the enemy.”
The conspiracy, in short, provided the legal bases for Americans to use torture, and the legal structure whereby they could escape prosecution for their crimes. These legal opinions resulted in direct and foreseeable and planned actions—first the President’s memo declaring captured detainees beyond the reach of U.S. and international laws, and then the license to interrogators to use techniques normally considered to be war crimes because the President, in his role as commander during a war, had given them sanction. Evidence exists confirming that U.S. interrogators did, in fact, use the once-forbidden techniques, i.e. torture.
Of course, what we now know is that the Justice Department itself, under new head of Office of Legal Counsel Jack Goldsmith, found John Yoo’s Aug. 2002 and March 2003 opinions so legally abhorrent, that it reversed them. We also know that the Supreme Court first, in 2006, rebuked the Bush lawyers by ruling that Common Article Three of the Geneva Conventions DID apply to Guantanamo prisoners; and it also recently reversed the Bush administration’s contention that so-called enemy combatants do not have habeas corpus rights (the right to challenge the reason for their detention), by ruling that, in fact, they DO. We also now know that even within the administration—especially in the Judge Advocate General’s office at the Pentagon—military lawyers and officials were horrified at what they saw being perpetrated in their names, and tried to protest. But, as Lasseter makes clear, the War Council simply shut out these protesting voices.
Now those voices are coming back to haunt them. In a Boston Globe article on June 18, Bryan Bender writes that the group “Physicians for Human Rights” has now found medical evidence corroborating the stories of eleven former Guantanamo prisoners that they were tortured. The evidence includes scars such as cheek wounds on a prisoner who says he was stabbed with a screwdriver, and burns and other scars which tend to support allegations of electrical shock and forced sodomy.
This evidence was convincing enough to General Antonio Taguba (who wrote the first report on Abu Ghraib) to induce him to write in the report’s preface: “This report tells the largely untold human story of what happened to detainees in our custody when the commander in chief and those under him authorized a systematic regime of torture.” General Taguba, now retired, then added an even harsher judgment:
“There is no longer any doubt as to whether the current administration has committed war crimes.”
Does this not complete the circle? White House lawyers engaged in a conspiracy to circumvent the laws against torture, and to provide cover for those who employed torture. The President put that conspiracy into action by asserting that those captured had no rights and so could be held indefinitely without charges and treated in any way their interrogators could devise, short of murdering them (although there are up to one hundred torture deaths alleged by researchers like Alfred McCoy.) The members of the United States armed forces and other official and non-official organizations then implemented those executive orders by treating all captives as if they were guilty, subhuman, and deserving of torture. And their actions were hidden, for as long as possible, from neutral watchdog authorities like the International Red Cross.
What more is needed, now, to begin pursuing those responsible for war crimes?
What could possibly prevent the impeachment of this President, indeed, as Vincent Bugliosi has written in a recent book, from PROSECUTING this President and all his henchmen for nothing less than a sustained conspiracy to commit war crimes?
Lawrence DiStasi
Sunday, April 13, 2008
Here's to You, John Yoo
First, let’s get some facts straight. Attorney John Yoo was an
assistant to Attorney General John Ashcroft, working in the Office
of Legal Counsel under his boss, Jay Bybee, during George Bush's
first term. This office is supposed to advise all the departments of
government on the legality or illegality of their actions. The
attorneys work, in the final analysis, not for the President or any
of his subordinates, but for the American people. They are obliged to
render opinions that are, to put it mildly, legal, according to U.S.
and international law.
Second, let’s look at what John Yoo did and why he did it.
To begin with, he essentially argued, in a series of memos, that the
Bill of Rights to the United States Constitution has no bearing on
the President of the United States during wartime. Neither the 5th
Amendment’s due process clauses nor the 8th Amendment’s protections
against cruel and unusual punishment apply to aliens in foreign
countries, and even if they did, Yoo maintained, the President is not
bound by them. Essentially, this means that the President’s power
trumps both the Constitution and the federal statutes that constitute
U.S. Law—specifically, any that would constrain his power to find and/
or torture those he deems ‘enemies.’ This means that the President
can also thumb his nose at foreign laws and treaties, for if he
cannot be constrained by U.S. Law, he certainly cannot be constrained
by treaties with other nations, such as the Geneva Conventions, even
though normally and legally they have the force of the Constitution
itself. No matter; the President, wrote Yoo, is “free to override all
such laws and treaties at his discretion.” In sum: John Yoo argued
that the President has unlimited authority to order war crimes
against enemy combatants captured on foreign soil, so long as he
decides that such orders are necessary to the nation’s “defense.”
All this is breathtaking enough. What’s worse is that in defending
these memos, John Yoo has actually said that they confer on the
President the power, if he chooses to use it, to torture children. In
a January 2006 interview with Notre Dame professor and international
human rights scholar Doug Cassel, Yoo argued that there is no law
that could prevent the President from ordering the torture of even
the child of a suspect. Here is the conversation:
Cassel: If the President deems that he’s got to torture somebody,
including by crushing the testicles of the person’s child, there is
no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the
August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do
that.
(see article by Philip Watts, www.informationclearinghouse.info/
article11488.htm.)
Of course, we can surmise, the President would always have a
“good” reason for crushing a child’s testicles.
So let’s get specific. Let’s take a look at one of the allegedly
toothless treaties that John Yoo was referring to—the 1984 Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment—which
the United States signed. Here is what it says:
“The term ‘torture’ means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining information or a confession…No
exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political stability or any other public
emergency, may be invoked as a justification of torture.” (cited by
Anthony Piel, “A Primer on the Law of Torture,” Truthout.org, 11/5/07)
Anyone convicted of such crimes can be punished by life imprisonment
or the death penalty. Piel goes on to say that not only is the United
States bound by this law, the President cannot grant immunity from
its provisions: “The US government crafted, promoted, adopted, signed
and ratified the 1984 Convention Against Torture, which therefore
automatically becomes the “supreme law of the land,” pursuant to the
US Constitution. No enabling legislation is required to give effect
to these basic principles of law.”
For a lawyer in the Office of Legal Counsel in the Justice
Department to argue otherwise is to essentially argue that the
President and all those under him can break the law with impunity.
But Yoo not only did this—in direct violation of his legal ethics. He
also argued for the immunity of those who followed his memos and
broke any such laws. Here is what Yoo writes in another Memo, (as
noted by Glenn Greenwald in “John Yoo’s War Crimes,” Salon, April 2,
2008):
"If a government defendant were to harm an enemy combatant during an
interrogation in a manner that might arguably violate a criminal
prohibition, he would be doing so in order to prevent further attacks
on the United States by the al Qaeda terrorist network. In that case,
we believe that he could argue that the executive branch's
constitutional authority to protect the nation from attack justified
his actions."
So there it is. Not only 'could we argue' that the President is
above all law prohibiting torture, both domestic and international,
so are those Americans (CIA agents, military police and/or
interrogators, civilian contractors) who follow his orders and
torture or abuse their captives. So are those who command them—the
generals, the admirals, the secretaries of defense and war and so on
up the chain.
This last part is really the point. We have been given the
impression, not least by Yoo himself, that he was trying to formulate
difficult policy in the critical and dangerous new conditions created
by 9/11, and that government officials were pressing him and his
office for guidance on how they should conduct interrogations, how
they should treat the dangerous “terrorists” they were capturing.
This turns out to be a smokescreen. In fact, as Scott Horton has
recently noted in “Yoo Two,” (Harper’s Magazine, April 3, 2008),
there were two series of memos, one in August 2002, and one in March
2003. The memos are similar in that they “were issued as part of an
actual plan to induce individuals to commit criminal acts by ensuring
that their crimes would never be investigated or prosecuted.” Horton
calls this effort a “criminal enterprise,” because “Under the
standards of U.S. v Altstoetter, it was reasonably foreseeable that
the issuance of these memoranda would result in serious harm,
including assault, torture, and death, to protected persons in the
custody of the United States. Accordingly, each of the actors,
including the memoranda writers, is criminally liable.”
This was the “need” to which John Yoo was responding. As a
lawyer and professor of United States law, he knew full well that
what he was advocating would make those who followed its dictates
liable to prosecution for war crimes. So did others in government,
and that was the real “crisis” at hand. Naval officers had seen what
was happening to “enemy combatants” at Guantanamo under the authority
of Yoo’s earlier memo, and had relayed it to Alberto Mora, the
general counsel for the Navy in the Pentagon. These practices, along
with other questionable techniques authorized by Donald Rumsfeld,
including waterboarding, led decent military lawyers to vehemently
protest what was going on. These were military lawyers who knew about
torture and knew about the consequences for U.S. military personnel
if it became known worldwide that the United States was engaging in
such practices. When the legal counsel at the Pentagon, William
Haynes, began wilting under enormous pressure from such lawyers, he
recommended to Defense Secretary Rumsfeld that the torture procedures
should stop. (see Horton, cited above, and Jane Mayer, “The Memo,”
New Yorker Magazine, 2/27/2006.)
Unfortunately for the military, the chicken hawks were in
charge. Rumsfeld took his case to the Office of Legal Counsel in the
Justice Department, among others. He needed legal justification for
torture, and military lawyers knew too much to give it to him. The
political hacks in the Office of Legal Counsel, John Yoo and his boss
Jay Bybee chief among them, had no such qualms. Yoo knew nothing
about the military, but he had “read lots of books.” And so he
crafted his torture-justifying memos. And those memos were relayed to
zealots like Secretary Rumsfeld and his commander at Guantanamo,
General Geoffrey Miller. Miller implemented the 'more creative'
techniques at Gitmo, was subsequently sent to Abu Ghraib to
“gitmoize” that sadly tragic place, and the rest is history
(including the death of the so-called “Ice Man” and god knows how
many more).
As Scott Horton puts it, Yoo created these memos “as a
roadmap to committing crimes and getting away with it.” The roadmap
worked. The only sad sacks punished for the scandals at Abu Ghraib
have been, as always, the underlings, the so-called “bad apples” in
an otherwise pristine barrel, Pvt. Lynndie England, Sgt. Chip
Frederick, Cpl. Charles Graner. The war criminals really responsible
for those crimes—Yoo and his boss Bybee, Donald Rumseld, Richard
Cheney and his lawyer, David Addington, Alberto Gonzalez, General
Geoffrey Miller, George Tenet and President George W. Bush, among
others—have so far gotten off scott-free.
Perhaps they are all laughing privately amongst themselves.
Then again, perhaps not. Though they may, like John Yoo (now safely,
and to my mind scandalously, welcomed back to his academic post at
Boalt School of Law, UC Berkeley) continue to defend their actions as
necessary in a time of war, perhaps they should also remember that
the conventions against torture specifically state that “no
exceptional circumstances may be invoked as a justification for
torture.” Perhaps they should also remember what Anthony Piel, cited
above, reminds us:
“…there is no statute of limitations on war crimes and crimes against
humanity.”
So here’s to you, John Yoo. You’ve served your masters well,
and duly collected your due. Although, it may be, you’ll yet see
another turn of the screw.
Lawrence DiStasi
assistant to Attorney General John Ashcroft, working in the Office
of Legal Counsel under his boss, Jay Bybee, during George Bush's
first term. This office is supposed to advise all the departments of
government on the legality or illegality of their actions. The
attorneys work, in the final analysis, not for the President or any
of his subordinates, but for the American people. They are obliged to
render opinions that are, to put it mildly, legal, according to U.S.
and international law.
Second, let’s look at what John Yoo did and why he did it.
To begin with, he essentially argued, in a series of memos, that the
Bill of Rights to the United States Constitution has no bearing on
the President of the United States during wartime. Neither the 5th
Amendment’s due process clauses nor the 8th Amendment’s protections
against cruel and unusual punishment apply to aliens in foreign
countries, and even if they did, Yoo maintained, the President is not
bound by them. Essentially, this means that the President’s power
trumps both the Constitution and the federal statutes that constitute
U.S. Law—specifically, any that would constrain his power to find and/
or torture those he deems ‘enemies.’ This means that the President
can also thumb his nose at foreign laws and treaties, for if he
cannot be constrained by U.S. Law, he certainly cannot be constrained
by treaties with other nations, such as the Geneva Conventions, even
though normally and legally they have the force of the Constitution
itself. No matter; the President, wrote Yoo, is “free to override all
such laws and treaties at his discretion.” In sum: John Yoo argued
that the President has unlimited authority to order war crimes
against enemy combatants captured on foreign soil, so long as he
decides that such orders are necessary to the nation’s “defense.”
All this is breathtaking enough. What’s worse is that in defending
these memos, John Yoo has actually said that they confer on the
President the power, if he chooses to use it, to torture children. In
a January 2006 interview with Notre Dame professor and international
human rights scholar Doug Cassel, Yoo argued that there is no law
that could prevent the President from ordering the torture of even
the child of a suspect. Here is the conversation:
Cassel: If the President deems that he’s got to torture somebody,
including by crushing the testicles of the person’s child, there is
no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the
August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do
that.
(see article by Philip Watts, www.informationclearinghouse.info/
article11488.htm.)
Of course, we can surmise, the President would always have a
“good” reason for crushing a child’s testicles.
So let’s get specific. Let’s take a look at one of the allegedly
toothless treaties that John Yoo was referring to—the 1984 Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment—which
the United States signed. Here is what it says:
“The term ‘torture’ means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining information or a confession…No
exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political stability or any other public
emergency, may be invoked as a justification of torture.” (cited by
Anthony Piel, “A Primer on the Law of Torture,” Truthout.org, 11/5/07)
Anyone convicted of such crimes can be punished by life imprisonment
or the death penalty. Piel goes on to say that not only is the United
States bound by this law, the President cannot grant immunity from
its provisions: “The US government crafted, promoted, adopted, signed
and ratified the 1984 Convention Against Torture, which therefore
automatically becomes the “supreme law of the land,” pursuant to the
US Constitution. No enabling legislation is required to give effect
to these basic principles of law.”
For a lawyer in the Office of Legal Counsel in the Justice
Department to argue otherwise is to essentially argue that the
President and all those under him can break the law with impunity.
But Yoo not only did this—in direct violation of his legal ethics. He
also argued for the immunity of those who followed his memos and
broke any such laws. Here is what Yoo writes in another Memo, (as
noted by Glenn Greenwald in “John Yoo’s War Crimes,” Salon, April 2,
2008):
"If a government defendant were to harm an enemy combatant during an
interrogation in a manner that might arguably violate a criminal
prohibition, he would be doing so in order to prevent further attacks
on the United States by the al Qaeda terrorist network. In that case,
we believe that he could argue that the executive branch's
constitutional authority to protect the nation from attack justified
his actions."
So there it is. Not only 'could we argue' that the President is
above all law prohibiting torture, both domestic and international,
so are those Americans (CIA agents, military police and/or
interrogators, civilian contractors) who follow his orders and
torture or abuse their captives. So are those who command them—the
generals, the admirals, the secretaries of defense and war and so on
up the chain.
This last part is really the point. We have been given the
impression, not least by Yoo himself, that he was trying to formulate
difficult policy in the critical and dangerous new conditions created
by 9/11, and that government officials were pressing him and his
office for guidance on how they should conduct interrogations, how
they should treat the dangerous “terrorists” they were capturing.
This turns out to be a smokescreen. In fact, as Scott Horton has
recently noted in “Yoo Two,” (Harper’s Magazine, April 3, 2008),
there were two series of memos, one in August 2002, and one in March
2003. The memos are similar in that they “were issued as part of an
actual plan to induce individuals to commit criminal acts by ensuring
that their crimes would never be investigated or prosecuted.” Horton
calls this effort a “criminal enterprise,” because “Under the
standards of U.S. v Altstoetter, it was reasonably foreseeable that
the issuance of these memoranda would result in serious harm,
including assault, torture, and death, to protected persons in the
custody of the United States. Accordingly, each of the actors,
including the memoranda writers, is criminally liable.”
This was the “need” to which John Yoo was responding. As a
lawyer and professor of United States law, he knew full well that
what he was advocating would make those who followed its dictates
liable to prosecution for war crimes. So did others in government,
and that was the real “crisis” at hand. Naval officers had seen what
was happening to “enemy combatants” at Guantanamo under the authority
of Yoo’s earlier memo, and had relayed it to Alberto Mora, the
general counsel for the Navy in the Pentagon. These practices, along
with other questionable techniques authorized by Donald Rumsfeld,
including waterboarding, led decent military lawyers to vehemently
protest what was going on. These were military lawyers who knew about
torture and knew about the consequences for U.S. military personnel
if it became known worldwide that the United States was engaging in
such practices. When the legal counsel at the Pentagon, William
Haynes, began wilting under enormous pressure from such lawyers, he
recommended to Defense Secretary Rumsfeld that the torture procedures
should stop. (see Horton, cited above, and Jane Mayer, “The Memo,”
New Yorker Magazine, 2/27/2006.)
Unfortunately for the military, the chicken hawks were in
charge. Rumsfeld took his case to the Office of Legal Counsel in the
Justice Department, among others. He needed legal justification for
torture, and military lawyers knew too much to give it to him. The
political hacks in the Office of Legal Counsel, John Yoo and his boss
Jay Bybee chief among them, had no such qualms. Yoo knew nothing
about the military, but he had “read lots of books.” And so he
crafted his torture-justifying memos. And those memos were relayed to
zealots like Secretary Rumsfeld and his commander at Guantanamo,
General Geoffrey Miller. Miller implemented the 'more creative'
techniques at Gitmo, was subsequently sent to Abu Ghraib to
“gitmoize” that sadly tragic place, and the rest is history
(including the death of the so-called “Ice Man” and god knows how
many more).
As Scott Horton puts it, Yoo created these memos “as a
roadmap to committing crimes and getting away with it.” The roadmap
worked. The only sad sacks punished for the scandals at Abu Ghraib
have been, as always, the underlings, the so-called “bad apples” in
an otherwise pristine barrel, Pvt. Lynndie England, Sgt. Chip
Frederick, Cpl. Charles Graner. The war criminals really responsible
for those crimes—Yoo and his boss Bybee, Donald Rumseld, Richard
Cheney and his lawyer, David Addington, Alberto Gonzalez, General
Geoffrey Miller, George Tenet and President George W. Bush, among
others—have so far gotten off scott-free.
Perhaps they are all laughing privately amongst themselves.
Then again, perhaps not. Though they may, like John Yoo (now safely,
and to my mind scandalously, welcomed back to his academic post at
Boalt School of Law, UC Berkeley) continue to defend their actions as
necessary in a time of war, perhaps they should also remember that
the conventions against torture specifically state that “no
exceptional circumstances may be invoked as a justification for
torture.” Perhaps they should also remember what Anthony Piel, cited
above, reminds us:
“…there is no statute of limitations on war crimes and crimes against
humanity.”
So here’s to you, John Yoo. You’ve served your masters well,
and duly collected your due. Although, it may be, you’ll yet see
another turn of the screw.
Lawrence DiStasi
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