Well I’m sure you’ve all seen the declassified “torture memos” written by Deputy AAG John Yoo (part 1, part 2, both PDF). They laid the legal foundation for the use of expanded interrogation techniques, the horrid euphemism used by the Bush administration to justify what we once considered wretched torture performed only by our worst enemies.
Yoo’s argument, essentially, is that neither Congress nor the Courts nor signed laws nor ratified treaties can impede on the President’s choices, and that anything that may violate these statues nullifies them, making them no longer law. Yoo, however, took it even beyond nullifying the current spate of laws:
Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President….Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield… Any presidential decision to order interrogations methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions…
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.
This is, in a word, appalling. This commenter spent a good chunk of the day digging up more howlers from Yoo’s memo. Beyond all the shady reasons like they’re not war criminals because they declared the Geneva Conventions—which, as a ratified treaty is actually U.S. law—simply don’t apply to them because they President declared himself and his branch of the government an exception, there is this bit:
Footnote 41 notes that the torture statute carries the death penalty if the torture results in death. We know that at least 1 detainee died from extreme hypothermia in US custody. That was a capital crime.
Indeed it was. But I don’t really expect anyone to be held accountable for this atrocity (which led directly to the horror of Abu Ghraib and other despicable acts). After all, the memo has been rescinded, and most of its authors and supporters—like a very unrepentant Doug Feith—all have quite lucrative positions in law schools, universities, and think tanks. Holding them accountable for literal crimes would simply be too much to ask for the brave lawyers who shredded the constitution to save it lo’ these many moons ago.
Absolute horseshit. In fact, of all the things you say that are wrong on both the law and memos, this is the most blatantly ridiculous. It simply reveals that you have no idea what you’re talking about.
For the sake of intellectual honesty, you may want to check out some analysis other than from the lefty, anti-war set.
So do the portions of the memo I quoted NOT advocate discarding the law because the President deems it necessary? Did it not give the Pentagon the green light to discard statutory limits on torture, cruelty, and the maltreatment of prisoners (esp. the 2002 version, which was directed specifically at the CIA and would have pertained to the prisoners under its jurisdiction, like the nameless Iraqi who died under CIA questioning)?
Because that’s what the language itself says. And that’s how everyone, including John Yoo, interpreted it. How am I misreading this?
Josh, don’t pretend like you actually read the memos, much less that you understand them.
The memo begins with a statement of purpose and limitations. What laws might apply to foreign combatants on foreign soil.
It’s a legal opinion not a policy opinion or suggestion.
Sort of like explaining that absolutely nothing in the Geneva Conventions is owed to *any* non-signatory, non-uniformed combatant. Or explaining that non-uniformed combatants are (if they were in fact covered by the GC) only owed a hearing in the field and execution.
Those aren’t policy arguments. They aren’t arguments that we ought to just execute anyone we catch.
They are arguments about what laws or agreements apply to any particular situation.
We’re sophisticated enough to understand the difference between “legal” and “we should do this” aren’t we?
And really… what “led to” Abu Ghraib was a deviant prison guard (his civilian job) trying to impress his girl friend (they’d also taken lewd pictures of their fellow guard members while they were sleeping) being given the opportunity because of a severe lack of leadership to humiliate prisoners for the fun of it. The idea that this was related at all to interrogation policy is someone’s fantasy since those abused weren’t even suspected of being anything other than normal criminals.
And then Karpinski, the grand dame of “nothing is my fault”, got slapped down and came back to the US to whine about rapes and deaths of (non-existent) female service members that she didn’t do a damn thing about either. What did she think those stars were *for*?
Yes, Michael, we poor non-lawyerly schlubs are too stupid to think “Any presidential decision to order interrogations methods that are inconsistent with [the Convention Against Torture] would amount to a suspension or termination of those treaty provisions” means exactly what it says—namely, that the President can nullify laws by violating them. Yes, condescension and cursing are clearly called for. Dick.
And Synova, if an legal opinion of the administration doesn’t imply a policy, how else would you interpret this, especially given how widespread prisoner abuse became (or at least was publicized) after these memos were sent out to the agencies responsible for interrogations? And the timing is impeccable, too: the officials who oversaw Abu Ghraib (pinning that on a single guy impressing his girlfriend is a bit much considering how many prisoners were abused, including the one murdered during a CIA interrogation session, and the number of women who were involved in abuses as well) saw this memo just before deploying to Iraq. If you don’t think that’s even fishy timing, then I wonder what exactly would look suspicious to you with this administration, because the bar would obviously be pretty high.
Josh, whether you are a lawyer or not you should at least try to read the actual memos before spouting off on them. It would at least give you the context of the questions being answered and the posture of the suggested state of the law. Just by way of example, this is in no way a policy statement:
If you had read even the first few pages of the memo you would have known that Yoo was discussing potential defenses to charges being made against our soldiers and other government agents. You would have also seen the very first footnote disclaiming any policy stance or recommendation for action. Furthermore you would have understood that a legal memo authorizes nothing.
To be fair, if a legal memo presents an inarguably indefensible statement as to the law, and someone acts in reliance on that memo to their own detriment, I would agree without reservation that the drafter of the memo is ultimate wrong-doer. Whether the Yoo memo actual does this I can’t say yet because I haven’t finished it, and I’m certainly not as well versed in this area of law as a great many others. But what I’ve read so far doesn’t seem to make any such misstatements.
Heh. Yeah, well at least I’m being a dick using my own thoughts and opinions and not co-opting someone else’s to support my own moral indignation.
Firstly, having served at the “rubber meets the road” level of the military I do not find it credible in any way whatsoever to imply that a classified memo on the legalities or potential legal ramifications at the very top is going to have practical influence at the very bottom. It doesn’t meet the requirements of a “smell test.”
It’s political posturing at best and at worst. And when I’ve heard those arguments… where Bush and his “torture policies” are the reason that those working directly with prisoners were abusive it almost *always* excused Karpinski. Now, people could be blaming any number of other generals and officers and inbetweens… but not Karpinski. Why? Because Karpinski played the right political tune. Karpinski blamed Bush.
But the way it works is… any policy change from the top passed on downward passes *through* Karpinski. Karpinski is responsible for actions taken by her subordinates. (This isn’t always fair, but it is always true.)
The idea that lax discipline was responsible for lax discipline *does* pass the smell test.
The purpose of military discipline is primarily to *stop* soldiers. To stop legions from breaking formation. To stop soldiers from raping and pillaging. To *stop* them from killing.
Because the killing comes easily. Obedience to *stop* while hyped in battle is what military discipline is for. Lose discipline and human nature takes over.
I won’t say a single thing about CIA offenses and if those are due to secret administration policies, but the CIA and the military are not anything close to connected and a disciplined military will *not* be taking it’s cues from CIA hanging around suggesting they “soften up prisoners” unless there is a serious leadership vacuum. It’s called chain-of-command and you do *not* take orders from someone outside it.
But the activities undertaken by Graner and England and others with them don’t require suggestions from others. It was actually against regulations for England to even be where she was since her duty station was elsewhere. The regulations weren’t enforced. Reports of abuse weren’t followed up on. This is a leadership issue.
And if someone was telling Janis Karpinski to turn a blind eye to abuses (which she apparently did) then she had a professional obligation to demonstrate the stones to refuse.
And there *were* reports of abuse and those reports *did* reach someone who did take responsibility and investigations were *already* underway before the scandal and pictures hit the news.
Again unless I’m mistaken, the pictures were released by a family member hoping to help her son who had *already* been arrested.
So do the portions of the memo I quoted NOT advocate discarding the law because the President deems it necessary?
When you think the “law” is made up out of international agreements that the voters never had any say about ratifying, then you would perhaps have a point. You would also have shredded the Constitution instead of the people you accuse of that crime.
Again unless I’m mistaken, the pictures were released by a family member hoping to help her son who had *already* been arrested.
I do believe that is how Dan Rather of 60 minutes got those pics.
I’d be very interested to know how you see a causal link. You’ll note how all of these memos and the hypothermia case you mention regard illegal irregular combatants in Afghanistan. Abu Ghraib is in Iraq, and the abuse incident didn’t involve combatants of any stripe but rather street criminals. The only interrogation any of them ever experienced was about the incident itself, and I think it’s pretty safe to assume that none of them involved harsh techniques.
To my knowledge, the Bush administration has never even questioned the application of the Geneva Conventions’ full protections in Iraq, much less violated them intentionally. No Iraqi has ever darkened the threshold of Guantanamo as far as I know. Saddam’s government was after all recognized by the US and the international community as the “sovereign” government of Iraq.
I don’t think that the legal debate concerning interrogation techniques and the legal status of combatants in Afghanistan has or had anything to do with Abu Ghraib or any other aspect of the war in Iraq for that matter. But I’d like to think I’m open to evidence.
yours/
peter.