Torture

[Frank S.]

Edited for clarification in post below.

[Frank S.]

http://online.wsj.com/public/resources/ ... y_0604.pdf

Page 20 of the memo has an interesting phrase underlined.
More interesting is the page 17, footnote (emphasis added):

The Department of Justice has opined that this statute does not apply to conduct toward Al-Qaida or Taliban operatives because the President has determined that they are not entitled to the protections of Geneva and the Hague regulations.

This is in direct contradiction to presidential statements:

"What I have authorized is that we stay within U.S. law," Bush told reporters in Savannah, Georgia, when asked what measures of interrogation he would authorize if the United States had a terror suspect in custody it knew was planning an attack.

"I'm going to say it one more time. In fact, maybe I can be more clear. The instructions went out to our people to adhere to law," said Bush, speaking at the end of a Group of Eight industrial nations summit. ""The authorization I issued was that anything we did would conform to U.S. law and would be consistent with international treaty obligations"

"That ought to comfort you. We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions from me to the government."



For an analysis:

http://balkin.blogspot.com/

Arguments That Make You Ashamed to be a Lawyer


I've been spending some time thinking about the legal claims made in the Pentagon's "torture memo." They sound like legal arguments, to be sure. But they are so mindlessly wrong-headed that you wonder how people can argue themselves into these conclusions.


The key argument in the memo stems from the fact that in order to implement our obligations under international conventions against torture, Congress passed a law making it criminal to engage in torture overseas. The memo then sets out to prove that this law does not bind the President. Why? Because all statutes should be construed to avoid constitutional difficulties. Preventing the President from using torture would pose a constitutional difficulty because it would impinge on his powers as Commander-in-Chief. As the memo puts it, "Congress may no more regulate the President's ability to detain and interrogate enemy combantants than it may regulate his ability to detect troop movements on the field." "Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." Taken to its logical conclusion, this argument would suggest that Congress may never place any restraints on anything that the President wishes do do under his powers as Commander-in-Chief because to do so might create a constitutional conflict with his powers as Commander-in-Chief. In short, the argument, taken to its logical conclusion, gives the President plenary power to do anything as long as he believes it is within his powers as Commander-in-Chief.


This is an assertion of power that would make Richard Nixon proud. (See the post below on Nixon's theory of presidential power.). Even the Iran Contra conspirators during the Reagan Administration did not make so strong a claim. They argued that the Borland Amendment, which prevented the expenditure of funds to the contras, did not apply to the activities of the National Security Council. Whether that argument was correct or not is besides the point. What is important is that they did not presume that Congressional legislation related to the conduct of war and foreign policy could not bind the President. The torture memo takes a much stronger position. It truly makes the President a King, someone who must be presumed to do no wrong. If the President adopted this position, and acted upon it, it would be grounds for impeachment.


The second argument is that people engaged in torture at the direction of the Executive may not be prosecuted for war crimes because they were following the orders of a superior. The memo recognizes that following orders is not a defense under both American and international law if the subordinate knows or has reason to know that the order is unlawful. After reciting various authorities to this effect, the memo then twists that legal formulation and concludes that "In sum, the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in exceptional interrogiations except where the conduct goes so far as to be patently unlawful."


Note the switch. Instead of saying that the defense of following orders is generally unavailable, the defense is now described as generally permissible. And instead of a limited defense in cases where the subordinate did not know and did not have reason to know of the unlawful nature of the order, the defense becomes much broader. The act is generally privileged unless the illegality of the order is patent.


What difference does this formulation make? Put the first set of arguments about Presidential power together with the second. You are a subordinate asked to torture a subject. Do you know that this order is patently unlawful? No, you do not, because of the memo's first argument. The first argument claims that in order to avoid constitutional conflicts, all laws restricting the President's power to interrogate subjects should be construed not to apply to the President. Since the President is ordering you to torture someone, you may-- indeed, you must-- presume that this order does not violate any existing law when properly construed so as to avoid a constitutional conflict. Hence you can torture the suspect with a clear conscience.


Clearly it takes a highly trained legal mind to reach conclusions like these.


There is more in this memo worth discussing, but the import should by now be clear. The stench of corruption permeates the pages of this report. Legal minds, blinded by ideology, and seduced by power, have willingly done the Administration's dirtiest work-- apologizing for torture and justifying violations of the most basic human rights. They have mangled the law and distorted the Constitution, manipulating legal sources to maximize power and minimize accountability. It is the sort of legal reasoning that twists law to destroy the Rule of Law. It is the sort of legal reasoning that brings shame on our nation and our people. It is the sort of legal reasoning that makes me ashamed to be a lawyer.

Nixon's quote from interview:

Mr. David Frost: So what in a sense you're saying is that there are certain situations . . . where the President can decide that it's in the best interests of the nation or something, and do something illegal.
Mr. Nixon: Well, when the President does it, that means that it is not illegal.
Mr. Frost: By definition.
Mr. Nixon: Exactly. If the President, for example, approves something, approves an action because of national security, or, in this case, because of a threat to internal peace and order, of significant magnitude, then the President's decision in that instance is one that enables those who carry it out to carry it out without violating a law. Otherwise they're in an impossible position.

[Spannerman]

.............because the President has determined that they are not entitled to the protections of Geneva and the Hague regulations

The President has determined the above applies to Al Qaeda and Taliban operatives. Frank, is this guy running a one man dictatorship, surely this sort of statement needs to be addressed to the senate.

As much as I abhor any violence, the perpetrators have to be found guilty first, and when done so bring the hammer down, I guess Guantanamo Delta Base was brought into being JUST to cater for these people.

[Seven]

Ì'm not trying to defend the people who tortured those prisoners, but I believe the Geneva convention applies to organised armed forces. That means:

A clear command structure

A uniform must be worn by combatants

Combatants must wear badges of rank

The last two certainly don't apply to either Al Qaeda or to terrorists in Iraq. There are probably a few others that I forgot here. This doesn't mean that these acts are allowed, but the Geneva convention doesn't really apply here does it?

[Frank S.]

That's besides the point, really.
What we have are a handful of grunts being court-martialed.
An administration who expressed shock and disgust at what the troops did.
Memos classified by SECDEF containing a reference to the president's determination of how detainees should be handled, that is to say: within or without Geneva and Hague regulations.
A president who made statements to the contrary when the issue was pressed.

Are the troops going to invoke the Nuremberg defense, and if successful, who'll have to fall on his sword? Rumsfeld?

[Spannerman]

Ì'm not trying to defend the people who tortured those prisoners, but I believe the Geneva convention applies to organised armed forces. That means:

A clear command structure

A uniform must be worn by combatants

Combatants must wear badges of rank

The last two certainly don't apply to either Al Qaeda or to terrorists in Iraq. There are probably a few others that I forgot here. This doesn't mean that these acts are allowed, but the Geneva convention doesn't really apply here does it?

This applied to those Brits and other special agents working behind enemy lines in WWII and to those who escaped from Stalag Luft III (The Great Escape) who wore no uniform, these people were killed on the orders of a dictator like the one that leads the greatest democracy the world has seen, well that is OK then

[Tab]

Well what happened to spies on either side, they where out of uniform and what happened to them, I wonder.

[Ex-URNU-Student]

Even if you could find some sort of hazy legal justification any info gathered must be obsolete by now after 2 years in Gitmo.

So whats gained?

[Seven]

I'm not trying to find some legal justification, like I said I do not wish to defend anyone here. All I'm trying to say is, is the Geneva convention at all applicable here? I'd say that is an important point because everbody seems to think it is.

As for the Nuremberg defense, I think that is absolute crap. I said before, every soldier has his/her own responsibility and if he/she believes orders are not lawful he should not follow them. I understand that daily military practice, especially in a warzone, might be different and that should be considered in a verdict, should there be one. Other than that, everybody who perpetrated (spelling?) these acts should be prosecuted, as should everyone who ordered anyone to do this.

[Frank S.]

Well, the administration 'stepped' into it when it declared the Geneva and Hague regs did apply in Iraq.
Again it's important to look at Afghanistan and Iraq separately.
The President reiterated this point about observance of Geneva and the Hague in his response to the press.
They may choose to contradict themselves later, but there'll be a price for this, the least of which being that Iraq cannot effectively be used as a centerpiece for the re-election campaign.
Consider that the first option, 9/11, backfired when New York City fire-fighters reacted very badly to usage of 9/11 imagery in early spots (thank you Karl Rove). And as the administration was gearing up to use the toppling of Saddam Hussein's regime, Abu Ghraib 'exploded' in their face.
What next? Maybe Dubya will try to embrace his daddy's dead boss, and that'll be even worse.
Some soldiers flat refused to partake in prisoner abuse (so-called) at Abu Ghraib, some even going as far as actively trying to stop it. Others "felt" they had no choice but follow MI's instructions, and so, yes they will try the Nuremberg defense.
What the memo shows is a glimpse into the concerted weakening of our system of checks and balances, the fusion of the head of state and chief executive as one entity above all constitutional constraints.
Hence George W becomes Richard III.
It is important: consider that soldiers swear to defend the constitution, not the president.
The Justice Department (AG Ashcroft) has refused to supply the Senate comittee investigating the abuse with memos they drafted and sent to the White House. Ashcroft refused without invoking executive privilege, which is akin to obstruction of justice while giving no valid reason for it.

So to recap, it becomes more and more apparent that the abuse ocurred as a result of policies drafted at the very top, and in contradiction of public statements and findings made by the administration.

[Frank S.]

A little humor, here.
Jay Leno's late night show.

http://www.newsmax.com/liners.shtml

"According to the "New York Times”, last year white house lawyers concluded that President Bush could legally order interrogators to torture and even kill people in the interest of national security - so if that's legal, what the hell are we charging Saddam Hussein with?"

[Spannerman]

I wonder if the American Administration will be taken to the International Courts at the Hague for the torture that has been seen to be going on at Abu Ghraib? If so it would be almost tantamount in going to war with the USA!!

Interesting to see that the IRC have involved themselves with the 'release Saddam Hussein or charge him for war crimes' by June 30th, as officially after that date he should be released as the conflict ceases then, when the Iraqi Interim Government takes control, and presumably that includes the rest of the 'pack of cards'.

[Frank S.]

I wonder if the American Administration will be taken to the International Courts at the Hague for the torture that has been seen to be going on at Abu Ghraib?

I very much doubt it, but then the Senate's showing no stomach for that fight. The only investigation about this is John Warner's armed services comittee's, and it's moving excruciatingly slow.
The congress and senate after all, voted to give wide (and undefined until now) powers to 'protect' the country, so they are in the same position as the US electorate will be when and if it re-elects Bush for a second helping.

Many people still feel safer, because no major terrorist attack has taken place on US soil since 9/11. But this doesn't take into account two major and continuing failures:
to successfully and unequivocally prosecute known terrorists we have in custody, and to make any 'major' arrest. What we have is small fish, and dubious ones, hence the prosecution problems.

Emphasis added in the article below:

http://www.iht.com/bin/print.php?file=524502.html


William Pfaff: When laws get in the way of torture
William Pfaff IHT/TMSI
Friday, June 11, 2004


The paper trail

PARIS People like to quote Karl Marx's comment on the two successive Napoleonic empires, that of Bonaparte himself, and, after 1848, the second empire of his nephew, Napoleon III. Marx said that it was a tragedy repeated as a farce.

The United States has reversed the sequence, so that a few years ago the nation, or at least Congress and the media, was obsessed by President Bill Clinton's disputed definition of what does or does not amount to sexual congress with a White House intern.

The tragedy that has followed the farce is torture as an instrument of American national policy in the cause of spreading democracy.

Documents recently obtained by the press reveal White House anxiety about how to protect President George W. Bush and members of his cabinet from going to prison for ordering, authorizing or deliberately permitting systematic torture of persons in their control, but technically outside formal American legal jurisdiction. The question put to lawyers was how the president and the others could commit war crimes and get away with it.

Thus, according to these reports, the president last year obtained from his lawyers an opinion that he is not bound by U.S. laws or by international engagements prohibiting torture and that Americans committing torture under his authority cannot be prosecuted by the Justice Department.

This opinion rests on the argument that national security considerations override both U.S. law and international treaties. As one of the military lawyers who took part in these discussions has said, it was an assertion of "presidential power at its absolute apex."

It deliberately overrode the norms the military had previously been trained to regard as mandated by the Geneva Conventions. The world now knows how overriding the norms at the top overrides them all down the line.

The Bush administration's civilians had been complaining about how law, international treaties and conventions, and military norms and inhibitions, were interfering with their determination to seize and hold anyone they pleased in secret prisons, declare them without legal rights even when they were American citizens, torture them whenever they wanted and keep them forever, if they liked (a totalitarian ambition, obviously). They wanted these obstructions removed.

Their complaints sounded like the complaints of Adolf Eichmann, when he described during his trial in Israel the irksome bureaucratic and legal obstacles he ran into in wartime Germany in carrying out his genocidal responsibilities.

High U.S. administration figures reportedly lingered - with delectation? - over what exactly was to be done to the unfortunate prisoners - for how long, in what position, with what pain inflicted.

(There was also - whoops! - the problem of what to do when things went wrong, and the torturers had a dead man, or woman, on their hands.)

And when all this began to come out, what did the administration have to say? The president said on May 24 that "a few American troops ... disregarded our values." Civilians in the Pentagon, speaking informally to the press, blamed the Abu Ghraib scandals on "a few hillbillies."

The American operation in Iraq, and apparently in Afghanistan before, has been haphazard, planned and run by people mostly without serious knowledge of these countries and their societies. The administration has gone in for wholesale arrests and interrogations, sweeping people up virtually at random, because it doesn't know what else to do.

This has been futile and irrational, as well as evil. The nearly universal uselessness of torture is well-known in intelligence and special warfare circles. Even if you have a key figure who does possess useful information, and you eventually get him (or her) to tell you what you want, what actual good is it?

Is it really true? Is it merely what the torturer has inadvertently conveyed to the victim that he wants to hear? Even if true, is it any longer useful? Every resistance or underground organization works with a system of cut-outs that limits what any one individual knows, and signals everyone else to scatter when a prisoner is taken.

A network doesn't have to be organized to do that. Any band of armed insurgents in Iraq knows that when one of them is taken the rest don't wait around.

The vast majority of those in Iraqi prisons have turned out to be people who were at the wrong place at the wrong time, or had a name resembling someone else's name, or were related to someone whose name was on a U.S. list. They were tortured because that had become the practice. They might know something. When higher commanders complained that they weren't getting enough intelligence, the same prisoners were tortured again.

All of this is a ghastly scandal, one of the worst in American history. It is evident cause for impeachment of this president, if Congress has the courage to do it, and for prosecution of cabinet figures and certain commanders. However in view of the partisan alignment in Congress, quite possibly nothing will happen before the November election.

What then? It also is quite possible that George W. Bush will be elected to a second term. In that case, the American electorate will have made these practices its own. Now that is something for our children to think about.

[Tab]

A question for Frank, who is it that decides what is International Law, America or an International Body of most of the major powers. Now if America has broken them then the President could be arrested any time he leaves America, and even more so after he has left office. Now could you ever see this happening?.

[Frank S.]

I'll answer it this way: if Bush were to be arrested I think there's a number of other world leaders who should be as well.
I can think of a few French ministers who ought to be breaking big rocks into gravel, for instance.
Interestingly, the administration seemed much more concerned about protecting itself from US laws and statutes than the international equivalent which they time and again described as 'obsolete'.
Impeachment would be a possibility if the Senate grew some nuts, but they're too squirelly (no pun intended).
Indictment is very, very remote and I think could only be considered after Bush left office. But again, the case would be extremely hard to make successfully given the burden of proof necessary to go after a head of state.
What might be needed is a higher level draft of the RICO statute which would draw together various offences, from constitutional violations to fiscal and ethical irregularities (I'm using euphemisms here). But if Nixon managed to avoid jail time after Watergate, and Reagan after Iran-Contra (I like the man but let's face it, he was far from a saint), the chances of that are next to nil.
I'm no lawyer, either.