|
Signing
Off on Torture
By
Ernest Dumas
If
you thought that the administration of George W. Bush was
more lawless than the certified one of Richard M. Nixon, records
keep proving you right, or did before they were in some cases
destroyed.
But only in Nixon’s fevered brain was he above the law, and
he would discover to his sorrow that he wasn’t. Bush got his
law-enforcement department to certify that laws did not apply
to him or anything done under his aegis in wartime, and it
seems unlikely that he will ever be accountable.
The torture memoranda written for Bush by John C. Yoo will
someday appear in a compendium of infamous documents alongside
the slavery tracts, Roosevelt’s order relocating West Coast
Japanese to compounds in Arkansas and elsewhere and Hirabayashi
v. United States, the first of the treacly U.S. Supreme Court
decisions that affirmed its correctness.
The last of the Yoo memos to be declassified and made public
last week by Senate Democrats told the Defense Department
that neither international treaties nor American criminal
laws against the brutal treatment of prisoners applied to
military interrogators of suspects rounded up in the war on
terror because it was done for the commander in chief, whose
supreme authority overrode those laws. Yoo was then a deputy
in the Justice Department’s Office of Legal Counsel and the
man picked to provide the administration the legal underpinnings
to torture people who were suspected of being al Qaeda members
or Taliban soldiers.
An earlier Yoo legal memorandum had defined away torture for
the CIA. Torture had nothing to do with the actual treatment
of prisoners, even if the abuse killed them, but rather what
was in the mind of the interrogator. If he did not intend
to kill the suspect it could not be torture so no military,
domestic or international laws were flouted.
It took Yoo 81 pages to explain why the president could authorize
acts of extreme cruelty and everyone from the president down
to the actual perpetrators could avoid ever being convicted
of a crime. Certainly, he assured, his department would not
be trying to convict them. The memo was long because he took
pains to single out all the statutes that the president of
the United States was above, if he was at war: the Geneva
Conventions, international laws against torture, and a host
of federal laws against war crimes, assault, maiming and stalking.
Yoo left the Justice Department shortly afterward and nine
months later the Justice Department told the Pentagon that
soldiers should no longer rely on Yoo’s memo. Lawyers for
the service branches were shocked by its callousness and twisted
arguments. Yoo’s successor at the Justice Department would
conclude that Yoo’s memos were far off the mark, that they
stood out for “the unusual lack of care and sobriety in their
legal analysis.” But the damage was done. The word was out
that there are no rules in this war and that the gloves were
off, whether at Abu Ghraib, Guantanamo, or any other place
where “detainees” were sequestered.
While Yoo would resurrect heinous precedents to justify inhumanity
to the administration, such as the execution of Indians who
refused to go on reservations, he skirted the whole drift
of the American experiment since the Declaration of Independence
and Gen. George Washington’s declaration that the torture
of captives would not be tolerated even if the life of the
new country was in peril. The 14th amendment recognized that
there were basic rights that extended to every human being
and that upon American soil or under American authority those
rights would be recognized whether for citizen or alien.
Much of Yoo’s argument was devoted to protecting people under
the president from criminal prosecution for abusing prisoners.
They would be shielded from prosecution by the argument of
self-defense. If they thought they were trying to prevent
a terrorist attack anything they did would be lawful.
But he may have been wrong about that, too. The CIA was so
distrusting of Yoo’s argument that its officers destroyed
hundreds of hours of videotapes documenting brutal interrogations
because they believed the cruelty was illegal and that the
president’s unbridled authority as commander in chief would
not protect them. If the evidence was destroyed no one could
be charged.
Now, the lawsuits are piling up and criminal and congressional
investigations are under way. The CIA, the Defense Department
and other agencies are fighting legal challenges to the inhumane
treatment and the destruction of evidence. A federal judge
has suggested that by destroying tapes, the CIA violated court
orders to preserve evidence in the cases of a Yemeni prisoner
at Guantanamo. The destruction of evidence of abuses may end
up freeing terrorist suspects, an ironic conclusion to the
legal campaign, although Bush’s new Supreme Court may undo
the precedents.
One federal prosecutor is examining whether the destruction
of tapes amounted to obstruction of justice, in which case
at least someone may finally be accountable. It won’t reach
John Yoo and the men for whom he pandered.
|
Site
Search 
