April 10, 2008—Is it because John Yoo, the former Justice Department's hired hand, is such an easy target? Is it because of the cheeky, in-your-face way in which Yoo argues that the president has the authority to have your eyes poked out and your sons' testicles crushed, because we are "at war" and he is commander in chief?
Or is it because our press is STILL reluctant to go after Yoo's guys – first and foremost his ultimate client – President George W. Bush? Oh, but that would be hard, you say.
Available on the Web, in its original format, is a 7 Feb. 2002 action memorandum that the president signed to implement the dubious advice he was getting from Yoo and those at Justice who hired Yoo – and from the vice president's office which guided Yoo.
Yoo did their dirty work (and now he takes the rap).
Weren't Yoo's co-conspirators careful to keep their fingerprints off the more blatantly offensive memoranda? Sure they were.
But there was one problem. Then-Defense Secretary Donald Rumsfeld and then-CIA Director George Tenet could not get their people to torture folks without written, signed authorization by the president.
And we have a copy of that authorization? Yes, it's been available for years. You have to download it to believe it.
In his Feb. 7, 2002, memorandum, Bush wrote: "I determine that common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees." (Common Article 3 bans "torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment.")
Then, drawing on the lawyerly legerdemain, Bush did something really dumb. Using words drafted by Vice President Dick Cheney's lawyer, David Addington, for a memo dated Jan. 25, 2002, signed by then-White House counsel Alberto Gonzales, the president ordered that detainees be treated, "humanely ... to the extent appropriate and consistent with military necessity."
Tacked onto the end of that sentence is a classic circumlocution: "in a manner consistent with the principles of Geneva." But that is not what Geneva says, and there is no way to square that circle.
This is the giant loophole through which Rumsfeld and Tenet drove the Mack truck of torture ... yes, signed by the president. The rotten apples were – demonstrably – at the very top of the barrel.
Typical of the timid treatment accorded this issue is what initially seemed to be a straightforward article by Don Eggen in Sunday's Washington Post. It spotlighted scapegoat-of-the-hour Yoo, noting that he advised that in time of war the president's ultimate authority as commander in chief trumps laws prohibiting assault, maiming and other crimes by military interrogators.
In focusing on Yoo's legal advice, however, Eggen joined his "mainstream" journalist colleagues in omitting the smoking gun – Bush's implementing memorandum of Feb. 7, 2002. That document already had cleared the way for waterboarding, stress positions, forced nudity and other abuse of detainees – as well as for further legal musings about the unlimited powers of a wartime president, like Yoo’s newly disclosed March 14, 2003, memo.
The omission was all the more conspicuous in that a listing of nine memoranda relevant to the story sits side by side with Eggen's article. Guess which memo did not make it onto that list?
Again, I urge you to download the president's Feb. 7 smoking gun from the Web and read it yourself. The Jan. 25, 2002, memo bearing Gonzales's signature is also available – in its original form.
On June 29, 2006, in Hamdan v. Rumsfeld, the Supreme Court ruled that Geneva DOES apply to al-Qaeda and Taliban detainees.
One senior Bush administration official is reported to have gone quite pale at the time, when Justice Anthony M. Kennedy raised the ante, warning that "violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses."
That threw a real scare into Bush as well, who pressed Congress hard to give administration officials retroactive immunity from prosecution. That came just three months later when Congress passed the "Military Commissions Act."
Ironically, the fact that those violating Geneva have been granted immunity within the U.S. makes it easier for foreign courts to prosecute for torture.
Remember how former Defense Secretary Donald Rumsfeld had to sneak out of Paris last October? He was not about to wait until a Paris prosecutor decided how to handle a fresh criminal complaint against him.
That complaint cited the failure of U.S. authorities to investigate the role of Rumsfeld and other top officials in torture, despite a documented paper trail of official memos implicating them in direct as well as command responsibility.
The complaint argued that countries like France have a legal obligation to prosecute under the 1984 Convention Against Torture, approved by 145 nations, including the United States.
The Convention states that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
It also provides for “universal jurisdiction,” meaning that every signing country has a duty to prosecute torturers who are found in their territory or to extradite them to other countries for prosecution.
One of the Bush administration's favorite slogans is that evildoers must be "brought to justice." It will be interesting to watch how this all plays out in the months and years to come.
[For more on Yoo’s memos and Bush’s powers, see Consortiumnews.com’s “All Power to the President” and “Yoo’s Memo Hints at Bush’s Secrets.”]
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This story was published on April 10, 2008.