Turley on Countdown: Enemy to Rule of Law

Last night on Countdown with Keith Olbermann Law Professor Johnathon Turley of George Washington University made a series of startling statements, yet in my opinion Turley's comments where actually somewhat behind the curve of the facts. From Dkos.

OLBERMANN: We haven't even addressed and for time's sake, now, there's study after study that indicates that torture presents falsely positive information. People will say anything they think the torturer wants to hear. But... about again the layout between Bush and McCain: one question being asked a lot that I have not heard definitively answered anywhere... Is there really a difference between what the President has proposed on this and what the McCain/Warner/Graham version? Are they both torture? Aren't they both redefining the Geneva Conventions to some degree?

TURLEY: Well you really hit, I think, the most salient aspect of this. Whatever comes out of a compromise, it does seem to be an effort to redefine the Geneva Conventions because otherwise, why are you doing this? You don't need to redefine the Geneva Conventions - you don't have to do anything with it. It's a treaty. We're a signatory. We've never had to do this before. We've gotten along just fine, as has the world, with the language of the Geneva Convention. If we make any effort at all to try to redefine it or tweak it or to amplify it, the world will see that as our effort to lawyer the Geneva Convention to try to create some type of loophole or excuse for conduct

Actually we have done it before, we did it in Vietnam - we did it in South America. What we haven't done before is admit it, or even openly discuss it as the President has done.

OLBERMANN: You'll remember Mr. Gonzales' description of this five years ago as "quaint" - the Geneva Conventions or portions of it -

TURLEY: [laughs] Right -

For some reason the "quaint" memo gets a ton of play, but is in fact of little consequence. In that memo Gonzales were referring to some rather minor and trivial Geneva requirements. The big memo is the one which was revealed by MIchael Isikoff of Newsweek, which indicates Gonzales advice to the President to deny Geneva protections to detainees - specifically to avoid War Crimes Prosecution - 8 months prior to the Bybee memo.

In the memo, the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes--defined in part as "grave breaches" of the Geneva Conventions. Noting that the law applies to "U.S. officials" and that punishments for violators "include the death penalty," Gonzales told Bush that "it was difficult to predict with confidence" how Justice Department prosecutors might apply the law in the future. This was especially the case given that some of the language in the Geneva Conventions--such as that outlawing "outrages upon personal dignity" and "inhuman treatment" of prisoners--was "undefined."

When the President says that the language "outrages upon personal dignity" are "vague" -- this is what he's talking about. He was advised in 2002 by his attorney that his actions in regards to detainees could put him under personal criminal liability. The President did indeed give the order to exclude detainees from Geneva, hence avoiding potential War Crimes prosecution -- that is until the Supreme Court brought Geneva back to the table with the Hamdan decision. Between that orginal decision 5 years ago and now has been a long, dirty road. SecDef Rumsfeld had been the chief architect of the "new expanded" interrogation policies that were first used at Gitmo, and then exported to Bagram AFB and Abu Ghraib.

"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote. The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision--then being strongly challenged by Secretary of State Powell-- to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions. "Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.

The fact that Powell is speaking out now, is not nearly as strange as Turley has made it appear - he's been speaking out about this issue for quite some time while he was within the Administration. He has little choice but to continue to speak out although he is no longer an "insider".

OLBERMANN: - to some degree. Last Friday here you were telling us that some of the detainees from the secret CIA cells, when moved to Guantanamo, might have the opportunity in the immediate future to talk to the Red Cross about their own interrogations, is there anything more to the possibility that that's going to happen, which might explain the President's anger and his rush over this as having more to do with what his Administration has already sanctioned and not about what is yet to come?

TURLEY: It has all the indications that that is exactly what is happening. The Administration for years has conspicuously attempted to get things like waterboarding approved as non-torture. Waterboarding, when you convince someone they're going to drown by drowning them. At least to the point of death. And waterboarding is defined as torutre around the world.

Now obviously the Administration has not gotten that thus far. But there is a strong suspicion that we have indeed been engaging in torture. Remember, some of these people were captured when the White House had signed a memo that defined non-torture as anything short of organ failure. That they believed that as long as they didn't cause organ failure or death, they were not engaged in torture. That shocked the world.

So what has happened in the past in our name has many of us wondering. But there is a feeling - and I am one of those people that has it - that we're about to hear some accounts coming out that our President may have ordered American personnel to become torturers. And that is so serious it is almost beyond definition.

I don't think we have to wait until the former "ghost detainees" talk to the RedCross - we already have documents from the FBI and Dod available at a single click right --> here.

Among the documents released today by the ACLU is a May 19, 2004 Defense Intelligence Agency document implicating Sanchez in potentially abusive interrogation techniques. In the document, an officer in charge of a team of interrogators stated that there was a 35-page order spelling out the rules of engagement that interrogators were supposed to follow, and that they were encouraged to “go to the outer limits to get information from the detainees by people who wanted the information.” When asked to whom the officer was referring, the officer answered “LTG Sanchez.” The officer stated that the expectation coming from “Headquarters” was to break the detainees.

The ACLU also released an Information Paper entitled “Allegations of Detainee Abuse in Iraq and Afghanistan” dated April 2, 2004, two weeks before the world saw the pictures of torture at Abu Ghraib prison. The paper outlined the status of 62 investigations of detainee abuse and detainee deaths. Cases include assaults, punching, kicking and beatings, mock executions, sexual assault of a female detainee, threatening to kill an Iraqi child to “send a message to other Iraqis,” stripping detainees, beating them and shocking them with a blasting device, throwing rocks at handcuffed Iraqi children, choking detainees with knots of their scarves and interrogations at gunpoint.

“These documents are further proof that the abuse of detainees was widespread and systemic, and not aberrational,” said Amrit Singh, a staff attorney with the ACLU Immigrants’ Rights Project. “We know that senior officials endorsed this abuse, but these officials have yet to be held accountable.”

Turley continued...

OLBERMANN: How serious would that be for the President? Are there elements of the Constitution that refer to international treaties that make an American President violating international agreements like that liable or subject to criminal action within this country, let alone internationally?

TURLEY: It is a violation of both domestic and international law. But more importantly, torture is a moral under every major religion. That you cannot fight a moral war with immoral means. And if we're ready to embrace immoral means, if that's how we're going to fight this war, then we have lost. And no one will come to our aid. Wil will be alone. And that's what happens when you become - in the view of many - an enemy to the rule of law. And we cannot afford that to happen [sic].

It's already happened Mr. Turley - it's already happened. The only real question is not whether the compromise bill coming out of the Senate changes Geneva, which it probably won't, the real danger is that it will - yet again - abrogate Habeas Corpus by denying detainees held of foreign soil the right to challenge the basis for their detention in court. This would not only affect -11 mastermind Khallid Sheik Mohammad, but also Pulitzer Prize winning AP Photographer Bilal Hussein who has been held by U.S. Forces for five months without charges or a hearing.

Chances are that any such law would eventually be struck down, just at the Graham-Levin Amendment to the Detainee Treatment Act was by Hamdan - but that eventually is years away, and quite a bit of "alternative interrogation" could certainly take place during that time, while the subjects of such methods would have no representation and no legal recourse available to them.

Vyan