In an LA Times Editorial last week, Scott Horton noted that the infamous torture memos from John Yoo and Jay Baybee may in fact have been written as an after-the-fact excuse to hide War Crimes which were already in progress.
... Yoo's account of how and why the torture memos were crafted may not hold up. Congress is preparing hearings into the subject, and they have invited Yoo to testify. International law scholar Philippe Sands and other writers have punched holes in Yoo's claims about the facts. It increasingly appears that the Bush interrogation program was already being used before Yoo was asked to write an opinion. He may therefore have provided after-the-fact legal cover. That would help explain why Yoo strained to take so many implausible positions in the memos.
So the question needs to be asked, can the President and his chief Principals (Rice, Rumsfeld, Cheney, Ashcroft, Tenet and Powell) knowingly commit War Crimes then simply blow it off with a pair of CYA memos?
The question of course is just how illegal did they know it was, and when did they know it?
It also appears that government lawyers had told Bush administration officials that some of the techniques already in use were illegal, even criminal. In fact, a senior Pentagon lawyer described to me exchanges he had with Yoo in which he stressed that those using the techniques could face prosecution. Yoo notes in his Pentagon memo that he communicated with the Criminal Division of the Justice Department and got assurances that prosecutions would not be brought. The question becomes, was Yoo giving his best effort at legal analysis, or was he attempting to protect the authors of the program from criminal investigation and prosecution?
We have to note, as mentioned during Congressional Testimony just yesterday by Rep Henry Wexler, that in 2002 FBI agents on the scene nearly arrested the CIA interrogators questioning Abu Zubaydah on the spot.
The videotapes, made in 2002, showed the questioning of two high-level Qaeda detainees, including logistics chief Abu Zubaydah, whose interrogation at a secret cell in Thailand sparked an internal battle within the U.S. intelligence community after FBI agents angrily protested the aggressive methods that were used. In addition to waterboarding, Zubaydah was subjected to sleep deprivation and bombarded with blaring rock music by the Red Hot Chili Peppers. One agent was so offended he threatened to arrest the CIA interrogators, according to two former government officials directly familiar with the dispute.
The videotapes made of these interrogations have since been illegally destroyed.
The initial justification for use of waterboarding and other techniques in all likelyhood did begin long before John Yoo's involvment, and in fact may have begun with a January 25,2002 memo from Alberto Gonzales which openly argued that the President and his administration just might face potential prosecution under 18 USC 2441 (The War Crimes Act) if certain precautions weren't taken, namely - eviscerating the Geneva Conventions.
"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 first problem with this is of course that The President Doesn't Make the Law, Congress does.
The second problem is that the Geneva Conventions have an open catch-all section which indicates that anyone whose status is undetermined are to be considered Covered by the Convention until their status (POW or Civilian Criminal) can be determined by a tribunal.
Geneva Article 5.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
The President is NOT a competent tribunal.
The third problem, which was recently raised by John Ashcroft, is that treaties such as Geneva and the UN Convention Against Torture can have "Reservations" attached to it when they are ratified by the Senate. Again, yesterday, as Ashcroft attempted to use this argument to duck and dodge his own culpability in these War Crimes when confronted with them by a student at Knox college, he unwittingly revealed that yet again - Congress has the power to determine what is and isn't the law, not the President.
There was no legal basis in law (or logic for that matter) for Gonzales or President Bush to attempt to exclude the Taliban and Al Qeada from the Geneva Conventions. The only reason they did it was to avoid probable prosecution.
As it turned out when they actually began interrogations, the Gonzo Gift wasn't good enough. Even with the Jan 2002 Gonzales memo and the President's subsequent determination that Geneva didn't apply to "Enemy Combatants" there was still a fierce debate within the DOJ and Pentagon.
Apparently this conflict - as well as the capture of Abu Zubaydah - is what prompted the drafting of the Yoo Memos in March of 2002. But yet another problem arises, Yoo didn't have the authority to issue the memo.
On Friday, March 14th, 2003, that [Assistant Attorney General for the Office of Legal Opinion] was Jay Bybee. [UPDATE: Post corrected to reflect fact that Jay Bybee remained AAG on the 13th.] Yet John Yoo issued the Opinion in his own name. John Yoo did not have the legal authority to issue this opinion . . .
. . . unless either Jay Bybee or John Ashcroft delegated Yoo the authority to issue such a momentous opinion without the supervision of the head of the office.
So here's another news flash, John Yoo has now declined to testify before congress to explain himself and his actions.
We have been expressly advised by the Office of Legal Counsel of the United States Department of Justice that Professor Yoo is not authorized to discuss before your Committee any specific deliberative communications, including the substance of comments on opinions or policy questions, or the confidential predecisional advice, recommendations or other positions taken by individuals or entities of the Executive Branch.
This may very well turn into a subpeona, which based on past experience, the Justice Dept won't enforce and Congress will have to vote on Contempt charges and defer the issue to a outside judge - again.
With the advent of the Hamdan decision, the Gonzales rationale for torture was stripped away as the Supreme Court affirmed that "Enemy Combatants" are indeed covered by Geneva and hence protected from War Crimes. The Bush Administration responded to this with the Military Commmissions Act, which established retroactive immunity for all acts or torture or coercian which may have occurred between Sept, 2001 and 2005., revoked habeaus corpus for "alien enemy combatants", allowed for the use of self-incrimination and coerced testimony, and re-wrote the War Crimes Act to conform to the "Bybee Standard" (Torture isn't "torture" unless someone is about to die).
That's Game, Set and almost match...
Almost. Still, there is hope that they won't get away with it. First all of because some of those who've been held in detention and abused have actually met the Bybee Standard. They didn't just have a simulated death experience - They Died.
So read several of the 44 US military autopsy reports on the ACLU website -evidence of extensive abuse of US detainees in Iraq and Afghanistan 2002 through 2004. Anthony Romero, Executive Director of ACLU stated, "There is no question that US interrogations have resulted in deaths." ACLU attorney Amrit Sing adds, "These documents present irrefutable evidence that US operatives tortured detainees to death during interrogations."
Guess what George? We aren't just talking about a bunch of frat-boy pranks on the night shift at Abu Ghraib, we're talking about a specific plan to implement a policy of abuse and avoid the legal consequences - a plan which has led to the death of numerous detainees. Murder is still Murder. Imagine that.
Secondly the Military Commission Act is unlikely to withstand judicial scrutiny under Geneva which prohibits:
the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Removing Habeaus, as well as the protection of the 5th and 8th Amendments doesn't really qualify as "affording all the judicial guarantees"... now does it?
And lastly Bush and his Cabal are unlikely to get away with it because what this long paper trail clearly shows us is there was a plot and a plan to engage in these actions, regardless of the existing law and procedures which should have been followed. Evidence was deliberately destroyed in violation of a court order and congressional subpeona to protect the guilty. What we now know is that with the various meetings of the Principals to discuss "enhanced interrogation" methods which were patently illegal is that what we really have here - is a conspiracy.
And under 18 USC 2430, that could still be a big problem for Bush and Co.
(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
Just as Gonzales warned in Jan 2002, the Bush administration is still at risk of being prosecuted by the next administration. Their only viable option left is to have a Pardon Party as they slide out the back door in Jan of 2009.
But let's just cling bitterly to the audacity to hope these thugs and criminals all have their day in court (something they've work so hard to deny to so many other people)