By Ray McGovern, April 14, 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?
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.
Nonsense.
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.
Supreme Court Has a Problem
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.”]
Ray McGovern works with
Tell the Word, the publishing arm of the ecumenical Church of the Saviour
in inner-city Washington. He was an Army infantry/intelligence officer
in the early sixties, then a CIA analyst under seven presidents.
He is now on the Steering Group of Veteran Intelligence Professionals
for Sanity (VIPS).
This article first appeared
in Consortiumnews.com