Thursday, April 03, 2008

A fish rots from the head

Given the track record of the Bush Crime Ring, could anyone really be so naive as to believe, when the Abu Ghraib story broke, that it was only a matter of a few bad apples in the lower ranks? I know I sure as hell did not.

Over time more and more information comes to light, timelines and checklists are filled in, and dots get connected.

Some significant pieces of evidence have emerged in the past few days and it is all rather overwhelming. IANAL, as they say (I am not a lawyer). I have not pored over the relevant documents in detail. I have, however, read a number of articles by those who have researched or read said documents. They made frequent allusions to being ill or having headaches in the course of the reading.

The ugly truth is beginning to emerge into the daylight.

The issue of torture begins, where I always suspected it began, at the top--among the counsels of the attorneys for the President, Vice President, and Secretary of Defense and with Rumsfeld himself. One may only infer the involvement of Cheney and Bush but I believe we may deem it an unverified certainty, especially in the case of Cheney since a driving force in the whole affair is David Addington, at that time Cheney's legal counsel and now his chief of staff.

One of the pieces of the puzzle that was just released, thanks to the ACLU demanding it under the FOIA, is one of the infamous memos by John C. Yoo, then a member of the Office of Legal Counsel advising the President and now a professor of law at Boalt Hall School of Law, University of California, Berkeley. He is famous for his contributions to the theory of a "unitary presidency," the PATRIOT Act, and theories related to detention and treatment of prisoners that flout the Constitution and international law.

If you have the time and inclination to read a long, but carefully written and readable, article that lays out the timeline of America's descent into torture, I highly recommend Phillippe Sands' article "The Green Light" in the May 2008 issue of Vanity Fair. It takes a while to plow through but will reward you with a clear idea of what took place and who the players were. It ends with the hope that some day, somehow, war criminals will find themselves before international tribunals and called to account. The article also reveals some of the lengths they have gone to to protect themselves from accountability, at least within the "American justice system." [Sorry, I had to put quotes around it, given our current realities.]

In addition to the fine work of Sands, there are shorter articles on sundry blogs, mostly wrestling with the revelations stemming from the Yoo Memo (81-page .pdf file). Remember, there is also the Bybee-Yoo Memo, the Haynes Memo, and yet another Yoo Memo we have not yet seen.

Glenn Greenwald at Salon- "John Yoo's war crimes"
"It depends on why the President thinks he needs to do that." Yoo wasn't just a law professor theorizing about the legalization of torture. He was a government official who, in concert with other government officials, set out to enable a brutal and systematic torture regime, and did so. If this level of depraved criminality doesn't remove one from the realm of respectability and mainstream seriousness -- if not result in war crimes prosecution -- then nothing does.

That John Yoo is a full professor at one of the country's most prestigious law schools, and a welcomed expert on our newspaper's Op-Ed pages and television news programs, speaks volumes about what our country has become.
Emily Bazelon - "Yoo's Utter Glib Certainty" at Slate:

What takes my breath away about the Yoo memos, now that we can finally read them, is their air of uttery certainty. One after another, complex questions of constitutional law are dispatched as if there's no cause for any debate. The president has all the war-making power. Congress has none. The president's commander in chief powers extend to interrogations (no matter how far from the battlefield in space and time they take place). Guantanamo Bay detainees and enemy aliens enjoy no constitutional protections. And then the pages Jack points us to, which include "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." In other words, Congress cannot prohibit any sort of treatment that the president chooses to allow. No wonder Jack Goldsmith thought Yoo was reaching far beyond where he needed to go, not to mention what the state of the law would actually support. And yet he brooks no doubt. It's as if he's writing as a Supreme Court justice, not a government lawyer. Which is understandable in one sense, since the Office of Legal Counsel functions like the government's internal Supreme Court—but also exhibits the terrifying results of dishonest, glib analysis by lawyers drunk on that very power.
Marcy Wheeler at Emptywheel - "Acting Counsels and Torture"

There are several articles at Firedoglake.

Christy Hardin Smith - "Yoo Torture Memo: I'll Take Addington at Cheney's Behest for $1,000, Alex..."
If you've missed Jane Mayer's brilliant reporting on the internal dynamics of the Cheney/Addington pull on national security policy toward the ugly side of the tracks, now is a good time to catch up. This on the Mora memo about torture and this on David Addington is a good start. There is also this background from Frontline's piece on Redefining Torture -- the whole thing is worth perusal.
Christy again - "Deciphering The Scratchings Of The Torture Consiglieri"
Am still trying to force my way through the read of the Yoo memorandum in its entirety. Painful does not begin to describe it.
Christy offers good links for learning more in her posts.

Christy's third stab at it - "Yoo Memo Deliberately Undercuts Military Law — Rumsfeld Kabuki, Anyone?"
Having read through and digested the Yoo memorandum that was recently declassified, the most striking feature of it -- beyond its utter twisting of the law in a "might equals right" stomach churning justification tango -- is that it reads like a document written in an after-the-fact criminal defense posture. Especially Part IV of the memorandum which spends pages outlining potential defenses and the mindset needed therefor should anyone be accused of committing war crimes or criminal acts.

That this flies in the face of the UCMJ and the Field Manual appears to have no meaning to Mr. Yoo. That it downgrades the precepts behind all the human rights law advances that the United States used to champion for the betterment of people in more repressive societies is just a minor inconvenience for Mr. Yoo and his "superiors." That we will be generations in the repairing of this, if ever? Not even mentioned.
Looseheadprop weighs in by saying "The Yoo Memo–Time to Stop Crying and Get to Work"
Prop begins thus:
It took me all day yesterday to get through the Yoo memo. [pdf's] I kept tearing up. My law partner asked me if someone close to me had died. It's going to take more research and analysis than I can do in a day to demonstrate even a tiny fraction of the misstatements, misapplications of law, and outright lies in this, ahem, document (I'd like to call it something else, but if I let my temper get the better of me, the research and analysis will never get done).

You can expect several posts from me on this topic. You should not take my word for it that it is a written horror, I should demonstrate that for you.
And toward the end Prop writes this:
So, the legal authority Yoo is citing to support his stunning assertion "that the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength and its plans" not only DOESN'T SAY YOU ARE ALLOWED TO ASK FOR THAT INFORMATION, IT SAYS THE EXACT OPPOSITE. Sorry, didn't mean to shout. What Article 17 says is that you can only ask for name, rank/regiment, birthdate and serial number, period.

Oh yeah, and it also says specifically that you can't torture.

So, the Prop wonders, what could be the authority in footnote 9 supporting this amazing assertion? Hmmm? Could it be the earlier memo written by none other than.......wait for it....John Yoo?!?? Yoo's boss, Bybee may have signed off on it, but it is widely believed to have been primarily authored by Yoo. So, Yoo's authority is ....John Yoo.

Not a statute, not a court opinion, himself.
To which I might add, without really knowing it to be the case: "(or what Addington told him to write)."

Jay Carney at Time -
By this incredibly dangerous and misguided reasoning, any interrogator who tortured or cruelly mistreated a prisoner could not be held responsible so long as he wasn't inspired by malice or sadism -- as long as, in other words, he was just following orders. As long as he administered it dispassionately almost any kind of physical or mental torture would be condoned, by Yoo's reasoning. Moreover, virtually anything an interrogator did to a prisoner could be justified so long as the President deemed it necessary as matter of national self-defense.
Paul Kiel puts together a timeline at TPM.

Marty Lederman at Balkinization - "The Torture Memo to Top All Torture Memos"
The Yoo memo effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees. This is the version of the 2002 Torture memo, which was addressed only to the CIA and the torture statute, as applied to the numerous statutes restricting the conduct of the armed forces. None of those statues, you see, limits the conduct of war if the President says so. It is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004. Here, finally, is Part One of that memo, and here is Part Two.
Yoo tries to defend himself in Esquire.

Jonathan Turley, the professor of constitutional law whom Keith Olbermann consults, says on Countdown:
Turley:”…It’s really amazing, Congress, including the Democrats, have avoided any type of investigation into torture because they do not want to deal with the fact that the president ordered war crimes. But, evidence keeps on coming out. The only thing we don’t have is a group picture with a detainee attached to electrical wires.” [Emphasis mine]
Dan Froomkin at the Washington Post:
And the memo’s author — John Yoo, then a deputy in the Justice Department’s Office of Legal Counsel — was a longtime ally and notoriously pliant scribe for the radical legal views of Vice President Cheney and his chief enforcer, David S. Addington.

Yoo’s memo is a historic document. It is the ultimate expression of Cheney’s belief that anything the president or his designates do — no matter how illegal, barbaric or un-American — is justifiable in the name of national self-defense.

It is also an example of how enabling zealots to disregard the rule of law and the customary boundaries of human conduct leads to madness.
h/t to Crooks and Liars for the video and the Turley and Froomkin pointers.

Now, granted, we are not discussing resident aliens in this particular context, but we are dealing with who is encompassed within the law and who is not. I therefore think there is some applicability to a principle of the Torah.

You shall have one law for the alien and for the citizen: for I am the Lord your God.
(Leviticus 24:22)

As for the assembly, there shall be for both you and the resident alien a single statute, a perpetual statute throughout your generations; you and the alien shall be alike before the Lord. You and the alien who resides with you shall have the same law and the same ordinance.
(Numbers 15:15-16)

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
It was not "a few bad apples." This came from Cheney and Rumsfeld at the very least and was consented to by Bush (because the decisions of the president are repeatedly invoked in the matter).

--the BB

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