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--- Begin Message ----Caveat Lector-> Print This Story E-mail This Story > > > Bush the Would-Be Torturer > Marjorie Cohn > t r u t h o u t | Perspective > > Wednesday 09 June 2004 > > It's all falling into place. The Wall Street Journal has revealed that > Bush's lawyers told him he can order that torture be committed with impunity. > It is now official that George W. Bush is above the law. > > As horror after horror emerged from Abu Ghraib prison, Americans > exclaimed that this is not behavior befitting our great country. Many wondered how > such atrocities could be perpetrated by United States citizens. We hoped that > this was simply the behavior of a few bad apples run amok. But the dots have > now been connected for us. Torture is sanctioned policy that comes from the > top. > > In a classified report prepared for Donald Rumsfeld in early 2003, a > working group of lawyers appointed by the Defense Department's general counsel, > William J. Haynes II, advised that Bush is not bound to follow United States > laws that prohibit torture. Government agents who torture under orders from > Bush won't be successfully prosecuted, according to the report, which is > scheduled to be declassified in 2013. > > Never mind that the United States ratified the Convention Against > Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which makes > it part of the supreme law of the land under our Constitution. Never mind > that this treaty specifies that torture is never permitted, even in times of > war. Never mind that Congress implemented this treaty by enacting a Torture > Statute providing for 20 years, life in prison or, even the death penalty when > the victim dies, for U.S. soldiers or civilians who engage in torture. And > never mind that torture constitutes a war crime, for which our officials can be > punished. > > The Bush administration lawyers have created their own jurisprudence, > which effectively holds the president is not bound to follow the law. > > Extrapolating from the "necessity" defense in criminal law, Bush's > lawyers counsel, in effect, that the end justifies the means. It's the proverbial > ticking time bomb scenario. Torture the bastard to avert a terrorist attack. > But not only is this illegal; it doesn't work. Senator John McCain says the > tortured will rarely provide reliable information. This position has been > affirmed by many of the prisoners released from Abu Ghraib who said they made up > information to get the torture to stop. > > Bush's legal experts also rehabilitated the "superior orders" defense. > It didn't work for the Nazis at Nuremberg or Lt. William Calley who was > prosecuted for the My Lai Massacre in Vietnam. That defense can only be asserted > when the defendant was following a lawful order. An order to commit torture > would be unlawful, as it would violate the Convention Against Torture and the > Torture Statute. > > But Haynes' team assures Bush his orders would be legal because he's the > president and he's the highest law in the land (notwithstanding the > Constitution, Congress and the Supreme Court). Indeed, one of the lawyers who > prepared the report said the intention of the political appointees heading the > working group was to realize "presidential power at its absolute apex." > > The report was written in response to concerns by senior officers at the > U.S. prison at Guantanamo Bay, Cuba. They advocated "a rethinking of the > whole approach to defending your country when you have an enemy that does not > follow the rules." Of course, we needn't follow the rules because we're the > good guys. > > Remember that in the course of trying to convince the American people > that war with Iraq was necessary, Bush marshaled accusations that Saddam > Hussein had tortured his people. But we have God - and Bush - on our side, so we're > allowed to torture. > > In late 2002, after the Washington Post revealed allegations of behavior > of U.S. commanders that might amount to torture in Afghanistan, Human Rights > Watch Executive Director Kenneth Roth wrote to Bush, saying that immediate > steps must be taken "to clarify that the use of torture is not U.S. policy." > Roth reminded Bush that, "U.S. officials who take part in torture, authorize > it, or even close their eyes to it, can be prosecuted by courts anywhere in > the world." The prohibition against torture is so basic, it is considered jus > cogens, and is thus binding on all countries, even if they haven't ratified > the Torture Convention. > > The Bush administration has been emboldened to itself engage in serious > human rights violations since the horrific attacks of September 11. Cofer > Black, head of the CIA Counterterrorist Center in September, 2002, testified at > a joint hearing of the House and Senate intelligence committee: "This is a > very highly classified area, but I have to say that all you need to know: There > was a before 9/11, and there was an after 9/11. After 9/11 the gloves came > off." If Bush has his way - and the most electoral votes in November - those > gloves will stay off. > > There are some striking contradictions between Bush administration > policy in the "war on terror" and the working group's rationalizations for Bush to > authorize torture. The lawyers who prepared the report admitted that the > Torture Statute applies to Afghanistan. > > But they declared it does not cover our actions in Guantanamo because it > is within the "territorial jurisdiction of the United States, and > accordingly is within the United States." Yet, the Bush administration has denied > these > prisoners access to U.S. courts to challenge their detention precisely by > claiming that the U.S. is not sovereign over Guantanamo Bay. Either the United > States has jurisdiction over Guantanamo or it doesn't. You can't have it both > ways. > > The Ninth Circuit Court of Appeals decided that U.S. courts do have > jurisdiction to hear the Guantanamo prisoners' complaints. That court was > extremely alarmed at the government's assertion during oral argument that these > prisoners would have no judicial recourse even if they were claiming the > government subjected them to acts of torture. The Ninth Circuit said: "To our > knowledge, prior to the current detention of prisoners at Guantanamo, the U.S. > government has never before asserted such a grave and startling proposition." The > court said this was "a position so extreme that it raises the gravest > concerns under both American and international law." > > By the end of June, the Supreme Court will decide whether U.S. courts > have jurisdiction over the Guantanamo prisoners. > > In December 2002, the United Nations General Assembly adopted a new > anti-torture treaty after 10 years of negotiation. The Optional Protocol to the > U.N. Convention against Torture will allow independent international and > national experts to conduct regular visits to places of detentions within the Stat > es Parties, to assess the treatment of detainees and make recommendations for > improvement. The treaty was adopted by a vote of 127 in favor, 4 against and > 42 abstentions. The United States was joined by Nigeria, the Marshall > Islands and Palau in opposing this treaty. > > The legal advice which would permit Bush to order torture without > sanction is consistent with his policy to ignore or denounce treaties and federal > laws that don't comport with his program. Bush's unprecedented act of > "unsigning" the International Criminal Court statute, and coercing Security Council > resolutions and bilateral immunity agreements, are meant to ensure that > neither he nor his top advisors ever become defendants in war crimes prosecutions. > But under the well-established laws of the United States, Bush would be a war > criminal if he authorizes torture as recommended in the classified report. > > Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor > at Thomas Jefferson School of Law, executive vice president of the National > Lawyers Guild, and the U.S. representative to the executive committee of the > American Association of Jurists. > > ------- > > [Non-text portions of this message have been removed] ------------------------ Yahoo! Groups Sponsor --------------------~--> <FONT COLOR="#000099">Yahoo! 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