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--- Begin Message --- -Caveat Lector-![Executive Intelligence Review]()
This article appears in the July 2, 2004 issue of Executive Intelligence Review.
Bush and Hitler: What The 'Torture Memos' Reveal
by Edward Spannaus
In the Spring of 1941, as Nazi Germany was preparing to invade the Soviet Union, Adolf Hitler issued an infamous edict which has become known as the "Commissar Order," to govern the conduct of German armed forces on the Eastern Front. This order provides a largely-unnoticed precedent for the "legal" rationalizations found in a number of hitherto-secret Bush Administration legal memoranda, which have recently come to light.
As is documented in William L. Shirer's The Rise and Fall of the Third Reich, Hitler outlined this policy during a meeting with the heads of the three armed services and key army field commanders early in March 1941: "The war against Russia will be such that it cannot be conducted in a knightly fashion. This struggle is one of ideologies and racial differences and will have to be conducted with unprecedented, unmerciful, and unrelenting harshness. All officers will have to rid themselves of obsolete ideologies.... German soldiers guilty of breaking international law will be excused. Russia has not participated in the Hague Convention and therefore has no rights under it."
On May 13, 1941, Field Marshal Wilhelm Keitel, the head of the Armed Forces High Command, issued an order in Hitler's name, severely limiting functions of the military courts martial system, and virtually giving immunity to German forces for war crimes against Russians: "With regard to offenses committed against enemy civilians by members of the Wehrmacht, prosecution is not obligatory, even where the deed is at the same time a military crime or offense." Yhe army was explicitly instructed to go easy on any such German offenders, "remembering in each case all the harm done to Germany since 1918 by the 'Bolsheviki.' "
Underlying such orders was the legal philosophy set forward by the "Crown Jurist of the Third Reich," Carl Schmitt, whose writings have unfortunately undergone a revival in the United States in recent years. Schmitt contended that, in times of emergency and crisis, the actions of the Leader were not subordinate to justice, but constituted the "highest justice." In passages which remind one of the legal defenses of "necessity" and "self-defense" posed by John Ashcroft's Justice Department (DOJ) today, Schmitt wrote: "All law is derived from the people's right to existence. Every state law, every judgment of the courts, contains only so much justice, as it derives from this source. The content and the scope of his action, is determined only by the Leader himself."
'A New Kind of War'
President George W. Bush's counsel, Alberto Gonzales, addressed a memorandum to the President on Jan. 25, 2002, about four months into the "war of terrorism." Gonzales noted that Bush had called the war against terrorism "a new kind of war," which "renders obsolete" and "quaint" some of the provisions of the Geneva Convention on the treatment of prisoners of war. And Gonzales warned the President that he and other officials stood in potential danger of being prosecuted for war crimes; he suggested steps that could be taken by Bush to set up "a solid defense to any future prosecution"¡Xmost importantly, to declare that the Geneva Convention did not apply to the war against Taliban and Al-Qaeda in Afghanistan.
Jan. 9, 2002: The alarm as to possible war crimes prosecutions was sounded by John Yoo, a Deputy Assistant Attorney General in the Justice DOJ's Office of Legal Counsel (OLC)¡Xa traditional haunt of right-wing ideologues in times of Republican administrations.
Yoo and Robert Delahunty pulled together the arguments for ignoring international treaties and laws, in a 42-page draft memorandum addressed to Department of Defense (DOD) General Counsel William Haynes, and entitled "Application of Treaties and Laws to al-Qaeda and Taliban Detainees." Yoo's memo really constituted a defense lawyer's brief against future war-crimes charges; its discussion of the War Crimes Act began on its first page. Much of its discussion centered on the Geneva Conventions, particularly the Third Convention concerning the treatment of prisoners of war (GPW); the Fourth, concerning the obligations of an occupying power; and on what is known as "Common Article 3." The latter is a provision common to all four Geneva Conventions; it prohibits not only torture and other acts of violence, but also, "Outrages upon personal dignity; in particular, humiliating and degrading treatment." This applies to all detainees, whether or not they are technically classified as prisoners of war under Geneva III. Yoo's memo warned the Pentagon that the War Crimes Act "criminalizes violations of what is known as 'common' Article 3...."
Yoo endeavored to show why neither Taliban nor al-Qaeda should be covered by Geneva. One argument was that Afghanistan under the Taliban was a "failed state," and therefore its previous status as a signator to the Geneva Conventions no longer applied. His conclusion was that "neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions at Guantanamo Bay."
According to knowledgable sources, the Yoo draft went not only to DOD General Counsel Haynes, but also to White House Counsel Gonzales and Dick Cheney's General Counsel David Addington, all of whom approved it. But others, particularly the State Department and the Joint Chiefs of Staff (JCS), seriously disagreed.
Jan. 11, 2002 State Department legal advisor William H. Taft IV told Yoo that the DOJ's advice to the President was "seriously flawed ... incorrect as well as incomplete"; that DOJ's arguments were "contrary to the official position of the United States, the United Nations, and all other states that have considered the issue"; and that Yoo's idea that the President could "suspend" U.S. obligations to the Geneva Convention was "legally flawed and procedurally impossible." Lawyers for the JCS also raised concerns about the Administration's decision to declare that Geneva protections were not available to captured Taliban militia members. JCS Chairman Gen. Richard Myers and the senior military leadership all believed that the Geneva Conventions should apply to the Taliban.
More- http://www.larouchepub.com/other/2004/3126torture_memos.html
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