What Came First the Torture or the Criminal Conspiracy to Avoid Prison?

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?

Horton Continued.

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 ," 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.

 

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