In November 2005, during a trip to Panama, President Bush told reporters that the United States faced “an enemy that lurks and plots and plans and wants to hurt America again.” But even though the US intended to “aggressively pursue” its foes it would only do so “under the law.” The soundbite of the day was unequivocal: “We do not torture.”
The Bush administration’s insistence that it does not condone torture has been an important part of its claims to the moral high ground in the struggle against “evil” which has driven so much post-9/11 foreign policy. But words alone are not enough. Having ratified the UN Convention against torture (albeit with a provision to protect its military from foreign courts), the US has legally enforceable obligations not to torture, an irksome detail that must have nagged a few consciences when the president gave such liberal assurances that everything was being done according to the letter of the law. More than a year had passed since photographs from Abu Ghraib had raised serious doubts about the gap between the high-flown rhetoric of the “war on terror” and its sordid manifestations on the ground. Nevertheless the administration stuck to its official story: once ‘bad apples’ like Specialist Lynndie England had been disciplined and purged from its ranks, the war on terror would honour all anti-torture provisions in both US and international law.
Clearly the president “misspoke”. The release last week of an 81-page memo drafted in 2003 by then Deputy Assistant Attorney General John Yoo, is the most compelling evidence to date (more will un-doubtedly surface as requests under the Freedom of Information Act are grudgingly fulfilled) that senior members of the Bush administration are guilty of war crimes and will probably be charged in the not too distant future. The Yoo “torture” memo is the latest in a growing paper trail of legal sophistry which has tried to argue that the president’s war powers allow him to ignore or override “quaint” obstacles such as the Geneva conventions and international laws against prisoner mistreatment and torture.
A single footnote is enough to give the flavour of the Yoo memo’s many disingenuous legalisms: “It might be thought, that Congress could enact legislation that regulated the conduct of interrogations under its authority to “make Rules for the Government and Regulation of the land and naval Forces.” … [but] Our Office has determined that Congress cannot exercise its authority to make rules for the Armed Forces to regulate military commissions. … If military commissions are considered an integral part of the conduct of military operations, then the conduct of interrogations of enemy combatants during wartime must be as much a core element of the President’s power to successfully prosecute war. Any effort by Congress to use its power to make rules for the armed forces would thus be just as unconstitutional as such rules would be with regard to military commissions.” It might be thought, that anyone who could produce 81 pages of this sort of nonsense could not possibly make it through any reputable law school, but John Yoo is a professor at the University of California, Berkeley. What is truly disturbing about his memo, however, is not its specious argufying – an occupational hazard of the legal trade, as any lawyer can attest – but the way in which the underlying rationale, in the words of the legal scholar Scott Horton, feels more like “a roadmap to committing crimes and getting away with it. [The] sort of handiwork we associate with the consigliere, or mob lawyer.”
Article one of the Convention against Torture specifically 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 is self-evident that the Yoo memo, and others like it, tried to do exactly this, using the “war on terror” as a figleaf. The roles of other senior officials (such as then vice-presidential counsel David Addington and then White House counsel Alberto Gonzales) in shoring up these justifications are well-documented, as is the role of former Secretary Donald Rumsfeld in using them to promote the use of a host of “cruel and unusual” interrogation techniques in the field, efforts which resulted in the mistreatment, abuse and torture of detainees at Guantanamo Bay, Abu Ghraib and elsewhere.
As the constitutional scholar Glenn Greenwald points out at the online magazine Salon.com: “Ironically the Bush administration itself argued in the 2006 case of Hamdan — when they sought to prosecute as a ‘war criminal’ a Guantanamo detainee whom they allege was a driver for Osama bin Laden — that one is guilty of war crimes not merely by directly violating the laws of war, but also by participating in a conspiracy to do so.” If the actions of “a government official who, in concert with other government officials, set out to enable a brutal and systematic torture regime, and did so” does not amount to such a conspiracy then words have lost their meaning.
In the latest issue of Vanity Fair magazine, Philippe Sands, a law professor at University College London, provides a comprehensive description of the legal jeopardy to which this documentation exposes the intellectual authors of America’s behind-the-scenes torture policy. After the landmark human rights case against the Chilean dictator Augusto Pinochet, foreign travel for any of these men could easily lead to prosecution for war crimes. With any luck, one day it will. Although Yoo’s memo was rescinded several months after it was put forward, it clearly embodies an enduring philosophy of the Bush years, namely that executive power should be almost completely untrammelled and that moral quibbling over the niceties of interrogation techniques in the war on terror (Vice-President Cheney famously described waterboarding as “a dunk in the water”) is an unaffordable luxury. What better way to atone for this arrogance than to allow the prosecution of Yoo, Addington, Rumsfeld et al for war crimes?
“It isn’t pleasant to think about high government officials in one’s own country as war criminals,” writes Greenwald “— that’s something that only bad, evil dictatorships have — but, pleasant or not, it rather indisputably happens to be what we have.” The legal issues surrounding this administration’s use of torture are quite clear-cut and should be easily proven in court, what remains to be seen is whether the US can summon the political will and exert the moral pressure necessary to force these men to answer for their cruel and unusual crimes.
