Monday, January 10, 2005

Above the law or outside it

The following article was written by D. Lindley Young, a Tennessee attorney and radio talk show host. He hosts "The Modern Tribune", an online magazine.

By D. Lindley Young

The central issue during the Senate Judiciary Committee hearings this past week on the confirmation of Alberto Gonzales as the attorney general of the United States, was whether White House policy condones torture and whether torture is justified. The official position of the White House is that there has never been a policy condoning torture. However, according to a number of authorities, U.S. and international laws against torture and inhume treatment of prisoners have been repeatedly violated by the U.S.

The problem started at the top. According to Gonzales, there was a point that important information was needed to save innocent lives and a decision on torture had to be made. Gonzales admits that the President was involved in the debate and decisions on the White House torture policy which sought the outer limits of permissible lawful torture in order to obtain information and further the President's agenda. The widely disseminated Gonzales/Bush "torture memos" sent a signal to U.S. troops that torture is permitted. and resulted in torture in Iraq, Afghanistan, Gauntanamo and in other countries to which the U.S. delivered prisoners.

The "torture memos" argued in essence that Bush was above the law in war. By seeking to redefine torture the President invaded the province of Congress by creating new Presidential laws on torture which were in complete contradiction to existing law. The dissemination of the "torture memos" - which instructed on guidelines for the outer limits of permissible torture - constituted de facto approval of torture by the President.

Gonzales hearing

Although Gonzales knew the "torture memos" created on his watch
in January and August 2002 would be a central issue in the confirmation hearings, he was prepared to be unprepared. He used, I must "review" the documents, I do not "remember," and I don't want to give you the wrong answer, repeatedly to, as the Bush administration terms it, dodge the bullet and avoid answering key questions in the public hearings. It looks like the reward for evasiveness and his dedication to setting standards for "torture" will be a promotion to the attorney general of the United States.

At the hearing there was reference to substantial evidence that for at least two years the Bush administration systematically condoned torture as a matter of practice and policy. Starting as early as January 2002, George Bush was personally involved in establishing a White House policy on torture that encouraged, by creating technical ostensible defenses to torture, creating "rights free zones," permitting other countries to do the torture for us, by focusing on defining the outer limits of lawful torture and by disseminating instructions to the U.S. military making the standards for torture by U.S. soldiers so liberal that anything short of a "good faith" intent to kill or "good faith" intent to permanently maim was acceptable.

According to Senator Leahy, "[S]enior officials in the Bush White House, the Ashcroft Justice Department, Rumsfeld Pentagon, set in motion a systematic effort to minimize, distort and even ignore our laws, our policies, our international agreements on torture and the treatment of prisoners. Defense Secretary Rumsfeld, and later Lieutenant General Ricardo Sanchez, authorized the use of techniques that were contrary to both U.S. military manuals, but also international law. Former CIA Director Tenet requested and Secretary Rumsfeld approved the secret detention of ghost detainees in Iraq; did that so they could be hidden from the International Committee of the Red Cross. And still unexplained are instances where the U.S.
government delivered prisoners to other countries so they could be tortured."

Senator Kennedy noted, that after contentions by the Bush administration that only a few bad apples were involved in the Abu Griad prisoner abuse scandal, "we learned that the Defense Department's working group report of April 2003 had provided the broad legal support for the harsh interrogation tactics, and it dramatically narrowed the definition of torture, and it recognized the novel defenses for those who committed the torture. Then we learned that the legal basis for the working group report had been provided by the Justice Department in the Bybee memo."

George Bush directly tied to torture decision

According to the testimony of at the confirmation hearings by Gonzales, Bush personally participated in the torture debates and decisions on the use of torture to get information from prisoners.

Gonzales emphasized the issue of torture was important to Bush. "This was an issue that the White House cared very much about," Gonzales testified under oath. He went on to state that, "As we have debated these questions, the president has made clear that he is prepared to protect and defend the United States and its citizens and will do so vigorously."

With regard to the decision not to apply the Geneva Convention to prisoners deemed to be al Qaida, Gonzales confirms the President's participation, stating: "And so I do believe the decision by the president was absolutely the right thing to do."

So, Gonzales establishes that Bush was involved in the "debate" on torture and participated in the decisions that lead to application of torture and inhumane treatment of prisoners. The torture at abu Graid and elsewhere goes to the very top. If it involves just a few bad apples, that's where they are.

The world is watching. As put by the Japanese Times, "A reluctance to move up the chain of command in the face of overwhelming evidence of knowledge and approval by ranking officers will only convince audiences around the world that the U.S. is not interested in truth or justice. And perceptions are critical in the war on terror. The greatest asset that the U.S. and its allies have in this struggle is the belief that they are fighting for a greater good. The Abu Ghraib torture photos suggest that there is a yawning divide between America's self-appointed role as the defender of freedom and human rights, and reality. That gap must be bridged if Washington is to reassert its claim to moral leadership. And that, not the much vaunted military, is its most crucial asset in the world today."

Existing law on "torture"

After World War II the U.S. became a signatory to the Geneva Convention in order to
assure humane treatment of prisoners of war. During the Vietnam war official U.S. policy prevented torture even though the enemy did not wear uniforms.Congress adopted an anti-torture law in 1994 that barred Americans abroad acting under U.S. authority from inflicting "severe physical or mental pain." The Universal Declaration of Human Rights states, “no one shall be subjected to torture.”

The Army Field Manual itself reflects our nation's long-held policies toward prisoners, stating: "U.S. policy expressly prohibits acts of violence or intimidation, including physical, mental torture, threats, insults, or exposure to inhumane treatment, as a means to aid interrogation."

The United Nations Convention Against Torture states that “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

The "torture memos"

The "torture memos" during 2002 (See full text), under Gonzales' counsel, took center stage in the confirmation hearings. The discussion centered on two memos. One in January 2002 and the other in August 2002. Judge Gonzales had issued an opinion to the president that the Geneva Convention did not apply with respect to certain of the combatants. In addition, the memo set Bush above the law in times of war. The committee sought further amplification on a number of substantive issues from these memoranda.

It was noted that in the memorandum of January 25th, 2002, it was said, "In my judgment, this new paradigm" - referring to the war on terrorism - "renders obsolete Geneva's strict limitations on questioning of enemy prisoners."

The other is a August 2002 Justice Department memo sought by Gonzales which outlines
how to avoid violating U.S. and international terror statutes while interrogating prisoners by setting a high threshold for the definition of torture.

In defense of the memorandum, Republicans directed attention to Judge Gonzales' statement that, "In the treatment of detainees, the United States will continue to be constrained by its commitment to treat the detainees humanely and to the extent appropriate and consistent with military necessity in a manner consistent with the principles of the Geneva Convention." In other words, all enemy, but al Qaida are under the Geneva Convention and all the enemy are al Qaida. It is a case where the exception swallows the rule and the rule means nothing .

Gonzales' interpretation

It is amazing that anyone could take the plain language of any of the numerous statutes, regulations and laws just sited and interpret them as permitting the methods Gonzalez and Bush approved. The "torture memo" for the White House clearly approved torture. The law they say they were interpreting contained plain language that was clear and specific. Real simple. The bottom line: no torture.

From a clear "no torture," Gonzales comes up with the "outer limits" of permissible or lawful "torture." The methods approved by Bush and Gonzales were unlawful torture no matter how you cut it. Lawful torture is an oxymoron.

The law is not an inconvenience that can just be discarded at the pleasure of the President and rewritten to fit the agenda at hand. One cannot simply redefine the word "torture" and make methods under established law obsolete.

The President cannot lawfully redefine or make new law in the office of the White House. The executive branch of government executes the laws, it does not make them. Making law is the province of Congress. Congress is the legislative branch of the government, not the President.

Attempts by Bush and Gonzales to make their own "new" law to permit torture cannot be justified as mere interpretation. The "definition" defense is tantamount to a lie. The plain language of existing law is so clear, that it did not require redefinition.

Gonzales argues that a definition was required because there was no case law on the issue of permissible torture. There may be no cases because no one else has seen the need to define what "NO TORTURE" means. The law requires application, not definition. The President cannot create law by creating definitions. Nor can their new definition of "torture," be justified as Presidential policy since Presidential
policy cannot be unlawful.

What Bush and Gonzales were doing was writing "new" law, their law that they could use to justify the use of torture. There is no lawful torture permitted under U.S. and international law and for the White House to create a basis for it - in order to justify an agenda of the President - is setting the White House above the law and outside it. If the rule of law is to be the hallmark of democracy, it has to be obeyed, even by the President.

Although Congress, military code, tradition and international law have opposed torture for many years, America has changed all this under Bush. Once we opposed torture on the grounds of principle, now principle is used to justify torture. Now, whether there is ":torture" or not hinges on subjective opinions based on carefully crafted definitions and word nuances. In order to make torture legal, just redefine the word "torture" to mean methods that would not produce pain "of an intensity akin to that which accompanies serious physical injury such as death or organ failure." That definition doesn't leave much that cannot be done during interrogations and violates the spirit, if not the letter, of a large body of existing law.

At least 10 incidents of prisoner abuse have been substantiated at Guantanamo, all but one from 2003 or this year, AP reported. (See more) "Guantanamo has become an icon of lawlessness," the human rights group Amnesty International said in a statement marking Camp X-Ray's third anniversary, "a symbol of the US government's attempts to put itself above the law." (See more)

Not a reasonable interpretation

How can any reasonable person interpret prohibitions against "acts of violence or intimidation, including physical, mental torture, threats, insults, or exposure to inhumane treatment, as a means to aid interrogation," to exclude every act short of the specific intent kill, maim or create organ failure?

How can any reasonable person interpret “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture,” to mean any method short of creating "severe" physical or mental pain?

How can any reasonable person interpret a Congressional bar to all Americans abroad acting under U.S. authority from inflicting "severe physical or mental pain," to mean that our troops can do anything even approaching torture.

If Gonzales and Bush can interpret "NO TORTURE," to mean anything short of specific intent to kill, maim or destroy organs, and, then, revise the meaning of "NO TORTURE," to mean anything less than methods which cause "severe" physical or mental "pain," the interpretation of the law by these men is dangerous to due process, freedom of press, the right to vote, the Constitution and methods of war.

Under the Bush/Gonzales torture policy - before we do what is humane - it must be
determined whether the prisoner is a POW, whether the Geneva Convention applies, and
what is "severe" physical and mental pain. Issues like "specific intent" to kill, maim, or destroy are part of guidelines originally disseminated to our military from the very top. Definitions are made and remade on the outer limits of torture and what it means. Technicalities and loopholes are sought to justify torture rather than protect human rights.

The issue which the President asks first is how great can the torture be, not how great should America be. This behind the scenes approach is indicative of where we are headed under Bush.

It is all part of the view from the top that the enemy is "evil" and that evil must be destroyed. It is all part of the dehumanization of mankind. It is part of the disintegration of what America stands for. It is part of the drip drip erosion of the America, the hope for the world, human rights, freedom and liberty. In sum, it is part of the erosion of humanity. It is part of an arrogance and hubris of moral superiority and noble lies for the good of the people that set the actors above the law. It is this type of inch by inch taking away of what we are, that is making
us the "them" we so strongly oppose.

Defense of the "torture memos"

According to White House surrogates, the language of memos regarding the limits of
acceptable torture have been misinterpreted. At the hearings, Republican Senator Cornyn went to the defense of the Bush torture policy, going so far as to argue in effect that the purpose of the memos were to assure "humane" treatment of prisoners. In this context, it was noted that there was a recognition that winning the hearts and the minds of the Arab world is vital to our success in the war on terror.

Senator Sessions also argued in defense of the memos, "But the president's really gone further than the law requires, it seems to me, in granting them privileges that he didn't necessarily have to do as a matter of affecting his policy of humane treatment."

Quite a stretch to some, since the memos focus on the legal limits of the lawful infliction of pain, interrogation that results in death, and the potential defenses for those performing torture. In fact, the very first paragraph of the one of the torture memos acknowledges "other nations and international bodies may take a more restrictive view" of torture.

Justifying "torture"

The idea that there is even a debate on whether the U.S. should use torture is appalling to many. The supporters are prominent. For example, Alan Dershowitz proposes the courts issue "torture warrants" (Los Angeles Times, November 8, 2001). Dershowitz argues, “The real debate is whether such torture should take place outside of our legal system or within it.

The answer to this seems clear: If we are to have torture, it should be authorized by the law.”

In the Gonzales hearings, the "ticking bomb" argument was made to justify torture where it is deemed necessary in order to discover the whereabouts of a ticking bomb and prevent a mass killing of innocent people. Michael Levin "advocat[es] torture as an acceptable measure for preventing future evils."

Pat Buchanan argues, "The morality of any act depends not only on its character, but on the circumstances and motive." In other words, if our "motive" is for good, which, of course, it always is, torture is justified.

On the other hand, many argue that torture, in and of itself, is an "evil" that is antithetical to the principles for which America stands. Permitting torture makes us no different than the oppressive tyrannical tactics we are supposedly fighting against. Under the standards approved by the Bush administration the methods allegedly employed by Saddam Hussein meet approval and are subject to defense.

Oh, but our torture is different. Liven argues, "Torture only the obviously guilty, and only for the sake of saving innocents, and the line between "US" and "THEM" will remain clear." Bush decides who is "obviously guilty" and whether evidence or hearing is required. This new American way with the laws of Bush is leaning towards fascism.
Use any means necessary to get information

Human rights is a quaint outdated idea in this modern Bush world of war. The issue at the top has been the limits of torture and how far can we go with it. According to Gonzales the "torture memos" were the result of a need to define the parameters for methods that could be used to get information from prisoners. In the words of Gonzales, "What I can say is that after this war began against this new kind of threat, this new kind of enemy, we realized that there was a premium on receiving information. In many ways, this war on terrorism is a war about information. If we have information, we can defeat the enemy."

There was a point at which a decision was made to use any means necessary to get
information. Gonzales went on, "We had captured some really bad people who we were
concerned had information that might prevent the loss of American lives in the future. It was important to receive that information. And people in the agencies wanted to be sure that they would not do anything that would violate our legal obligations. And so they did the right thing.

They asked questions. What is lawful conduct because we don't want to do anything that violates the law?" In order to justify the outer limits of torture creative interpretation and disregard of the law has been used to create ostensible justifications for torture. In efforts to avoid focus on and subvert the real issue - humane treatment of people and the principles America is supposed to represent - Bush carefully crafts the torture issue as one which centers on technicalities. Was the torturer acting in "good faith?" Does the Geneva Convention apply? Are prisoners POWs? Is Afghanistan different than Iraq? Who has jurisdiction? Etc. Etc.

Although the enemy in Vietnam did not wear uniforms the Geneva Convention was applied. It is now argued that since al Qaida does not have uniforms and it is not a state so they are not entitled to the protections of the Geneva Convention. It is now argued that we are in a new type of war and there must be new rules, without regard to the fact that all wars are new and different.

Are American values changing?

Only a few years ago, the caning of an American kid in Singapore caused a firestorm of outrage in America. However, when the issue of torture was floated in the media several years ago, there was little or no public or media outcry against the potential for the U.S. to utilize torture. There was passive acceptance of torture by the public. Now torture is U.S. practice, if not policy, and enjoys substantial support, if not a mandate, by the American people.

As put by Mark Danner for The New York Times, the confirmation of Gonzales will "give full legitimacy to a path that the Bush administration set the country on more than three years ago,a path that has transformed the United States from a country that condemned torture and forbade its use to one that practices torture routinely. Through a process of redefinition largely overseen by Mr. Gonzales himself, a practice that was once a clear and abhorrent violation of the law has become in effect the law of the land."

Obsession by the President and Gonzales with this issue of permissible or lawful "torture" itself is an indication of how far America has drifted away from what it stands for.

The enemy is human

I am not a scientist and there may be things I do no know, but, in my opinion the enemy is human. Only a few have openly argued they are not. If we tout human rights, those rights are the rights of the world, not just Americans. There are no "rights free zones" in a world that recognizes human rights.

If our power as an example to the world is to have any meaning, the enemy must have
"human" rights which include due process and humane treatment. You cannot debate the issue in technical terms and seek loopholes based upon what you choose to name them and claim to support human rights. We must balance the importance of our example to the world as the beacon of democracy against the importance of "human" rights and the effectiveness of torture. "Doubt," if any, should always be resolved against the use of torture. Most experts agree that torture is ineffective because people will say anything to stop the torture. It is also less effective against an enemy willing to die for their cause in the name of God. If somehow we justify the need to torture, we reduce our importance as the champion of democracy.

The strongest argument for torture is the "ticking bomb" argument. No doubt, it is a powerful hypothetical argument designed to justify torture. But, it is unrealistic and permits application to virtually any enemy, anywhere, anytime. It is to vague and overbroad. The subjective component of the argument, i.e., determining "necessity," opens the floods gates for abuse as has been shown by its application and practice in numerous places.

Balancing the benefits versus the burdens, the balance tips against the use of torture. We should be leaning towards principles that make us the beacon of hope, humanity and justice, not, towards methods and actions that indelibly tarnish our nation, create hate and divide the world.

Our boot on the face of the world

Democracy and human rights has become our boot on the face of the world under the Bush administration. We can not expect a course that places the world under our boot to be one in which violence will curb or a world which unites with America for a common global humanity.

The nomination of Gonzales as attorney general for the U.S., sends the message to the world that the course of empire and abuse of human rights is gaining additional hubris. Rewarding Gonzales for his dedicated defense of "torture" is a harbinger as to where we are heading. Rather than leaning towards zero tolerance of "torture," Gonzales and Bush lean toward torture and see torture as a means to an ends. Torture, as war, are matters of fist resort, not last resort. This is un-American and clearly a violation of existing law.

If this man can interpret "NO TORTURE," to mean torture when necessary, the interpretation of the law by this man is dangerous to due process (FN1), freedom of press, the right to vote, the Constitution and methods of war.

Gonzales will do nothing but advance this country into a greater state of fascism. His commitment to follow the law and protect American rights means nothing if he views the rest of the law though the same lens that he used to view the 'torture' laws.

We are talking about the core beliefs of a man who clearly distorts the law to dispense his own form of justice above and outside the law. It is all about advancing an agenda of secrecy and suppression in the name of national security rather than the spirit of the laws against torture and inhumane treatment. It is about the ideology of world dominance that sets the standards, not existing law, nor concerns for democracy and humanity.

The path which Bush is pursuing is one of shredding our democracy, of chilling speech, of preventing due process, of dividing the world, of creating unnecessary hatred and one of wars for empire, is a disgrace to the sacrifice so many Americans have made with their lives and their blood for the sake of liberty and democracy. The Gonzales appointment, in the face of his involvement in an architecture of torture, is but one more sign of the arrogance with which Bush operates. Its his way right or wrong. It is his way, not the American way.