By M. Ulric Killion
Recently, I was reminded by a blog or weblog posting of the 2002 infamous “Torture Memos” of John C. Yoo, Jay S. Bybee, and Alberto Gonzales.
An excerpt from the posting reads:
“On February 3, 2005, Alberto Gonzales won Senate confirmation as the nation’s first Hispanic Attorney General despite protests over his record on torture. The Senate approved his nomination on a largely party-line vote of 60-36, reflecting a split between Republicans and Democrats over whether the administration’s counterterrorism policies had led to the abuse of prisoners in Iraq and elsewhere. Shortly after the Senate vote, Vice President Dick Cheney swore in Gonzales as attorney general in a small ceremony in the Roosevelt Room at the White House. President Bush, who was traveling, called to congratulate him” (Craig Hill, Gonzales First Hispanic US Attorney General, February 3, 2012).
Notwithstanding an unprecedented exercise of executive powers by the Bush administration, the authors of the infamous “Torture Memos” drawing on a what was thought to be a vague point of law or legal ambiguity effectually reduced the Geneva POW Convention to a mere piece of paper (See Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force Oct. 21, 1950).
Never mind that the Geneva Convention intends to protect and safeguard both American military personnel and soldiers of our enemies in times of war, they did so without the slightest remorse.
For the record, and in the way of background information, “On January 18, 2002, President George Bush (the decision is referenced in the Gonzales Memo of 25 January, 2002) made a presidential decision that captured members of Al Quaeda and the Taliban were unprotected by the Geneva POW Convention. That decision was preceded by a Memorandum dated January 9, 2002, submitted to William J Haynes II, General Counsel to the Department of Defense, by the Department of Justice's Office of Legal Counsel (which provides legal counsel to the White House and other executive branch agencies) and written by Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty” (The Alberto Gonzales Memo January 25, 2002, lawofwar.org).
As one source writes:
Mr. Bybee and Mr. Yoo approved a roster of techniques that included waterboarding and prolonged sleep deprivation. They asserted that interrogators would be on solid legal ground unless they acted with “specific intent” to inflict “severe pain,” which they defined as pain equivalent to “death, organ failure or serious impairment of bodily functions.” They also made the breathtaking argument -- later repudiated by a successor in the Bush Justice Department -- that the president, as commander in chief during a time of war, was essentially unconstrained by law in ordering measures he deemed necessary to protect the country (Editorial, Washingtonpost.com, February, 23, 2010).
At the end of the day, most legal analysts agreed that the Bush administration orders of January and February 2002, the “Torture Memos”, which denied Geneva Convention protection to captured members of the Taliban and Al Qaeda were inherently flawed.
As a direct consequence, the acts carried out in furtherance of those orders, if themselves violations might well have constituted war crimes.
Photo Source: (John C. Yoo, a former lawyer for the Justice Department; Photo/Melissa Golden/Getty). “WASHINGTON — Large batches of e-mail records from the Justice Department lawyers who worked on the 2002 legal opinions justifying the Bush administration’s brutal interrogation techniques are missing, and the Justice Department told lawmakers Friday that it would try to trace the disappearance. At a Senate Judiciary Committee hearing, Senator Patrick J. Leahy, the Vermont Democrat who leads the panel, angrily demanded to know what had happened to the e-mail files, and he noted that the destruction of government records, including official e-mail messages, was a criminal offense. . . . But it discovered that many e-mail messages to and from John C. Yoo, who wrote the bulk of the legal opinions for the Justice Department’s Office of Legal Counsel, were missing. . . . “We were told that most of Yoo’s e-mail records had been deleted and were not recoverable,” officials from the Office of Professional Responsibility said in the footnote,” Eric Lichblau, Justice Dept. Reveals More Missing E-Mail Files, Washingtonpost.com, February 26, 2010).
More importantly, as earlier observed by the constitutional law expert Bruce Ackerman,
During the long years that the Justice Department was investigating Jay S. Bybee and John C. Yoo, it was tempting to view the torture memos as if they were momentary aberrations in the life of the modern presidency. But in clearing the Bush administration lawyers who authored the memos of all charges of unprofessional conduct, the department invites future John Yoos to rubber-stamp future presidential abuses at moments of (real or imagined) crisis. The torture memos are an entirely predictable product of an institutional set-up that puts the meaning of national security law at the mercy of a politicized Office of Legal Counsel and a super-politicized legal staff in the White House. There is a compelling need to reform that structure (Bruce Ackerman, Washingtonpost.com, February 23, 2010).
Photo Source: “Sunday's New York Times called on Congress to impeach federal judge Jay Bybee over his now infamous role in authoring one of the Bush administration memos arguing for the legality of torture. "These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution," wrote the paper. "Congress should impeach him." Separately, Sen. Claire McCaskill left open the door to pursuing such a course during an appearance on Fox News Sunday. Asked by host Chris Wallace whether she would favor the impeachment of Bybee, who sits on the United States Court of Appeals for the Ninth Circuit, the Missouri Democrat replied: "I think we have to look at it. But I think we do need to sort out how do you get lawyers at the top levels of the Justice Department to give this kind of advice," (Sam Stein, Jay Bybee: NYT Calls For Impeachment Of Torture Memo Author, Huffington Post, May 20, 2009).
This is an image that America neither needs nor wants to project in the international community.
The inherent travesty of this legal maneuvering by the Bush administration and its administration lawyers is that it ultimately enhanced the danger of American military personnel serving abroad in war zones.
Finally, and borrowing from the title of the earlier mentioned Washington Post article (Editorial, Washingtonpost.com, February 23, 2010), which discusses the investigation of John C. Yoo, who with Jay S. Bybee was responsible for the first “Torture memo” that preceded Gonzales’s “Torture memo”:
—No Punishment for torture memos’ authors, but no exoneration, either.
Shame on him! Shame on them!
Despite, their complacency, we ought never to forget the lessons in history, war, and humanity that stem from the infamous “Torture Memos.”
Copyright © Protected – All Rights Reserved M. Ulric Killion, 2012.