FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER

(Click on the title to go to the original)

Roger Fitch Esq • February 21, 2008
Our Man in Washington
“Guantanamo Six” military commission trial is the opening shot in Republican election year strategy … Yet there’s a problem – most of the alleged “war crimes” occurred before there was a war … Administration’s torture definition finds its roots in health benefit policy
Harper’s blogger Scott Horton has observed that torture is the new litmus test for Bush administration officials:
“If you’re prepared to hedge on whether waterboarding is torture, then you might be counted upon to do anything.”
How else to explain the recent behaviour of leading figures in the government, e.g. the Justice Department’s Michael Mukasey and Stephen Bradbury, the CIA’s Gen. Michael Hayden, intelligence chief Adm. Michael McConnell, Homeland Security’s Michael Chertoff, the State Department’s John Negroponte, the Pentagon’s Gen. Thomas Hartmann.
No sooner had the Attorney General cleared the way for water torture to be classified legal and continued, than General Hayden chimed in with an admission that “waterboarding” had happened, while clearly lying about the number of times.
The very next day, the White House announced it was official policy, as Dan Froomkin reports.
Mukasey then added that in any case, if the Justice Department’s Office of Legal Counsel had once said it was “legal”, he couldn’t investigate it.
Next, the acting head of the OLC, Bradbury, told Congress that, while waterboarding was legal in 2005, it might not be now, but don’t worry, our version of water torture is different. Others disagreed.
As former OLC man Marty Lederman noted, Bradbury’s argument seemed to be, “At least we’re not as barbaric as the Spanish Inquisition”.
One historian claimed it was precisely the same.
According to Slate’s Dahlia Lithwick, it’s all part of a plan.
Vincent Warren of the Center for Constitutional Rights, which represents hundreds of Guantanamo prisoners, summed it up the best:
“At first, they said that they didn’t torture, which we know was a lie. And then they said that they didn’t waterboard, which we know is a lie. Now they’re saying that they do waterboard, but it’s not clear that waterboarding was torture. And now they’re saying it may be torture, but it might not have been torture under the rules a couple of years ago. What they’re trying to do, I believe, is set up a situation where they use the legal framework that they used at the time to be able to avoid a legal classification of waterboarding as torture currently.”
The provocative we tortured and we’d do it again stance seems to have been the opening shot in the Republican election year strategy: a military tribunal at Guantanamo showcasing “high value” detainees, some of whom are known to have been tortured.
* * *
As we know, the Bush administration does nothing extralegal by halves. The “Guantanamo Six” are charged with plotting September 11 and various earlier offences against US lives and property around the world, dating back to 1996.
A list of the 2,973 people killed on September 11 fills 67 pages of the Pentagon’s 90 page charge sheet.
There were 169 “overt acts” constituting the “conspiracy” and other “war crimes”. Of these, only five occurred after September 11 and consisted of such grave crimes as, “recorded many news stories of the attacks for future use in propaganda films” and exulting in their success.
This unseemly claim of credit, after 9/11, for crimes that began 12 years ago, has been transmuted by Pentagon lawyers into crimes against the law of war. Yet there’s a problem.
In the Supreme Court’s Hamdan decision (2006), the plurality said that, for a military tribunal to prosecute war crimes, the acts had to occur after war began, i.e. after September 11:
“Among the preconditions for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001.”
Although the context in Hamdan did not involve an interpretation of the Military Commissions Act, it’s hard to see how a war crime can be committed without there being a war.
No doubt the Bush lawyers will claim that a discrete, pre-9/11 “war on terror” existed.
The charges alleged against the Guantanamo Six all purport to be “war crimes”, as described by the MCA, but only a few – if occurring in a theatre of war – could qualify as war crimes under international law.
Moreover, it’s amazing that the Bush administration believes it can prosecute men it has admitted torturing, e.g. Khalid Sheikh Mohammed.
One stratagem, to send in a “clean team”, has met with derision.
Another defendant, Mohammad Al-Qahtani, is also known to have been tortured, and the Pentagon’s revolting 83-page log of his interrogation is in the public domain.
In fact, in Al-Qahtani’s case, the personal, hands-on involvement of Donald Rumsfeld and the Pentagon General Counsel, William Haynes, is well-established (see my post of August 3, 2006).
* * *
It’s interesting to reflect that the justification of torture began with an August 2002 memo to Alberto Gonzales, penned by John Yoo for Jay Bybee, the then head of OLC.
Yoo found that the infliction of severe physical pain, unless “of an intensity akin to that which accompanies serious physical injury such as death or organ failure”, did not violate 18 USC 2340, the Torture Statute.
Rarely mentioned is the source of that definition. As Yoo noted, it had appeared in US laws “defining an emergency medical condition for the purpose of providing health benefits”.
According to Yoo:
“Although these statutes address a substantially different subject from Section 2340, they are helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function.”
See? It makes perfect sense.
And what happened to the lawyers?
Jay Bybee was appointed to the 9th Circuit Court of Appeals and John Yoo returned to a tenured professorship at the Berkeley Law School.
Gonzales, at least, is out of work.