Sunday, April 13, 2008

Yoo Torturing Them Now, You, Me, Next

Now that the Torture Memo is being released by the Pentagon, and John Yoo (Law professor, University of California, Berkeley) has been pointed as chief author, I thought it might be timely to add my cranky two cents.

Look, I know that some things are murky. Some things are grey and not black/white. But early on, I remember my kindergarten teacher teaching me that you can't have things two ways. You either tie your shoes and get your name on the big paper shoe on the wall, or you don't. You memorize your home telephone number and get your name on the big paper telephone or you don't. And, Bush's philosophy is: you're either with us or you're against us. So in the name of clean lines, in the name of it's either this or that, I'd like to see them stick to their own unwieldy philosophy sometimes because if you're not a legal combatant qualified as a POW from a nation state then you're a CITIZEN of a foreign nation. A CIVILIAN, that is. The End. That's it (according to this gang). Even if you band together with other citizens to cause harm, you're still a citizen. A murdering citizen, perhaps. A serial group killer, perhaps. You can't go around saying, "Well, you've formed a group who is menacing our society and thus we shall pretend that you are a nation by responding to your terrorist tactics by waging a "War on Terror" but it's not really a war because you're not a nation, thus, we empower ourselves with the right to your life, even though we might get you people mixed up 'cause you all look the same and we can practice our most degrading, sadistic ideas on your bodies." No. No, Johnny. Can't play like that. It doesn't work. Not in black and white.

No more excuses to be sadistic.

Someone stuff these men's mouths and pour water down their noses.

They do not represent America or American values nor do they have America's safety in mind when they twist laws to commit their crimes.

What if we had worked with governments abroad? What if we had shown shrewdness and intelligence coupled with an unflinching faith in human dignity? What if each prisoner from the "War on Terror" or the invasion of Iraq had found Americans to be strong, dignified, compassionate people unwilling to harm innocent civilians caught in a unconventional fight of ideas or a angry minority's terrorizing revolution? What if we understood their beef and kept our greedy paws off Iraqi oil? What if we had made them comfortable, offered them bread, and asked them to explain themselves. And asked again. And again. What if we really had wanted to know? To understand?

If you must read on, here is John Yoo defending his position in Jan, 2005 in UC Berkely News.

"Gonzales' memo agreed with the Justice Department and disagreed with the State Department, which felt the Taliban (though not Al-Qaida) qualified as POWs.

"The Justice Department's Office of Legal Counsel – where I [John Yoo] worked at the time – determined that the Geneva Conventions legally do not apply to the war on terrorism because Al-Qaida is not a nation-state and has not signed the treaties. Al-Qaida members also do not qualify as legal combatants because they hide among peaceful populations and launch surprise attacks on civilians – violating the fundamental principle that war is waged only against combatants. Consistent American policy since at least the Reagan administration has denied terrorists the legal privileges reserved for regular armed forces. [Note that there is no mention to their legality of being a civilian or a citizen of a nation.]

"The Taliban raised different questions because Afghanistan is a party to the Geneva Conventions, and the Taliban arguably operated as its de facto government. But the Justice Department found that the president had reasonable grounds to deny Taliban members POW status because they did not meet the conventions' requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war. The Taliban flagrantly violated those rules, at times deliberately using civilians as human shields.

"According to Gonzales' memo, the State Department argued that denying POW status to the Taliban would damage U.S. standing in the world and could undermine the standards of treatment for captured American soldiers. Gonzales also passed on the department's worry that denying POW status "could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.''
....(I'm editing)...

"Gonzales also observed that denying POW status would limit the prosecution of U.S. officials under a federal law criminalizing a grave breach of the Geneva Conventions. He was concerned that some of the conventions' terms were so vague (prohibiting, for example, "outrages upon personal dignity'') that officials would be wary of taking actions necessary to respond to unpredictable developments in this new war.

"The president took Gonzales' advice and denied POW status to suspected Al-Qaida and Taliban members.

"Gonzales' advice raised legal and policy questions. Legally, could the president determine by himself that Al-Qaida or the Taliban were not entitled to POW status? No one doubted that he had the constitutional authority. Presidents have long been the primary interpreters of treaties on behalf of the United States, especially in the area of warfare. Federal judges have since split on the POW issue.

"Congress' role

"While the definition of torture in the August 2002 memo is narrow, that was Congress' choice. When the Senate approved the U.N. Convention Against Torture in 1994, it stated its understanding of torture as an act "specifically intended to inflict severe physical or mental pain or suffering.'' The Senate defined mental pain and suffering as "prolonged mental harm'' caused by threats of severe physical harm or death to a detainee or third person, the administration of mind-altering drugs or other procedures "calculated to disrupt profoundly the senses or the personality.'' Congress adopted this definition in a 1994 law criminalizing torture committed abroad.

"The Senate also made clear that it believed the treaty's requirement that nations undertake to prevent "cruel, inhuman or degrading treatment or punishment'' was too vague. The Senate declared its understanding that the United States would follow only the Constitution's prohibition of cruel and unusual punishment.

"The Senate and Congress' decisions provided the basis for the Justice Department's definition of torture:

"Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. . . . We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.''

"Under this definition, interrogation methods that go beyond polite questioning but fall short of torture could include shouted questions, reduced sleep, stress positions (like standing for long periods of time), and isolation from other prisoners. The purpose of these techniques is not to inflict pain or harm, but simply to disorient.

"On Thursday, the Justice Department responded to criticism from the summer, when the opinion leaked to the press. The department issued a new memo that superseded the August 2002 memo. Among other things, the new memo withdrew the statement that only pain equivalent to such harm as serious physical injury or organ failure constitutes torture and said, instead, that torture may consist of acts that fall short of provoking excruciating and agonizing pain.

"Although some have called this a repudiation, the Justice Department's new opinion still generally relies on Congress' restrictive reasoning on what constitutes torture. Among other things, it reiterates that there is a difference between "cruel, inhuman and degrading treatment'' and torture – a distinction that many critics of the administration have ignored or misunderstood.

"For example, according to press reports, the International Committee for the Red Cross has charged that interrogations at Guantánamo Bay, which included solitary confinement and exposing prisoners to temperature extremes and loud music, were "tantamount to torture.'' This expands torture beyond the United States' understanding when it ratified the U.N. Convention Against Torture and enacted the 1994 statute. Not only does the very text of the convention recognize the difference between cruel, inhuman and degrading treatment and torture, but the United States clearly chose to criminalize only torture.

"Criticism of the Bush administration's legal approach to interrogation first arose in the summer after the Abu Ghurayb prison scandal, and has continued with more recent stories of FBI memos showing concern about abuse of prisoners in Iraq and Guantánamo Bay. No one condones the abuses witnessed in the Abu Ghurayb photos that are being properly handled through the military justice system. But those abuses had nothing to do with the memos defining torture – which did not discuss the pros and cons of any interrogation tactic – nor the decision to deny POW protections to Al-Qaida and the Taliban. Gonzales, among others, has made clear that the administration never ordered the torture of any prisoner. And as multiple investigatory commissions have now found, these incidents did not result from any official orders.

"At the urging of human rights groups and other opponents of the administration's policies in the war on terrorism, Senate Democrats have promised to closely question Gonzales on these issues. I believe the hearings will show that Gonzales, who never sought to pressure or influence the Justice Department's work, appropriately sought answers to ensure compliance with the applicable law.

"Asking those questions is important because we are in the midst of an unconventional war. Our only means for preventing future terrorist attacks, which could someday involve weapons of mass destruction, is to rely on intelligence that permits pre-emptive action. An American leader would be derelict if he did not seek to understand all available options in such perilous circumstances.

My comment: Actually, any American leader who lays down the integrity of this nation to combat thugs, betrays all that we've fought for and established over these many years. He is an enemy within--someone trying to tear down our country from the inside.

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