Tuesday, June 14, 2005
GTMO: Where Was the Law? Whither the UCMJ?
One of the more interesting, and disheartening, things about the interrogation of Mohammed al-Qahtani at Guantanamo in 2002-2003 -- the official log of which is examined in detail in this week's Time Magazine -- is that the military appears to have been fully aware that the techniques it was employing were unlawful. The Pentagon's efforts to provide legal justification for its activities are quite revealing.
Hats off to Marty Lederman. Whereas Adam Zagorin and TIME give us a smattering of documents and an article consisting of pure pablum that misses even the most obvious questions, Marty cuts to the chase and shows how important these documents are to an understanding of what happened and is still happening at GTMO. For Diane Beaver, Jim Haynes and Donald Rumsfeld, I would recommend some quiet hours in a library with the writings of Abraham Lincoln. Starting with this: "Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God." This fundamental notion of accountability has gone strangely missing somewhere between the interrogation cells of GTMO and the Pentagon.
Marty makes a case for a possible violation of law (e.g., assault). But what is it about this detainee's treatment that, under the circumstances, is so clearly morally repugnant that you consign Rumsfeld et. al to catch up on their Lincoln? I am baffled by this perspective, in light of the struggle we face. (Just for grins, you might comment on the extra-constitutional steps Lincoln authorized during times of war, and the appalling treatment of prisoners during that conflict.) I would also recommend that you spend some quiet minutes catching up on your Lileks -- http://www.lileks.com/screedblog/
The lawlessness of the Bush administration is reminiscent of the Keystone Kops and is not at all indicative of resourcefulness. On the contrary, the ineptitude of interrogation techniques, the lack of any ability to penetrate the mentality of Jihadists, and the contempt for legal and religious bounds must fortify the distrust and determination of the prisoners. Who would ever give any reliable information when subjected to atrocities; human dignity demands resistance and misinformation, quite aside from any putative dedication to Jihad! The resort to licensed meanness and atrocity is a terror tactic reminiscent of Saddam Hussein. Its use by Americans is ounterproductive in the extreme, both to eliciting information and to denying pretexts for ongoing violent resistance throughout the moslem world. It is sad to say, but the contempt for established standards of civilized conduct embedded in International Law has created blowback faster than anyone imagined.
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After watching the C-Span videos of the hearings so far, I offer a few thoughts for consideration:-
In England where we have a split profession, members of the bar very rarely have to give evidence, but solicitors quite frequently have to and, very often, they make bad (unconvincing rather than untruthful) witnesses.
This seems to be because, while they are being cross examined, they try to think beyond the question to the potential consequences of alternative answers. That is hard to do on the hoof - and this makes them come across as shifty and evasive, even when the truth might be that they are simply trying to be accurate.
Having said that, the procedural style of these Committees with each member being allowed limited time, did not seem to be to be a format particularly designed to get at the truth – although I agree that the more generous time per member in the Senate committee seemed to produce better results.
After watching, I wondered just how some of these lawyers would fare before a select committee, commission of inquiry, or some similar body under sustained cross-examination by a skilled trial lawyer.
I query just how many trial lawyers will have found Col Beaver’s memory lapses convincing. This was not the case of a lawyer asked about one of thousands of routine conveyancing transactions many years previously where it would be entirely honest and legitimate to say, "I have no memory beyond what is in my file notes." This was (I sincerely hope) a wholly exceptional circumstance for Col Beaver and I would have expected the events to have been seared into her memory. I wonder just how much of her memory lapses were prompted by tactical suggestions prior to her testimony from her Counsel who intervened once when the going got rough.
Then I got to wondering about the extent to which the groves of Academe bear some responsibility for all this: after all, Professor Cohn’s prepared statement:
encapsulates in a few words the essentials of the legal position on torture and inhuman and degrading treatment – for all parts of government – CIA and Special Forces not excepted. It's hardly difficult law.
Further, many of the constitutional issues adverted to by Mr Levin (who did come across as a convincing witness) only arise in truth because of some of the crack-pot theories on presidential power which have become fashionable among the neoconservative originalists and which only hold water if one ignores the fact that the founding fathers, working from the historical prerogative powers of the Crown, gave the president a power of pardon, but did not provide for the claimed Stuart power to suspend laws, nor the like claimed power to dispense individuals or groups from the effect of laws (both obsolete even by the time of George III), but created, instead, an express duty on the President to execute the laws – all of them - including duly ratified treaties.
If the neoconservatives in Academia have consciences, perhaps the time has come for them for them to examine the same in the knowledge that what they teach budding lawyers has consequences in the real world. Some of the consequences are just beginning to come into the open – and there is more and much worse to come.
But this is not just a matter for individuals: universities are generally bodies corporate with a corporate responsibility to educate – which many would say includes instilling principles of moral and social responsibility – see: Anne Colby & Others : Educating Citizens: Preparing America’s Undergraduates for Lives of Moral and Civic Responsibility 2003 - San Francisco - Jossey-Bass.
It seems to an outsider like me that many academic corporations in the USA have sacrificed that responsibility on the twin altars of freedom of speech and mammon (in the form of acceptance of funding from the far right foundations on express or implied terms).
The reluctance of the academic community to take any steps in relation to Professor Yoo is informative. To adopt an Anglican approach, if he cannot be defrocked, then ought not his licence to preach to be revoked or made subject to conditions.
Then, I got to wondering whether the US “spoils” system, whereby many lawyers in government service are political appointees, really serves the country well. In the UK, the politicians get to appoint the secretaries of state, ministers and their deputies, but, apart from the Attorney General and the Solicitor-General as the law officers, they do not get to touch the Government Legal Service which is career civil service, politically neutral and generally ensures that ministers get the advice they ought to have whether they want to hear it or not. I do not think advice as incompetent as I have read in the various torture memoranda could have been produced by GLS lawyers in the UK.
Lastly, but not least, I wondered how the great American public is going to react when they find out the full extent to which there is an impending debacle in Afghanistan even more than in Iraq and how the incompetent conduct of US intervention by the Carter, Reagan and Bush administrations may have made matters worse rather than better.
Even if they learn the facts, will they care?
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