Monday, February 20, 2006
How the Pentagon Came to Adopt Criminal Abuse as Official Policy
In this week's New Yorker, Jane Mayer has written a must-read, definitive article laying out in great detail how certain Pentagon lawyers, led by Navy General Counsel Alberto Mora, stood up to Donald Rumsfeld and Jim Haynes in January 2003 and pleaded that the criminal conduct approved by Rumsfeld be ceased. Mora's efforts, recounted in a remarkable memorandum that he wrote to the Church Commission in 2004, brought an end to the unlawful abuse at Guantanamo on January 15, 2003. But then the efforts of Mora and others were swiftly and unceremoniously undermined by the promulgation of the April Working Group Report, which concluded that many unlawful techniques were in fact legal -- that criminal conduct, including violations of the Uniform Code of Military Justice, could be excused by authority of the Commander in Chief and through doctrines of "necessity" and "self-defense."
Those are very interesting questions, Prof. Lederman, that I, as a US citizen, feel that deserve an answer. Will those capable of obtaining it (Congress) act accordingly? It's about time.
I share Marty's admiration for the superlative professionalism of Jane Mayer and for the importance of this piece. It is important not only for all the light it sheds on what happened, but also for what it tells us about Alberto Mora, as a person and the moral courage that moved him throughout this process.
With respect to the Working Group Report, we should focus on the fact that, as the Fay/Jones Report tells us, it was furnished to COL Marc Warren and his JAG group in Iraq to provide a basis for the preparation of new Rules of Engagement for interrogation at Abu Ghraib and elsewhere in Iraq. It contributed to the direct corruption of the interrogation process through the introduction of techniques that the Fay/Jones Report itself acknowledged were "unlawful" (in fact, criminal). Who could possibly have done this? There are a number of names that come to the fore, but one before all others - we know that COL Warren's group was seeking guidance from DOD General Counsel Jim Haynes when the Working Group Report "was provided." The fact that Fay/Jones itself uses strangely passive language whenever the scene of the crime is linked to the Office of Secretary of Defense is not surprising considering the professional limitations on Department of the Army investigations. The real fault here lies with Congressional oversight committees, which should have gotten to the bottom of this matter and failed, and continue to fail, to do so.
Yawn . . . Mora was, quite obviously and despite his GOP bona fides, stuck in a pre-9/11 mindset. Isn't that obvious by virtue of his view that the executive branch is bound by the laws passed by Congress?
"isn't it obvious by virtue of his view that the executive branch is bound by the laws passed by congress?"
i certainly hope this is tongue in cheek. if not, it is a microcosm of what has gone wrong in this country. yes, the executive is bound by the laws passed by congress. isn't that part of the oath the man took? if he is unwilling to abide by that oath, he should simply resign, and leave the office to those who are. in the interim, he should acknowledge that this is a nation bound by the rule of law.
I'm fairly sure it was tongue in cheek.
My question is, where can I find out more about current thinking on extradition for war crimes? Are we arguably there yet -- at least legal-theoretically -- with Yoo, Rumsfeld, and Haynes? Do US laws or treaty obligations envision this possibility?
I'm not a big fan of the ICC (yet; open to argument), but a special court for the purpose might be OK with me. What does everyone else think?
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I prefer taking care of our own. Over at Dan Drezner's, I was suggesting that on the facts reported by Jane Mayer & others, Rumsfeld should be impeached.
Won't happen, but I think there's a pretty sound case for it, and it's much easier to argue for than impeaching Bush.