The Bush administration's "bad apples" theory goes sour.By Phillipe Sands
Posted Wednesday, June 18, 2008, at 1:19 PM ET
When the Abu Ghraib scandal hit in the summer of 2004, two of the administration's most senior lawyers—White House Counsel Alberto Gonzales and the Defense Department's General Counsel Jim Haynes—stood before the world's media and laid out the official explanation for newly aggressive interrogation within the U.S. military: It was the result of a bottom-up request from an aggressive combatant commander at Guantanamo; it was implemented within the law and on the basis of careful legal advice; and it produced useful and important results. These new techniques had been essential in getting vital security information from men they labeled "the worst of the worst."
A memo Gonzales and Haynes made public that day sketched out this move to military cruelty. Written by Haynes and signed by Donald Rumsfeld on Dec. 2, 2002, the document discarded a military prohibition on cruelty promulgated by President Lincoln as long ago as 1863. Haynes' memo recommended 15 new techniques, including nudity and forced grooming, humiliation and deception, dogs, sleep deprivation, and stress positions like standing for up to four hours. Three other techniques—including water-boarding—were not given blanket approval, although their future use in individual cases was not rejected, either. Rumsfeld approved the memo, scribbling next to his signature authorizing these techniques the observation, "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?"
Four years after that memo became public, Congress has moved to examine the accuracy of the administration's account of the circumstances under which it was prepared. The author of the Rumsfeld memo became the subject of extensive questioning Tuesday before the Senate armed services committee. Many will say it is too little and too late. I disagree. Congress has a vital role to play in establishing accountability for the American torture policy, although yesterday's faltering efforts to jog Jim Haynes' memory hardly inspire confidence that it can do so.
<...>
Unless the United States takes remedial actions, it is likely there will be criminal investigations abroad. Why? Because, as acting CIA General Counsel John Rizzo once told Congress, "a crime is a crime." The same point was made to me by a European judge and a prosecutor who have looked at the materials. There can be no doubt that the aggressive interrogation of Mohammed al-Qahtani (aka Detainee 063, alleged to be the 20th hijacker) amounted to torture and violated Common Article 3 of the Geneva Conventions (prohibiting cruelty and torture) and the 1984 Convention Against Torture. As a war crime and an act of torture, it can thus be prosecuted anywhere in the world.
more I am very confident that Haynes is not the worst or least competent lawyer in the history of the Executive branch. He is not dumb, and on his own he could not possibly have concluded, sincerely and honestly, that all of the techniques in question did not violate any of the many legal restrictions -- and to have done so notwithstanding all of the military lawyers' advice to the contrary.
Which means that the
first scenario must be the truth:
Haynes advised Rumsfeld that the techniques were lawful for the simple reason that he had been advised by the Office of Legal Counsel that the President had the constitutional power to ignore the torture statute and the UCMJ (and that Article 16 and the "humaneness" directive were inoperative and/or toothless), and because Haynes knew that the CIA (and DOD Special Forces) were already using such techniques in reliance on such OLC advice.
If this second scenario is true -- if Haynes's advice was based almost exclusively on the OLC analysis that the statutes and treaties could be ignored, as is quite obviously the case -- then it is hard to avoid the conclusion that Haynes repeatedly dissembled (less polite observers might say perjured himself) in his sworn testimony yesterday, in an attempt to distort the historical record (and, likely, in order to conform his testimony to his previous dubious testimony during his confirmation hearings). (For further explanation of why Haynes did not simply acknowledge that he was relying on OLC advice, see
Philippe Sands's column in Slate today. And don't forget to read
David Luban below, dissecting the Administration's mantra that its use of the enhanced techniques "saved innocent lives.")
Neither possibility puts Haynes in a very flattering light, to say the least.
link
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
