|
Banned
|
Elphaba, I think that the article gives high ranking executive branch and pentagon and intelligence agency officials something to think about. They will not hold office for more than a few years, and they may at least see their ability to travel outside of the U.S. limited if they want to avoid arrest. Alberto Gonzales refuted the torture memo that he initiated and approved, after it provided legal cover for 22 months of officially sanctioned torture and abuse, so that he could claim his promotion via senate judiciary committee approval. These men and woman were promoted for commiting criminal and treasonous acts on the direction of the man who later pinned on their medals.
International law regarding initiating aggressive war, and treaties such as the Geneva protocols have been replaced with the new precedent that command of superior military power prevents accountability for war crimes.
Quote:
http://writ.news.findlaw.com/dean/20050114.html
The Torture Memo By Judge Jay S. Bybee That Haunted Alberto Gonzales's Confirmation Hearings
By JOHN W. DEAN
----
Friday, Jan. 14, 2005
White House Counsel Alberto Gonzales now has had his confirmation hearing, and is on his way to becoming the new Attorney General of the United States. In that position, he can serve as a firewall for the president.
As confirmation hearings go, this was about as uneventful as they come, which is exactly what the White House wanted: no new headlines.
Click here to find out more!
Recognizably, after four years in Washington, Gonzales has learned the craft of the non-responsive answer. His practice hearing sessions before traveling to Capitol Hill prepared him well to speak naught.
Actually, Gonzales, it turns out, was not the only focus of attention at his confirmation hearings. Time and again, one heard the name Jay S. Bybee - now a federal appellate judge. Bybee was confirmed for his seat on the U.S. Court of Appeals for the Ninth Circuit by the Senate on March 13, 2003.
The reason Bybee's name came up so frequently was that he signed and sent the now-infamous August 1, 2002 torture memorandum to Gonzales. At the time, Bybee was Assistant Attorney General for the Office of Legal Counsel (OLC) - an office once called the conscience of the Justice Department.
The memo leaked during the summer of 2004, so it was notably absent from Bybee's own confirmation hearing. And he stonewalled questions about advice relating to the war on terror. But his memo played a prominent role in Gonzales's - as well it should have.
This document is the most alarming bit of classified information to surface during wartime since the 1971 leak of the Pentagon Papers relating to the war in Vietnam.
Bybee's memorandum, however, is far more insidious than any of that material.
The Bybee Memo: Enabling Torture
The Bybee memo was a formal legal opinion of the Office of Legal Counsel interpreting the Convention Against Torture and the accompanying criminal provisions enacted by Congress in 1996 to prohibit torture.
The co-author of the memo was Bybee's deputy, John Yoo, now a law professor at Berkeley's Boalt Hall Law School. But who wrote what is unclear. In the end, Bybee was the senior official who signed off on the legal opinion, so the responsibility for its content is his.
Bybee's interpretations guided the Bush Administration for twenty-two months. And a powerful case has been made that Bybee's extraordinary reading of the law led to Americans engaging in torture at Abu Ghraib and elsewhere.
The memo defines torture so narrowly that only activities resulting in "death, organ failure or the permanent impairment of a significant body function" qualify. It also claims, absurdly, that Americans can defend themselves if criminally prosecuted for torture by relying on the criminal law defenses of necessity and/or self-defense, based on the horror of the 9/11 terrorist attacks.
Finally, the memo asserts that the criminal law prohibiting torture "may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President's Commander-in-Chief powers."
In short, the memo advises that when acting as commander-in-chief, the president can go beyond the law.
The White House Leaves Bybee Twisting In The Wind, But Safe on the Bench
Not unpredictably, there was widespread outrage when Bybee's memo leaked -- particularly on the part of lawyers, those concerned with human rights, and retired members of the American military who recognized that these distortions of the law could ultimately backfire to hurt American soldiers......
...........<b>The Justice Department, Too, Repudiated the Bybee Memo</b>
Not only the White House, but, in addition, the Department of Justice sought to shift full responsibility for the memo onto Bybee alone - and distance itself from the memorandum's analysis and conclusions.
USA Today reported that a "high official" at Justice had said of Bybee's memo, "We're scrubbing the whole thing. It will be replaced." According to this report, the official called the analysis "overbroad," "abstract academic theory" and "legally unnecessary."
The St. Louis Post Dispatch similarly reported that an anonymous "senior official at the Justice Department" was telling reporters that Bybee's memo would be replaced "with analysis limited to the legality of actual al-Qaida interrogation practices within the torture statute and other applicable laws." (Emphasis added.) The official added, "It is an opinion that strikes me as over-broad [with] a lot of unnecessary academic discussions . . . that can be misinterpreted and misread."
Put another way, the official took the position that the Bybee memo was not "within" the applicable laws, and thus stated a position that was outside the law - counseling that illegal acts could be legally performed.
The Boston Globe reported, to the same effect, that the Justice Department had "disavowed its own controversial Aug. 1, 2002, legal analyses that argued President Bush has far-reaching powers to authorize physical coercion." It also reported that "a senior official with the Justice Department said these opinions . . . were unnecessary for analyzing the legality of any Al Qaeda interrogation practices authorized by the executive branch."
These reports are truly extraordinary - for in them, the Department of Justice is publicly repudiating one of its own.
More recently, on December 30, 2004 -- just before the Gonzales confirmation hearing - the Justice Department did the same thing once again. By releasing a new legal opinion that "supersedes the August 2002 Memorandum in its entirety," it once again tried to shift blame entirely to Bybee and his memorandum, by publicly repudiating both.
<b>Gonzales Flip-flopped On The Bybee Memo In Order To Try to Repudiate It</b>
Of course, Gonzales was asked about the Bybee memo during his confirmation hearing. At first, he more or less embraced the memo.
Senator Leahy asked Gonzales if he agreed with the memo's definition of torture -- as requiring "organ failure, impairment of bodily function or even death." At first, Gonzales tried to dodge, answering, "Senator, in connection with that opinion, I did my job as counsel to the president to ask the question."
But ultimately, not only Senator Leahy, but almost every member of the committee, directly or indirectly quizzed Gonzales on the memo. Still, his position remained less than clear.
So near the end of the hearing, the committee's chairman, Senator Arlen Specter, tossed Gonzales a softball question to allow him to clarify his position: "Do you agree with the statement in the memo, quote, 'The Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield,' close quote?"
Specter -- a skilled attorney and former prosecutor -- was plainly trying to rehabilitate his witness, and allow Gonzales to improve on his earlier half responses. Almost certainly realizing what the chairman was doing, Gonzales unhesitatingly responded, "I reject that statement, Senator."
By these words, then, Gonzales too repudiated the Bybee memo.
In fact, not a single person connected, or formerly connected, with the Bush Administration has, to my knowledge, publicly defended the memo -- with the single exception of Bybee's co-author, law professor John Yoo.
Little wonder. There is good reason to keep a distance from this memo. It is "smoking gun"-level evidence of a war crime.
|
|