1 Boring Old Man

Along the same line as my last post about the great Continental Divide in the United States right now, there’s this poll about torture. While only 13% of Americans support the general use of torture, another 31% support torture of terrorists to save innocent lives. Obviously, the argument that torture will save innocent lives is an arbitrary distinction that could be evoked at any time as a justification. But it still is a little surprising. It’s tempting to wonder what this survey would have reported had it been done before 9/11. I’m not sure I know the answer.

^{"On Feb 7, 2002, President Bush issued an order. The order stated, in pertinent part ‘I accept the legal conclusion of the Department of Justice and determine that Common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees.’}

^{"’I determine that the Taliban detainees do not qualify as prisoners of war . . . al Qaeda detainees also do not qualify as prisoners of war.’}

^{"’Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. . . . As a matter of policy the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.’}

^{"With these fateful and ill-advised words, President Bush, our Commander-in-Chief, perhaps unwittingly, perhaps not, started the U.S. down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of ‘the ends justify the means,’ before plummeting further into the bleak underworld of barbarism and cruelty, of ‘anything goes,’ of torture. It was a path that led inexorably to the events that brings us here today, the pointless and sadistic treatment of Mohammad Jawad, a suicidal teenager.}

^{"President Bush’s words were important, and deserve special attention. For those of us in the military who have faithfully attended our annual Law of Armed Conflict training, or in my case, have given the training many times, the Geneva Conventions and humane treatment were synonymous, they were one and the same. The Geneva Conventions represented the baseline, they embodied the determination of the world to make war a more humane enterprise, to prevent a descent into wholesale barbarity, as had occurred during the Second World War. But now we were being told that humane meant something else, something less, than the Geneva Conventions. And we were being told that we could act inconsistently with the Geneva Conventions, when military necessity demanded it. Those of us who were familiar with the Geneva Conventions, whose job it was to know them, were puzzled and deeply troubled by the President’s order and had serious forebodings about the implications of such a decision. We understood that there were no gaps in Geneva, there were was no one who fell outside their protection, that Common Article 3 applied to everyone.}

^{"But the civilian political appointees of this administration intentionally cut out the real experts on the law of armed conflict, the uniformed military lawyers, the JAGs, were out of the loop, for fear that their devotion to the Geneva Conventions might pose an obstacle to their intended course of action. The State Department, led by Colin Powell, tried to raise a red flag, but to no avail. Instead, the administration chose to rely on the infamous torture memos by John Yoo, Robert Delahunty and Jay Bybee. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrapheap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammad Jawad.}

^{"I’m sure that all of these people, the President included, thought they were doing what was best. But what sometimes appears to be in the interests of America at first glance, upon further reflection reveals itself not to be. . . .}

^{"The Feb 7, 2002, order of President Bush invited the rule of law to be circumvented. Even though the President paid lip service to humane treatment, by stating that detainees were not legally entitled to be treated humanely, and by his qualification of ‘to the extent appropriate and consistent with military necessity’ the implication was clear — it was only policy to be humane, not a legal requirement, and there would be no legal consequences to those who didn’t treat detainees humanely, if there was some military justification for it. Of course, during a ‘global war,’ it is possible to rationalize almost anything under the general rubric of military necessity. After all, if there is even a slight possibility that some military advantage might be gained by some course of action, don’t we owe it to our troops to do it? If there is even a minute chance that some sliver of intelligence might be gleaned about an impending terrorist attack, don’t we owe it to the American people to do everything in our power to extract it? The obvious answer to most of those working in detainee operations at Guantanamo and elsewhere was ‘Yes.’ . . .}

^{"America is a nation founded on a reverence for the rule of law. We should never forget that when we take an oath to enlist or be commissioned as an officer in the United States Armed Forces, we do not swear to defend the United States, we swear ‘to support and defend the Constitution of the United States against all enemies, foreign and domestic.’ The Oath of Office for the President contains similar words: ‘I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.’ Tragically, under the undeniably heavy pressure to defend Americans from terrorist attack, some of our military and civilian leaders lost sight of their obligation to defend the Constitution as well. . . .}

^{"After six and a half years, we now know the truth about the detainees at Guantanamo: some of them are terrorists, some of them are foot soldiers, and some of them were just innocent people, caught in the wrong place at the wrong time. But the detainees at Guantanamo have one thing in common — with each other, and with us — they are all human beings, and they are all worthy of humane treatment. . . .}