John Dean on Alberto Gonzales and the torture scandal

"I wouldn't join the International Criminal Court. It's a body based in The Hague where unaccountable judges and prosecutors can pull our troops or diplomats up for trial.

"And I wouldn't join it. And I understand that in certain capitals around the world that that wasn't a popular move. But it's the right move not to join a foreign court that could -- where our people could be prosecuted." - George W. Bush 09/30/04

"Men without conscience are capable of any cruelty the human mind can imagine." - Dick Cheney 01/26/05

John Dean has weighed in on the nomination of Alberto "the torture guy" Gonzales as Attorney General, the nation's chief law-enforcement official: The Torture Memo By Judge Jay S. Bybee That Haunted Alberto Gonzales's Confirmation Hearings Findlaw.com 01/14/05.

The 08/01/02 document to which the title refers is the most notorious of the administration documents that have come to light justifying torture in the gulag.  The text of the memo is available here: U.S. Dept. of Justice Memo To Alberto R. Gonzales, White House Counsel "on interrogation methods that do not violate prohibitions against torture" Findlaw.com.

Dean calls this memo "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." Despite the willingness of the Republican Party to embrace the policies (or at a minimum tolerate them) and the laziness of the mainstream media, this torture scandal isn't going away.  It's too serious, and its implications are too far-reaching.

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 candefend 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.

Dean also cities some important testimony at the Judiciary Committee hearings on Gonzales.  At those hearings, former Admiral John D. Hudson, who served from 1997-2000 as the Navy's Judge AdvocateGeneral, testified 01/06/05:

In a very real way, this nomination presages the next four years for this country because more than any other discipline, it is the Rule of Law that directs our future. The Attorney General of the United States should be the chief enforcer of that Rule of Law. One of the few things Judge Gonzales got right in his infamous January, 2002 memo is when he stated, “The Attorney General is charged by statute with interpreting the law for the Executive Branch. This interpretive authority extends to both domestic and international law.” Given the analysis that follows in that same memo, the fact that he has now been nominated to that very position should be of great concern to us all. Perhaps more than any other cabinet officer, the Attorney General has cherished public responsibilities to the people, distinct from the role of legal or political advisor to any particular president.

Hudson's testimony is a good reminder of what the laws of war mean in the real world, not in the schoolboy fantasies of the Rush Limbaughs of the world.

The Geneva Conventions envision an end to the hostilities and to the destruction of war. They envision a return to peace. They provide a framework for the conduct of the war that will enable the peace to be sustained and flourish. We must not be deterred just because our enemy in a war on terror doesn’t comply with the Conventions. Our unilateral compliance will aid in the peace process. Moreover, it should have been understood that violations of the Conventions, or ignoring them, doesn’t help bring an end to the war. To the contrary, as we have seen, this only adds ferocity to the fighting and lengthens the war by hardening the resolve of the enemy. Our flagrant disregard for the Conventions only serves as a recruiting poster for this enemy and for our enemies for generations to come. (my emphasis)

I recommend reading the whole thing, since it's become painfully obvious in the torture scandal how little acquainted much of the press providing news and information to the public are with even the most basic considerations of the laws of war. His comments on why he thinks the Geneva Conventions apply in full to Taliban and Al Qaeda fighters captured in Afghanistan is especially noteworthy.  A final quote here from Admiral Hudson:

The chain of command enables the military to operate effectively and efficiently. For good or evil, what starts at the top of the chain of command drops like a rock down the chain of command. Soldiers, sailors, Marines, and airmen execute the orders of those at the top of the chain and adopt their attitude. Consequently, those at the top have a legal and moral responsibility to protect their subordinates. We don’t want the subordinates to feel compelled to second guess the legality, morality, or wisdom of what is decided above them in the chain of command.

If the message that is transmitted is that the Geneva Conventions don’t apply to the war on terror, then that is the message that will be executed. The law and over 200 years of U.S. military tradition say that those at the top are responsible for the consequences. Again, law isn’t practiced in a vacuum. It’s practiced in real life. This isn’t just a quaint academic exercise. It affects human beings and the world order.

Harold Hongju Koh, dean of the Yale Law School, also testified on 01/06/05.  Commenting on the Bybee memo which formed the legal fig leaf for American policy on torture in the gulag leading up the the Abu Ghuraib revelations, he says:

Nevertheless, in my professional opinion, the August 1, 2002 OLC Memorandum is perhaps the most clearly erroneous legal opinion I have ever read. The opinion has five obvious failures. First, it asks which coercive interrogation tactics are permissible, never mentioning what President Bush correctly called every person’s “inalienable human right” to be free from torture. The opinion’s apparent purpose is to explore how U.S. officials can use tactics tantamount to torture against suspected terrorists, without being held criminally liable. Second, the opinion defines “torture” so narrowly that it flies in the face of the plain meaning of the term. For example, the memorandum would require that the interrogator have the precise objective of inflicting “physical pain … equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.” August 1, 2002 OLC Memorandum at 1. Under this absurdly narrow legal definition, many of the heinous acts commited by the Iraqi security services under Saddam Hussein would not be torture. Third, the OLC memorandum grossly overreads the inherent power of the President under the Commander-in-Chief power in Article II of the Constitution, an error I discuss in Part II below.

Fourth, the August 1 memorandum suggests that executive officials can escape prosecution for torture on the ground that “they were carrying out the President’s Commander-in-Chief powers.” The opinion asserts that this would preclude the application of a valid federal criminal statute “to punish officials for aiding the President in exercising his exclusive constitutional authorities.” Id. at 35. By adopting the doctrine of “just following orders” as a valid defense, the opinion undermines the very underpinnings of individual criminal responsibility. These principles were set forth in the landmark judgments at Nuremberg, and now embodied in the basic instruments of international criminal law.

Fifth and finally, the August 1 OLC memorandum concludes that, for American officials, the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment allows cruel, inhuman, or degrading treatment as permissible U.S. government interrogation tactics. In effect, the opinion gives the Executive Branch a license to dehumanize, degrade, and act cruelly, notwithstanding the Fifth Amendment’s rejection of government acts that shock the conscience and the Eighth Amendment’s rejection of any “cruel and unusual punishments.” (my emphasis)

No, this issue is not going away.  John Dean summarizes once again the serious nature of what's happening:

Other international law, and law of war, experts tell me that Bybee's memo (not to mention a few others) is damning evidence suggesting a common plan on the part of the Administration to violate the laws of war. Strikingly, such a "common plan," or conspiracy, is itself a war crime. (my emphasis)