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So where were the lawyers? Well, they were in service to our policy of torture, obviously. Alan Dershowitz, guardian of civil liberties, argued vigorously for the "ticking-bomb" exemption. He wasn't making the case for torture, ostensibly, but merely wanted it acknowledged in law that under ticking-bomb scenarios torture will quite simply happen. He was defaulting to a realist position, not asserting an ideal. But a realist would also observe that in consequence of giving currency to the ticking bomb defense, it was subsequently recruited on behalf of our every act of torture, even when it applied in none of those cases. Dershowitz is not naïve. He must have known where his proposition would lead. And so did John McCain.
Torture must be given no quarter whatsoever---no legal sanction, no safe harbor. That's what the Geneva Conventions had done: they had eliminated every loophole. Specifically, "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
And then there was John Yoo. Starting from the "unitary executive" notion that in his role of Commander in Chief our President's power of decision is completely unconstrained, it then follows that the President can even override treaties which our Senate has approved. The bedrock principle of checks and balances imbedded in our Constitution simply did not apply in wartime, according to Yoo, with respect to anything bearing on our security. So the Geneva Conventions to which we are signatories were simply set aside with regard to irregular forces. The only rationale for exempting ourselves from the Geneva Conventions is that it would give us permission to torture. We obviously fully intended to do so. The record could not be more clear.
John Yoo effectively paved the way for torture to occur under state sanction. He is therefore a war criminal. He along with many others should be in the dock for war crimes. Instead we find the argument to be about whether Yoo's academic freedom is being infringed by the informal opposition to him at Berkeley.
Then there are others in the chain of command, and at the White House. General Richard B. Myers, as Chairman of the Joint Chiefs of Staff, was at the top of the chain of approvals of the torture memos within the military. In a review of the General's memoirs in the New York Review of Books, Philippe Sands points out that there is not a single reference to Common Article 3 of the Geneva Conventions in the entire book. Further, there is no discussion of his role in approving the torture memos. Says Sands: "we must assume that his silence was not accidental."
And we mere citizens should not assume that any kind of lesson has been learned. Nowhere in the book does Myers "express regret that it was during his chairmanship that the US military embraced cruelty as an official policy, apparently for the first time since 1863." It was in 1863 that President Lincoln issued a Proclamation that "military necessity does not admit of cruelty." That standard has guided us ever since---until the Bush Administration.
When it comes to the perversion of our laws, however, we have to come back to the lawyers as the chief enablers. Since the Bush Administration was implementing a top-down policy, they had to arrange for legal cover. The Office of Legal Counsel in the Justice Department obliged. David Cole presented the case against the lawyers who authored the torture memos in another article in the New York Review of Books.
Said Cole:
""these memos are the real "smoking gun' of the torture controversy."
"Justice Department lawyers were involved in justifying every aspect of the CIA program."
"They treated the law against torture not as a universal prohibition but as an inconvenient obstacle to be evaded by any means necessary."
"In their hands, law became not a constraint on power, but the instrument of unconscionable abuse."
When Michael Mukasey was testifying in his confirmation hearing for Attorney General, he could not bring across his lips a condemnation of water-boarding as torture, even though we ourselves convicted the Japanese for just such tactics. He likely did so to protect what would soon be his own staff at Justice. But surely water-boarding rises to the level of being degrading and inhumane, does it not? Then it is already illegal. There is no available refuge in nuance here.
Not according to Bush's OLC! In a May 2005 memo it declared that the CIA's methods did not even rise to the level of cruel, inhuman, or degrading treatment. A complete whitewash. In an environment such as this, words lose their meaning. Anyone who cares about our historical Anglo-Saxon reverence for the law should be alarmed.
Concludes Cole: "Absent a reckoning for those responsible for making torture and cruel, inhuman, and degrading treatment official US policy, the United States' commitment to the rule of law will remain a hollow shell---a commitment to be honored only when it is not inconvenient or impolitic to do so."
It is difficult to see how such a reckoning might come about. It is unlikely to be initiated by the Department of Justice itself. President Obama does not appear to be inclined to refocus on this issue. We who see the implications of what has happened need to keep the pressure on the policy-makers. And we need the lawyers themselves, those who see their profession as degraded by these acts. The issue here does not lend itself to a simple right/left dichotomy. There is concern even among conservatives about what is happening to us.
