Doug Feith is bluffing big time, and he's lifted Dick Cheney and George Bush onto the table as his bet. Now if only he could stop visibly sweating.
Feith's Wall Street Journal column on Friday argues that Spain has no right to put Americans on trial for torture, at least not second-tier officials who provided pseudo-legal justifications for torture and advocated its use, actions that Feith believes should be immune from prosecution, unlike ordering torture or engaging in it.
"If President Barack Obama and the prosecutors see a crime to be prosecuted, they can act," Feith wrote.
In fact, the job is Eric Holder's and the choice is no choice at all. Holder is legally required to prosecute those whom evidence suggests have engaged in, ordered, or otherwise facilitated torture. That list includes Doug Feith, but it most prominently includes George W. Bush and Richard B. Cheney, both of whom have admitted to authorizing torture in televised interviews. Feith is absolutely right that it makes the most sense to prosecute first and foremost those who actually gave the orders. Spain makes itself look a bit silly starting with those lower down, but you can imagine the xenophobic bile that would be gushing out of the Wall Street Journal if Spain had begun with Dubya.
Title 18 of the U.S. Code, our national laws, our red-white-and-blue tough-on-crime book of books has a little section called 2441 that prescribes prison or death to any American who commits or conspires to commit a war crime, including torture or cruel or inhuman treatment. Remember this was what caused then White House counsel Alberto Gonzales to warn the president and others that they should play word games as the best defense of their own necks.
Title 18 also contains section 2340, which -- like 2441 -- defines torture with clarity and sanity, and prescribes prison or death for those who engage in it, and prison for those who conspire to commit it. These laws were in place long before the Bush-era charade of Congress pretending to ban torture and Bush pretending he could legalize it with a signing statement. The United States had also already signed and ratified the Convention Against Torture which requires criminal prosecution of "an act by any person which constitutes complicity or participation in torture."
So the United States is actually required to do what Feith dares it to try and the American people support. But that doesn't mean that Spain (or Britain) has no right to step in while the United States fails to act. In fact, a few months ago the United States did the same thing. In January a U.S. court tried a citizen of Liberia for committing torture in Liberia and sentenced him to 97 years in a U.S. prison. At the time, then Attorney General Michael Mukasey said "I hope this case will serve as a model to future prosecutions of this type."
So, by the recommendation of the top law-enforcement official under President Bush, Spain should indeed prosecute Bush and his co-conspirators. Which brings us to Feith's claim that, apart from jurisdictional questions, he himself is innocent. Feith does not attempt to defend the other five men facing likely indictment in Spain, or Bush, or Cheney. But he claims that he himself never provided guidance that led to torture.
Feith does not address the fact that this is contradicted by a famous memo written by top Pentagon lawyer William Haynes and signed off on by Donald Rumsfeld. Nor does Feith address most of the claims made about him by author Phillipe Sands, who reported that Feith told him he'd "played a major role in" Bush's decision to declare the Geneva Conventions inapplicable to certain people. Sands reported that Feith pointed him to an article Feith had written in 1985 arguing for destroying the Geneva Conventions in order to save them.
Jason Leopold has catalogued additional evidence:
"In addition to Sands' account, the Senate Armed Services Committee and the American Civil Liberties Union have released documents showing that Haynes regularly briefed Feith about a list of aggressive interrogation techniques for use against 'high-value' Guantanamo detainees. … Other documents released last year show that Feith worked closely with Pentagon general counsel William Haynes II in 2002 on an Army and Air Force survival-training program called Survival, Evasion, Resistance and Escape (SERE), which were meant to prepare U.S. soldiers for abuse they might suffer if captured by an outlaw regime, against detainees at Guantanamo. One of the SERE techniques used against detainees was waterboarding. Moreover, Feith and Haynes were members of a Pentagon 'working group' that met from January through March 2003 and prepared a report for Rumsfeld stating what methods military interrogators could use to extract information from a prisoner at Guantanamo. Yoo worked on the legal memo for the group. Early drafts of the report advocated intimidating prisoners with dogs, removing prisoners' clothing, shaving their beards, slapping prisoners in the face and waterboarding."
Jane Mayer, in her book "The Dark Side", wrote:
"These memos denied legal protection not just to Al Qaeda, but to the entire Taliban. All were described as 'illegal combatants'. ... One of the earliest and most ardent proponents of this legal interpretation was Douglas Feith. ... A neo-conservative, he prided himself on being 'unfashionable', by which he evidently meant breaking with the more centrist foreign-policy establishment. As far back as the 1980s, when he had been a midlevel Reagan Administration official, Feith had argued that terrorists did not deserve to be protected by the Geneva Conventions. The issue had first arisen in connection with the Palestinian Liberation Organization. Feith, a passionate Zionist, had helped to convince the Reagan Administration to oppose international efforts to protect anti-Israel terrorists as soldiers. John Yoo and other Bush Administration lawyers seized on this position as a precedent."
Peter Weiss provides this analysis:
"The Spanish complaint alleges that, on February 3, 2002, Feith, in his capacity as DOD Undersecretary for Legal Affairs, issued a legal analysis which served as the basis of the subsequent document of February 7 denying the protection of the Geneva Convention, including their basic Common Article 3, to the Guantanamo detainees. The complaint goes on to state that this is consistent with an article Feith published in the 1980s in "The National Interest" in which he took a similar position concerning the conflicts in Central America and characterized the 1977 Additional Protocol to the Geneva Conventions as 'a masterwork of amoral design'."
But all of this is really the least of Feith's worries, for there is a crime worse than torture, and the evidence that he engaged in that worse crime is overwhelming. I refer, of course, to the crime of aggressive war. In fact, when the Washington Post published Feith's defense of a memo he had written proposing that the United States aggressively attack "a non-Al Qaeda target like Iraq," Feith's defense seemed oblivious to the crime involved and did not even attempt to suggest that he had not urged a war of aggression.
It is this sort of obliviousness that leads people like Feith and Cheney to mouth off in the media, and that may ultimately be their undoing. Let's hope they're advising Bush on his forthcoming book.