June 23, 2004

Torture Memos Out

The Washington Post has the goods, courtesy of Findlaw. I was particularly caught by the following bits. First:

...Bybee argued that that the War Crimes Act and the Geneva Convention did not apply to al Qaeda prisoners and that President Bush had constitutional authority to "suspend our treaty obligations toward Afghanistan" because it was a "failed state." ...

How technical or precise is the term 'failed state?' Who gets to decide what one is? I think that most people would regard Afghanistan in that light, but they did have a government, even though it was extremely unsavory. There should be a metric available to the degree that could be used to explain precisely (instead of very fuzzily, as at present) why the term is applied to Afghanistan, but not North Korea, Haiti, or post-invasion Iraq.

Though I think I'm on to something here... If we invade a country and topple its government, wouldn't it automatically become a failed state. Therefore, as soon as an invasion successfully topples a government, invading countries should be able to wiggle out of the Geneva conventions because they've got a failed state on their hands. Simple, right?

But this is the real kicker:

...The memo was Ashcroft's personal response to the State Department position that, as a matter of law, the Geneva Conventions protected Taliban soldiers. Ashcroft warned that if the president sided with the State Department, American officials might wind up going to jail for violating U.S. and international laws. ...

Ashcroft specifically endorses the "failed state theory" in the memo, offering it as one of two options. The second would be to declare Taliban fighters to be unlawful combatants. Ashcroft believes that asserting Afghanistan to be a failed state is less legally risky, because it would be much harder for any country to make the argument that America was a failed state than to make the argument that U.S. forces were unlawful combatants in a given theatre of war.

Ashcroft does mention the need for protection from liability for field operations, but also includes the desirability of protection from liability arising from detention and interrogation situations. It smacks to me of intent to use tactics on captive and unarmed individuals which would be considered unlawful under the Geneva conventions. Though we could also say that he sounds far more concerned that higher level decision makers would end up in the hotseat than that Pfc. Joe Smith gets grilled for strafing a remote village.

Our intrepid attorney general argues that because Afghanistan was a failed state at the time of combat, it wasn't a party to the treaty, and the U.S. and all its agents should be exempted from legal restraint under the treaty. Thing is, this isn't a treaty about some tit-for-tat trade dust up, it's about human rights. It's about our honor and word, not other countries' commitments.

Imagine if people visiting America were declared subject to no different legal protection than that which would be afforded in their country of origin. What if visitors from Sudan could be killed with impunity because their failed state tolerates such behavior. What if women or blacks from countries without laws on discrimination could be freely discriminated against or abused. This would be a logical extension of the implied premise that rights flow from the state of origin, and that the U.S. has no obligation to respect the human rights declared inalienable in our own founding documents.

America has gone to teach civilization to the heathen. Hah. Unfortunately, we seem to have accidentally left our civilization at the border. Maybe there was a delay in Customs processing, I couldn't say. The extent to which we consider our protections under the law either a blessing that should be spread far and wide or a burden to be ditched at will is written in our actions. And apparently, our memos.

Posted by natasha at June 23, 2004 11:02 AM | War on Terrorism | Technorati links |

Don't forget about Article VI Clause 2 of the Constitution:

"Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding"

If I read that correctly, any treaties made become "the supreme Law of the Land".

Posted by: Jon at June 23, 2004 04:28 PM

Apparently, these people are very confused by the phrase "supreme law of the land."

Posted by: natasha at June 23, 2004 09:28 PM

Nice thing to take notice of, but it's a double-edged sword. Wouldn't this be able to be percieved as that NAFTA and the WTO aren't violating our constitution either? Of course not torturing prisoner's doesn't infringe on any right given in the constitution, but I wouldn't put it beyond our Supreme Court to ignore this little bit.

At any rate. To he matter on which I originally opened this window to post. I find this bit on Ashcroft's two defense possibilities quite intriguing. That Bush ignored Ashcroft's advice seems to be part of a larger pattern of him ignoring Ashcroft's advice.
I'm also a bit suprised that Ashcroft cared enough abour our soldiers to suggest that. I still say that he's a cold hearted monster, but this shows that he may have a spark of humanity somewhere deep inside of him.

Peace, Truth, and Justice,

Posted by: Luke at June 24, 2004 02:59 AM