Friday, May 01, 2009

A Question Of The Rule Of Law.

Andrew Sullivan gets it spot on:

Clive Crook defends himself:

The earlier cases do not prove that waterboarding as practised during the Bush administration was illegal, only that waterboarding carried out in certain ways and under certain circumstances has been successfully prosecuted. The designers of the policy knew the law and manoeuvred--absurdly and offensively, perhaps, but they would not be the first lawyers to stoop to that--to stay within it.

I have to say I find this defense unpersuasive and a little beside the point, to put it mildly. The entire spirit of the UN Convention and the Geneva Conventions is not to see whether governments can find clever, legal loopholes in the ban on torture, abuse, inhuman treatment and outrages on human dignity - but to see that no government ever comes near the kind of prisoner abuse and torture that we have seen throughout history. I cannot begin to believe that those who drafted both conventions believed that waterboarding, for example, was okay if it is done in certain ways and not others. And to even countenance such a sophistry is to have capitulated to the logic that the executive - empowered with massive force and enormous secrecy - should always get the benefit of the doubt when applying the rule of law.

The lawyers we are talking about, after all, are lawyers for the president, whose oath of office demands that he faithfully execute the laws. These lawyers are not there to help him circumvent or break the law, but to ensure that it's followed. They violated that core responsibility and the sheer shoddiness of their work reveals that they knew it.
The notion that the Bush administration came up with a way to drown people which did not constitute torture is to betray the entire spirit of the UN Convention Against Torture.

And, as Sullivan rightly points out, behind Crook's thesis is the belief that it is perfectly acceptable for a president to look for ways to circumvent the law, rather than to "faithfully execute" it.

That's not his job and that's not the oath of office which he swore to uphold. And the failing - and I would say the crime - of Yoo, Bybee and others, was that they did not do their job. Their job was to tell the president what was legal and what was not. Instead of doing this, they proceeded to look for loopholes and legal niceties by which they thought they could help the president circumvent the law.

That's criminal. There's no other word for it. Indeed, it is worth remembering that we prosecuted Germans after WWII for doing exactly what Yoo, Bybee, Bradbury and others did for president Bush.
Those officials, who were convicted at Nuremberg, did not order the deportation or carry it out; rather, they merely failed, when asked, to object to the policy on the ground that it violated international law. Professor Heller argues that this case provides an almost perfect precedent for holding OLC torture-authorizing officials accountable :

The parallels between the Foreign Office’s role in the SS deportations and the OLC’s role in the CIA’s torture regime are uncanny. Nothing is lost if we simply substitute "Yoo, Bybee, and Bradbury" for "Woermann and von Weizsaecker," "OLC" for "Foreign Office," and "torture" for "deportations."

Indeed, in one critical respect, the case against the authors of the OLC memos is even stronger than the case against von Weizsaecker and Woermann. The latter’s criminal participation in the deportations consisted solely of omissions -- failing to point out that the deportations violated international law.

The former’s criminal participation in the CIA’s torture regime, by contrast, consists of both acts and omissions, because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime.

So Yoo, Bybee and Bradbury actually committed far more criminality than the Germans we prosecuted after WWII, for they not only failed in their duty to tell the president of his international obligations under the law. Yoo, Bybee and Bradbury went much further. They actually actively attempted to aid the president as he sought to violate international law.

As I say, that utter failing in their duty - to tell the president what is legal and what is not - is actually a crime.

Hat tip to Andrew Sullivan.

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