[FoRK] Rules? We don't need no stinkin' rules! (Bush policy: ignore Geneva Convention)

Contempt for Meatheads jbone at place.org
Sun May 23 15:55:48 PDT 2004

You know, I had a mild epiphany today.  My irritation with Bush Inc. 
isn't just irritation w/ Bush Inc.'s behavior and the fact that they're 
endangering us and scuttling the long view under the hypocritical 
rubric of national "security."  The big problem I've got is actually 
with the Bushies --- the partisans who despite all evidence to the 
contrary refuse to deal w/ the facts on their own merits, thus creating 
an amplified, second-order form of hypocrisy about the whole things.


NB:  I'm all for minimal or no rules;  but you can't insist that others 
play by your rules if you yourself do not.


Isikoff / Newsweek / MSNBC:


Double Standards?

A Justice Department memo proposes that the United States hold others 
accountable for international laws on detainees—but that Washington did 
not have to follow them itself

By Michael Isikoff
Investigative Correspondent
Updated: 1:42 p.m. ET May 22, 2004

May 21 - In a crucial memo written four months after the September 11, 
2001, terror attacks, Justice Department lawyers advised that President 
George W. Bush and the U.S. military did not have to comply with any 
international laws in the handling of detainees in the war on 
terrorism. It was that conclusion, say some critics, that laid the 
groundwork for aggressive interrogation techniques that led to the 
abuses at the Abu Ghraib prison in Iraq.

The draft memo, which drew sharp protest from the State Department, 
argued that the Geneva Conventions on the treatment of prisoners of war 
did not apply to any Taliban or Al Qaeda fighters being flown to the 
detention center at Guantanamo Bay, Cuba, because Afghanistan was a 
“failed state” whose militia did not have any status under 
international treaties.

But the Jan. 9, 2002 memo, (cf. 
http://www.msnbc.msn.com/id/5025040/site/newsweek/ ) written by Justice 
lawyers John Yoo and Robert J. Delahunty, went far beyond that 
conclusion, explicitly arguing that no international laws—including the 
normally observed laws of war—applied to the United States at all 
because they did not have any status under federal law.

“As a result, any customary international law of armed conflict in no 
way binds, as a legal matter, the President or the U.S. Armed Forces 
concerning the detention or trial of members of Al Qaeda and the 
Taliban,” according to a copy of the memo obtained by NEWSWEEK.   A 
copy of the memo is being posted today on NEWSWEEK’s Web site.

At the same time, and even more striking, according to critics, the 
memo explicitly proposed a de facto double standard in the war on 
terror in which the United States would hold others accountable for 
international laws it said it was not itself obligated to follow.

After concluding that the laws of war did not apply to the conduct of 
the U.S. military, the memo argued that President Bush could still put 
Al Qaeda and Taliban fighters on trial as war criminals for violating 
those same laws. While acknowledging that this may seem “at first 
glance, counter-intuitive,” the memo states this is a product of the 
president’s constitutional authority “to prosecute the war 

The two lawyers who drafted the memo, entitled “Application of Treaties 
and Laws to Al Qaeda and Taliban Detainees,” were key members of the 
Justice Department’s Office of Legal Counsel, a unit that provides 
legal advice to the White House and other executive-branch agencies. 
The lead author, John Yoo, a conservative law professor and expert on 
international law who was at the time deputy assistant attorney general 
in the office, also crafted a series of related memos—including one 
putting a highly restrictive interpretation on an international torture 
convention—that became the legal framework for many of the Bush 
administration’s post-9/11 policies. Yoo also coauthored another OLC 
memo (cf. http://www.msnbc.msn.com/id/5022681/site/newsweek/ )entitled 
“Possible Habeas Jurisdiction Over Aliens Held in Guantanamo Bay, 
Cuba,” that concluded that U.S. courts could not review the treatment 
of prisoners at the base.

Critics say the memos’ disregard for the United States’ treaty 
obligations and international law paved the way for the Pentagon to use 
increasingly aggressive interrogation techniques at Guantanamo 
Bay—including sleep deprivation, use of forced stress positions and 
environmental manipulation—that eventually were applied to detainees at 
the Abu Ghraib prison in Iraq. The customary laws of war, as 
articulated in multiple international treaties and conventions dating 
back centuries, also prohibit a wide range of conduct such as attacks 
on civilians or the murder of captured prisoners.

Kenneth Roth, the executive director of Human Rights Watch, who has 
examined the memo, described it as a “maliciously ideological or 
deceptive” document that simply ignored U.S. obligations under multiple 
international agreements. “You can’t pick or choose what laws you’re 
going to follow,” said Roth. “These political lawyers set the nation on 
a course that permitted the abusive interrogation techniques” that have 
been recently disclosed.

When you read the memo, “the first thing that comes to mind is that 
this is not a lofty statement of policy on behalf of the United 
States,” said Scott Horton, president of the International League for 
Human Rights, in an interview scheduled to be aired tonight on PBS’s 
“Now with Bill Moyers” show. “You get the impression very quickly that 
it is some very clever criminal defense lawyers trying to figure out 
how to weave and bob around the law and avoid its applications.”
At the time it was written, the memo also prompted a strong rebuttal 
from the State Department’s Legal Advisor’s office headed by William 
Howard Taft IV. In its own Jan. 11, 2002, response to the Justice 
draft, Taft’s office warned that any presidential actions that violated 
international law would “constitute a breach of an international legal 
obligation of the United States” and “subject the United States to 
adverse international consequences in political and legal fora and 
potentially in the domestic courts of foreign countries.”

“The United States has long accepted that customary international law 
imposes binding obligations as a matter of international law,”  reads 
the State Department memo, which was also obtained by NEWSWEEK. “In 
domestic as well as international fora, we often invoke customary 
international law in articulating the rights and obligations of States, 
including the United States. We frequently appeal to customary 
international law.” The memo then cites numerous examples, ranging from 
the U.S. Army Field Manual on the Law of Land Warfare (“The unwritten 
or customary law of war is binding upon all nations,” it reads) to U.S. 
positions in international issues such as the Law of the Sea.

But the memo also singled out the potential problems the Justice 
Department position would have for the military tribunals that 
President Bush had recently authorized to try Al Qaeda members and 
suspected terrorists. Noting that White House counsel Alberto Gonzales 
had publicly declared that the persons tried in such commissions would 
be charged with “offenses against the international laws of war,” the 
State Department argued that the Justice position would undercut the 
basis for the trials.

“We are concerned that arguments by the United States to the effect 
that customary international law is not binding will be used by 
defendants before military commissions (or in proceedings in federal 
court) to argue that the commissions cannot properly try them for 
crimes under international law,” the State memo reads. “Although we can 
imagine distinctions that might be offered, our attempts to gain 
convictions before military commissions may be undermined by arguments 
which call into question the very corpus of law under which offenses 
are prosecuted.”

The Yoo-Delahunty memo was addressed to William J. Hanes, then general 
counsel to the Defense Department. But administration officials say it 
was the primary basis for a Jan. 25, 2002, memo by White House counsel 
Gonzales—which has also been posted on NEWSWEEK’s Web site—that urged 
the president to stick to his decision not to apply prisoner-of-war 
status under the Geneva Conventions to captured Al Qaeda or Taliban 
fighters. The president’s decision not to apply such status to the 
detainees was announced the following month, but the White House never 
publicly referred to the Justice conclusion that no international 
laws—including the usual laws of war—applied to the conflict.

One international legal scholar, Peter Spiro of Hofstra University, 
said that the conclusions in the memo related to international law “may 
be defensible” because most international laws are not binding in U.S. 
courts. But Spiro said that “technical” and “legalistic” argument does 
not change the effect that the United States still has obligations in 
international courts and under international treaties. “The United 
States is still bound by customary international law,” he said.

One former official involved in formulating Bush administration policy 
on the detainees acknowledged that there was a double standard built 
into the Justice Department position, which the official said was 
embraced, if not publicly endorsed, by the White House counsel’s 
office. The essence of the argument was, the official said, “it applies 
to them, but it doesn’t apply to us.”

But the official said this was an eminently defensible position because 
there were many categories of international law, some of which clearly 
could not be interpreted to be binding on the president. In any case, 
the general administration position of not applying any international 
standards to the treatment of detainees was driven by the paramount 
needs of preventing another terrorist attack. “The Department of 
Justice, the Department of Defense and the CIA were all in alignment 
that we had to have the flexibility to handle the detainees—and yes, 
interrogate them—in ways that would be effective,” the official said.

© 2004 Newsweek, Inc.

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