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