By Robert Rivkin.
The Abu Ghraib prison scandal involving torture of Iraqi detainees by American Army soldiers is back in the news.
The first and second of an expected cascade of investigative reports have been completed. The Department of Defense reports point the finger of blame for the crimes committed by American soldiers up the chain of command – where it should be pointed.
Although some military intelligence officers, and others, have been added to the list of officials who bear at least some responsibility for what happened at Abu Ghraib, we should not so quickly forget this past spring’s revelations of the role President Bush’s lawyers played in providing (supposedly) legal justifications for torture of suspected terrorists.
Probably the most shocking memo was dated August 1, 2002 and signed by Jay S. Bybee, then the head of the Justice Department’s Office of Legal Counsel. That office has traditionally served as the so-called “conscience” of the Justice Department.
“As commander in chief, the president has the constitutional authority to order interrogations of enemy combatants,” Bybee wrote. Further, the President of the United States, acting under his inherent powers as Commander in Chief, can lawfully order torture, without regard to federal criminal laws or international law. Any measure “that interferes with the president’s direction of such core war matters as the detention and interrogation of enemy combatants would thus be unconstitutional.” Even Congress lacks the power to limit presidential prerogatives.
Let us not forget where Mr. Bybee is now. He is now a Ninth Circuit Court of Appeals judge. Bush nominated him and the Senate confirmed him without insisting on copies of his Justice Department memos before doing so. Judge Bybee will now be deciding constitutional rights cases arising in the western United States for the rest of his working life. Another Bush nomination to a federal appeals court, that of William J. Haynes II, the Pentagon’s General Counsel, has been stopped in its tracks — due to his role in endorsing the Bybee viewpoint and pushing it on resistant career military lawyers. Having learned of Haynes’ role in advocating harsh interrogation guidelines, Democrats have held up the Haynes confirmation.
Of course, in the wake of the scandal, the Justice Department rescinded the Bybee memo, which, it said, was being “revised.”
The most frightening thing about the Bush lawyers’ memos is the totalitarian mindset that they reveal.
In Nazi Germany, torture of “normal” defendants was considered to be unlawful. With “enemies of the state”, however, it was a different story. According to Gestapo Chief Counsel Werner Best, “So long as the police force carries out the will of the country’s leadership, it acts legally.” In his acclaimed book, Hitler’s Justice: The Courts of the Third Reich, (Harvard University Press, 1991), prosecutor and law professor Ingo Muller documents how German judges twisted the country’s traditional laws which had protected civil liberties to convert virtually every Nazi atrocity into a “legal” act. The concept of “defense of the state” was used to crush all opposition to the regime, and became justification for legalized murder.
What is the difference between the Gestapo lawyer’s comment about the police force carrying out the “will of the country’s leadership” — to justify torture, and Mr. Bybee’s comment about the President’s power to order any measure pursuant to his “core authority” as Commander in Chief — to justify torture?
In June, the Republican majority on the Senate Judiciary Committee rejected Democrats’ requests that certain subpoenas be issued. As a result, several Bush Administration memos on the applicability of the Geneva Conventions to counter-terrorism operations, including some prepared for White House counsel close to the President, have been withheld from the Senate Judiciary Committee, and from public view. They’re designated “classified”, but who benefits from the designation?
The public should demand the release of these memos. In the meantime, we should all be vigilant, not only to protect the human values that our government is supposed to uphold, but to prevent judges with dangerous mindsets from being given lifetime jobs on the federal courts.
Robert S. Rivkin, author of GI Rights and Army Justice, is a San Francisco lawyer and Army veteran who specialized in military law for 25 years. He has also trained foreign judges and prosecutors on human rights and rule of law issues for international development projects.
 copyright 2004