How the Torture ‘Migrated’
Wednesday, April 02, 2008 at 7:47 am
In the summer of 2003, former Defense Secretary James Schlesinger investigated the Abu Ghraib torture atrocities at the behest of Donald Rumsfeld. That August, he delivered his pronouncement: interrogation techniques authorized for use at Geneva Conventions-exempt Guantanamo Bay had “migrated” to Geneva-protected Iraq. As befitting a whitewash, Schlesinger didn’t say how. But now we know that Schlesinger didn’t tell the whole story: the Pentagon relied heavily on a breathtaking memo from the Justice Department, authored by John Yoo, that recommended immunizing interrogators against any illegality. There were no limits.
For the best legal analysis of this now-released 81-page memo, see Marty Lederman:
This is the version of the 2002 Torture memo, which was addressed only to the CIA and the torture statute, as applied to the numerous statutes restricting the conduct of the armed forces. None of those statues, you see, limits the conduct of war if the President says so. It is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004.
Remember: there is no such thing as a little torture. The slope inevitably slips. Throw this memo in the face of any rightist who hectors that liberals don’t “understand” evil.
Emily Bazelon at Slate:
On page 47 of the Yoo memo, if I’m not mistaken, there’s the amazing assertion that the Convention Against Torture doesn’t apply whenever the president says it doesn’t. “Any presidential decision to order interrogations methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions.” Doesn’t this mean that whether or not a treaty has been ratified, with or without express reservations, Yoo is saying that the president can implicitly and on his own authority withdraw the United States from the treaty simply by not abiding by it? Is there precedent for such a claim? In my quick scan so far of the tortured (sorry) reasoning here, I can’t find anything other than ipso facto, because I say so, the president says so.
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