Notes on Torture Memo (I)

I’ve started reading through the John Yoo memo on torture / detaining non-citizens in foreign nations (March 14, 2003), and want to post some early thoughts before continuing, with the usual caveat that I ain’t a lawyer, so would be ready to be informed why I'm wrong...

The substance of Yoo’s argument seems to be that:

1. The constitution places the power to wage war entirely in the hands of the Commander in Chief.
2. Domestic law does not apply in a state of war: a soldier who kills is not prosecuted for the domestic crime of murder, and so the Fifth Amendment does not apply.
3. Moreover, even if it did it wouldn’t matter, as the Supreme Court has ruled that non-citizens have no legal rights under US law outside US sovereign territory.
4. Equally, the Eighth Amendment is explicitly applicable only to persons on whom criminal sanctions have been imposed, whilst detention during wartime is not punishment, it is simply detention.

In this way, it becomes very clear from the outset that the defence of the administration’s actions is based on the firm assertion that a state of war exists between their detainees and the US government. In this sense, the internment of Japanese during World War II or the establishment of prisoner of war camps in third nations during other wars are no different to Guantánamo. This is presumably why defenders of the Bush line feel that the real story here is the warrantless assumption of presidential power by congress.

But if the defence of internment is entirely based on the conditions of conflict being warlike, then there is no legal justification for denying the internees the status of ‘prisoners of war’. At this point, the 1996 War Crimes Act (which made it a criminal offence in US law to commit a grave breach of the Geneva Convention) kicks in. So as far as I can tell, by stressing the warlike state of conflict between the United States and the Taliban and Al Qaeda, Cheney et. al. are effectively promoting themselves from common or garden lawbreakers to the hallowed status of war criminals.

Aware of this danger, the Military Commissions Act of 2006 formalised the working designation of ‘unlawful enemy combatant’ to square the circle: that is to create a status for these detainees in which their detention was legitimated by a state of war and yet the conditions of that detention were not beholden to the Geneva Convention and War Crimes Act on conduct during wartime. The Geneva Convention states that there are only two types of belligerents: lawful combatants of an enemy state at war with you, and unlawful (i.e. civilian) combatants who do not represent a state and are therefore to be prosecuted under conventional domestic law. The 2006 definition of unlawful combatant status as one that is both of and not of war, therefore, is the lynchpin to the justification of the long-term internment of prisoners under conditions where the Geneva Convention does not apply in full. To hold prisoners and mistreat them, they have to be unlawful combatants. (Second caveat: I've yet to get on to the bit where Yoo explains why the Geneva Convention is only partially applicable, so I may have got the wrong end of the stick here... Stay tuned.)

Nevertheless, I hesitantly make a prediction. The repudiation of unlawful enemy combatant status by the Obama administration makes it almost impossible to avoid criminalising White House actions during the Bush years. For without this definition the detainees were either prisoners of war, in which case Cheney and minions were war criminals, or they were unlawful combatants protected under the Geneva Convention, in which case Cheney broke the Fifth and Eighth Amendments, and probably several more.

John Yoo writes, “The Framers understood the Commander-in-Chief Clause to grant the President the fullest range of power recognized at the time of the ratification as belonging to the military commander.” (4-5) The Framers’ intent was clearly, indubitably not to permit the President to have the power to order the torture of individuals, even in wartime. Amongst the complaints listed by Jefferson against George III in the Declaration of Independence, one might note:

• “He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries”
• “He has affected to render the Military independent of and superior to the Civil power”
• He has given assent to “transporting us beyond Seas to be tried for pretended offences”
• “He is at this time transporting large armies of foreign mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation”

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