The President Ordered War Crimes

...And Congress Is Afraid to Investigate

There are a couple of points that have stilled been missed on the John Yoo memos issue despite the amount of blogging that's been done about it over the past few days.

Of course the principles of Nuremberg (which by the way the United States created after WWII - I don't see how anyone could argue that the USA is not subject to the doctrine) apply all the way to the top of government. In fact Nuremberg's entire raison d'etre was to deter governments from this kind of acts. So any Bush claims that echo Nixon's infamous, "it's not illegal when the president does it" are purely specious. And, as Turley points out, "When you read this memo it tries so hard to give the president what he wants, and that is the right to do anything he wants." So I suppose you could label this the spoiled brat legal doctrine.

But here's the thing everybody is missing. Almost exactly a year before the Yoo memo was the big story in Greater Left Blogsylvania, I was blogging about a Supreme Court non-decision that involved the prisoners at Guantanamo Bay. As the BBC reported at the time, "The US Supreme Court has said it will not decide whether detainees held at Guantanamo have the right to challenge their detention in US federal courts."

As I pointed out a year ago, this decision not to decide on the fate of the Guantanamo detainees (specifically whether habeas corpus rights extended to them) was in fact a de facto decision, in that the prisoners were neither released nor afforded habeas hearings. Also, by dodging a formal consideration of whether the Military Commissions Act was constitutional they afforded the government the opportunity to continue to act as if it were indeed constitutional, though it patently is not. Here's the part of the BBC report:

The provision stripping detainees of their right to mount a legal challenge to their confinement was upheld by a federal appeals court in Washington in February.

The court's majority opinion was that "the will of Congress" should prevail and that habeas corpus did not apply to foreign nationals being held at Guantanamo Bay because it is not US soil.

The detainees have argued that they are entitled to access to US courts wherever they are being detained by the US authorities.

The critical point is that the court's decision that habeas did not apply is the same as the conclusion that John Yoo came to in March of 2003. That is, that the authority of the United States extends to Guantanamo Bay in respect of being able to detain and try the alleged (important word that. There are cases where individuals have been held for years after having been proven innocent) terrorists, but not in respect to having any control over their own agents, whether they be military, CIA, NSA or contractors. A similar condition tragically applies to Blackwater, KBR and others in Iraq by order of Paul Bremer.

Here's my reaction to that as expressed a few days ago in comments:

If the Supreme Court claims not to have jurisdiction over Guantanamo, how does the US in any wise argue that there is even a shadow of legality to what is going on there? I'll try to, as the British say, put a finer point on it.

If you or I hold someone in a cell (let alone torture them) that is unlawful confinement, aka kidnapping, a criminal offense. The only thing that is different when a government holds someone in a cell, as is sometimes required by their function to administer criminal law and in some cases to prosecute a war, is that it is done under the jurisdiction of a court, following certain predetermined procedures collectively known as due process.

In the absence of a claim of jurisdiction, everything that goes on at Gitmo and (shudder) elsewhere is simply and without question criminal activity.

Or have I missed something?

As I quoted above, "The detainees have argued that they are entitled to access to US courts wherever they are being detained by the US authorities."

I see a lot of merit to that argument.

Update: And one other thing, now that I think about it. What about the fact that the government has been doing everything in its power to keep this memo a secret since it was written?

First I advocate a broad application of the principle of freedom of information. The classification of materials generated by the government should be a last resort in a democracy, which of necessity demands that the public know as much as possible in order to make informed decisions at the polls. I would even go so far as to say that abuse of classification should be a criminal offense. The only legitimate reason to keep something secret is that its exposure would aid an enemy, not for political expediency as is clearly the case here. I defy anyone to create a scenario where knowledge of the contents of this memo erodes America's security in the slightest.

In this particular case, a so-called 'legal opinion' has been the foundation of government actions that are clearly illegal, and keeping the memo secret has had the effect of keeping it beyond the scrutiny of courts and legal experts who could point out exactly how specious its reasoning is. Which is of course exactly what Yoo and the administration intended. In this other case, the truth of the progress of the war in Iraq is being withheld from the American people so that they cannot make any kind of informed judgment on this most critical issue in advance of November's election.

TAGS: Injustice, John Yoo, Legal Fiction, Court Jesters