December 12, 2007

Why the CIA Destroyed the Torture Tapes

"Notwithstanding the President’s view that the United States was engaged in two separate conflicts in Afghanistan (the common public understanding is to the contrary,see Joan Fitzpatrick, Jurisdiction of Military Commissions and the Ambiguous War on Terrorism, 96 Am. J. Int’l. L. 345, 349(2002) (conflict in Afghanistan was international armed conflict in which Taliban and al Qaeda joined forces against U.S. and its Afghan allies)), the government’s attempt to separate the Taliban from al Qaeda for Geneva Convention purposes finds no support in the structure of the Conventions themselves, which are triggered by the place of the conflict, and not by what particular faction a fighter is associated with."

The citation is from the District Court case of Hamdan vs. Rumsfeld, the landmark case which established that Bush's detainees in Guantanamo are entitled to the protections of Common Article 3 of the Geneva Conventions, which have been the "supreme law" of the United States (through the Treaty Clause) since 1949. The opinion was issued in November, 2004, about a year before the CIA decided to destroy the videotapes of the torture of Abu Zubaydah (and, we should probably assume, others). The Hamdan case then worked its way up the legal food chain to the Supreme Court, where its main points were confirmed in the godawful process which the highest court in the land calls "jurisprudence."

There is a common misconception that the Supreme Court, that august collective of ultimate political appointees and connected insiders, is where the best law happens. This is not the perception of practicing lawyers; to decipher the actual "holding" in one of their decisions, it would help to possess a background in Jesuitical debate and Talmudic exegesis, supplemented by a PhD in electronic circuitry. The actual, useful part of one their decisions must be teased from a blizzard of "concurring" opinions, reflecting the deep political and philosophical divisions among even the justices who "agree" with each other. By contrast, Judge James Robertson's brilliant explication of the application of the Geneva Conventions to Hamdan's case was a model of clarity and concision. On every main point, his opinion anticipates what the Supreme Court, in its muddled, screwed-up way, got around to doing in July, 2006.

Judge Robertson's opinion was a rude wake-up call for the Bush Inquisition. Here was a judge essentially laughing at the White House's moronic interpretation of Common Article 3. According to Alberto ("The Torque") Gonzales, David Addington and John Yoo, Bush and Cheney's legal brain trust, it depended on whom you captured in Afghanistan; if the Taliban, they were entitled to certain rights; if al-Qaeda (meaning: Bush said they were al-Qaeda), then all bets were off. This was always a stupid idea, but with only Congress to oppose him, Bush could get away with this nonsense.

The Supreme Court borrowed all of Judge Robertson's ideas, although they didn't express them nearly so well. Par for the course. The media treated the Supreme Court's decision as a "bombshell," which in a sense it was, but the torture teams had been hyperventilating for nearly two years because of Judge Robertson's holding. Part of the problem was handled by the exoneration provisions of the Detainee Treatment Act passed in 2005, which legalized war crimes in the United States. A compliant and (we now learn) morally compromised Congress, Republican and Democratic alike, were only too eager to forgive torture if it made them look Tough on Terror. But when it comes to serious federal offenses like violation of the War Crimes Act and the Anti-Torture Statute, you can't be too careful. Nothing would be quite as riveting in a court room as a few hundred hours of vidotaped prisoner abuse. So the tapes had to go. Too many "federal officials" had their asses hanging out on this one, and I don't mean just the guys with the water bottles and wash rags.

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