Tout Torture, Get Promoted
Defending cruelty can be a career booster in Bush's administration.
COMMENTARY
latimes.com
By Robert Scheer
What a revelation to learn that the Justice
Department lawyer who wrote the infamous
memo in effect defending torture is now a U.S.
9th Circuit Court of Appeals judge. It tells you
all you need to know about the sort of
conservative to whom George W. Bush is
turning in his attempt to pack the federal courts.
Conservatives once were identified with
protecting the rights of the individual against the
unbridled power of government, but this is not
your grandfather's conservatism. The current
brand running things in D.C. holds that the
commander in chief is above all law and that the
ends always justify the means. This has paved
the way for the increasingly well-documented
and systematic use of torture in an ad hoc gulag
archipelago for those detained anywhere in the
world under the overly broad rubric of the "war
on terror."
Those still clinging to the hopeful notion that
photographic evidence of beatings, dead
detainees, sexual degradation and threats of
electric shock were all the work of a few
twisted reservists aren't reading the newspapers.
Press accounts are following the paper trail up
the chain of command to a heated and lengthy
debate inside the White House about how much cruelty constitutes
torture.
On Sunday, the Washington Post published on its website an internal
White House memo from Aug. 1, 2002, signed by then-Assistant Atty.
Gen. Jay S. Bybee, which argued darkly that torturing Al Qaeda captives
"may be justified" and that international laws against torture "may be
unconstitutional if applied to interrogations" conducted under President
Bush. The memo then continued for 50 pages to make the case for the use
of torture.
Was it as a reward for such bold legal thinking that only months later
Bybee was appointed to one of the top judicial benches in the country?
Perhaps he was anointed for his law journal articles bashing Roe vs.
Wade and legal protection for homosexuals, or for his innovative attack
on the 17th Amendment to the Constitution, which provides for the
popular election of U.S. senators. But it's hard to shake the notion that his
memo to Counsel to the President Alberto Gonzales established Bybee's
hard-line credentials for an administration that has no use for moderation
in any form.
This president has turned his war on terror into an excuse for undermining
due process and bypassing Congress. For Bybee and his ideologue
cohorts, however, the American president is now more akin to a king, and
legal or moral restraints are simply problems that can be overcome later, if
anybody bothers to question the tactics: "Finally, even if an interrogation
method might violate Section 2340A [of the U.S. Torture Convention
passed in 1994], necessity or self-defense could provide justification that
would eliminate any criminal liability."
In fact, though, this was an argument of last resort for Bybee, whose
definition of torture "covers only extreme acts … where the pain is
physical, it must be of an intensity akin to that which accompanies serious
physical injury such as death or organ failure…. Because the acts inflicting
torture are extreme, there is [a] significant range of acts that, though they
might constitute cruel, inhuman or degrading treatment or punishment, fail
to rise to the level of torture."
Bybee's generous standard should bring comfort to the totalitarian
governments that find the brutal treatment of prisoners a handy tool in
retaining power or fighting wars. Even Saddam Hussein, who always
faced the threat of assassination and terrorism from foreign and domestic
rivals, can now offer in his defense Bybee's memo that his actions were
justifiable, on the grounds of "necessity or self-defense."
When confronted by the Democrats on the Senate Judiciary Committee
with the content of Bybee's torture defense, Atty. Gen. John Ashcroft
responded that the memo did not guide the administration. Yet, the Bybee
memo was clearly the basis for the working group report on detainee
interrogations presented to Defense Secretary Donald H. Rumsfeld a year
later. And if Bybee's work was rejected as reprehensible, why was he
rewarded - with Ashcroft's deepest blessings - with a lifetime
appointment on the judicial bench only one level below the Supreme
Court?
Frighteningly, the Bybee memo is not some oddball exercise in moral
relativism but instead provides the most coherent explanation of how this
administration came to believe that to assure freedom and security at
home and abroad, it should ape the tactics of brutal dictators.
*
Robert Scheer writes a weekly column for The Times and is coauthor
of "The Five Biggest Lies Bush Told Us About Iraq" (Seven Stories
Press/Akashic Books, 2003). |
