Wars
of the Laptop Bombers
Today's
Stories
February 1,
2005
Paul Craig
Roberts
American
Police State
January 31,
2005
Dave Zirin
Mr.
Frank's Fatwah: New Republic Writer Calls for Death & Torture
of Arundhati Roy and Stan Goff
Robert Fisk
Amid
Tragedy, Defiance
Chyng Sun
Gonzales: Chief Prosecutor of Porn?
Greg Moses
The Real Scandals of the Texas Election
Mike Whitney
Cheney at Auschwitz
Ali Tonak
Turkey and the EU: Fantasies and Ultimatums
Patrick Cockburn
A
Victory for the Shia
Website of
the Day
Voting by the Script: Where Did the 8 Million Voter Turnout Figure
Come From?
January 29
/ 30, 2005
Manuel Yang
/ Peter Linebaugh
A
Dialogue About Murder in Toledo
Gabriel Kolko
Wilsonian
and Neoconservative Myths
Patrick Cockburn
Baghdad: City of Empty Streets
Robert Fisk
This Election Will Change the World, But Not as the US Wanted
Linn Washington,
Jr.
Con Job: Bush Pledges on Racism Lack Realism
Bernard Chazelle
Why the Children of Iraq Make No Sound When They Fall
Gary Leupp
"This Kind of Subject Matter": Bush's New Ed Secretary
vs. Vermont's Lesbians
JoAnn Wypijewski
The Passion of Paul Shanley
Alexander Cockburn
The Case of Father Jerry
Ron Jacobs
Ballot of the Puppets in Iraq
Brian Cloughley
Smart Bombs; Wrong House: Iraq's Civilian Dead
Fred Gardner
Peron May Split
Sister Dianna
Ortiz
Memo to Bush from a Survivor of the Guatemalan Torturers: Stop
the Torture!
Tom Reeves
How Bush Brings Freedom to the World: the Case of Haiti
Fran Quigley
Report: Haiti Now "More Violent and More Inhuman"
Suzan Mazur
"Mr. Garsin from Kinshasa": an Old Hand Weighs In on
the Murder of Lumumba
Kurt Nimmo
Condi Rice and the Neocon Plan for the Palestinians
Lenni Brenner
Holocaust History: Beyond the UN's Rhetoric
Gilad Atzmon
The
Politics of Auschwitz
Luis Gomez
Power and Autonomy in Bolivia
Mark Gaffney
NASA Searches for a Snowball in Hell: Why Velikovsky Matters
Ben Tripp
Lament of the Mnemonopath
Richard Oxman
Meet the Fuqers
Poets' Basement
Louise, Collins, Shanahan and Albert
Website of
the Weekend
Chemical Industry: Deceit and Denial
January 28,
2005
Rachard Itani
Tsunami
Aid By the Numbers: the US Really is a Miser
Jensen / Youngblood
Iraq's
Non-Election
Patrick Cockburn / Elizabeth
Davies
Attacks on Polling Places Leave 13 Dead
Dave Zirin
The Great Donovan McNabb: Proud "Black Quarterback"
Dave Lindorff
Suicide by State Execution?
Karyn Strickler
A Corporate Death Penalty Act?
Jorge Mariscal
Fighting
the Poverty Draft
January 27,
2005
Seymour Hersh
We've
Been Taken Over By a Cult
Cockburn /
Sengupta
The
US's Bloodiest Day in Iraq
Dave Lindorff
Juke Box Journalism: Shilling for Bush
Ignacio Chapela
/ John F. García
The Laws of Nature
Mike Whitney
The Widening Chasm Among Conservatives
Dr. Teresa
Whitehurst
Those Liberal Southern Baptists!
Ray McGovern
Reining In Cheney
Russ Wellen
Marginalizing Bin Laden
Christopher
Brauchli
The
FBI's Carnival of Errors
Website of
the Day
Informed Eating
January 26,
2005
Saree Makdisi
An
Iron Wall of Colonization: Fantasies and Realities About the
Prospects for Middle East Peace
Scott Fleming
In Good Conscience: an Interview with Concientious Objector Aidan
Delgado
Dave Lindorff
Filling Saddam's Shoes: the Puppet Regime Return's to Torture
Niranjan Ramakrishnan
Salazar and Obama: Two Dismal Debuts
Toni Solo
The
US and Latin America: a Not-So-Magical Reality
William James Martin
Condoleezza Rice: Confused About the Middle East
William A.
Cook
Bush's Second Inaugural Address: the Lost Ur-Version
Eric Hobsbawm
Delusions
About Democracy
Alexander Cockburn
The CIA's New Campus Spies
January 25,
2005
Brian Cloughley
Iraq
as Disneyland
Mike Roselle
Satan is My Co-Pilot
Josh Frank
/ Merlin Chowkwanyun
The War on Civil Liberties
John Chuckman
Freedom on Steroids
Paul Craig
Roberts
A
Party Without Virtue
Dr. Teresa
Whitehurst
The
Intolerance of Christian Conservatives
James Petras
The
US / Colombia Plot Against Venezuela
Website of the Day
Lowbaggers for the Environment
January 24,
2005
Fred Gardner
Last
Monologue in Burbank
Lori Berenson
On the Politicization of My Case
Uri Avnery
King
George
January 22
/ 23, 2005
Jennifer Van
Bergen / Ray Del Papa
Nuclear
Incident in Montana
Alexander Cockburn
Prince
Harry's Travails
Jeffrey St. Clair
The Company That Runs the Empire: Lockheed and Loaded
Stan Goff
The Spectacle
Saul Landau
Nothing Succeeds Like Failure
Gary Leupp
Official Madness and the Coming War on Iran
Fred Gardner
Is GW Getting the Runaround?
Phil Gasper
Clemency Denied: the Politics of Death in California
Stanley Heller
A Kill-Happy Government: Connecticut Chooses Death
Greg Moses
The Heart of Texas: an Inauguration Day Betrayal on Civil Rights
Justin Taylor
The Folk-Histories of John Ross
Daniel Burton-Rose
One China; Many Problems
Elaine Cassel
Try a Little Tyranny: Questions While Watching the Inaugural
Mike Whitney
Failing Upwards: the Rise of Michael Chertoff
Mark L. Berenson
My Daughter Has Been Wrongly Imprisoned
Christopher
Brauchli
It Doesn't Compute: a $170 Million Mistake
Gilad Atzmon
Zionism and Other Marginal Thoughts
Niranjan Ramakrishnan
Day of the Rats
Mark Donham
The Secret Messages of Rahm Emmanuel
Ben Tripp
Adventures in Online Dating
Walter Brasch
Hollywood's Patriots: Soulless Kooks, Mr. Bush?
Poets' Basement
Wuest, Landau, Ford, Albert & Drum
January 21,
2005
Dave Lindorff
A
Great American Journalist:
John L. Hess (1917-2005)
Sharon Smith
The
Anti-War Movement and the Iraqi Resistance
Don Santina
Baseball, Racism and Steroid Hysteria
Ron Jacobs
Locked Out and Pissed Off: Protesting the Bush Inauguration
Kurt Nimmo
The Problem with Mike Ruppert
Don Monkerud
Once They Were Cults: Bush's Faith-Based Social Services
Alan Farago
Swimming Home from the Galapagos
Derek Seidman
An
Interview with Army Medic and Anti-War Activist Patrick Resta
January 20,
2005
Paul Craig
Roberts
Dying
for Sycophants
William Cook
The
Bush Inauguration: A Mock Epic Fertility Rite
Joshua Frank
The Democrats and Iran: Look Who's Backing Bush's Next
Eric Ruder
Why Andres Raya Snapped: Another Casualty of Bush's War
Mike Whitney
Coronation in a Garrison State
Robert Jensen
A Citizens Oath of Office
Peter Rost
Bush Report on Drug Imports: Good Data, Bad Conclusions
David Underhill
Is It Torture Yet?: the Eclectic Fool Aid Torture Test
James Reiss
Adieu, Colin Powell: Pea Soup in Foggy Bottom
CounterPunch
Staff
Voices
from Abu Ghraib: the Injured Party
January 19,
2005
Marta Russell
Social
Security Privatization & Disability: 8 Million at Risk
Mike Ferner
Marines
Stretching Movement: Protesting Urban Warfare in Toledo
Nancy Oden
The
Nuremberg Principles, Iraq and Torture
Tony Paterson
A Catalogue of British Abuses in Iraq
Dave Lindorff
Bush's Divide-and-Conquer Plan to Destroy Social Security
Doug Giebel
BS and CBS: When 60 Minutes Helped Promote WMD Fantasies
Alexander Cockburn
Will
Bush Quit Iraq?
January 18,
2005
Paul Craig
Roberts
How
Americans Were Seduced by War: Empire and Militant Christianity
Jennifer Van
Bergen
Federal
Judge: Abu Ghraib Abuses Result of Decision to Ignore Geneva
Conventions
Douglas Lummis
It's a No Brainer; Send Graner: a Rap for Our Time
Ron Jacobs
Syria Back in the Crosshairs?
Seth DeLong
Enter the Dragon: Will Washington Tolerate a Venezuelan-Chinese
Oil Pact?
Lance Selfa
Stolen Election?: Most Democrats Didn't Even Bother to Inquire
Paul D. Johnson
Mystery Meat: a Right-to-Know About Food Origins
Elisa Salasin
An Open Letter to Jenna Bush, Future Teacher
January 17,
2005
Heather Gray
Misconceptions
About King's Methods for Social Change
Robert Fisk
Hotel Room Journalism: the US Press in Iraq
Dave Lindorff
What the NYT Death Chart Omitted: Civilians Slaughtered by US
Military
Jason Leopold
Sam Bodman's Smokestacks: Bush's Choice for Energy Czar is One
of Texas's Worst Polluters
Gary Leupp
A Message from the Iraqi Resistance
Douglas Valentine
An Act of State? the Execution of Martin Luther King
Harvey Arden
Welcome to Leavenworth: My First Encounter with Leonard Peltier
Greg Moses
King
and the Christian Left: Where Lip Service is Not an Option
January 15
/ 16, 2005
James Petras
The
Kidnapping of a Revolutionary
Robert Fisk
Flying Carpet Airlines: My Return to Baghdad
Ron Jacobs
Unfit for Military Service
Brian Cloughley
Smack Daddies of the Hindu Kush: Afghanistan's Drug Bonanza
Fred Gardner
The Allowable-Quantity Expert
Dr. Susan Block
The Counter-Inaugural Ball: Eros Day, 2005
John Ross
Zapatista Literary Llife
Suzan Mazur
Unspooking Frank Carlucci
M. Shahid Alam
America's New Civilizing Mission
Frederick B. Hudson
Jack Johnson's Real Opponent: "That I Was a Man"
Mike Whitney
Bush's Grand Plan: Incite Civil War in Iraq
Tom Crumpacker
A Constitutional Right to Travel to Cuba
Bob Burton
The Other Armstrong Williams Scandal
John Callender
La Conchita and the Indomitable 82-Year Old
Lila Rajiva
Christian Zionism
Saul Landau
An Imperial Portrait: a Visit to Hearst's Castle
Doug Soderstrom
A Touch of Evil: the Morality of Neoconservatism
Poets' Basement
Davies, Louise, Landau, Albert, Collins and Laymon
January 14,
2005
Robert Fisk
"The
Tent of Occupation"
Lee Sustar
Bush's Social Security Con Job
José
M. Tirado
The Christians I Know
Dave Zirin
The Legacy of Jack Johnson
Sheldon Rampton
Calling John Rendon: a True Tale of "Military Intelligence"
Tracy McLellan
Under the Influence
Yves Engler
The Dictatorship of Debt: the World Bank and Haiti
Tom Barry
Robert
Zoellick: a Bush Family Man
Website of
the Day
Ryan for the Nobel Prize?
January 13,
2005
Mark Chmiel
/ Andrew Wimmer
Hearts
and Minds, Revisited
Joe DeRaymond
The Salvador Option: Terror,
Elections and Democracy
Greg Moses
Every Hero a Killer?...Not
Dave Lindorff
The Great WMD Fraud: Time for an Accounting
Jorge Mariscal
Dr. Galarza v. Alberto Gonzales: Which Way for Latinos?
Christopher Brauchli
Gonzales and the Death Penalty: the Executioner Never Sleeps
Gary Leupp
"Fighting
for the Work of the Lord": Christian Fascism in America
January 12,
2005
Robert Fisk
Fear
Stalks Baghdad
Josh Frank
The
Farce of the DNC Contest
Jack Random
Casualties
of War: the Untold Stories
John Roosa
Aceh's Dual Disasters: the Tsunami and Military Rule
Carol Norris
In the Wake of the Tsunami
Mike Whitney
Pink Slips at CBS
Alan Farago
Can
the Everglades be Saved?
Paul Craig
Roberts
What's
Our Biggest Problem in Iraq...the Insurgency or Bush?
January 11,
2005
Tom Barry
The
US isn't "Stingy"; It's Strategic: Aid as a Weapon
of Foreign Policy
James Hodge
and Linda Cooper
Voice
of the Voiceless: Father Roy Bourgeois and the School of the
the Americas
Linda S. Heard
Farah Radio Break Down: Joseph Farah's Messages of Hate and Homophobia
Derrick O'Keefe
Electoral Gigolo?: Richard Gere and the Occupied Vote
Gila Svirsky
A Tale of Two Elections
Harry Browne
Irish
"Peace Process", RIP
January 10,
2005
Ramzy Baroud
Faith-Based
Disasters: Tsunami Aid and War Costs
Talli Nauman
Killing
Journalists: Mexico's War on a Free Press
Uri Avnery
Sharon's Monologue
Dave Lindorff
Tucker
Carlson's Idiot Wind
Dave Zirin
Randy
Moss's Moondance
Dave Silver
Left Illusions About the Democratic Party
Charles Demers
Plan Salvador for Iraq: Death Squads Come in Waves
William A.
Cook
Causes
and Consequences: Bush, Osama and Israel
January 8 /
9, 2005
Alexander Cockburn
Say,
Waiter, Where's the Blood in My Margarita Glass?
John H. Summers
Chomsky
and Academic History
Greg Moses
Getting Real About the Draft
Walter A. Davis
Bible Says: the Psychology of Christian Fundamentalism
Victor Kattan
The EU and Middle East Peace
John Bolender
The Plight of Iraq's Mandeans
Robert Fisk
The Politics of Lebanon
Fred Gardner
Situation NORML
Joe Bageant
The Politics of the Comfort Zone
Mickey Z.
I Want My DDT: Little Nicky Kristof Bugs Out
Ben Tripp
CounterClockwise Evolution
Ron Jacobs
Elvis and His Truck: Out on Highway 61
Saul Landau
Sex
and the Country
Rep. Cynthia McKinney
Time to End the Blackout
Ellen Cantarow
NPR's Distortions on Palestine
Richard Oxman
Bageantry Continued
Poets' Basement
Gaffney, Landau, Albert, Collins
January 7,
2005
Omar Barghouti
Slave
Sovereignty: Elections Under Occupation
Kent Paterson
The Framing of Felipe Arreaga: Another Mexican Environmentalist
Arrested
Niranjan Ramakrishnan
Old
Vijay Merchant and the Tsunami
David Krieger
Cancel the Inauguration Parties
Gideon Levy
New Year, Old Story
Dave Lindorff
Ohio Protest: First Shot Fired by Congressional Progressives
Christopher
Brauchli
Privatizing the IRS
Roger Burbach
/ Paul Cantor
Bush,
the Pentagon and the Tsunami
January 6,
2005
Brian J. Foley
Gonzales:
Supporting Torture is not His Greatest Sin
Greg Moses
Boot
Up America!: Gen. Helmly's Memo Leaks New Bush Deal
Petras / Chomsky
An
Open Letter to Hugo Chavez
Alan Maass
The Decline of the Dollar
Dave Lindorff
Colin Powell's Selective Sense of Horror
Jenna Orkin
The EPA and a Dirty Bomb: 9/11's Disastrous Precedent
P. Sainath
The
Tsunami and India's Coastal Poor
January 5,
2005
Alan Farago
2004:
An Environmental Retrospective
Winslow T.
Wheeler
Oversight
Detected?: Sen. McCain and the Boeing Tanker Scam
Jean-Guy Allard
Gary Webb: a Cuban Perspective
Fred Gardner
Strutting, Smirking, As If The Mad Plan Was Working
David Swanson
Albert Parsons on the Gallows
Richard Oxman
The Joe Bageant Interview
Bruce Jackson
Death
on the Living Room Floor
January 4,
2005
Michael Ortiz
Hill
Mainlining
Apocalypse
Elaine Cassel
They
Say They Can Lock You Up for Life Without a Trial
Yoram Gat
The
Year in Torture
Martin Khor
Tragic
Tales and Urgent Tasks from the Tsunami Disaster
Gary Leupp
Death
and Life in the Andaman Islands
January 3,
2005
Ron Jacobs
The
War Hits Home
Dave Lindorff
Is
There a Single Senator Who Will Stand Up for Black Voters?
Mike Whitney
The Guantanamo Gulag
Joshua Frank
Greens and Republicans: Strange Bedfellows
Maria Tomchick
Playing Politics with Disaster Aid
Rhoda and Mark
Berenson
Our Daughter Lori: Another Year of Grave Injustice
David Swanson
The Media and the Ohio Recount
Kathleen Christison
Patronizing
the Palestinians
January 1 /
2, 2005
Gary Leupp
Earthquakes
and End Times, Past and Present
Rev. William
E. Alberts
On "Moral Values": Code Words for Emerging Authoritarian
Tendencies
M. Shahid Alam
Testing Free Speech in America
Stan Goff
A Period for Pedagogy
Brian Cloughley
Bush and the Tsunami: the Petty and the Petulant
Sylvia Tiwon
/ Ben Terrall
The Aftermath in Aceh
Ben Tripp
Requiem for 2004
Greg Moses
A Visible Future?
Steven Sherman
The 2004 Said Awards: Books Against Empire
Sean Donahue
The Erotics of Nonviolence
James T. Phillips
The Beast's Belly
David Krieger
When Will We Ever Learn
Poets' Basement
Soderstrom, Hamod, Louise and Albert
December 23,
2004
Chad Nagle
Report
from Kiev: Yushchenko's Not Quite Ready for Sainthood
David Smith-Ferri
The
Real UN Disgrace in Iraq
Bill Quigley
Death
Watch for Human Rights in Haiti
Mickey Z.
Crumbs
from Our Table
Christopher Brauchli
Merck's Merry X-mas
Greg Moses
When
No Law Means No Law
Alan Singer
An
Encounter with Sen. Schumer: a Very Dangerous Democrat
David Price
Social
Security Pump and Dump
Website of the Day
Gabbo Gets Laid
December 22,
2004
James Petras
An
Open Letter to Saramago: Nobel Laureate Suffers from a Bizarre
Historical Amnesia
Omar Barghouti
The Case for Boycotting Israel
Patrick Cockburn / Jeremy Redmond
They Were Waiting on Chicken Tenders When the Rounds Hit
Harry Browne
Northern Ireland: No Postcards from the Edge
Richard Oxman
On the Seventh Column
Kathleen Christison
Imagining
Palestine
Website of the Day
FBI Torture Memos
December 21,
2004
Greg Moses
The
New Zeus on the Block: Unplugging Al-Manar TV
Dave Lindorff
Losing
It in America: Bunker of the Skittish
Chad Nagle
The View from Donetsk
Dragon Pierces
Truth*
Concrete
Colossus vs. the River Dragon: Dislocation and Three Gorges Dam
Patrick Cockburn
"Things Always Get Worse"
Seth DeLong
Aiding Oppression in Haiti
Ahmad Faruqui
Pakistan and the 9/11 Commission's Report
Paul Craig
Roberts
America
Locked Up: a System of Injustice
Hot Stories
Alexander Cockburn
Behold,
the Head of a Neo-Con!
Subcomandante
Marcos
The
Death Train of the WTO
Norman Finkelstein
Hitchens
as Model Apostate
Steve Niva
Israel's
Assassination Policy: the Trigger for Suicide Bombings?
Dardagan,
Slobodo and Williams
CounterPunch Exclusive:
20,000 Wounded Iraqi Civilians
Steve
J.B.
Prison Bitch
Sheldon
Rampton and John Stauber
True Lies: the Use of Propaganda
in the Iraq War
Wendell
Berry
Small Destructions Add Up
CounterPunch
Wire
WMD: Who Said What When
Cindy
Corrie
A Mother's Day Talk: the Daughter
I Can't Hear From
Gore Vidal
The
Erosion of the American Dream
Francis Boyle
Impeach
Bush: A Draft Resolution
Click
Here for More Stories.
|
February 1, 2005
A Legal Narrative
The
Torture Memos
By
JOSHUA L. DRATEL
Editors'
Note: Below is an excerpt of original commentary
from attorney Joshua Dratel, who has been involved with
torture cases at Guantanamo Bay. Together with NYU law professor,
Karen Greenberg, they have created the most comprehensive
archive of government documents and internal memos to date to
elucidate on the efforts of Bush officials in creating a
policy for torturing "enemy combatant" prisoners. Those
memo have just been published as a book, The
Toture Papers: The Road to Abu Ghraib, by Cambridge University
Press. AC / JS
While the proverbial road to hell is
paved with good intentions, a host of internal government memos
(collected in our book The
Torture Papers) demonstrate that the path to the purgatory
that is Guantanamo Bay, or Abu Ghraib, has been paved with decidedly
bad intentions. The policies that resulted in rampant abuse of
detainees first in Afghanistan, then at Guantanamo Bay, and later
in Iraq, were product of three pernicious purposes designed to
facilitate the unilateral and unfettered detention, interrogation,
abuse, judgment, and punishment of prisoners:
(1) the desire to place the
detainees beyond the reach of any court or law;
(2) the desire to abrogate
the Geneva Convention with respect to the treatment of persons
seized in the context of armed hostilities; and
(3) the desire to absolve those
implementing the policies of any liability for war crimes under
U.S. and international law.
Indeed, any claim of good faith--that
those who formulated the policies were merely misguided in their
pursuit of security in the face of what is certainly a genuine
terrorist threat--is belied by the policy makers, more than tacit
acknowledgment of their unlawful purpose. Otherwise, why the
need to find a location--Guantanamo Bay--purportedly outside
the jurisdiction of the U.S. (or any other) courts? Why the need
to ensure those participating that they could proceed free of
concern that they could face prosecution for war crimes as a
result of their adherence to the policy? Rarely, if ever, has
such a guilty governmental conscience been so starkly illuminated
in advance.
That, of course, begs the question:
what was it that these officials, lawyers and lay persons, feared
from the federal courts? An independent judiciary? A legitimate,
legislated, established system of justice designed to promote
fairness and accuracy? The Uniform Code of Military Justice,
which governs courts-martial and authorizes military commissions?
The message that these memoranda convey in response is unmistakable:
these policy makers do not like our system of justice, with its
checks and balances, and rights and limits, that they have been
sworn to uphold. That antipathy for and distrust of our civilian
and military justice systems is positively un-American.
However, that distaste for
our justice system was not symmetrical, as the memos reveal how
the legal analysis was contrived to give the policy architects
and those who implemented it the benefit of doubt on issues of
intent and criminal responsibility while at the same time eagerly
denying such accommodations to those at whom the policies were
directed. Such piecemeal application of rights and law is directly
contrary to our principles: equal application of the law, equal
justice for all, and a refusal to discriminate based on status,
including nationality or religion. A government cannot pick and
choose what rights to afford itself, and what lesser privileges
it confers on its captives, and still make any valid claim to
fairness and due process.
These memoranda follow a logical
sequence:
(1) find a location secure
not only from attack and infiltration, but also, and perhaps
more importantly in light of the December 28, 2001, memo that
commences this trail, from intervention by the courts;
(2) rescind the U.S.'s agreement
to abide by the proscriptions of the Geneva Convention with respect
to the treatment of persons captured during armed conflict; and
(3) provide an interpretation
of the law that protects policy makers and their instruments
in the field from potential war crimes prosecution for their
acts.
The result, as clear from the
arrogant rectitude emanating from the memos, was unchecked power,
and the abuse that inevitably followed.
The chronology of the memoranda
also demonstrates the increasing rationalization and strained
analysis as the objectives grew more aggressive and the position
more indefensible--in effect, rationalizing progressively more
serious conduct to defend the initial decisions and objectives,
to the point where, by the time the first images of Abu Ghraib
emerged in public, the government's slide into its moral morass,
as reflected in the series of memos published in this volume,
was akin to a criminal covering up a parking violation by incrementally
more serious conduct culminating in murder.
The memos also reflect what
might be termed the "corporatization" of government
lawyering: a wholly result-oriented system in which policy makers
start with an objective and work backward, in the process enlisting
the aid of intelligent and well-credentialed lawyers who, for
whatever reason--the attractions of power, careerism, ideology,
or just plain bad judgment--all too willingly failed to act as
a constitutional or moral compass that could brake their client's
descent into unconscionable behavior constituting torture by
any definition, legal or colloquial. That slavish dedication
to a superior's imperatives does not serve the client well in
the end and reduces the lawyer's function to that of a gold-plated
rubber stamp.
Nor does any claim of a "new
paradigm" provide any excuse, or even a viable explanation.
The contention, set forth with great emphasis in these memoranda,
that al Qaeda, as a fanatic, violent, and capable international
organization, represented some unprecedented enemy justifying
 abandonment of our principles
is simply not borne out by historical comparison. The Nazi party's
dominance of the Third Reich is not distinguishable in practical
terms from al Qaeda's influence on the Taliban government
as described in these memos.
Al Qaeda's record of destruction, September
11th notwithstanding--and as a New Yorker who lived, and still
lives, in the shadow of the Twin Towers, which cast a long shadow
over lower Manhattan even in their absence, I am fully cognizant
of the impact of that day--pales before the death machine assembled
and operated by the Nazis. Yet we managed to eradicate Nazism
as a significant threat without wholesale repudiation of the
law of war, or a categorical departure from international norms,
even though National Socialism, with its fascist cousins, was
certainly a violent and dangerous international movement--even
with a vibrant chapter here in the United States.
Indeed, like the Nazis, punctilious
legalization of their "final solution," the memos reproduced
here reveal a carefully orchestrated legal rationale, but one
without valid legal or moral foundation. The threshold premise
here, that Guantanamo Bay is outside the jurisdiction of the
U.S. courts, was soundly rejected by the Supreme Court last June
in Rasul v. Bush, and the successive conclusions built
upon that premise will, like the corrupted dominoes they are,
tumble in due course. There they will join the other legally
instituted but forever discredited stains upon U.S. legal history:
the internment of Japanese during World War II, the treatment
of Native Americans, and slavery.
Review of the memoranda reveals
that not all the players were villains, though. There were dissenters
from this march toward ignominy. The Department of State pointed
out the perils--to U.S. service personnel principally, who would
likely be treated reciprocally if captured--of not applying the
standards of the Geneva Convention, and the contradictory position
of the U.S. with respect to the status of the Taliban as the
existing government of Afghanistan. Military officers also manifested
an implicit reticence, and even incredulity, in demanding explicit
authority and direction before implementing the full range of
"counter-resistance" techniques. Yet, unfortunately,
the policy makers to whom they appealed were only too willing
to oblige, and to ignore the cautions communicated by the State
Department.
It would be remiss of those
of us who have compiled these memoranda and reports to leave
them as the record without offering some solutions. The most
important change would be the recognition by the Executive that
unilateral policy fails not only because it ignores the checks
and balances of the other branches, but also because it creates
policies distorted by only a single, subjective point of view.
Even failing that voluntary reform, Congress must exercise its
authority, through oversight and legislation, just as the courts
have invoked their power of judicial review.
Lawyers and public officials
need to be instructed, in school and on the job, to be cognizant
of the real-life consequences of their policy choices. Government
is not some academic political science competition, in which
the prize goes to the student who can muster coherent doctrinal
support, however flimsy, for the most outlandish proposition.
Here, real people suffered real, serious, and lasting harm due
to violations of whatever law applies--U.S., international, common,
natural, moral, or religious--committed by our government, in
our name.
As citizens, we surely enjoy
rights, but just as surely responsibilities as well. We cannot
look the other way while we implicitly authorize our elected
officials to do the dirty work, and then, like Capt. Renault
in Casablanca, be "shocked" that transgressions
have occurred under our nose. The panic-laden fear generated
by the events of Sept. 11th cannot serve as a license--for our
government in its policies, or ourselves in our personal approach
to grave problems--to suspend our constitutional heritage, our
core values as a nation, or the behavioral standards that mark
a civilized and humane society. That type of consistency in the
face of danger, in the face of the unknown, defines courage,
and presents a road map for a future of which we can be proud.
Copyright © 2005 by Karen
J. Greenberg and Joshua L. Dratel.
Karen J. Greenburg is the Executive Director of the Center
on Law and Security at the New York University School of Law.
Joshua L. Dratel serves on the Board of Directors of
the National Association of Criminal Defense Lawyers and is currently
assisting in the defense of Guantanamo detainees.
|