Asked whether torture is ever justified, Bush replied, "Look, I'm going to say it one more time. ... The instructions went out to our people to adhere to law. That ought to comfort you."
-- President Bush
"Ultimately, the administration's policy is consistent with the law. If the American people disagree with that policy, they have options: Congress can change the law, or the electorate can change the administration."
-- Professor Yoo, one of the "how to get away with torture" memoranda authors
"Let us not fool ourselves. The law itself provides no moral compass. Hitler had lawyers too. And let us not kid ourselves. At the end of the day, our role as lawyers provides no moral justification if we collaborate or stand idly by in the face of evil. It is our job to stand up. It is our job to speak out. We have chosen this path. We have been trained for this path. And if we don't do it, who will?"
Prof. Linda Krieger, Commencement Speech to the Boalt Hall Graduating Class of 2004
My little paean to the "rule of law" aside, law is but a word. It is currently legal to throw personal users of marijuana in jail for any number of years. Bush v. Gore is "law" too. So is any number of (other) misguided and blatantly wrong court decisions and prosecutorial actions. The more important thing to reflect upon is how the law is being defended and carried out -- is it reasonable? Or is it just being twisted for corrupt ends? If so, it is not very "comforting." A good example of this is Prof. Yoo's editorial in the LAT today.
An actual lawyer delves into this editorial here, part of his yeoman work in addressing this issue. Thanks to Mere Dicta, involved in the protest of Prof. Yoo, for the link and other info. I shall provide a few additional comments regarding stuff that particularly struck me.
The editorial starts off quite tellingly: "Official Washington has been struck by a paroxysm of leaking." Sure, that's the problem! Of course, given the Boalt Hall law school protests against him personally, California was "struck" as well. It's little facts like this that are helpful to know when we read editorials; sort of useful background information respecting the mind-set of the authors that might help understand their tone.
Next, Prof. Yoo notes how we care for the Guantanamo Bay detainees pretty well, though he leaves out the part about not including basic hearings to determine if they belong there in the first place. "Detainees receive shelter, food, clothing, healthcare and the right to worship. This policy is more generous than required." So, "the law" doesn't require us to shelter, feed, and clothed our detainees? Except perhaps the right to worship, which is limited in various ways in our own domestic prisons, these are all basic acts of a civilized nation. We are supposed to be proud that we aren't just starving people, many of whom let's remember might not even be guilty of anything?
But, he notes, the Geneva Convention (its use here akin to Adam trying to cover up his nakedness) does not apply in the war against terror, "only to conflicts between its signatory nations." The war against terror, however, include various actions in which said nations, their citizens, and at times their very agents are involved. He also notes that the "very purpose" of the Al Qaeda is "inflicting civilian casualties through surprise attack." Not only does this assume everyone being questioned is actually a member, many who actually are will turn out to be minor players not directly involved in such activities or involved in some rather small way. We mistreat small fry like this at our peril. Likewise, the most despicable murderers caught in this country warrant minimum civilized treatment, treatment repeatedly not supplied to the detainees.
Likewise, his overly narrow reading of basic rules of war aside, humane treatment of forces like the Taliban [again, recalling the possibility of mistaken capture] is a good policy per se. The "legalistic" way the memoranda tried to get around such basic truths is at the core of their corruption. As are snide comments, especially after the torture videos and such, like "the U.S. is not required to treat captured terrorists as if they were guests at a hotel or suspects held at an American police station." Don't you worry though: "[T]he 1994 statute isn't being evaded, because the president's policy is to treat the detainees humanely." How very comforting. This is the sort of attitude that Mere Dicta and others felt made the atrocities sadly predictable.
Prof. Yoo notes that "Congress has authorized the president to use 'all necessary and appropriate force'." Yes ... appropriate. The commander-in-chief role of the president doesn't put him above the law, which clearly set forth limits to his authority. Sen. Schumer deserves many verbal lashings himself for suggesting it is pretty reasonable to use torture if "thousands of lives" might be at stake. Prof. Yoo, however, didn't include his comment that at the very least the policy making should have been more public. If so, perhaps Congress might comprehend a need to change it without the need of "a paroxysm of leaking" happening first?
Prof. Yoo is right about one thing ... the ultimate solution is to vote this administration out of office. For, if it acted in a way "consistent with the law," [though perhaps the courts will have something to say about that] we can't really trust the law in their hands. To paraphrase Prof. Linda Krieger, it is time to raise our collective voice, confident, in unison, strong enough, and loud enough, and committed enough. "Enough!"