Duped About Torture

Writes Carter: "Sands's reporting raises interesting questions about whether Myers faithfully performed the duties of a general officer in his position. . . .

"[A]s a moral and practical matter, Myers clearly had a duty to do more here. It was his job, as America's top general, to give voice to the millions of servicemembers who would be asked to carry out these policies and live with the consequences. It was also his role to speak about the organizational consequences that would flow from the loosening of American adherence to international law, and the need to maintain our global leadership in this area. Most importantly, it was Myers's job to inquire about what was going on, so he could fulfill his duty as 'principal military adviser' to the president. According to Sands's account, Myers clearly failed to do his duty."

The Prospect of Prosecution

The Sands excerpt concludes: "In June 2006, the Supreme Court overturned President Bush's decision on Geneva, ruling it to be unlawful. The court confirmed that Common Article 3 applied to all Guantánamo detainees. It was as simple as that. Whether they were Taliban or al-Qaida, every one of the detainees had rights under Common Article 3 -- and that included Mohammed al-Qahtani.

"The majority opinion, reaffirming the 'minimal protection' offered by Common Article 3, was written by Justice John Paul Stevens. One of the Justices went even further: Common Article 3 was part of the law of war and of a treaty that the US had ratified. 'By Act of Congress,' Justice Anthony Kennedy wrote pointedly, 'violations of Common Article 3 are considered 'war crimes', punishable as federal offences, when committed by or against United States nationals and military personnel.'

"Justice Kennedy's remark put the issue of war crimes on the American political agenda. Individuals who had contributed to a violation of Common Article 3 would know that they were at risk of criminal investigation and prosecution. Even more ominously, it underscored the risk of being investigated outside the US.

"Parties to the international Torture Convention are required to investigate any person who is alleged to have committed torture. If appropriate, they must then prosecute - or extradite the person to a place where he will be prosecuted. The Torture Convention is also more explicit than Geneva in that it criminalises any act that constitutes complicity or participation in torture. Complicity or participation could certainly be extended not only to the politicians and but also the lawyers involved in the condoning of the 18 techniques. After all, the scheme applied to al-Qahtani was devised by lawyers, reviewed by lawyers, overseen by lawyers."

Norton-Taylor writes in the Guardian: "The lawyers, all political appointees, who pushed through the interrogation techniques were Alberto Gonzales, [Cheney legal counsel] David Addington and [Pentagon general counsel] William Haynes. Also involved were Doug Feith, Rumsfeld's under-secretary for policy, and [Justice Department officials] Jay Bybee and John Yoo. . . .

"Larry Wilkerson, a former army officer and chief of staff to Colin Powell, US secretary of state at the time, told the Guardian: 'Haynes, Feith, Yoo, Bybee, Gonzales and -- at the apex-- Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In future, some government may build the case necessary to prosecute them in a foreign court, or in an international court.'"

Yoo's Tenure

Yoo is now a tenured professor at the University of California-Berkeley law school. The dean of the school recently wrote to defend Yoo's continued presence -- barring his conviction for a criminal act or persuasive evidence of clear professional misconduct.

But Scott Horton writes in a Los Angeles Times op-ed that Yoo is not off the hook: "It increasingly appears that the Bush interrogation program was already being used before Yoo was asked to write an opinion. He may therefore have provided after-the-fact legal cover. That would help explain why Yoo strained to take so many implausible positions in the memos.

"It also appears that government lawyers had told Bush administration officials that some of the techniques already in use were illegal, even criminal. In fact, a senior Pentagon lawyer described to me exchanges he had with Yoo in which he stressed that those using the techniques could face prosecution. Yoo notes in his Pentagon memo that he communicated with the Criminal Division of the Justice Department and got assurances that prosecutions would not be brought. The question becomes, was Yoo giving his best effort at legal analysis, or was he attempting to protect the authors of the program from criminal investigation and prosecution? . . .

"According to Human Rights First, more than 100 people have died in U.S. detention in the war on terrorism. It documented 11 cases where the deaths resulted from coercive interrogation techniques, and others where there was at least some connection. Yoo insists that there is no relationship between the deaths and his advice, because he didn't set policy or carry it out, he merely offered a legal opinion. But had he refused to give the opinion that was sought, the program might have been suspended and some of those detainees might be alive.