[Dialogue] Vote against torture

[Charles or Doris Hahn]

This came from Harry Kieley, an acquaintance in
Washington who keeps both eyes on social issues.
Doris Hahn

[NOTE: That there should ever be a debate about the
U.S. permitting torture is breathtaking. We've been on
a slippery slope since 9/11, and this last decision
only accelerates our descent into fascism. It also
means that Bush & Co. can never be tried for war
crimes. Congress has yet to vote on the recommendation
of the Committee. As a last-minute desperate attempt
to put a stop to this legislation, I urge all readers
to contact everyone you know and urge them to contact
their members of Congress TODAY. URGE THEM TO
FILIBUSTER IF NECESSARY to prevent the passage of this
un-American legislation.--Harry]
 
 jurisprudence
Forget Nuremberg
How Bush's new torture bill eviscerates the promise of
Nuremberg.
By David J. Luban
Posted Tuesday, Sept. 26, 2006, at 5:15 PM ET



The burning question is: What did the Bush
administration do to break John McCain when a North
Vietnamese prison camp couldn't do it? 

Could it have been "ego up"? I'm told ego up is not
possible with a U.S. senator. That probably also rules
out ego down. Fear up harsh? McCain doesn't have the
reputation of someone who scares easily. False flag?
Did he think they were sending him to the vice
president's office? No, he already knew he was in the
vice president's office. Wait, I think I know the
answer: futility—which the Army's old field manual on
interrogation defined as explaining rationally to the
prisoner why holding out is hopeless. Yes, the
explanation must be that the Bush lawyers would have
successfully loopholed any law McCain might write, so
why bother? Futility might have done the trick.

How else can we explain McCain's surrender this week
on the torture issue, one on which he has been as
passionate in the past as Lindsey Graham was on secret
evidence?

Marty Lederman at Balkinization explains here and here
some of the worst bits of the proposed "compromise
legislation" on detainee treatment. But the fact is,
virtually every word of the proposed bill is a
capitulation, including "and" and "the." And
yesterday's draft is even worse than last week's. It
unexpectedly broadens the already broad definition of
"unlawful enemy combatant" to include those who fight
against the United States as well as those who give
them "material support"—a legal term of art that
appears to include anyone who has ever provided
lodging or given a cell phone to a Taliban foot
soldier out of sympathy with his cause. Now, not only
the foot soldier but also his mom can be detained
indefinitely at Guantanamo. 

But the real tragedy of the so-called compromise is
what it does to the legacy of Nuremberg—a legacy we
would have been celebrating next week at the 60th
anniversary of the judgment.

What does the bill do to Nuremberg? Section 8(a)(2)
holds that when it comes to applying the War Crimes
Act, "No foreign or international sources of law shall
supply a basis for a rule of decision in the courts of
the United States in interpreting the prohibitions
enumerated in subsection 2441(d)." That means the
customary international law of war is henceforth
expelled from U.S. war-crime law—ironic, to say the
least, because it was the U.S. Army's Lieber Code that
formed the basis for the Law of Armed Conflict and
that launched the entire worldwide enterprise of
codifying genuinely international humanitarian law. 

Ironic also because our own military takes customary
LOAC as its guide and uses it to train officers and
interrogators. Apparently there is no need to do that
anymore, at least when it comes to war crimes. That
means goodbye, International Committee of the Red
Cross; the Swiss can go back to their fondue and
cuckoo clocks. It also means goodbye, jurisprudence of
the Yugoslav tribunal, which the United States was
instrumental in forming.

And also goodbye, Nuremberg.

Sept. 30 and Oct. 1 mark the 60th anniversary of the
tribunal's judgment. If the opening chapters of
Telford Taylor's superb The Anatomy of the Nuremberg
Trials make one thing crystal clear, it's the burning
desire of the United States to create international
law using those trials. Great Britain initially
opposed the Nuremberg trials and urged simply shooting
top Nazis, out of fear they would use the trials for
propaganda. Stalin favored conducting trials, but only
to establish punishments, not guilt. Like Great
Britain, he thought punishing the top Nazis should be
a political, and not a legal, decision. The trials
happened as they did only because the United States
insisted on them for purposes of establishing future
law—a task that summary justice at executive say-so
could never have done.

At the London conference that wrote the Nuremberg
Charter, France and Russia both objected to
criminalizing aggressive war for anybody but the Axis
countries. But Supreme Court Justice Robert Jackson,
the American representative, insisted that creating
universally binding international law was the prime
purpose of the tribunal.

A compromise left the international status of
Nuremberg law ambiguous—the tribunal's jurisdiction
covered only the Axis countries, but nowhere does the
charter suggest that the crimes it was trying were
only crimes if committed by the Axis powers. Because
of this ambiguity, the status of the Nuremberg
principles as international law was not established
until 1950, when the U.N. General Assembly proclaimed
seven Nuremberg Principles to be international law.
The American agenda had finally prevailed.

Well, forget all that as well. The Nuremberg
Principles, like the entire body of international
humanitarian law, will now have no purchase in the
war-crimes law of the United States. Who cares whether
they were our idea in the first place? Principle VI of
the Nuremberg seven defines war crimes as "violations
of the laws or customs of war, which include, but are
not limited to ... ill-treatment of prisoners of war."
Forget "customs of war"—that sounds like customary
international law, which has no place in our courts
anymore. Forget "ill-treatment"—it's too vague. Take
this one: Principle II, "The fact that internal law
does not impose a penalty for an act which constitutes
a crime under international law does not relieve the
person who committed the act from responsibility under
international law." Section 8(a)(2) sneers at
responsibility under international law. Or Principle
IV: "The fact that a person acted pursuant to order of
his Government or of a superior does not relieve him
from responsibility under international law, provided
a moral choice was in fact possible to him." Moral,
shmoral. The question is, do you want the program or
don't you?

The Nuremberg trials presupposed something about the
human conscience: that moral choice doesn't take its
cues solely from narrow legalisms and technicalities.
The new detainee bill takes precisely the opposite
stance: Technicality now triumphs over conscience, and
even over common sense. The bill introduces the
possibility for a new cottage industry: the
jurisprudence of pain. It systematically distinguishes
"severe pain"—the hallmark of torture—from (mere)
"serious" pain—the hallmark of cruel and degrading
treatment, usually thought to denote mistreatment
short of torture. But then it defines serious physical
pain as "bodily injury that involves ... extreme
physical pain." To untutored ears, "extreme" sounds
very similar to "severe"; indeed, it sounds even worse
than "severe." But in any case, it certainly sounds
worse than "serious." Administration lawyers can have
a field day rating painful interrogation tactics on
the Three Adjective Scale, leaving the rest of us to
shake our heads at the essential lunacy of the
enterprise.

And then there is section 8(3), which says that "the
President has the authority for the United States to
interpret the meaning and application of the Geneva
Conventions." Section (B) makes it clear that his
interpretation "shall be authoritative (as to
non-grave breach provisions)."

On Aug. 1, 2006, The Onion ran a story headlined "Bush
Grants Self Permission To Grant More Power to Self."
It began: "In a decisive 1-0 decision Monday,
President Bush voted to grant the president the
constitutional power to grant himself additional
powers." It ended thusly: "Republicans fearful that
the president's new power undermines their ability to
grant him power have proposed a new law that would
allow senators to permit him to grant himself power."
How life imitates art! In the end, the three
courageous Republican holdouts didn't want the
president unilaterally trashing Geneva. Now it turns
out that the principle they were fighting for was
simply Congress' prerogative to grant him the
unreviewable power to do so. 

This article is based on an earlier posting at
Balkinization.

David Luban is professor of law and philosophy at
Georgetown University Law Center.

Article URL: http://www.slate.com/id/2150396/ 
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LLC