Manipulating the Law

I'm still fixated on this torture thing. I have been reading multiple de-classified documents posted by the NSA, and the tactics that are being used (from a legal perspective) by the current administration are reprehensible. There are many documents that support this thesis. The first new document I came across is a Department of Justice memo, written by John Ashcroft, arguing against the application of the Geneva Convention for Taliban and Al Qaeda detainees. Ashcroft gives 2 legal "options" for defending this: Option 1 - "During the relevant times of the combat, Afghanistan was a failed state. As such it was not a party to the treaty, and the treaty's protections do not apply." Option 2 - "During relevant times, Afghanistan was a party to the treaty, but Taliban combatants are not entitled to Geneva Convention III prisoner of war status because they acted as unlawful combatants." Lest we get bogged down in the analysis of these statements (which I will eventually do), we must understand that the legal precedent and legal maneuverings mentioned have no relationship to the moral implications of the action itself. Even if the President and Attorney General can succeed in procuring a court ruling that exonerates the activity, it does not change the fact that the action itself is both immoral and should be denounced by the world at large. Given that we (and our President specifically) fancy ourselves at the top of the moral ladder, we should be obligated by our own conscious to afford prisoners the greatest possible latitude; this would suggest not torturing them. The logic being applied, by contrast, is that of RealPolitik, which I spoke of in regards to Kissinger in Economics or Human Rights. The elimination of the idea that ALL are equal under the law (even people we don't like), instead replacing it with a desire to find a legal basis for doing things in an "alternative" manner to yield a specific result, creates the very basis for RealPolitik. It also destroys all the faith-based garbage that the President has been spewing for 6+ years. I don't seem to remember the Christian basis for torture; maybe I just haven't read enough scripture. That being said, I would also like to examine the specific legal argument being made in the memo. Bear in mind that I am not a lawyer, and will therefore be analyzing the arguments through both the text of the cases and through the moral lens that I am required by conscious to view all decisions. The case that Ashcroft uses to defend his Option 1 is Clark v. Allen. The interpretation that Ashcroft gives of this case is that the President is allowed to determine if a treaty does or does not apply; This determination is "fully discretionary and will not be reviewed by the federal courts." Ashcroft goes on to say: "Thus, a Presidential determination against treaty applicability would provide the highest assurance that no court would subsequently entertain charges that American military officers, intelligence officials, or law enforcement officials violated Geneva Convention rules relating to field conduct, detention conduct or interrogation of detainees. The War Crimes Act of 1996 makes violation of parts of the Geneva Convention a crime in the United States." This smacks of 19th century Indian Law. Read some interesting analysis on Indian treaties in the essay Red Cloud's Mark. The application of Option 1 here implies that Afghanistan is a "failed state". In the term link, the definition of failed state has several interesting nuances. The intro has the following phrasology: "Failed states can no longer perform basic functions such as education, security, or governance, usually due to fractious violence or extreme poverty...However, states fail not only because of internal factors. Foreign governments can also knowingly destabilize a state by fueling ethnic warfare or supporting rebel forces, causing it to collapse." Ergo, foreign governments can destabilize a state, therefore creating a "failed state". So, if the President does not like a particular group, it seems he can support rebel forces in internal warfare, then declare the region a "failed state", then revoke Geneva Convention protections from the previous state leaders. Is there any way this can be stopped? I don't see the check against it. In Option 2, Ashcroft argues that even if the Geneva Convention applies, the Taliban can be interpreted to be "unlawful combatants not subject to the treaty's protection." Ashcroft also cautions that Option 2 does not afford the same legal protection to American officials as Option 1. In this, he references Perkins v. Elg. In this case, the court "chose to review for itself the facts underlying a Presidential interpretation that detainees were unlawful combatants...". The operative term here is "unlawful combatant". What does that mean? Here is the new, broadened definition, as enunciated in the legislation recently passed by the House: The term 'unlawful enemy combatant' means – (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the president or the secretary of defense. So, if you are fighting against the United States, you are an unlawful combatant, and not subject to the protections of the Geneva Convention? That includes, basically, anyone who might need the protection. Did Congress just eliminate the protections of the Geneva Convention for anyone that might fight us? Also, note that it doesn't say "alien" or "terrorist," although it specifically includes members of the Taliban and Al Qaeda. It says "person" – any person, including American citizens. Bruce Ackerman, professor of law at Yale and author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, says: "Buried in the complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights." Congress has now granted the president the powers of a dictator. Ashcroft summarizes with his recommendation: "Option 1 is a legal option. It does not forclose policy and operational considerations regarding actual treatment of Taliban detainees. Option 2, as described above, is also a legal option, but its legal implications carry a higher risk of liability, criminal prosecution, and judicially-imposed conditions of detainment - including mandated release of a detainee." Heaven forbid we allow the possibility that the courts - bleeding hearts that they are - require that a detainee be released if it is found that he is being held without cause. Ashcroft also leaves himself a loophole in the final line: "Clearly, considerations beyond the legal ones mentioned in this letter will shape and perhaps control ultimate decision making in the best interests of the United States of America." And there you have it, Mr. Bush. Imprison without cause, torture, do what ever you want. It's all legal.