The most common destinations for rendered suspects are Egypt, Morocco, Syria, and Jordan, all of which have been cited for human-rights violations by the State Department, and are known to torture suspects. To justify sending detainees to these countries, the Administration appears to be relying on a very fine reading of an imprecise clause in the United Nations Convention Against Torture (which the U.S. ratified in 1994), requiring “substantial grounds for believing” that a detainee will be tortured abroad. Martin Lederman, a lawyer who left the Justice Department’s Office of Legal Counsel in 2002, after eight years, says, “The Convention only applies when you know a suspect is more likely than not to be tortured, but what if you kind of know? That’s not enough. So there are ways to get around it.”
Bad as the policy of rendition was before September 11th, Coleman said, “afterward, it really went out of control.” He explained, “Now, instead of just sending people to third countries, we’re holding them ourselves. We’re taking people, and keeping them in our own custody in third countries. That’s an enormous problem.” Egypt, he pointed out, at least had an established legal system, however harsh. “There was a process there,” Coleman said. “But what’s our process? We have no method over there other than our laws—and we’ve decided to ignore them. What are we now, the Huns? If you don’t talk to us, we’ll kill you?”
Due process made detainees more compliant, not less, Coleman said. He had also found that a defendant’s right to legal counsel was beneficial not only to suspects but also to law-enforcement officers. Defense lawyers frequently persuaded detainees to coöperate with prosecutors, in exchange for plea agreements. “The lawyers show these guys there’s a way out,” Coleman said. “It’s human nature. People don’t coöperate with you unless they have some reason to.” He added, “Brutalization doesn’t work. We know that. Besides, you lose your soul.”
The lawyers classified these detainees not as civilians or prisoners of war—two categories of individuals protected by the Conventions—but as “illegal enemy combatants.” The rubric included not only Al Qaeda members and supporters but the entire Taliban, because, Yoo and other lawyers argued, the country was a “failed state.” Eric Lewis, an expert in international law who represents several Guantánamo detainees, said, “The Administration’s lawyers created a third category and cast them outside the law.”
The legal pronouncements from Washington about the status of detainees were painstakingly constructed to include numerous loopholes. For example, in February, 2002, President Bush issued a written directive stating that, even though he had determined that the Geneva Conventions did not apply to the war on terror, all detainees should be treated “humanely.” A close reading of the directive, however, revealed that it referred only to military interrogators—not to C.I.A. officials.
Yoo was soft-spoken and resolute. “Why is it so hard for people to understand that there is a category of behavior not covered by the legal system?” he said. “What were pirates? They weren’t fighting on behalf of any nation. What were slave traders? Historically, there were people so bad that they were not given protection of the laws. There were no specific provisions for their trial, or imprisonment. If you were an illegal combatant, you didn’t deserve the protection of the laws of war.”
As Yoo saw it, Congress doesn’t have the power to “tie the President’s hands in regard to torture as an interrogation technique.” He continued, “It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.” If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment.
Link Posted by Tim at February 8, 2005 07:06 PM | TrackBack