Gee, this title sort of has the ring of a Winnie the Pooh story, but that is definitely NOT what we are in for with Bush's new appointment to the post of Attorney General.
Just a reminder to all that a February 7, 2002 Justice Department memo, addressed to (and presumably requested by) White House Counsel Alberto Gonzalez, says torturing a suspect in captivity "may be justified" if the US government employee involved "would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network."
http://news.findlaw.com/hdocs/docs/torture/bybee20702mem.html
In a January 25, 2002 memo, Gonzales wrote:
"In my judgment, this new paradigm [the war on terror] renders obsolete Geneva's [i.e., the Geneva Convention's] strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."
http://www.adamhodges.com/WORLD/docs/gonzales_memo.pdf
There's a good analysis of this memo on-line that says:
On January 25, 2002, White House Counsel Alberto Gonzales sent a Memorandum to President Bush regarding a presidential decision on January 18, 2002, (the White House has issued an Order to that effect, dated February 7, 2002, see below) that captured members of the Taliban were not protected under the Geneva POW Convention ("GPW"), to which the legal advisor to the Secretary of State had objected. He advised that "there are reasonable grounds for you to conclude that GPW [the ] does not apply ...to the conflict with the Taliban." Mr. Gonzales argued that grounds for the determination might include:
- a determination that Afghanistan was a failed state "...because the Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfilling its international obligations" (see definition of statehood in Cpt. 1.3 and discussion in Kadic v. Karadzic, 70 F.3d 232, 244 to 245 (2http://lawofwar.org/Torture_Memos_analysis.htmnd Cir, 1995) ) and/or
- a "determination that the Taliban and its forces were, in fact, not a government but a militant, terrorist-like group."
Mr. Gonzales then identified what he believed were the ramifications of Mr. Bush's determination. On a positive note he felt they preserved flexibility stating that: "The nature of [a "war" against terrorism] places a high premium on ...factors such as the ability to quickly obtain information from captured terrorists and their sponsors ... and the need to try terrorists for war crimes... [t]his new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners..." He also believed the determination "...eliminates any argument regarding the need for case-by-case determinations of POW status." The determination, Mr. Gonzales said, also reduced the threat of domestic prosecution under the War Crimes Act (18 U.S.C. 2441). His expressed concern was that certain GPW language such as "outrages upon personal dignity" and "inhuman treatment" are "undefined' and that it is difficult to predict with confidence what action might constitute violations, and that it would be "...difficult to predict the needs and circumstances that could arise in the course of the war on terrorism." He believed that a determination of inapplicability of the GPW would insulate against prosecution by future "prosecutors and independent counsels."
Mr. Gonzales then identified the counter arguments from the Secretary of State (See, Colin Powell Memo of January 26, 2002 pages 1,2,3,4,5) which included:
Past adherence by the United States to the GPW;
Possible limitations on invocation by the U.S. of the GPW in Afghanistan;
Likely widespread condemnation by allied nations;
Encouragement of potential enemies to find "loopholes" to not apply the GPW;
Discouraging turn-over of terrorists by other nations;
Undermining of U.S. military culture "which emphasizes maintaining the highest standards of conduct in combat..."
In response, Mr. Gonzales says, inter alia, "...even if the GPW is not applicable, we can still bring war crimes charges against anyone who mistreats U.S. personnel." He adds that, "...the argument based on military culture fails to recognize that our military remains bound to apply the principles of GPW because that is what you have directed them to do." (Emphasis added). In light of subsequent events, that last sentence is of particular interest.
http://lawofwar.org/Torture_Memos_analysis.htm