Truth in Bybee probe a matter of perspective


"He who fights with monsters should look to it that he himself does not become a monster."

-- Friedrich Nietzsche

It is all in how you look at things. It is your perspective and theirs.

This was revealed in the headlines reporting the Justice Department's final report on those White House memos that gave legal advice to President George W. Bush on just how far interrogators could go in questioning terrorists.

The New York Times headline concentrated on blame: "Report Faults 2 Who Wrote Terror Memos."

The Los Angeles Times headline zeroed in on outcome: "Torture memos draw no sanctions."

The Review-Journal headline had room for both: "Interrogation memos called 'flawed,' not misconduct."

The memos by legal advisers Jay Bybee and John Yoo green-lighted the use of such means as waterboarding and sleep deprivation. Some call it torture. Bybee is a former UNLV law professor who now sits on the 9th U.S. Circuit Court of Appeals.

In addition to calling the memos flawed, the Justice report repeatedly said the two lawyers failed to follow precedent. It opened with that classic conundrum: What was the Founders' intent?

"The Bybee Memo cited no authority to suggest that the drafters of the Constitution (or anyone else) believed or intended that the President's Commander-in-Chief powers would include the power to torture prisoners during times of war to obtain information," the report accused, saying Bybee's memo "was wrong and most certainly did not constitute thorough, objective, and candid legal advice."

Bybee had made a straightforward constitutional checks and balances argument that Congress could not usurp the president's commander-in-chief powers by merely passing an anti-torture statute.

But Justice said the Constitution gives Congress the power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

Does that include interrogation? Bybee wrote, "As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy. The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack. In such a case, the information gained from interrogations may prevent future attacks by foreign enemies." Interfering with that power would be unconstitutional, he argued.

It is an argument posited before. President Lincoln said as much when he freed the slaves in the South but not in the border states still loyal to the Union.

He wrote in 1863: "I think the constitution invests its Commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there -- has there ever been -- any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy?"

But what is constitutional and what is right might not always be the same thing. As various lawyers have advised me over the years about their advice: I told you it was legal; I did not say it was right.

As for our Founders' intent, George Washington did order his troops to not run prisoners through a gantlet even though the British and Hessians had been know to bayonet American prisoners.

"Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British Army in their treatment of our unfortunate brethren who have fallen into their hands," Washington wrote.

It was in that vein that a former Las Vegas lawyer, Vietnam War veteran and now federal judge in New York, Evan Wallach, wrote a paper two years ago critical of those Bybee and Yoo memos.

"Those who sow the wind should not be surprised at what they reap," wrote Wallach, who lectures on the law of war. "The Third Geneva Convention was written in the light of the still glowing embers of Nazi death camps. …

"At war's end the world resolved to do better. The Third 1949 Geneva Convention was the child of that resolution. Its presumptions and protections are not mere words, they are not charming relicts of a bygone era, and they are not obsolete. We disregard their strictures not merely at our peril, both legal and moral, but more importantly at the peril of our soldiers, sailors, air personnel and marines in service and yet unborn. …

"Who sets such precedents bears a heavy responsibility to remember that when we gaze into the abyss, the abyss gazes back into us."

No matter how you look at things, first, you must defeat the monster.

Thomas Mitchell is editor of the Review-Journal and writes on the role of the press. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.

 

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