Whack Job John Cornyn wouldn’t know international law …

If it swam across the Rio Grande and bit him in the tuchis. So, his claim that President Barack Obama’s nominee to head the Department of Justice’s Office of Legal Counsel, Dawn Johnson, lacks “requisite seriousness,” is simply laughable.

No, what lacks “requisite seriousness,” John, is YOU. You oppose Johnson because of her acerbic tone in writing about the illegalities espoused by the John Yoo-David Addington torture memos when you never did a thing about them yourself.

Note to Alberto Gonzales – don’t plan a Spanish vacation

You may be indicted for trial there -- trial on war crimes related to Gitmo.

You, Doug Feith, John Yoo, David Addington, John Bybee, David Haynes.

Judge Baltasar Garzon, the same judge who nailed Pinochet, has agreed to open a case.

Trickle-down torture from BushCo exposed

In Vanity Fair, British law professor Phillipe Sands convincingly exposed Bush Administration claims that U.S. torture was done by just a few bad apples as the lies they are.

This explanation is false. The origins lie in actions taken at the very highest levels of the administration—by some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointees—lawyers—who, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. …

The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse. …

The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it—they wanted distance and deniability. They also wanted legal cover for themselves.

That would include “distance and deniability” for this:



But, then, they shot “distance and deniability” in the foot:

On September 25 (2002), as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantánamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel.

You don’t get that much more “in the mix” than that. Or this:

Addington talked a great deal, and it was obvious to her that he was a “very powerful man” and “definitely the guy in charge,” with a booming voice and confident style, Guantanamo judge advocate Diane Beaver said. … Beaver spent time with the group. Talking about the episode even long afterward made her visibly anxious. Her hand tapped and she moved restlessly in her chair. She recalled the message they had received from the visitors: Do “whatever needed to be done.” …

Beaver was insistent that the decision to implement new interrogation techniques had to be properly written up and that it needed a paper trail leading to authorization from the top, not from “the dirt on the ground,” as she self-deprecatingly described herself. “I just wasn’t comfortable giving oral advice,” she explained, as she had been requested to do. “I wanted to get something in writing.

There is another reason “distance and deniability” went out the door: the pornographic eroticism of violence, something also on display among troops in Iraq.

The younger men would get particularly agitated, excited even. “You could almost see their dicks getting hard as they got new ideas,” Beaver recalled, a wan smile flickering on her face. “And I said to myself, You know what? I don’t have a dick to get hard—I can stay detached.”

From BushCo lawyers getting their erotic jollies over torture, the ethical bottom is not far away, and the lies over “trickle-up” torture aren’t much more clearly refuted.

From there, Gen. Michael Dunleavy, Guantanamo commander at the time, sent his request for “enhanced interrogation techniques” up the chain to Gen. Tom Hill, head of Southern Command. From there, it went to Joint Chiefs of Staff Chairman Gen. Richard Myers. It’s this process that the administration has used to try to claim torture was “trickle-up.”

After that, Dunleavy was soon replaced at Gitmo by Gen. Geoffrey Miller, and things went from bad to worse. Even tougher interrogation plans were requested for Mohammed al-Qahtani and sent direct to Rumsfeld for approval. Miller then got a vocal, verbal command, apparently from Rumsfeld himself, to go ahead.

We all know that Miller then went on to Abu Ghraib, and by his actions undercut John Yoo’s claims that Gitmo issues were confined to Gitmo. The abuses there began two months after Miller got there. The worry of “expansion” was expressed at that time:

Mike Gelles, of the Naval Criminal Intelligence Service, had shared with me his fear that the al-Qahtani techniques would not simply fade into history — that they would turn out to have been horribly contagious. This “migration” theory was controversial, because it potentially extended the responsibility of those who authorized the Guantánamo techniques to abusive practices elsewhere. John Yoo has described the migration theory as “an exercise in hyperbole and partisan smear.”

Then, of course, came the Military Commissions Act, which gave immunity to Yoo et al. Of course, as the story notes, that’s purely a U.S. matter. Perhaps somebody in Belgium, with its broad-ranging war-crimes law, will (waiting until after Jan. 20, 2009), seek Rumsfeld’s or Yoo’s extradition.

Of course, neither Obama nor Clinton, let alone McCain, would ever grant that. The war crimes the administration committed, along with Bush’s illegal appointment to office, will never be challenged by Democrats, as Ted Rall has repeatedly noted.

But… there is precedent for Addington, Yoo and Gonzales. One of the war crimes trials after World War II put German military lawyers in the dock. The trial of SS lawyer Josef Altstötter, first alphabetically among 16 defendants, was the basis for “Judgment at Nuremburg.”

Beyond that, Article 4 of Geneva’s anti-torture convention criminalizes torture or complicity in it. And, let’s not forget the case of Alberto Pinochet. A European judge in the Vanity Fair story argues that the immunity provisions of the Military Commissions Act might bolster the case for some other country seeking Rumsfeld or Yoo, on the grounds the U.S. legal system will never dealt with them.

“It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.”

Some detailed snippets from the story include these:

• Doug Feith undercutting and bypassing Myers, and describing with pride his own part in denying Geneva Conventions protections, even those of Common Article 3, to Guantanamo detainees

Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law—the speech he made to Myers and Rumsfeld—and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers continued to believe Geneva’s protections remained in force—he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me.

• How Donald Rumsfeld personally chose Gen. Michael Dunleavy to command at Guantanamo, rather that Dunleavy asking on his own for latitude on interrogations;
• Rumsfeld’s personal sign-off on some of the techniques;
• How Survival, Evasion, Resistance, and Escape (SERE) was the basis of many of the Gitmo interrogations, despite BushCo denials.

News briefs – Cheney costs country 3 mil and Clinton lies again

Hillary’s turn to lie

I guess Bill is taking a break. Hillary Clinton says Barack Obama doesn’t want the primary process to play out, just a couple of days after Obama clearly said the opposite.

Uncle Fester cost us $2.6 million

Along with Scooter Libby, David Addington, and assorted others from the Office of the Vice President’s rogues’ gallery, with the Preznit’s acquiescence. That is the cost of investigating the Valerie Plame leak. Too bad Scooter didn’t get a $2.6 million bill as part of his sentence.

Too bad the Preznit thought his original two and a half year sentence and $250K fine was excessive.

Update: This originally said “billion” instead of “million” in all occurrences. My error.

Of course, we know Uncle Fester has actually cost us about $3 trillion on the Iraq War, per Joseph Stigletz.

Addington behind Bush gambit on Vienna Convention

As Time notes, both anti-U.N. type right-wingers and internationalists alike were baffled earlier this week over the Bush Administration arguing against the state of Texas that a Mexican national convicted of murder should get a new trial because, contrary to the 1967 Vienna Convention, he never had a chance to be aided by Mexican consular officials.

But, Vice President Dick Cheney’s legal counsel, David Addington, appears to have been behind this political chess playing:

Back in 1969, the U.S. had joined the Vienna Convention on Consular Relations, part of which requires countries to give arrested foreigners access to consular officials. … The Administration renounced that part of the treaty after the ICJ ruled Medellin should get a retrial. (The U.S. still abides by the parts of the Treaty governing immunity for embassy officials and sovereignty of embassy buildings.) Yet Bush told Texas to retry Medellin anyway — since the ICJ ruling came before the U.S. backed away from the treaty. In essence it was a double power grab: Bush wanted the right to unilaterally leave a treaty — and still order state courts to comply with obligations while the treaty was in effect.

The Supreme Court said treaty implementation details were up to Congress. That, on the other hand ignores the clear language of the Constitution that a treaty, when approved by the Senate and signed by the president, becomes part of the “supreme law of the land.”

Most treaties, the Court ruled, don't automatically apply domestically unless the full Congress passes a separate law specifying how and when the treaty should be implemented. … Law professor Marty Lederman of Georgetown University, writing on the widely read Scotusblog after the decision was handed down, called the majority opinion by Chief Justice John Roberts "an implausible interpretation" that was "potentially very troubling for construction of treaty obligations going forward." He worried that by letting states ignore treaties unless Congress ordered them to abide by them, the Supreme Court had opened the door for chaos in compliance with all international law.

Of course, that then gets into knotty issues of treaties versus “executive agreements,” which need the approval of both houses of Congress, but only by simple majorities — and are nowhere mentioned in the Constitution. (That, in essence, is how John Tyler did an end run around the Constitution when leaving office in 1845 and got an independent Republic of Texas admitted to the Union without a formal treaty.)

As Time notes, most countries approve formal treaties in that fashion, just like other legislation. Time tries to put a silver lining on the issue, arguing we may move in such a direction, perhaps through enabling legislation being attached to treaties. But, whether that itself would require constitutional amending or not is unclear.

Regular readers here should not be surprised to know my thought that, if this is something that would require a constitutional amendment, by changing the powers of the Senate, it would be the perfect time to do that as part of broader changes giving us a more parliamentary government.