It seems the looming confirmation hearings of Alberto "Torture is OK" Gonzales may be causing some behind the scenes turmoil, as evidenced by this article by NY Times international editor Andrew Rosenthal today, coupled with a New and Improved CYA Torture Memo from the US Justice Department. (Here's the memo in PDF.) The torture memo, according to Jess Bravin in the Wall Street Journal (locked behind subscription, but Phil Carter quotes it here), "concludes that even under its wider definition of torture, none of the interrogation methods previously approved by the Justice Department would be illegal." In case you were worried that anyone in the Bush administration broke the law or anything.
Rosenthal mentions the JAG controversy of last spring (I wrote about it here, and if you need to refresh your memory of the role of the delightful Mary Walker, see Billmon's post from last spring, Praise the Lord and Pass the Thumbscrews) which makes me wonder if that controversy is still percolating behind the scenes and if they're the ones refusing to go along with the...um, government self-exoneration. Rosenthal writes,
This month, several former high-ranking military lawyers came out publicly against the nomination of the White House counsel, Alberto Gonzales, to be attorney general. They noted that it was Mr. Gonzales who had supervised the legal assault on the Geneva Conventions.
Jeh Johnson, a New York lawyer who was general counsel for the secretary of the Air Force under President Clinton, calls this shift "a revolution."
"One view of the law and government," Mr. Johnson said, "is that good things can actually come out of the legal system and that there is broad benefit in the rule of law. The other is a more cynical approach that says that lawyers are simply an instrument of policy - get me a legal opinion that permits me to do X. Sometimes a lawyer has to say, 'You just can't do this.' "
Normally, the civilian policy makers would have asked the military lawyers to draft the rules for a military prison in wartime. The lawyers for the service secretaries are supposed to focus on issues like contracts, environmental impact statements and base closings. They're not supposed to meddle in rules of engagement or military justice.
But the civilian policy makers knew that the military lawyers would never sanction tossing the Geneva Conventions aside in the war against terrorists. Military lawyers, Mr. Johnson said, "tend to see things through the prism of how it will affect their people if one gets captured or prosecuted."
Well, no one in the White House or Pentagon need worry about getting captured or prosecuted, so their more freewheeling approach to torturing prisoners is at least understandable from that perspective. No wonder Rosenthal says, "
Now America has to count on the military to step up when the civilians get out of control." So much for civilian control of the military those old Founding Father types thought was important. They clearly never imagined a Bush Administration or a War on Terrah.
