Rehnquist, Cambodia & Abu Ghraib (Shapiro in The Nation)

[struggle4progress]

Posted June 25, 2004
by Bruce Shapiro
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The Bybee memo attempts to erect a legal scaffolding for physical and psychological coercion of prisoners in the War on Terror. Coming from the Office of Legal Counsel, it holds the authority of a policy directive. The memo proposes so finessed and technical a reading of antibrutality laws that all manner of "cruel, inhuman or degrading" interrogation techniques--including beatings and sexual violations like those in Abu Ghraib--simply get reclassified as Not Torture. The memo's language so offends common sensibility that within a few days of its release, White House officials were disavowing its conclusions and selectively declassifying documents allegedly showing the President's commitment to humane treatment of prisoners.

(How exculpatory is the Bush Administration's self-serving document dump? Not a single page is concerned with prisoners in Iraq. Not one sentence refers to the CIA, which according to Seymour Hersh first employed coercive interrogation in Afghanistan with the acquiescence of Defense Secretary Donald Rumsfeld. Indeed, the most substantial and authoritative Pentagon document declassified by the White House, the April 4, 2003, "Working Group Report on Detainee Interrogations in the Global War on Terrorism," explicitly limits its scope to "DOD personnel in DOD interrogation facilities." Contract interrogators and CIA operatives are nowhere covered; neither are prisoners held under the authority of foreign governments, paramilitary allies or US intelligence agencies.)

Yet even while putting up a smokescreen of concern for humanitarian treatment of prisoners, the Administration made no attempt to distance itself from Bybee's most crucial theme: unreviewable presidential war powers. Anti-torture laws, the memo argues, simply do not apply to "detentions and interrogations of enemy combatants pursuant to Commander-in-Chief authority." All the documents released by the White House reflect this same obsession with presidential war powers-and in many cases, incorporate Bybee's precise language.

It is in defense of his view of the Commander in Chief's legal impunity that Bybee invokes the Cambodia precedent, citing Rehnquist's 1970 white paper as his principal authority. Rehnquist spelled out his arguments both in that memo and in an article later that year for the New York University Law Review.
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http://www.thenation.com/doc.mhtml?i=20040712&s=shapiro