It should be recalled that in his book The Terror Presidency, the former head of the Office of Legal Counsel Jack Goldsmith, now a Harvard law professor, writes that the torture memos had "no foundation" in any "source of law" and rested on "one-sided legal arguments." They were valuable to the Administration nonetheless, Goldsmith says, because the CIA saw one of them as a "golden shield" against criminal prosecution of agents who had used harsh interrogation techniques. Additionally, as explained in The Nation, "the (golden shield) memos are an abysmal piece of work, but they had great value to the President. Dismissing the Geneva Conventions and other law, they used the veneer of serious legal scholarship (abundant footnotes, many citations, long dense paragraphs) to create an aura of legitimacy for near-death interrogation tactics and unrestrained executive power. The memos had high credibility because they came from the OLC, the legal brain trust for the executive branch and (until then) the gold standard for legal acumen."
However, St. Thomas Law School Dean Thomas Mengler argues that Robert Delahunty was a co-author of only one of several memos that were publicized in the spring of 2004. The memo he co-authored dealt with the applicability of the Geneva Conventions to al Queda and the Taliban... Delahunty was not involved in any way with the memo that has caused the most controversy-the memo on the legality of torturing enemy combatants.
So it's important to understand the history of how St. Thomas Law Professor Robert Delahunty's actions in co-authoring the first legal memos with John Yoo laid the groundwork that enabled the torture and prisoner abuses later reported from Iraq's Abu Ghraib prison, Guantanamo, and other clandestine prisoner detention centers. It appears that Delahunty co-authored with John Yoo at least three of the critical memos that laid the cornerstone for the successive "golden shield" memos:
October 23, 2001: Bush Can Suspend First Amendment Freedoms The Justice Department's John Yoo and Robert Delahunty issue a memo to White House counsel Alberto Gonzales claiming President Bush has sweeping powers in wartime that essentially void large portions of the Constitution. The memo says that Bush can order military operations inside the US and can suspend First Amendment freedoms.
November 20, 2001: Justice Department Issues Secret Memo Regarding Geneva Conventions, War Crimes Act This classified memo by Delahunty and Yoo is still secret but is known to cover the War Crimes Act, the Hague Convention, the Geneva Conventions, the federal criminal code, and detainee treatment.
January 9, 2002: Delahunty-Yoo Memo Says US Not Bound by International Laws in War on Terror Yoo's memo, written in conjunction with fellow Justice Department lawyer Robert Delahunty, states that, in their view, the laws of war, including the Geneva Conventions, do not apply to captured Taliban or al-Qaeda prisoners, nor do they apply to the military commissions set up to try such prisoners. The memo goes even farther, arguing that no international laws apply to the US whatsoever, because they do not have any status under US federal law. "As a result," Yoo and Delahunty write, "any customary international law of armed conflict in no way binds, as a legal matter, the president or the US armed forces concerning the detention or trial of members of al-Qaeda and the Taliban." In essence, Yoo and Delahunty argue that President Bush and the US military have carte blanche to conduct the global war on terrorism in any manner they see fit, without the restrictions of law or treaty.
Of course understanding of the above academic and historic considerations are of little consequence unless citizens in this country care enough to demand accountability and truth. Dean Mengler seems to take comfort in the fact that it's John Yoo and not (his co-enabler) Robert Delahunty who has thus far attracted the most controversy. If anything, that makes it more incumbent on those who care and are concerned about human rights to come participate in Monday's rally.
Associate Supreme Court Justice Robert H. Jackson's opening remarks citing the need for intellectual integrity at the Nuremberg Trial of Hermann Goering (1946) come to mind:
We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice. |
