Since the ACLU obtained the 81 page memo by John Yoo, then of the Office of Legal Counsel at the Justice Department, written for the Pentagon, there have been a number of reactions. One of them has been to find reasons to assert that Mr. Yoo is not guilty of particpating in a system of torture.
There are three main parts to this reasoning, all of them highly suspect. The first is that it was only his opinion, and therefore is protected as free speech. Depending on your point of view, that free speech is unimpeachable because it is his first amendment right, or, if you are the University of California at Berkeley, because the tenure system protects professors from actions taken based on the opinions they have expressed, another form of free speech protection.
The second is that he was just an office worker, no matter how highly positioned, in the Justice Department, and therefore was only doing his job, and wrote the memo because his superiors requested it. It is true that it was requested by the Department of Defense, by their General Counsel William J. Haynes, to be specific. In this version, he was asked for a document he produced it, if there is any accountability, it should be of those requesting the memo, or of his boss, or ultimately the President.
The third reason asserts that John Yoo wrote legal opinions. He did not actually torture anyone, nor did he specifically order anyone to torture. In fact, so this explanation goes, no one did. It has already been proven in court that the persons perpetrating abuse at Abu Ghraib did not do the specific acts they were charged with on orders that specified those acts, they improvised. At very least, it should not implicate someone who wrote a memo.
Wannsee and Another Document
In fact, all three assertions could also be made of nearly all participants of a well known meeting to produce an enabling document. The first assertion, of free speech, can be made of almost any document that expresses a point of view. It can always be claimed that authors of documents have free speech rights. The problem is that some documents do not merely express opinions. Whether or not they consist of opinions, their purpose is to lay down a plan, or to create a justification, or to enable future action.
The second assertion, that the document was produced by workers, people who write documents in offices that are produced for superiors, or asked for by superiors. The other famous document was produced for a head of state, by people well described as bureaucrats. They were not at the top of the power pyramid, they produced their document for superiors, who ultimately gave the orders to implement what the document advocated.
The third assertion, that the creators of the document didn't actually carry out the deeds that are abhorrent, and for which the document is the genesis and the enabler. Nor were those who created that document undoubtedly those who gave direct orders to those who carried out atrocities. They were creating a framework, they did not actually bloody their own hands. Those who did have actual blood on their hands may very well have made up many of the actions they took, and undoubtedly did.
It follows then that those authors were no more guilty than Mr. Yoo. But it is decidedly not the case that those who created a document at Wannsee in 1942 were absolved of the results of their document, nor should they have been. The arguments in favor of letting John Yoo off work very well for that document too, and this shows their fallacious nature.
For the document produced at Wannsee was overseen by chief bureaucrat Adolf Eichmann, and it was titled The Final Solution to the Jewish Problem. History is clear on whether or not those who produce documents that enable atrocities are innocent, expressing free speech, only bureaucrats, who didn't actually do anything. History says they are not. History says they are active participants, that those who wield the mighty pens are as guilty as those who wield the swords.
Is Immunity Immune?
Speaking of enabling, or maybe Catch-22: Can a grant of immunity grant immunity to itself? Has the Congress written Epimenides the Cretan into the Military Commissions Act of 2006?
Here is the logic: In 1949, President Truman signed, and the Congress ratified, the Geneva Conventions. Subsequently, the 1977 protocols were signed and ratified, and in 1994, the Convention Against Torture and Cruel, Inhuman, and Degrading Treatment, the latter subject to only two stipulations: One that limited the rights of the torture victim to sue, and one that stipulated that the United States already banned cruel, inhuman, and degrading treatment under the 5th, 8th, and 14th amendments.
The United States does not consider international law like the Geneva Conventions and the CATCIDT to be self implementing, it passes laws to implement the treaties after ratifying them. It therefore passed the War Crimes Act, implementing Geneva, and the Torture Act implementing CATCIDT.
But both the Geneva Conventions, and the CATCIDT, require investigation of, pursuit, apprehension, prosecution and punishment for the crimes they detail. And both have clauses that purposely limit the ability of parties to withdraw from the treaties to avoid the penalties of grave breaches, war crimes, or crimes against humanity. In a very real sense, it is illegal to disregard these laws, it is illegal to fail to prosecute and punish, and it is illegal to withdraw from the treaties without public notice, and in the case of CATCIDT, that notice may not be given when there is a charge pending.
When the Congress passed, and the President signed, the Military Commissions Act of 2006, they made substantial changes to the War Crimes Act, and they completely redefined the definitions of torture, cruel, inhuman, and degrading treatment as it applies to "illegal enemy combatants". As many have pointed out, because they also made habeas corpus, and the right to a speedy trial, unavailable to people who were being held as illegal enemy combatants, they essentially made these changes for everyone. That's a piece of logic on the side: If you have no right to a speedy trial, and no right to demand an appearance in court to dispute your detainment, when do you get the opportunity to argue that you are not an alien?
But it could be argued that changing our compliance with Geneva, and changing our compliance with CATCIDT, coupled with a grant of immunity for war crimes back to November 26, 1997, does exactly what the treaties prohibit: revokes our original ratification of these treaties in the face of pending action. If a country is allowed to reinterpret its ratification of a treaty without the necessary notification, then the notification clauses are meaningless. And if a country that knows it is in violation of the treaties is allowed to immunize those who have violated them, then the clauses requiring prosecution and punishment likewise have no meaning. This cannot be what these international laws intended, nor what the United States meant when it signed and ratified them.
So the act of granting retroactive immunity, by this logic, is enabling to war crimes, or protecting their perpetrators from prosecution, and is therefore a violation of international law. That would put the United States Congress in violation of Article 129 of the Geneva Conventions:
Art 129. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.
Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favorable than those provided by Article 105 and those following of the present Convention.
The War Crimes Act is supposed to implement the Geneva Conventions and 1977 Protocols. If it is amended to grant immunity to the Geneva Conventions and 1977 Protocols, the act of amending it violates the Geneva Conventions and 1977 Protocols. Likewise, amending the Torture Act to protect violators of the Convention Against Torture violates the Convention Against Torture. So it would seem that Congress created an act, in the MCA of 2006, that immunizes itself, a perfect Catch-22.
Congress should familiarize itself with Epimenides the Cretan, who said, "All Cretans are Liars." Or perhaps it should open the floor to discussion of the fact that in a certain town there is a barber who shaves every man who does not shave himself. Because if We The People ever find out what it tried to enable, Congress is going to need all the immunity it can get.