War Crimes and the White House

26 July Washington Post commentary - War Crimes and the White House by P.X. Kelley and Robert F. Turner.

Quote:

---

One of us was appointed commandant of the Marine Corps by President Ronald Reagan; the other served as a lawyer in the Reagan White House and has vigorously defended the constitutionality of warrantless National Security Agency wiretaps, presidential signing statements and many other controversial aspects of the war on terrorism. But we cannot in good conscience defend a decision that we believe has compromised our national honor and that may well promote the commission of war crimes by Americans and place at risk the welfare of captured American military forces for generations to come.

The Supreme Court held in Hamdan v. Rumsfeld last summer that all detainees captured in the war on terrorism are protected by Common Article 3 of the 1949 Geneva Conventions, which prescribes minimum standards of treatment for all persons who are no longer taking an active part in an armed conflict not of an international character. It provides that "in all circumstances" detainees are to be "treated humanely."

This is not just about avoiding "torture." The article expressly prohibits "at any time and in any place whatsoever" any acts of "violence to life and person" or "outrages upon personal dignity, in particular, humiliating and degrading treatment."

Last Friday, the White House issued an executive order attempting to "interpret" Common Article 3 with respect to a controversial CIA interrogation program...

---

Although this article merely restates what has been said by others, the fact that it comes from General Kelley is an eye opener. The Administration is trying to draw a difference between the letter and the spirit of the law. Sure, an argument can be made that we can legally torture as long as the torture is not for the purpose of humiliating or degrading a particular person ("our purpose was to extract information, not humiliate..."). But this would not comply with the law's spirit.

In effect, the administration is trying to "lawyer" the public. The ability to craft arguments that comport with law but offend its spirit, or even common sense, is generally something the public does not like about lawyers. Why the administration would seek to do this while attempting to build support for its action, is beyond comprehension. In this war, we must not only win the hearts and minds of the population in a specific target country, we must also do so at home and in allied countries. Trying to "lawyer" the public will not accomplish this.

In trial advocacy, we have a sort of unofficial test for presenting arguments to a jury. The question is whether the argument passes the "straight-face" test. In other words, will presenting it cause you or someone else to laugh, roll their eyes, etc.? If it does, you will lose your credibility in presenting it and likely lose your case as a result. This argument doesn't pass that test.

Whether we like it or not, the rule of law is going to play a very large role in this long war. We need to embrace that fact.

Quote:

---

Originally Posted by LawVol

Although this article merely restates what has been said by others, the fact that it comes from General Kelley is an eye opener. The Administration is trying to draw a difference between the letter and the spirit of the law. Sure, an argument can be made that we can legally torture as long as the torture is not for the purpose of humiliating or degrading a particular person ("our purpose was to extract information, not humiliate..."). But this would not comply with the law's spirit.

In effect, the administration is trying to "lawyer" the public. The ability to craft arguments that comport with law but offend its spirit, or even common sense, is generally something the public does not like about lawyers. Why the administration would seek to do this while attempting to build support for its action, is beyond comprehension. In this war, we must not only win the hearts and minds of the population in a specific target country, we must also do so at home and in allied countries. Trying to "lawyer" the public will not accomplish this.

In trial advocacy, we have a sort of unofficial test for presenting arguments to a jury. The question is whether the argument passes the "straight-face" test. In other words, will presenting it cause you or someone else to laugh, roll their eyes, etc.? If it does, you will lose your credibility in presenting it and likely lose your case as a result. This argument doesn't pass that test.

Whether we like it or not, the rule of law is going to play a very large role in this long war. We need to embrace that fact.

---

Agreed. The same points apply to the issue of rendition, especially on the global stage.

Tom