Conservatives Gaining a Conscience on Torture

July 26, 2007 at 6:28 am | Posted in American politics, Bush Administration, conservatives, corruption, Foreign Policy, George W Bush, Gitmo, King George, Military, Republicans, secret combinations, Torture, violence, War, War on Terror | 10 Comments

This is a breath of fresh air, albeit quite late in the game, but two conservatives from the Reagan administration, one the commandant of the Marine Corps, the other a lawyer in the Reagan White House, have now officially and publicly come out against Bush’s latest executive order, which really didn’t change anything about how the CIA (mis)treats detainees.

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.

Awww, they still feel Bush has the imperial power, just as long as he doesn’t torture.

In April of 1793, Secretary of State Thomas Jefferson wrote to President George Washington that nations were to interpret treaty obligations for themselves but that “the tribunal of our consciences remains, and that also of the opinion of the world.” He added that “as we respect these, we must see that in judging ourselves we have honestly done the part of impartial and rigorous judges.”

To date in the war on terrorism, including the victims of the Sept. 11 attacks and all U.S. military personnel killed in action in Afghanistan and Iraq, America’s losses total about 2 percent of the forces we lost in World War II and less than 7 percent of those killed in Vietnam. Yet we did not find it necessary to compromise our honor or abandon our commitment to the rule of law to defeat Nazi Germany or imperial Japan, or to resist communist aggression in Indochina. On the contrary, in Vietnam — where we both proudly served twice — America voluntarily extended the protections of the full Geneva Convention on prisoners of war to Viet Cong guerrillas who, like al-Qaeda, did not even arguably qualify for such protections.

The Geneva Conventions provide important protections to our own military forces when we send them into harm’s way. Our troops deserve those protections, and we betray their interests when we gratuitously “interpret” key provisions of the conventions in a manner likely to undermine their effectiveness. Policymakers should also keep in mind that violations of Common Article 3 are “war crimes” for which everyone involved — potentially up to and including the president of the United States — may be tried in any of the other 193 countries that are parties to the conventions.

In a letter to President James Madison in March 1809, Jefferson observed: “It has a great effect on the opinion of our people and the world to have the moral right on our side.” Our leaders must never lose sight of that wisdom.

It’s nice to see them hearkening back to our Founding Fathers, but…well, I wonder, where were you two in 2004? Abusive interrogations were known BEFORE the 2004 general election. I wonder why you two have waited until now to speak out. You quote Thomas Jefferson who said: “It has a great effect on the opinion of our people and the world to have the moral right on our side.” Did we not lose that moral right at Abu Ghraib? The evidence was clearly there that that incident was a direct result of President Bush’s orders vis a vis detainees and the Geneva Conventions. Why did you NOT speak out then, dear sirs?

Sure it is easier to speak out now, when the nation is clearly against this president. But true courage is to stand up to evil from the BEGINNING!

As per the conversation with ECS below, I have uploaded the Bismullah Brief here: (Bismullah Brief). It is a Word doc.


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  1. Hey, Dan – do you have a link to the E.O? Unfortunately, the torture victims are out of luck until the courts step up to the plate and grant them some semblance of protection – constitutional or otherwise. It’s disgraceful.

  2. The E.O. was linked to the WaPo article. Thanks for highlighting the article here.

  3. hey ECS, I added the link to Bush’s executive order into the article. Thanks for commenting. You are right, there are still many steps to take before this is righted.

  4. I’m doing some research into this issue, and since you seem to be interested – turns out that even though the US Supreme Court has decided the Alien Tort Claims Act (ATCA) is available to the Gitmo detainees as redress for their torture claims, the D.C. District Court points out that the ATCA offers no relief to the detainees who sue federal officials (including military personnel). Federal officials are immune from tort liability for negligent acts AND intentional torts they commit within the scope of their employment. The opinion esssentially states that the torture of human beings is within the scope of federal employment.

    “As military officials commanding Armed Forces serving our country during a war, there can be no credible dispute that detaining and interrogating enemy aliens would be incidental to their overall military obligations.”

    In re: Iraq and Afghanistan Detainees Litigation, 479 F. Supp. 2d 85, 114 (D.D.C. 2007)

  5. Very interesting ECS. What about the War Crimes Act of 1996? Does that not override this issue?

  6. Great question. There’s still some question as to which sections of the Geneva Conventions apply to Gitmo detainees – particularly those detainees who are suspected Al Qaeda members, because Al Qaeda was not a signatory to the Conventions. The USSC decided in Hamdan v. Rumsfeld that the Geneva Conventions provide minimum procedural protections to be tried by a “regular constituted” court, but lower courts haven’t infused this decision with much power. For example, detainees routinely lack effective assistance of counsel, because counsel has limited (if any)access to the government’s evidence against their clients. (See the D.C. Circuit Court’s decision handed down last Friday in Bismullah v. Gates).

    Additionally, the Military Commissions Act of 2006 supposedly tracks the language of the War Crimes Act, but these are criminal prohibitions against torture. The cases I’ve been reading are civil cases filed by individual detainees seeking compensation for torture they have suffered at the hands of U.S. agents. Individual detainees have to find statutory authorization (or a common law right) to sue – so the ATCA was the most likely vehicle for this.

    I should say that even though individual federal agents and military personnel are immune from torture suits filed by detainees under the ATCA, the detainees may sue the U.S. Government under the Federal Tort Claims Act. Trouble of it is, the FTCA requires plaintiffs to file their claims with the appropriate federal agency and be denied before the plaintiff can file in federal court to seek redress of their claims (this requirement is called administrative exhaustion).

    Thus far, I haven’t been able to find a case where the detainees have followed the exhaustion requirements under the FTCA and have been granted standing to sue the U.S. government for torture.

  7. Sorry if I’m wearing out my welcome here, but I have to share just one more thing from Bismullah’s brief that illustrates the tenuous “evidence” upon which the U.S. government indefinitely detains at least some the Gitmo prisoners:

    “Bismullah’s arrest apparently was based solely on a false accusation made by the former transportation chief and his brother that Bismullah was passing information on U.S. troop movements to the Taliban. Shortly after Bismullah’s arrest, the former transportation chief and his brother bragged in the local market that their accusations led to Bismullah’s arrest, and they later looted his office and stole his official car, which they openly drove through the village.

    Bismullah’s arrest prompted an outpouring of protests by Afghan government officials, local councils and village elders attesting to his innocence. United States military and diplomatic officials in Afghanistan were advised repeatedly, both orally and in writing, that Bismullah had been arrested in error and were urged to release him.

    Although the U.S. military promised to reconsider the decision to arrest Bismullah, he was sent to Guantánamo. After more than a year in detention, he was brought before a military Combatant Status Review Tribunal (“ CSRT” ). The CSRT failed to follow its own procedures – including the duty to consider exculpatory information and to arrange witness testimony on the detainee’s behalf – and as a result, wrongly classified Bismullah as an “ enemy combatant.” He now turns to this Court for relief.”

    (I can email the brief to anyone interested in reading it).

  8. Thanks for sharing all of that. It is truly disturbing. One really has to wonder why the overreaction by our military and political leaders. Is it because the enemy today really is that formidable, or is it a power grab?

    Is the brief located on a website? If it is, just link to it. If not, email it to me and I’ll put it up. My email is bluejack74 @

  9. Yeah. Not sure if you saw the NY Times article on Monday about the former government lawyer, Stephen Abraham, criticizing the detainee hearing process. In April, the USSC refused to hear these cases, but reversed its decision on the very last day of this year’s term and decided to accept the detainee cases on next year’s docket. Some insiders say the USSC reversed itself after Abraham complained, and hopefully the USSC won’t duck the hard issues this time around and will make a real decision on the merits.

    P.S. I emailed the brief to you.

  10. I saw that article. It is sad that the USSC will only move on cases when a conservative finally converts. Shows how broken even the Supreme Court is at this point.

    I uploaded the brief here for all to see.

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