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- Subscribe - Contact Us - Rate Card - Place an Ad Archives Revels Classifieds Real Estate Menu Guide Wedding Weather Subscribe Contact Us March 13, 2006 Case In Point Administration forges flexibility in law By Chris Honoré Tidings Correspondent Part one of a two-part series As a nation, we live by the rule of law, guided by our Constitution and its amendments. It is one of our most fundamental tenets, one that we strive to make inviolable. It is because of that tenet that the Bush administration faced a dilemma shortly after 9/11. Clearly, the images and stories since told of that day will never pass from our collective memory: airliners, held in relief against a clear morning sky, flying directly into the twin towers; the towers burning, then falling; hundreds, nay thousands, of people were in corridors, in stairwells, rushing downward to escape. Firefighters, laden with hoses and equipment, axes in hand, were on their way up. Ever upward. We watched in stunned disbelief as the towers fell in plumes of billowing, swirling dust and smoke. Later, we saw the savage, smoldering gash in a farm field in rural Pennsylvania, and the ruined, blackened Pentagon. We had been attacked. The questions were by whom and why? But what we knew was that we would find those that did this most terrible thing, and when found bring to bear the full might and fury of the United States. This could not stand. So the battle against terrorism was joined. We quickly set about invading Afghanistan, refuge of Osama bin Laden, while developing new national security policies, the Patriot Act and the office of Homeland Security being two examples. But for all of our wish to be proactive, for all of our jaw-clenching determination to find the terrorists and glean information about future attacks, using more aggressive techniques and strategies, we were then, and are still today, bound by laws, treaties and conventions. The problem for the White House arose when it concluded that the laws as written were part of the problem and not part of the solution. The choice then was to either change the laws with the advice and consent of Congress, or formulate elaborate rationales and strategies to circumvent existing statutes. Two issues that have been much in the news of late — torture of detainees and wiretapping of American citizens — are examples of such circumvention by the executive branch. In an (Feb. 27) article in “The New Yorker,” Jane Mayer examines in detail a memo written by Alberto Mora, the recently retired general counsel of the United States Navy, in which Mora argues that Pentagon policy regarding the treatment of detainees should be in accordance with the Geneva convention. It was an argument that Mora did not win. Mayer writes that at the holding center at Guantanamo, which was set up shortly after 9/11, the administration decided that extraordinary interrogation methods should be employed in order to get the kind of information vital to our national security. Time was of the essence and the “ticking bomb” scenario was referenced, wherein a radiological weapon could be on its way to an American city justifying any means necessary to find it. Clearly, the government felt a great urgency to insure that 9/11 did not occur again. However, as Mora repeatedly pointed out to his superiors, there were obstacles which stood in the way of carrying out what was referred to as “enhanced” interrogations. For example: 1. Common Article Three of the Geneva Convention bars cruel, inhumane, and degrading treatment of prisoners. This article is written into both U.S. and international law. Any breach of this convention could be classified as a war crime and expose those involved in such a breach to criminal prosecution. 2. U.S. Code 18.2441, the War Crimes Act, adopted by the Congress as statute, forbids the violation of Common Article Three. 3. Article One, Section Eight of the Constitution lays out the powers of Congress, including the right to declare war, raise militias, make laws, and oversee the defense of our nation. 4. The Uniform Code of Military Justice characterizes “cruelty,” “maltreatment,” “threats,” and “assault” as “felonies.” The challenge for the Pentagon and the White House was how to craft a legal rationale that would allow “maximum flexibility” in the questioning of prisoners while insulating those who carried out the interrogations from future prosecution. In other words, it would be a grant of immunity before the fact. Case in Point is a weekly editorial column designed to provide in-depth commentary on current events. 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