Team Infidel
Forum Spin Doctor
Boston Globe
February 27, 2008 By Sabin Willett
Torture began to steal a march on us soon after Sept. 11, 2001. Born in fringe scholarship (No organ failure, no foul, according to former Justice Department official John Yoo), nurtured by fringe debate ("Waterboarding works! Film at 11!"), it made its way to the academy (Time bombs are ticking, worried Professor Alan Dershowitz), and by slow degrees to Capitol Hill (Too close to call, said Attorney General Michael B. Mukasey).
Last month the United States took the logical last step and gave torture judicial recognition. A federal appeals court in Washington announced that when US armed forces take custody of prisoners, it is reasonable to foresee that they will torture them.
The case is Rasul v. Wright. Former Guantanamo prisoners said they had been tortured, and sued the alleged torturers for damages. Such lawsuits raise technical preliminaries. If the claim is really one against the government itself, different procedures apply. That turns on whether the government agents acted in the "scope of their employment." Which poses a question that, not so long ago, would have been unthinkable to ask: When an enemy prisoner is held by US troops, is it reasonably foreseeable that he will be tortured?
"Yes," argued President Bush's lawyers. "Incidental to their duties," the court agreed. This presumption is what we lawyers call "a matter of law." No facts need be heard - we should assume this about every soldier, airman, sailor, or Marine who wears the uniform.
Now it may seem odd that a lawyer who represents prisoners at Guantanamo finds this insult to our military the last straw, but the so-called "war on terror" makes for strange bedfellows. It has long been clear that the honor of our military means nothing to the president's men. With the court in bland agreement, someone has to speak on their behalf.
It is not easy to dishonor military culture - for one thing, you have to ignore centuries of history. Five months after we declared our independence, General Washington captured Hessian enemy combatants at Trenton. "Treat them humanely - let no dishonor come to us," he said. From that day until Sept. 11, 2001, an abhorrence of torture has been the military's hallmark. It was a strict requirement of the Civil War-era Lieber Code and the Hague and Geneva Conventions of the 20th century. Today it is bedrock of army regulations and written into the service field manuals. US military academies teach it to officers, and it is a part of basic training.
Humane treatment of the enemy was a cornerstone of our stateside POW camps in World War II, including at Fort McKay in Boston, where Italian enemy combatants were held.
Do soldiers fall short of these ideals from time to time? Certainly. Some broke faith at Guantanamo, at Bagram, at Abu Ghraib, and in the Pentagon. Such people are unusual: We used to hear about them in courts martial and military tribunals. The Japanese commander Yamashita was hanged for failing to control subordinates who abused prisoners. We applied the same rules to our own. One-hundred-and-eight years ago, Army Major Edwin Glenn water-boarded prisoners during the Philippine insurrection. "I was fighting an insurgency!" he protested. Unimpressed, the military court convicted him.
My own take is limited. But I have to wonder if a few meetings with the military has taught me more of their culture than the president has learned. At Guantanamo I've met scores of soldiers, sailors, Marines. Is it reasonably foreseeable that any of my escorts would torture the enemy? I would deny it under oath.
How do you take down a great soldier? Shakespeare knew - you filch his good name, which leaves him "poor indeed," as the playwright put it in "Othello," his masterpiece about a general brought low. I think we all owe the military an apology. Here's mine. As a citizen, I deny the insult dealt your way by the Justice Department. As a lawyer, I regret its acceptance by the court.
Many innocents have suffered the consequences of this administration's disastrous foreign policy. Some are at Guantanamo; as we now know, on both sides of the wire.
Sabin Willett is a partner at Bingham McCutchen, which represents Guantanamo prisoners.
February 27, 2008 By Sabin Willett
Torture began to steal a march on us soon after Sept. 11, 2001. Born in fringe scholarship (No organ failure, no foul, according to former Justice Department official John Yoo), nurtured by fringe debate ("Waterboarding works! Film at 11!"), it made its way to the academy (Time bombs are ticking, worried Professor Alan Dershowitz), and by slow degrees to Capitol Hill (Too close to call, said Attorney General Michael B. Mukasey).
Last month the United States took the logical last step and gave torture judicial recognition. A federal appeals court in Washington announced that when US armed forces take custody of prisoners, it is reasonable to foresee that they will torture them.
The case is Rasul v. Wright. Former Guantanamo prisoners said they had been tortured, and sued the alleged torturers for damages. Such lawsuits raise technical preliminaries. If the claim is really one against the government itself, different procedures apply. That turns on whether the government agents acted in the "scope of their employment." Which poses a question that, not so long ago, would have been unthinkable to ask: When an enemy prisoner is held by US troops, is it reasonably foreseeable that he will be tortured?
"Yes," argued President Bush's lawyers. "Incidental to their duties," the court agreed. This presumption is what we lawyers call "a matter of law." No facts need be heard - we should assume this about every soldier, airman, sailor, or Marine who wears the uniform.
Now it may seem odd that a lawyer who represents prisoners at Guantanamo finds this insult to our military the last straw, but the so-called "war on terror" makes for strange bedfellows. It has long been clear that the honor of our military means nothing to the president's men. With the court in bland agreement, someone has to speak on their behalf.
It is not easy to dishonor military culture - for one thing, you have to ignore centuries of history. Five months after we declared our independence, General Washington captured Hessian enemy combatants at Trenton. "Treat them humanely - let no dishonor come to us," he said. From that day until Sept. 11, 2001, an abhorrence of torture has been the military's hallmark. It was a strict requirement of the Civil War-era Lieber Code and the Hague and Geneva Conventions of the 20th century. Today it is bedrock of army regulations and written into the service field manuals. US military academies teach it to officers, and it is a part of basic training.
Humane treatment of the enemy was a cornerstone of our stateside POW camps in World War II, including at Fort McKay in Boston, where Italian enemy combatants were held.
Do soldiers fall short of these ideals from time to time? Certainly. Some broke faith at Guantanamo, at Bagram, at Abu Ghraib, and in the Pentagon. Such people are unusual: We used to hear about them in courts martial and military tribunals. The Japanese commander Yamashita was hanged for failing to control subordinates who abused prisoners. We applied the same rules to our own. One-hundred-and-eight years ago, Army Major Edwin Glenn water-boarded prisoners during the Philippine insurrection. "I was fighting an insurgency!" he protested. Unimpressed, the military court convicted him.
My own take is limited. But I have to wonder if a few meetings with the military has taught me more of their culture than the president has learned. At Guantanamo I've met scores of soldiers, sailors, Marines. Is it reasonably foreseeable that any of my escorts would torture the enemy? I would deny it under oath.
How do you take down a great soldier? Shakespeare knew - you filch his good name, which leaves him "poor indeed," as the playwright put it in "Othello," his masterpiece about a general brought low. I think we all owe the military an apology. Here's mine. As a citizen, I deny the insult dealt your way by the Justice Department. As a lawyer, I regret its acceptance by the court.
Many innocents have suffered the consequences of this administration's disastrous foreign policy. Some are at Guantanamo; as we now know, on both sides of the wire.
Sabin Willett is a partner at Bingham McCutchen, which represents Guantanamo prisoners.