Column No. 19 By Steven Jonas, MD, MPH – July 1, 2004

On Jan. 25, 2002, the Counsel to the President, Alberto Gonzales, sent President George Bush a memo in which he warned the President about a United States law, the War Crimes Act of 1996 (18 U.S.C. 2441).  That law prohibits the commission of “war crimes” by any U.S. officials or other personnel.  Included in the definition are any violations of the Geneva Conventions concerning the treatment of prisoners of war.  Gonzales told the President that the Justice Department had concluded that the Geneva Conventions did not apply to any apprehended members of al Qaeda.  He also advised the President that the State Dept. did not agree with Justice.  He proposed to the President that he make a determination that the Conventions did not apply to the Taliban or members of al Qaeda.

In Gonzales’ view, the “war on terror” had rendered certain sections of the Conventions obsolete; “quaint” was a descriptor he used.  One John Yoo, a University of California law professor on leave with the Justice Department, had begun working on ways and means for the US to avoid being charged with war crimes in reference to how certain prisoners taken in Afghanistan were treated in the fall of 2001, as the invasion of Afghanistan was getting under way.  Why might he need to have done this?  Because, according to The New Yorker’s Seymour Hersh’s sources at least, Secretary of Defense Donald Rumsfeld had authorized an approach to prisoner treatment that included physical coercion and sexual humiliation.  The Pentagon denied these charges, of course.  But if such a plan did not exist, why on earth would they have had a legal defense for its implementation prepared?

We now know that the plan was instituted in Afghanistan and then transferred via Guantanamo to Iraq.  That transfer lead inexorably to the Abu Ghraib outrage.  We thus also know that what we saw in those first horrifying photos was not the work of a “few bad apples” among enlisted personnel, carrying out these atrocities on their own initiative, but rather the product of more than a few bad apples fairly high up in the Bush Administration.  The primary question from the beginning has been; how high up the chain of command do knowledge and responsibility go?

The Pentagon, and the CIA, asked for legal rulings justifying the use of what most observers, as well as the usual interpretations of the Geneva Conventions, would term torture. Rumsfeld himself was involved.  That put the chain of command knowledge level pretty high.  If it did not go so very high, why was the Counsel to the President briefing Bush on the legal issues involved?  These are matters that have been and are being dealt with in great detail elsewhere.  In this column, I take a brief look at certain Constitutional issues raised by the whole sordid mess.

Article VI of the Constitution says, among other things, that: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the Untied States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.” Sect. 2, Article II, empowers the President “. . . by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur. . . .” The clause from Article VI quoted above has always been interpreted to mean that treaties are part of the Constitution.

The oath of office for the President is found in the Constitution, at the end of Article II, Sect 1.  It says: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”  The impeachment provision is found in Section 4 of the same article: “The President, Vice-President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”  One would think that violation of one’s oath, as found in the Constitution itself, would constitute a high crime or at least a misdemeanor.

Yoo was working on ways to have US personnel avoid charges of committing war crimes.  Jay Bybee, now a Federal Appeals Court judge, of the Office of Legal Council of the Justice Department, the federal government’s ultimate legal advisor, wrote the principal memo that Gonzales used in advising the President.  He decided that certain provisions of the Conventions were “outdated” and “quaint.” Further, he told the President that with a simple re-labeling of persons captured in Afghanistan from “prisoners of war” to something else and a redefinition of “torture,” provisions of US law (passed by a Republican Congress and signed by a Democratic President, by the way) concerning the commission of war crimes could be by-passed.

In addition, a group of Pentagon lawyers told Rumsfeld that “inherent” in the President’s power as Commander-in-Chief, in war-time, was the authority to authorize essentially anything he wanted to, regardless of US law or treaties.  In this case too, even if such power could be found anywhere in the Constitution (and I looked hard in Article I, Sect. 2 that defines those powers -- and couldn’t find it) it happens that the only US government entity empowered to declare war is the Congress.  Although the President and Fox News say over and over again that “we’re at war,” we are not, at least in Constitutional terms.

In the eyes of most of the rest of the world, what Gonzales, Woo, Bybee, Ashcroft and Rumsfeld’s lawyers did was unilaterally to amend a series of treaties.  And they did this without bothering even to inform, much less negotiate with, our treaty partners (most of the countries in the world).  Since treaties are part of the Constitution, they were thus also unilaterally amending the Constitution without bothering to go through the amendment process.  To this was added the interesting “inherent powers” doctrine that does the same thing.  But the Bush folks are not strangers to amending the Constitution at the stroke of a pen.  The USA Patriot Act does the same to Constitutional rights at home.  I have previously pointed out in this space that the Act voids rights under the Fourth, Fifth, and Sixth Amendments, thus amending the Constitution by de facto repealing of those amendments.  It also amends the last clause of Article III, Sect. 2, in the body, to wit “The trial of all crimes, except in cases of impeachment, shall be by jury . . . . “

It is breathtaking that, with reference to torture, all of these lawyers were looking for ways around treaty obligations and US law that they recognized existed.  (It should be noted that other government lawyers, for example from the Army’s Judge Advocate General’s Office and from the State Department, were horrified by all of this.)  But the most disturbing aspect of this is that, according to Ashcroft’s Justice Department, all of these actions, from the endorsement of the use of torture in the face of our treaty obligations, to the suspension of Constitutional rights under the USA Patriot Act, allegedly are and can be done on Presidential authority alone.

There are two major issues here.  One is that, if Bush, on Gonzales’ advice, authorized the breaking of the Geneva Conventions, since they are part of the Constitution, that is an impeachable offense.  The other, even more important in my view, is that what is going on here is the substitution of the Rule of Man for the Rule of Law.  This is a very serious threat to every US citizen, and other persons for that matter residing in the United States, as well as to US captives abroad.

Under this doctrine, the President, on his own authority, labels you or re-labels you something in a new category and then all of a sudden you live outside of the protections of the US Constitution, whether those protections are to be found in its body or in treaties that become part of it, as determined by the President under something called “inherent powers.”  Since the President would have leave to define those powers in any manner he would see fit, to come up with such a concept is to endorse explicitly the substitution of the Rule of Man for the Rule of Law.  In so doing, the process also explicitly endorses the eventual end to American Constitutional Democracy, which rests on the bedrock of the Rule of Law, as we have known it.

This, in my view, is the most important single issue facing the American electorate in the upcoming election.  The Georgites have rewritten the Constitution on their own authority.  “We’ll tell you what rights you have and what rights you don’t have, and once we tell you that you don’t have any, we can do whatever we want to with you, whether it’s torture by another name or indefinite imprisonment without charges and without recourse.”  It seems to me that an Executive undertaking to act in just this manner was a major factor in a Revolution that began around 1776.

I do hope very much that Senator Kerry wakes up to what is truly at stake here, soon, and then makes it a central issue of his campaign.