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Terror-War Wackiness
Published on Friday, July 14, 2006 by the Los Angeles Times
Terror-War Wackiness
The White House intends to comply with the Supreme Court decision on detainees by turning the truth upside down.
by Rosa Brooks
 

In those 12 terrible days following the U.S. Supreme Court's Hamdan decision which thoroughly eviscerated the White House's Orwellian "war on terror" legal framework the Bush administration's warrior priests went through a brief but intense period of mourning.

Donald Rumsfeld rented his garments and ordered the ritual "water-boarding" of 100 Army JAG officers. Alberto Gonzales woke screaming in the night after a chilling visitation from the Ghost of Treaties Quaint. And W pensively re-read "My Pet Goat," wondering how the story that began so sweetly that September day could have turned out so terribly wrong.

But John Yoo, a leading proponent of presidential "flexibility," refused to despair. Yoo gained notoriety as an author of the infamous "torture memo," which laid out novel legal justifications for detainee abuse. And he wasn't about to let all his handiwork be undone by a handful of activist judges.

The high court, Yoo insisted, was doing the unforgivable: It was "attempting to suppress creative thinking." Was the "bring 'em on" White House just going to knuckle under?

The warrior priests regrouped, chanting, "Quitting is not an option." And on the 13th day, the period of mourning ended and the era of creativity resumed.

At first, the renaissance of Bush administration legal creativity was not apparent to the uninitiated. On July 11, the White House released a terse statement reversing a portion of a 2002 executive order in which the president had declared that "Common Article 3 of [the Geneva Convention] does not apply to either Al Qaeda or Taliban detainees."

On the surface, the July 11 White House statement appeared ploddingly unimaginative: "As a result of the Supreme Court decision, that portion of the [2002] order no longer applies. The Supreme Court has clarified what the law is, and the executive branch will comply."

The press rushed to report the astonishing news: The president was going to obey the Supreme Court! "Bowing to Justices, Administration Says It Will Apply Treaties to Terror Suspects," trumpeted the Washington Post. No more naked detainees led around on dog leashes! No more mock executions or sadistic experiments with "dietary modification"!

The rule of law had triumphed. Contrary to the fears of many, Bush had not, after all, emulated President Andrew Jackson, who is said to have responded to an unpopular 1832 decision, handed down by the legendary Chief Justice John Marshall, with a cold shrug, saying: "John Marshall has made his decision; now let him enforce it."

But the media had forgotten that it takes far more than a Supreme Court order to kill this administration's legal creativity.

At the White House, spokesman Tony Snow swiftly declared that the apparent about-face was "not really a reversal of policy" because the Supreme Court decision is "complex."

On Capitol Hill, Daniel Dell'Orto, the principal deputy general counsel at the Pentagon, elaborated: A Defense Department order stating that Common Article 3 now "applies as a matter of law to the conflict with Al Qaeda" didn't "indicate a shift in policy." Oh, no, oh, no the memo "just announces the decision of the court and with specificity as to the decision as it related to the commission process."

Perplexed by the gobbledygook and contradiction had the administration agreed to obey the Supreme Court and provide the protections of the Geneva Convention's Common Article 3 to detainees, or hadn't it? the media began to lose interest.

It was, after all, so very complex.

It was left to blogger Marty Lederman to explain the genius of it all. "Now that the administration has lost its fight to deny the applicability of Common Article 3" to the war on terror, Lederman explained, "its new tactic appears to be to insist that its approved detainee interrogation practices have what do you know? complied with Common Article 3" all along!

Here's the "logic."

The president has always insisted that we are treating all detainees humanely.

To the president, "humane" interrogation techniques include dog leashes, water-boarding and measures such as forcing a prisoner "to stand naked in a cell kept near 50 degrees" while he is repeatedly "doused with cold water."

Because Common Article 3 requires that detainees be treated "humanely," such techniques being as the president says, humane satisfy Common Article 3.

And because they are "humane," such techniques obviously cannot be understood as constituting "cruel treatment and torture" or "outrages upon personal dignity, in particular humiliating and degrading treatment," which are explicitly forbidden by the remaining language of Common Article 3.

Which in turn means that Bush administration compliance with the Supreme Court's decision in Hamdan requires no change in policy whatsoever.

Still don't get it, do you? Maybe you're something of a philistine, incapable of appreciating great legal art?

Don't despair. During Tuesday's Senate hearings on detainee rights, Justice Department representative Steven Bradbury thoughtfully provided a Cliffs Notes version of the administration's latest creative masterpiece. "Under the law of war," he explained, "the president is always right."

Creativity means never having to say you're sorry.

Rosa Brooks is a professor at the Georgetown University Law Center.

© 2006 Los Angeles Times

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